CASE ASSIGNMENTS (EXECUTIVE DEPARTMENT): 1. Marcos vs. Manglapus, GR 88211, Oct. 27, 1989 2. Estrada vs.

Desierto, GR 146738, March 2, 2001 3. Senate vs. Ermita, GR 169777, April 20, 2006 4. Neri vs. Senate, GR 180643, Sept. 5, 2008 5. Macalintal vs. Comelec, GR 157013, July 10, 2003 6. Lopez vs. Senate and House, GR 163556, June 8, 2004 7. Pimentel vs. Joint Committee, GR 163783, June 22, 2004 8. Civil Liberties Union vs. Executive Secretary, GR 83896, Feb. 22, 1991 9. Bitonio vs. COA, GR 147392, March 12, 2004 10. Doromal vs. Sandiganbayan, GR 85468, Sept. 7, 1989 11. Public Interest Group vs. Elma, GR 138965, Jan. 30, 2006 12. Sarmiento vs. Mison, GR 79974, Dec. 17, 1987 13. Binamira vs. Garrucho, GR 92008, July 30, 1990 14. Matibag vs. Benipayo, GR 149036, April 2, 2002 15. Calderon vs. Carale, GR 91636, April 23, 1992 16. Tarrosa vs. Singson, GR 111243, May 25, 1994 17. Pimentel vs. Ermita, GR 164978, Oct. 13, 2005 18. Anak Mindanao vs. Executive Secretary, GR 166052, Aug. 29, 2007 19. Malaria Employees vs. Executive Secretary, GR 160093, July 31, 2007 20. Orosa vs. Roa, GR 14047, July 14, 2006 21. Lacson vs. Secretary Perez, GR 147780, May 10, 2001 22. David vs. Ermita, GR 171409, May 3, 2006 23. IBP vs. Zamora, GR 141289, Aug. 15, 2000 24. Gudani vs. Senga, GR 170165, April 15, 2006 25. Bayan vs. Executive Secretary, GR 138570, Oct. 10, 2000 26. Arturo M. De Castro vs. JBC, GR 191002, March 17, 2010

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88211 September 15, 1989 FERDINAND E. MARCOS, IMELDA R. MARCOS, petitioners, vs. HONORABLE RAUL MANGLAPUS, , 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. The Petition

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 can not 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. 34.]

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.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 146710-15 March 2, 2001 JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES

FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. ---------------------------------------G.R. No. 146738 March 2, 2001 JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent. PUNO, J.: On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria MacapagalArroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term commencing on June 30, 1998. From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1 The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation. 2 The House of Representatives did no less. The House Committee on Public Order and Security, then headed by Representative Roilo Golez, decided to investigate the expos of Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the petitioner. Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to resign. The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10 The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment 11 signed by 115 representatives, or more than 1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was

unseated by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13 The political temperature rose despite the cold December. On December 7, the impeachment trial started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment agreement with their bank on February 4, 2000. 15 After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven (11) senators. On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion.20 January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more people.21 On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government." 23 A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement. 24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced he was ordering his lawyers to

agree to the opening of the highly controversial second envelope. 26 There was no turning back the tide. The tide had become a tsunami. January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and orderly transfer of power started at Malacaang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in stonethrowing and caused minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine. At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace.29 He issued the following press statement:30 "20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in to promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA" It also appears that on the same day, January 20, 2001, he signed the following letter: 31 "Sir: By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-President shall be the Acting President. (Sgd.) JOSEPH EJERCITO ESTRADA" A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33 On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC, to wit: "A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20, 2001. This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper party." Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d' honneur at

Malacaang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government.36 On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation's goals under the Constitution."39 On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later, she also signed into law the Political Advertising ban and Fair Election Practices Act.41 On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. 43 Senators Miriam DefensorSantiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46 On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the resolution left open the question of whether Estrada was still qualified to run for another elective post.48 Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50 After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 000-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption. A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15." On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous replies. In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: "(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution; (2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and (3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic." 53 The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision. The bedrock issues for resolution of this Court are: I Whether the petitions present a justiciable controversy. II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President. III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution. IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity. We shall discuss the issues in seriatim. I Whether or not the cases At bar involve a political question Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through

people power; that she has already taken her oath as the 14 th President of the Republic; that she has exercised the powers of the presidency and that she has been recognized by foreign governments. They submit that these realities on ground constitute the political thicket, which the Court cannot enter. We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century, the political question doctrine which rests on the principle of separation of powers and on prudential considerations, continue to be refined in the mills of constitutional law. 55 In the United States, the most authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz: "x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of 'political questions', not of 'political cases'." In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the inner and outer perimeters of a political question. 57 Our leading case is Tanada v. Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. 59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x." Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino, et al. 61 and related cases62 to support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution. 64 In her oath, she categorically swore to preserve and defend the 1987 Constitution.

Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987 Constitution.1wphi1.nt In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise of people power of freedom of speech and freedom of assembly to petition the government for redress of grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of association for purposes of human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66 Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz: "Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances." The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and necessary consensus." 69 In this sense, freedom of speech and of assembly provides a framework in which the "conflict necessary to the progress of a society can take place without destroying the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that " it should be clear even to those with intellectual deficits that when the sovereign people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their grievances are ciphers." Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section 11 76 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is

emphatically the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the dark. II Whether or not the petitioner Resigned as President We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her oath as President. The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides: "Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice President shall have been elected and qualified. x x x." The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20, 2001 when respondent took her oath as the 14 th President of the Public. Resignation is not a high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated Malacaang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. Using this totality test, we hold that petitioner resigned as President. To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of events after the expos of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry. As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire. As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.

Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The proposal for a snap election for president in May where he would not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the palace." 85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His mind was already concerned with the five-day grace period he could stay in the palace. It was a matter of time. The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the reaction of the petitioner, viz: "x x x I explain what happened during the first round of negotiations. The President immediately stresses that he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his name. If the envelope is opened, on Monday, he says, he will leave by Monday. The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go."88 Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation. The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: "Opposition's deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this round, I am accompanied by Dondon Bagatsing and Macel. Rene pulls out a document titled "Negotiating Points." It reads: '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the Republic of the Philippines. 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new administration shall commence, and persons designated by the Vice President to various positions and offices of the government shall start their orientation activities in coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice President as national military and police authority effective immediately. 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the President and his family as approved by the national military and police authority (Vice President). 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant to the request to the Senate President. Our deal We bring out, too, our discussion draft which reads: The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows: '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo. '2. In return, President Estrada and his families are guaranteed security and safety of their person and property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee freedom from persecution or retaliation from government and the private sector throughout their natural lifetimes. This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of Staff, as approved by the national military and police authorities Vice President (Macapagal). '3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize the opening of the second envelope in the impeachment trial as proof that the subject savings account does not belong to President Estrada. '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet officials as part of the orientation program. During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice President (Macapagal) as national military and police authorities. Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the necessary signatures as affixed to this agreement and insure faithful implementation and observance thereof. Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for in "Annex A" heretofore attached to this agreement." 89 The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90 "xxx 11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points to effect a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices in the background. Agreement. The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic of the Philippines. xxx The rest of the agreement follows: 2. The transition process for the assumption of the new administration shall commence on 20 January 2001, wherein persons designated by the Vice President to various government positions shall start orientation activities with incumbent officials. '3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security of the President and his families throughout their natural lifetimes as approved by the national military and police authority Vice President. '4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the impeachment trial, the contents of which shall be offered as proof that the subject savings account does not belong to the President. The Vice President shall issue a public statement in the form and tenor provided for in Annex "B" heretofore attached to this agreement. 11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and awaiting the signature of the United opposition. And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon. 'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the agreement)?' I asked. Reyes answered: 'Wala na, sir (it's over, sir).' I ask him: Di yung transition period, moot and academic na?' And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).' Contrary to subsequent reports, I do not react and say that there was a double cross. But I immediately instruct Macel to delete the first provision on resignation since this matter is already moot and academic. Within moments, Macel erases the first provision and faxes the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes. I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other side, as it is important that the provisions on security, at least, should be respected. I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the oath to Gloria at 12 noon. The President is too stunned for words: Final meal 12 noon Gloria takes her oath as president of the Republic of the Philippines. 12:20 p.m. The PSG distributes firearms to some people inside the compound. The president is having his final meal at the presidential Residence with the few friends and Cabinet members who have gathered. By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the PSG is there to protect the Palace, since the police and military have already withdrawn their support for the President. 1 p.m. The President's personal staff is rushing to pack as many of the Estrada family's personal possessions as they can. During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving Malacaang. The statement reads: At twelve o'clock noon today, Vice President Gloria MacapagalArroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and our beloved people. MABUHAY!"' It was curtain time for the petitioner. In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacaang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the

people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: "Sir. By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice President shall be the Acting president. (Sgd.) Joseph Ejercito Estrada" To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is another reason why this Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number III of this Decision. After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act, which allegedly prohibits his resignation, viz: "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery." A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as section 15: "Sec. 15. Termination of office No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery. The separation or cessation of a public official form office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency." 93 The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the provision and insisted that the President's immunity should extend after his tenure. Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate on the prohibition against the resignation or retirement of a public official with pending criminal

and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a violation of his constitutional right. 94 A public official has the right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid prosecution. There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President. Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time petitioner resigned because the process already broke down when a majority of the senator-judges voted against the opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned. III Whether or not the petitioner Is only temporarily unable to Act as President. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella. Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate authority under the Constitution to determine whether the President is incapable of performing his functions in the manner provided for in section 11 of article VII." 95 This contention is the centerpiece of petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President. An examination of section 11, Article VII is in order. It provides: "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the VicePresident as Acting President. Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the VicePresident shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall

decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call. If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office." That is the law. Now, the operative facts: 1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and Speaker of the House; 2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at about 12:30 p.m.; 3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution No. 175;96 On the same date, the House of the Representatives passed House Resolution No. 17697 which states: "RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police and majority of his cabinet had withdrawn support from him; WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice Hilario G. Davide, Jr.; WHEREAS, immediately thereafter, members of the international community had extended their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing and reconciliation with justice for the purpose of national unity and development; WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus by reason of the constitutional duty of the House of Representatives as an institution and that of the individual members thereof of fealty to the supreme will of the people, the House of Representatives must ensure to the people a stable, continuing government and therefore must remove all obstacles to the attainment thereof; WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of national reconciliation and solidarity as it is a direct representative of the various segments of the whole nation; WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the House of Representatives to extend its support and collaboration to the administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national interest demanding no less: Now, therefore, be it Resolved by the House of Representatives, To express its support to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its congratulations and to express its support for her administration as a partner in the attainment of the Nation's goals under the Constitution. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on January 24, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines; WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having served the government in various capacities, among others, as Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the Philippines qualities which merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the Philippines. Adopted, (Sgd.) FELICIANO BELMONTE JR. Speaker This Resolution was adopted by the House of Representatives on February 7, 2001. (Sgd.) ROBERTO P. NAZARENO Secretary General" (4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate signed the following: "RESOLUTION WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change and challenge; WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of purpose and resolve cohesive resolute (sic) will; WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity despite diversities in perspectives; WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99 On February 7, the Senate also passed Senate Resolution No. 82100 which states: "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency of Vice President Gloria Macapagal-Arroyo; WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such vacancy shall nominate a Vice President from among the members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all members of both Houses voting separately; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and courage; who has served the Filipino people with dedicated responsibility and patriotism; WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served the government in various capacities, among others, as

Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be it Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the Republic of the Philippines. Adopted, (Sgd.) AQUILINO Q. PIMENTEL JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states: "RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus officio and has been terminated. Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved. Resolved, further, That the records of the Impeachment Court including the "second envelope" be transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the Senate president. Resolved, finally. That all parties concerned be furnished copies of this Resolution. Adopted, (Sgd.) AQUILINO Q. PIMENTEL, JR. President of the Senate This Resolution was adopted by the Senate on February 7, 2001. (Sgd.) LUTGARDO B. BARBO Secretary of the Senate" (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13 th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.' (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President. (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary. What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as president of the Philippines. Following Taada v. Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of powers. In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court.

IV Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil. Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either that a person injured by the executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the contrary, it means, simply, that the governors-general, like the judges if the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed in the performance of his official duties. The judiciary has full power to, and will, when the mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission of the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, be acts, not as Governor-General but as a private individual, and as such must answer for the consequences of his act." Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government itself."105 Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for official acts done by him or by others pursuant to his specific orders during his tenure. The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this Constitution. In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the existing law on executive privilege. To quote his disquisition: "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the absolute immunity concept. First, we extended it to shield the President not only form civil claims but also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of the President outside the scope of official duties. And third, we broadened its coverage so as to include not only the President but also other persons, be they government officials or private individuals, who acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS (or absolute immunity defense syndrome)." The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong."107 The effort failed. The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108 "Mr. Suarez. Thank you. The last question is with reference to the Committee's omitting in the draft proposal the immunity provision for the President. I agree with Commissioner Nolledo that the Committee did very well in striking out second sentence, at the very least, of the original provision on immunity from suit under the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first sentence that the President shall be immune from suit during his tenure, considering that if we do not provide him that kind of an immunity, he might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost daily? Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that during his tenure he is immune from suit. Mr. Suarez. So there is no need to express it here. Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution was to make that explicit and to add other things. Mr. Suarez. On that understanding, I will not press for any more query, Madam President. I think the Commissioner for the clarifications." We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio." 109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional Commission make it clear that when impeachment proceedings have become moot due to the resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110 "xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgement of conviction has been rendered by the impeachment court or by the body, how does it affect the impeachment proceeding? Will it be necessarily dropped? Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation would render the case moot and academic. However, as the provision says, the criminal and civil aspects of it may continue in the ordinary courts." This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan 112 and related cases113 are inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a nonsitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with posttenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.114 Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others, that the President was not subject to judicial process and that he should first be impeached and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones 117 where it held that the US President's immunity from suits for money damages arising out of their official acts is inapplicable to unofficial conduct. There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruptio."119 it ordained that "public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest lives." 120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by prescription, latches or estoppel." 121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust improper or inefficient." 123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional policies will

be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency. V Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc. This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that: "We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism. Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality. At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a bar, the records do not show that the trial judge developed actual bias against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.' We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz: "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation.

xxx The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was xxx a. The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized when a shocking crime occurs a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion. To work effectively, it is important that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. b. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedom such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. c. Even though the Constitution contains no provision which be its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias

for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied) Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias of their superior. Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court. VI. Epilogue A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best form of government, it is because it has respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria th Macapagal-Arroyo as the de jure 14 President of the Republic are DISMISSED. SO ORDERED

G.R. No. 169777* SENATE Petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in behalf of the President of the Philippines, Respondents. x-------------------------x DECISION CARPIO MORALES, J.: A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings of one man, in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished."1 History has been witness, however, to the fact that the power to withhold information lends itself to abuse, hence, the necessity to guard it zealously. The present consolidated petitions for certiorari and prohibition proffer that the President has abused such power by issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus pray for its declaration as null and void for being unconstitutional. In resolving the controversy, this Court shall proceed with the recognition that the issuance under review has come from a co-equal branch of government, which thus entitles it to a strong presumption of constitutionality. Once the challenged order is found to be indeed violative of the Constitution, it is duty-bound to declare it so. For the Constitution, being the highest expression of the sovereign will of the Filipino people, must prevail over any issuance of the government that contravenes its mandates. In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP). On September 21 to 23, 2005, the Committee of the Senate as a whole issued invitations to various officials of the Executive Department for them to appear on September 29, 2005 as resource speakers in a public hearing on the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group (hereinafter North Rail Project). The public hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging the Senate to investigate the alleged overpricing and other unlawful provisions of the contract covering the North Rail Project. The Senate Committee on National Defense and Security likewise issued invitations 2 dated September 22, 2005 to the following officials of the AFP: the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as resource persons in a public hearing scheduled on September 28, 2005 on the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal Resolution Directing the Committee on

Republic of the Philippines SUPREME COURT Manila EN BANC April 20, 2006 OF THE PHILIPPINES,

National Defense and Security to Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by Senator Biazon Resolution Directing the Committee on National Defense and Security to Conduct an Inquiry, in Aid of Legislation, on the Wire-Tapping of the President of the Philippines. Also invited to the above-said hearing scheduled on September 28 2005 was the AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to other urgent operational matters." On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail project] to which various officials of the Executive Department have been invited" in order to "afford said officials ample time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee on its investigation." Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were completed [the previous] week." Senate President Drilon likewise received on September 28, 2005 a letter 6 from the President of the North Luzon Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the NorthRail project be postponed or cancelled until a copy of the report of the UP Law Center on the contract agreements relative to the project had been secured. On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," 7 which, pursuant to Section 6 thereof, took effect immediately. The salient provisions of the Order are as follows: SECTION 1. Appearance by Heads of Departments Before Congress. In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session. SECTION. 2. Nature, Scope and Coverage of Executive Privilege. (a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest. Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including: Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002); Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998). Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998); Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. The following are covered by this executive order: Senior officials of executive departments who in the judgment of the department heads are covered by the executive privilege; Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of Staff are covered by the executive privilege; Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the judgment of the Chief of the PNP are covered by the executive privilege; Senior national security officials who in the judgment of the National Security Adviser are covered by the executive privilege; and Such other officers as may be determined by the President. SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied) Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]" and that "said officials have not secured the required consent from the President." On even date which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National Defense and Security, informing him "that per instruction of [President Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional hearings without seeking a written approval from the President" and "that no approval has been granted by the President to any AFP officer to appear before the public hearing of the Senate Committee on National Defense and Security scheduled [on] 28 September 2005." Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. For defying President Arroyos order barring military personnel from testifying before legislative inquiries without her approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face court martial proceedings. As to the NorthRail project hearing scheduled on September 29, 2005, Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the invitations sent to the following government officials: Light Railway Transit Authority Administrator Melquiades Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas Gutierrez, Department of Transportation and Communication (DOTC) Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza, Philippine National Railways General Manager Jose Serase II, Monetary Board Member Juanita Amatong, Bases Conversion Development Authority Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets likewise citing E.O. 464.11 On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and 169667, for certiorari and prohibition, were filed before this Court challenging the constitutionality of E.O. 464. In G.R. No. 169659, petitioners party-list Bayan Muna, House of Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of government employees, and Counsels for the Defense of Liberties (CODAL), a group of lawyers dedicated to the promotion of justice, democracy and peace, all claiming to have standing to file the suit because of the transcendental importance of the issues they posed, pray, in their petition that E.O. 464 be declared null and void for being unconstitutional; that respondent Executive Secretary Ermita, in his capacity as Executive Secretary and alter-ego of President Arroyo, be prohibited from imposing, and threatening to impose sanctions on officials who appear before Congress due to congressional summons. Additionally, petitioners claim that E.O. 464 infringes on their rights and impedes them from fulfilling their

respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its right as a political party entitled to participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws; Courage alleges that the tenure of its members in public office is predicated on, and threatened by, their submission to the requirements of E.O. 464 should they be summoned by Congress; and CODAL alleges that its members have a sworn duty to uphold the rule of law, and their rights to information and to transparent governance are threatened by the imposition of E.O. 464. In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for being unconstitutional. In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG), alleging that as a coalition of 17 legal resource non-governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right which was denied to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional and that respondent Executive Secretary Ermita be ordered to cease from implementing it. On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its continued enforcement since it directly interferes with and impedes the valid exercise of the Senates powers and functions and conceals information of great public interest and concern, filed its petition for certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be declared unconstitutional. On October 14, 2005, PDP-Laban, a registered political party with members duly elected into the Philippine Senate and House of Representatives, filed a similar petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that it is affected by the challenged E.O. 464 because it hampers its legislative agenda to be implemented through its members in Congress, particularly in the conduct of inquiries in aid of legislation and transcendental issues need to be resolved to avert a constitutional crisis between the executive and legislative branches of the government. Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied, however, by letter 15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once [their] request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was cancelled. 16 In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26, November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and those from the Department of Budget and Management18 having invoked E.O. 464. In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government Undersecretary Marius P. Corpus 21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O. 464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary Ermita. On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing, enforcing, and observing E.O. 464. In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated: (1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not taken up; instead, the parties were instructed to discuss it in their respective memoranda. After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22 Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum. Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest of having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29 Petitioners submit that E.O. 464 violates the following constitutional provisions: Art. VI, Sec. 2130 Art. VI, Sec. 2231 Art. VI, Sec. 132 Art. XI, Sec. 133 Art. III, Sec. 734 Art. III, Sec. 435 Art. XIII, Sec. 16 36 Art. II, Sec. 2837 Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit. The Court synthesizes the issues to be resolved as follows: 1. Whether E.O. 464 contravenes the power of inquiry vested in Congress; 2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and 3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation. Essential requisites for judicial review Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a valid exercise of the Courts power of judicial review are present is in order. 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 standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.39 Except with respect to the requisites of standing and existence of an actual case or controversy where the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted. Standing Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called by the different

committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464. As for Bayan Munas alleged interest as a party-list representing the marginalized and underrepresented, and that of the other petitioner groups and individuals who profess to have standing as advocates and defenders of the Constitution, respondents contend that such interest falls short of that required to confer standing on them as parties "injured-in-fact."40 Respecting petitioner Chavez, respondents contend that Chavez may not claim an interest as a taxpayer for the implementation of E.O. 464 does not involve the exercise of taxing or spending power.41 With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the proper parties to assail the constitutionality of E.O. 464. Invoking this Courts ruling in National Economic Protectionism Association v. Ongpin 42 and Valmonte v. Philippine Charity Sweepstakes Office, 43 respondents assert that to be considered a proper party, one must have a personal and substantial interest in the case, such that he has sustained or will sustain direct injury due to the enforcement of E.O. 464.44 That the Senate of the Philippines has a fundamental right essential not only for intelligent public decision-making in a democratic system, but more especially for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making.46 Verily, the Senate, including its individual members, has a substantial and direct interest over the outcome of the controversy and is the proper party to assail the constitutionality of E.O. 464. Indeed, legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes their prerogatives as legislators.47 In the same vein, party-list representatives Satur Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are allowed to sue to question the constitutionality of E.O. 464, the absence of any claim that an investigation called by the House of Representatives or any of its committees was aborted due to the implementation of E.O. 464 notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigation in aid of legislation and conduct oversight functions in the implementation of laws. The national political party, Bayan Muna, likewise meets the standing requirement as it obtained three seats in the House of Representatives in the 2004 elections and is, therefore, entitled to participate in the legislative process consonant with the declared policy underlying the party list system of affording citizens belonging to marginalized and underrepresented sectors, organizations and parties who lack well-defined political constituencies to contribute to the formulation and enactment of legislation that will benefit the nation.48 As Bayan Muna and Representatives Ocampo et al. have the standing to file their petitions, passing on the standing of their co-petitioners Courage and Codal is rendered unnecessary.49 In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent members of the IBP Board of Governors and the IBP in behalf of its lawyer members,50 invoke their constitutional right to information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is essential to the effective exercise of other constitutional rights51 and to the maintenance of the balance of power among the three branches of the government through the principle of checks and balances.52 It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws, presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of Representatives, 53 this Court held that

when the proceeding involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal interest. As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) 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 the government, and (3) the lack of any party with a more direct and specific interest in raising the questions being raised.54 The first and last determinants not being present as no public funds or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares with the rest of the political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution. 55 In fine, PDP-Labans alleged interest as a political party does not suffice to clothe it with legal standing. Actual Case or Controversy Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy. Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005, respondents claim that the instruction not to attend without the Presidents consent was based on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464. Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for challenging the validity of E.O. 464. The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from the President in order to bar officials from appearing before Congress. As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on the constitutionality of E.O. 464. Constitutionality of E.O. 464 E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the information in the possession of these officials. To resolve the question of whether such withholding of information violates the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of inquiry, is in order. The power of inquiry The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. (Underscoring supplied) This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate. Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court held: Although there is no provision in the Constitution expressly investing either House of Congress with power to make investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information which is not infrequently true recourse must be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion is essential to obtain what is needed. 59 . . . (Emphasis and underscoring supplied) That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case. The power of inquiry, the Court therein ruled, is coextensive with the power to legislate.60 The matters which may be a proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation of government, being a legitimate subject for legislation, is a proper subject for investigation. Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian, the transaction, the Court held, "also involved government agencies created by Congress and officers whose positions it is within the power of Congress to regulate or even abolish." Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive operations. As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof. As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution. For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry itself might not properly be in aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited on whether the inquiry is in aid of legislation. Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded judicial sanction. Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it being mentioned in its provisions, its preambular clauses,62 and in its very title, a discussion of executive privilege is crucial for determining the constitutionality of E.O. 464. Executive privilege The phrase "executive privilege" is not new in this jurisdiction. It has been used even prior to the promulgation of the 1986 Constitution. 63 Being of American origin, it is best understood in light of how it has been defined and used in the legal literature of the United States. Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts, and the Congress." 64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." 65 Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative investigations." One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. 68 Tribes comment is supported by the ruling in In re Sealed Case, thus: Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal military or state secrets. The courts have also granted the executive a right to withhold the identity of government informers in some circumstances and a qualified right to withhold information related to pending investigations. x x x" 69 (Emphasis and underscoring supplied) The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine. This privilege, based on the constitutional doctrine of separation of powers, exempts the executive from disclosure requirements applicable to the ordinary citizen or organization where such exemption is necessary to the discharge of highly important executive responsibilities involved in maintaining governmental operations, and extends not only to military and diplomatic secrets but also to documents integral to an appropriate exercise of the executive domestic decisional and policy making functions, that is, those documents reflecting the frank expression necessary in intra-governmental advisory and deliberative communications.70 (Emphasis and underscoring supplied) That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only whether the requested information falls within one of the traditional privileges, but also whether that privilege should be honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the validity of President Nixons claim of executive privilege against a subpoena issued by a district court requiring the production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on the Presidents general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the extent that it relates to the effective discharge of a Presidents powers. The Court, nonetheless, rejected the Presidents claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil litigation or against congressional demands for information. Cases in the U.S. which involve claims of executive privilege against Congress are rare.73 Despite frequent assertion of the privilege to deny information to Congress, beginning with President Washingtons refusal to turn over treaty negotiation records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue.74 However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the Presidents privilege over his conversations against a congressional subpoena.75 Anticipating the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the President, the Court declined to enforce the subpoena. 76 In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77 Almonte used the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which explains the basis for the privilege: "The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and inextricably rooted in the separation of powers under the Constitution x x x " (Emphasis and underscoring supplied) Almonte involved a subpoena duces tecum issued by the Ombudsman against the therein petitioners. It did not involve, as expressly stated in the decision, the right of the people to information.78 Nonetheless, the Court recognized that there are certain types of information which the government may withhold from the public, thus acknowledging, in substance if not in name, that executive privilege may be claimed against citizens demands for information. In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters." 80 The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to information. Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters recognized as "privileged information under the separation of powers,"82 by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military and diplomatic secrets and those affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused were exempted from the right to information. From the above discussion on the meaning and scope of executive privilege, both in the United States and in this jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in relation to certain types of information of a sensitive character. While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in which it is made. Noticeably absent is any

recognition that executive officials are exempt from the duty to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of disclosure. Validity of Section 1 Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain this Court to discuss the validity of these provisions separately. Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on the department heads possession of any information which might be covered by executive privilege. In fact, in marked contrast to Section 3 vis-vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour. SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22 which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of either House of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional Commission shows, the framers were aware that these two provisions involved distinct functions of Congress. MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we usually issue subpoenas. I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can be had under Section 21. Does the gentleman confirm this, Madam President? MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour, whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be summoned and if he refuses, he can be held in contempt of the House. 83 (Emphasis and underscoring supplied) A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads discretionary in the question hour. So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the original draft down to

Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following exchange during the deliberations: MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his reaction. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of putting it as Section 31, it should follow Legislative Inquiries. THE PRESIDING OFFICER. What does the committee say? MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer. MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21, which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we put Question Hour as Section 31. I hope Commissioner Davide will consider this. MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in the application of check and balance but also, in effect, in aid of legislation. MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide? MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied) Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during the question hour. Commissioner Davides only concern was that the two provisions on these distinct powers be placed closely together, they being complementary to each other. Neither Commissioner considered them as identical functions of Congress. The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions of Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the Legislative Department. His views may thus be presumed as representing that of his Committee. In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the operation of the government,85 corresponding to what is known in Britain as the question period. There was a specific provision for a question hour in the 1973 Constitution 86 which made the appearance of ministers mandatory. The same perfectly conformed to the parliamentary system established by that Constitution, where the ministers are also members of the legislature and are directly accountable to it. An essential feature of the parliamentary system of government is the immediate accountability of the Prime Minister and the Cabinet to the National Assembly. They shall be responsible to the National Assembly for the program of government and shall determine the guidelines of national policy. Unlike in the presidential system where the tenure of office of all elected officials cannot be terminated before their term expired, the Prime Minister and the Cabinet remain in office only as long as they enjoy the confidence of the National Assembly. The moment this confidence is lost the Prime Minister and the Cabinet may be changed.87 The framers of the 1987 Constitution removed the mandatory nature of such appearance during the question hour in the present Constitution so as to conform more fully to a system of separation of powers.88 To that extent, the question hour, as it is presently understood in this jurisdiction, departs from the question period of the parliamentary system. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to

elicit information from them in all circumstances. In fact, in light of the absence of a mandatory question period, the need to enforce Congress right to executive information in the performance of its legislative function becomes more imperative. As Schwartz observes: Indeed, if the separation of powers has anything to tell us on the subject under discussion, it is that the Congress has the right to obtain information from any source even from officials of departments and agencies in the executive branch. In the United States there is, unlike the situation which prevails in a parliamentary system such as that in Britain, a clear separation between the legislative and executive branches. It is this very separation that makes the congressional right to obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the people are adequately to be carried out. The absence of close rapport between the legislative and executive branches in this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an institution such as the British question period have perforce made reliance by the Congress upon its right to obtain information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex gratia by the executive. 89 (Emphasis and underscoring supplied) Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress oversight function. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same reasons stated in Arnault.90 In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission. Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of Congress except through the power of impeachment. It is based on her being the highest official of the executive branch, and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom. By the same token, members of the Supreme Court are also exempt from this power of inquiry. Unlike the Presidency, judicial power is vested in a collegial body; hence, each member thereof is exempt on the basis not only of separation of powers but also on the fiscal autonomy and the constitutional independence of the judiciary. This point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon interpellation of the Chief Justice. Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass on the constitutionality of Section 1 of E.O. 464. Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by

the basic rule of construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional. The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the question hour is discretionary on their part. Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the Executive Secretary. Validity of Sections 2 and 3 Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are "covered by the executive privilege." The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the determination by the President under this provision is intended to be based on a similar finding of coverage under executive privilege. En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege, as discussed above, is properly invoked in relation to specific categories of information and not to categories of persons. In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order. Upon a determination by the designated head of office or by the President that an official is "covered by the executive privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by the President. The proviso allowing the President to give its consent means nothing more than that the President may reverse a prohibition which already exists by virtue of E.O. 464. Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation. In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the requested information is privileged, and that the President has not reversed such determination. Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied claim that the information is being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an implied claim of privilege. The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the implied nature of the claim of privilege authorized by E.O. 464. It reads: In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive Department invited to appear at the meeting will not be able to attend the same without the consent of the President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers, Adherence To The Rule On

Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required consent from the President. (Underscoring supplied) The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing. Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has been made, by the designated head of office or the President, that the invited official possesses information that is covered by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it only means that the President has not reversed the standing prohibition against their appearance before Congress. Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine, an implied claim of privilege has been made by the executive. While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be claimed as privileged even against Congress. Thus, the case holds: There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case. 91 (Emphasis and underscoring supplied) Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine whether it is valid. While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the President and the public officers covered by this executive order." Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches: The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. 92 (Underscoring supplied) Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be respected. 93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on Presidential Campaign Activities v. Nixon. 95 A.O. Smith v. Federal Trade Commission is enlightening: [T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of privilege.96 (Underscoring supplied) And so is U.S. v. Article of Drug:97 On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit the free expression of opinion that non-disclosure is designed to protect. The government has not shown nor even alleged that those who evaluated claimants product were involved in internal policymaking, generally, or in this particular instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and classification of claimants products was a matter of internal policy formulation, an assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied) Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain reasons for preserving the confidentiality of requested information." Black v. Sheraton Corp. of America100 amplifies, thus: A formal and proper claim of executive privilege requires a specific designation and description of the documents within its scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a farce of the whole procedure.101 (Emphasis and underscoring supplied) Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102 We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty of one summoned to

produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring supplied; citations omitted) Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S.104 declares: The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." x x x (Emphasis and underscoring supplied) The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry of Congress. In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated. No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of executive privilege. Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the United States where, so it claims, only the President can assert executive privilege to withhold information from Congress. Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence. Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of the unique role and responsibilities of the executive branch,105 or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities.106 The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which case the Executive Secretary must state that the authority is "By order of the President," which means that he personally consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to compel his appearance. The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation." That such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that "[t]he rights of persons appearing in or affected by such inquiries shall be respected." In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect for such officials does not change the infirm nature of the authorization itself. Right to Information E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted by it, and not with the demands of citizens for information pursuant to their right to information on matters of public concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the legislative power of inquiry, but the right of the people to information. There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress and not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte: It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.107 (Emphasis and underscoring supplied) The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Implementation of E.O. 464 prior to its publication While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for publication. On the need for publishing even those statutes that do not directly apply to people in general, Taada v. Tuvera states: The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said that such a law does not affect the public although it unquestionably

does not apply directly to all the people. The subject of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he is a proper party, even in courts of justice.108 (Emphasis and underscoring supplied) Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question before this Court. Due process thus requires that the people should have been apprised of this issuance before it was implemented. Conclusion Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For [w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty. (Underscoring supplied)109 Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of government, but we shall have given up something of much greater value our right as a people to take part in government. WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID. SO ORDERED Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 180643 March 25, 2008 ROMULO L. NERI, petitioner, vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents. DECISION LEONARDO-DE CASTRO, J.: At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter1 dated November 22, 2007 and contempt Order2 dated January 30, 2008 concurrently issued by respondent Senate Committees on Accountability of Public Officers and Investigations, 3 Trade and Commerce,4 and National Defense and Security5 against petitioner Romulo L. Neri, former Director General of the National Economic and Development Authority (NEDA). The facts, as culled from the pleadings, are as follows: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People's Republic of China. In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:

(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT LEGISLATIONS. (2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled RESOLUTION URGING PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE CONTRACT (3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE END IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY. (4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT. At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the Senate, to wit: 1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES, INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES; 2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR OTHER PURPOSES; and 3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE AGREEMENTS. Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he was "out of town" during the other dates. In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking "executive privilege". In particular, he refused to answer the questions on (a) whether or

not President Arroyo followed up the NBN Project,6 (b) whether or not she directed him to prioritize it,7 and (c) whether or not she directed him to approve.8 Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on November 20, 2007. However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent Committees to dispense with petitioner's testimony on the ground of executive privilege. The pertinent portion of the letter reads: With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the President thereon last 26 September 2007. Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006). Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following questions, to wit: a) Whether the President followed up the (NBN) project? b) Were you dictated to prioritize the ZTE? c) Whether the President said to go ahead and approve the project after being told about the alleged bribe? Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence between the President and public officials which are considered executive privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and policy decision making process. The expectation of a President to the confidentiality of her conversations and correspondences, like the value which we accord deference for the privacy of all citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if she is not protected by the confidentiality of her conversations. The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour hearing, wherein he has answered all questions propounded to him except the foregoing questions involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE / NBN project be dispensed with. On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the Committee on Accountability of Public Officers and Investigations (Blue Ribbon). The Senate expects your explanation on or before 2 December 2007. On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege, thus: It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 September 2007. During said hearing, I answered all the questions that were asked of me, save for those which I thought was covered by

executive privilege, and which was confirmed by the Executive Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that what remained were only the three questions, where the Executive Secretary claimed executive privilege. Hence, his request that my presence be dispensed with. Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007 hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I may adequately prepare myself. In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. The letter ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else he needs to clarify so that he may adequately prepare for the hearing. In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the show cause Letter dated November 22, 2007. Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate SergeantAt-Arms until such time that he would appear and give his testimony. The said Order states: ORDER For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007; Thursday, September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic) Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until such time that he will appear and give his testimony. The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof within twenty four (24) hours from its enforcement. SO ORDERED. On the same date, petitioner moved for the reconsideration of the above Order. 9 He insisted that he has not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees from enforcing the show cause Letter "through the issuance of declaration of contempt" and arrest. In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1, 2008 a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the implementation of the said contempt Order. On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance of the assailed order, and (c) requiring respondent Committees to file their comment. Petitioner contends that respondent Committees' show cause Letter and contempt Order were issued with grave abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President Arroyo are "candid discussions meant to explore options in making policy decisions." According to him, these discussions "dwelt on the impact of the bribery scandal involving high government officials on the country's diplomatic relations and economic and military affairs and the possible loss of confidence of foreign investors and lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the order of the President and within the parameters laid down in Senate v.

Ermita10 and United States v. Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of Conduct and Ethical Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130 of the Rules of Court. Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material and pertinent in the investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege; (3) there is no abuse of their authority to order petitioner's arrest; and (4) petitioner has not come to court with clean hands. In the oral argument held last March 4, 2008, the following issues were ventilated: 1. What communications between the President and petitioner Neri are covered by the principle of 'executive privilege'? 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President, to cover (i) conversations of the President in the exercise of her executive and policy decision-making and (ii) information, which might impair our diplomatic as well as economic relations with the People's Republic of China? 1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his conversations with the President on the NBN contract on his assertions that the said conversations "dealt with delicate and sensitive national security and diplomatic matters relating to the impact of bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines" x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])? 1.c Will the claim of executive privilege in this case violate the following provisions of the Constitution: Sec. 28, Art. II (Full public disclosure of all transactions involving public interest) Sec. 7, Art. III (The right of the people to information on matters of public concern) Sec. 1, Art. XI (Public office is a public trust) Sec. 17, Art. VII (The President shall ensure that the laws be faithfully executed) and the due process clause and the principle of separation of powers? 2. What is the proper procedure to be followed in invoking executive privilege? 3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non-compliance with the subpoena? After the oral argument, the parties were directed to manifest to the Court within twentyfour (24) hours if they are amenable to the Court's proposal of allowing petitioner to immediately resume his testimony before the Senate Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present petition. 14 At the same time, respondent Committees were directed to submit several pertinent documents. 15 The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the required documents, the Senate and respondent Committees manifested that they would not be able to submit the latter's "Minutes of all meetings" and the "Minute Book" because it has never been the "historical and traditional legislative practice to keep them."16 They instead submitted the Transcript of Stenographic Notes of respondent Committees' joint public hearings. On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Attached Memorandum, founded on the following arguments: (1) The communications between petitioner and the President are covered by the principle of "executive privilege." (2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making body's power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the Constitution and Senate v. Ermita. (3) Respondent Senate Committees gravely abused its discretion for alleged noncompliance with the Subpoena dated November 13, 2007. The Court granted the OSG's motion the next day, March 18, 2008. As the foregoing facts unfold, related events transpired. On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and Memorandum Circular No. 108. She advised executive

officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita17 when they are invited to legislative inquiries in aid of legislation. At the core of this controversy are the two (2) crucial queries, to wit: First, are the communications elicited by the subject three (3) questions covered by executive privilege? And second, did respondent Committees commit grave abuse of discretion in issuing the contempt Order? We grant the petition. At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit: SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected. SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session. Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress' oversight function.19 Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different. This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court's pronouncement in Senate v. Ermita20 is clear: When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is 'in aid of legislation' under Section 21, the appearance is mandatory for the same reasons stated in Arnault. In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.) The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held: As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court's certiorari powers under Section 1, Article VIII of the Constitution. Hence, this decision.

I The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege We start with the basic premises where the parties have conceded. The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.21 Inevitably, adjunct thereto is the compulsory process to enforce it. But, the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries be respected. The power extends even to executive officials and the only way for them to be exempted is through a valid claim of executive privilege. 22 This directs us to the consideration of the question -- is there a recognized claim of executive privilege despite the revocation of E.O. 464? AThere is a Recognized Claim of Executive Privilege Despite the Revocation of E.O. 464 At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which has further accorded the concept with statutory status by enacting the Freedom of Information Act23 and the Federal Advisory Committee Act,24 the Philippines has retained its constitutional origination, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464. While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of executive privilege, we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications covered by executive privilege. The Nixon and post-Watergate cases established the broad contours of the presidential communications privilege.28 In United States v. Nixon,29 the U.S. Court recognized a great public interest in preserving "the confidentiality of conversations that take place in the President's performance of his official duties." It thus considered presidential communications as "presumptively privileged." Apparently, the presumption is founded on the "President's generalized interest in confidentiality." The privilege is said to be necessary to guarantee the candor of presidential advisors and to provide "the President and those who assist him with freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to "communications, documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential." The latter includes 'advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the President's unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as predeliberative ones31 As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege.

Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed Case confines the privilege only to White House Staff that has "operational proximity" to direct presidential decision-making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority, involving what the court characterized as "quintessential and non-delegable Presidential power," such as commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.32 The situation in Judicial Watch, Inc. v. Department of Justice 33 tested the In Re: Sealed Case principles. There, while the presidential decision involved is the exercise of the President's pardon power, a non-delegable, core-presidential function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President and his senior White House advisors to be protected. The Court conceded that functionally those officials were performing a task directly related to the President's pardon power, but concluded that an organizational test was more appropriate for confining the potentially broad sweep that would result from the In Re: Sealed Case's functional test. The majority concluded that, the lesser protections of the deliberative process privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341 withheld documents. But more specific classifications of communications covered by executive privilege are made in older cases. Courts ruled early that the Executive has a right to withhold documents that might reveal military or state secrets,34 identity of government informers in some circumstances,,35 and information related to pending investigations.36 An area where the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export Corp.37 the U.S. Court, citing President George Washington, pronounced: The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a negotiation with a foreign power would be to establish a dangerous precedent. Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38, this Court held that there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other security matters." In Chavez v. PEA,39 there is also a recognition of the confidentiality of Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept of presidential communications privilege is fully discussed. As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of military and foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,40 appointing,41 pardoning,42 and diplomatic43 powers. Consistent with the doctrine of separation of powers, the information relating to these powers may enjoy greater confidentiality than others. The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: 1) The protected communication must relate to a "quintessential and non-delegable presidential power." 2) The communication must be authored or "solicited and received" by a close advisor of the President or the President himself. The judicial test is that an advisor must be in "operational proximity" with the President. 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought "likely

contains important evidence" and by the unavailability of the information elsewhere by an appropriate investigating authority.44 In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the three (3) questions "fall under conversation and correspondence between the President and public officials" necessary in "her executive and policy decision-making process" and, that "the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China." Simply put, the bases are presidential communications privilege and executive privilege on matters relating to diplomacy or foreign relations. Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are covered by the presidential communications privilege. First, the communications relate to a "quintessential and non-delegable power" of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. 45 Second, the communications are "received" by a close advisor of the President. Under the "operational proximity" test, petitioner can be considered a close advisor, being a member of President Arroyo's cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The third element deserves a lengthy discussion. United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: [N]either the doctrine of separation of powers, nor the need for confidentiality of highlevel communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held that presidential communications are presumptively privileged and that the presumption can be overcome only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the political branches of the government "in the manner that preserves the essential functions of each Branch."47 Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section 21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that it is difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon48 that "demonstrated, specific need for evidence in pending criminal trial" outweighs the President's "generalized interest in confidentiality." However, the present case's distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the demands of due process of law and the fair administration of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to "limit the scope of its decision." It stressed that it is "not concerned here with the balance between the President's generalized interest in confidentiality x x x and congressional demands for information." Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications privilege in relation to her executive and policy decision-making process and diplomatic secrets.

The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of interest that may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment proceeding is initiated on the same subject matter of the present Senate inquiry. Pertinently, in Senate Select Committee on Presidential Campaign Activities v. Nixon,49 it was held that since an impeachment proceeding had been initiated by a House Committee, the Senate Select Committee's immediate oversight need for five presidential tapes should give way to the House Judiciary Committee which has the constitutional authority to inquire into presidential impeachment. The Court expounded on this issue in this wise: It is true, of course, that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions. In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution, on the basis of the subpoenaed tapes, of the conflicts in the testimony before it 'would aid in a determination whether legislative involvement in political campaigns is necessary' and 'could help engender the public support needed for basic reforms in our electoral system.' Moreover, Congress has, according to the Committee, power to oversee the operations of the executive branch, to investigate instances of possible corruption and malfeasance in office, and to expose the results of its investigations to public view. The Committee says that with respect to Watergaterelated matters, this power has been delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the subpoenaed tapes. We turn first to the latter contention. In the circumstances of this case, we need neither deny that the Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor explore what the lawful reach of that power might be under the Committee's constituent resolution. Since passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct has an express constitutional source. x x x We have been shown no evidence indicating that Congress itself attaches any particular value to this interest. In these circumstances, we think the need for the tapes premised solely on an asserted power to investigate and inform cannot justify enforcement of the Committee's subpoena. The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution engaged in like functions. While factfinding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political acceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the grand jury's need for the most precise evidence, the exact text of oral statements recorded in their original form, is undeniable. We see no comparable need in the legislative process, at least not in the circumstances of this case. Indeed, whatever force there might once have been in the Committee's argument that the

subpoenaed materials are necessary to its legislative judgments has been substantially undermined by subsequent events. (Emphasis supplied) Respondent Committees further contend that the grant of petitioner's claim of executive privilege violates the constitutional provisions on the right of the people to information on matters of public concern.50 We might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege. The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of Republic Act (R.A.) No. 6713, 51 Article 22952 of the Revised Penal Code, Section 3 (k)53 of R.A. No. 3019, and Section 24(e)54 of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential55 and what our Constitution considers as belonging to the larger concept of executive privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind. More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people's right to public information. The former cannot claim that every legislative inquiry is an exercise of the people's right to information. The distinction between such rights is laid down in Senate v. Ermita: There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The members of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative powers and privileges which is the subject of careful review by numerous decided cases. BThe Claim of Executive Privilege is Properly Invoked We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the department which has control over the matter."56 A formal and proper claim of executive privilege requires a "precise and certain reason" for preserving their confidentiality.57 The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that "this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly." Obviously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be sufficient. With regard to the existence of "precise and certain reason," we find the grounds relied upon by Executive Secretary Ermita specific enough so as not "to leave respondent

Committees in the dark on how the requested information could be classified as privileged." The case of Senate v. Ermita only requires that an allegation be made "whether the information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc." The particular ground must only be specified. The enumeration is not even intended to be comprehensive." 58 The following statement of grounds satisfies the requirement: The context in which executive privilege is being invoked is that the information sought to be disclosed might impair our diplomatic as well as economic relations with the People's Republic of China. Given the confidential nature in which these information were conveyed to the President, he cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect. At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal department. II Respondent Committees Committed Grave Abuse of Discretion in Issuing the Contempt Order Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law." 60 It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007, petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In addition thereto, he submitted Atty. Bautista's letter, stating that his non-appearance was upon the order of the President and specifying the reasons why his conversations with President Arroyo are covered by executive privilege. Both correspondences include an expression of his willingness to testify again, provided he "be furnished in advance" copies of the questions. Without responding to his request for advance list of questions, respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent Committees that he had filed the present petition for certiorari. Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5) reasons. First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the "possible needed statute which prompted the need for the inquiry," along with "the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated demands, respondent Committees did not send him an advance list of questions. Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that only a minority of the members of the Senate Blue Ribbon Committee was present during the deliberation. 61 Section 18 of the Rules of Procedure Governing Inquiries in Aid of Legislation provides that: "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the Committee or any of its members." Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus:

THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement that right away becauseAgain, our Rules provide that any one held in contempt and ordered arrested, need the concurrence of a majority of all members of the said committee and we have three committees conducting this. So thank you very much to the members SEN. PIMENTEL. Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, Senator Pimentel. SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees. But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it should have preference in enforcing its own decisions. Meaning to say, it is not something that is subject to consultation with other committees. I am not sure that is the right interpretation. I think that once we decide here, we enforce what we decide, because otherwise, before we know it, our determination is watered down by delay and, you know, the so-called "consultation" that inevitably will have to take place if we follow the premise that has been explained. So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that other committees might have who are only secondary or even tertiary committees, Mr. Chairman. THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the Committee and under Section 6, "The Committee by a vote of a majority of all its members may punish for contempt any witness before it who disobeys any order of the Committee." So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six members here today, I am the seventh as chair and so we have not met that number. So I am merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon prepared the documentation and then either in caucus or in session asked the other members to sign. And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not be able to legally question our subpoena as being insufficient in accordance with law. SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very welltaken. But I'd like to advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member senators attending a Senate committee hearing provide that quorum, and therefore there is more than a quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee, as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will only tend to strengthen the determination of this Committee to put its foot forward put down on what is happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, the summons of this Committee. I know that the Chair is going through an agonizing moment here. I know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, I'd like to reiterate my point. THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, we can have a hearing if we are only two but both under Section 18 of the Rules of the Senate and under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that we should push for this and show the executive branch that the well-decided the issue has been decided upon the Sabio versus Gordon case. And it's

very clear that we are all allowed to call witnesses. And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x 62 Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We quote the OSG's explanation: The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's membership, the composition of the Senate also changes by the end of each term. Each Senate may thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the subject hearings in aid of legislation conducted by the 14 th Senate, are therefore, procedurally infirm. And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as "unsatisfactory" and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as "unsatisfactory." Undoubtedly, respondent Committees' actions constitute grave abuse of discretion for being arbitrary and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded petitioner's motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored petitioner's repeated request for an advance list of questions, if there be any aside from the three (3) questions as to which he claimed to be covered by executive privilege. Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for retaliation or vindication. 63 Respondent Committees should have exercised the same restraint, after all petitioner is not even an ordinary witness. He holds a high position in a co-equal branch of government. In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate to observe respect to a co-equal branch of the government. One last word. The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a proposal that would lead to a possible compromise. The accusation is far from the truth. The Court did so, only to test a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the questions for review and to avert a constitutional crisis between the executive and legislative branches of government. In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of its desire to avoid a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true needs. Instead, it remanded the record to the District Court for further proceedings during which the parties are required to negotiate a settlement. In the subsequent case of United States v. American Tel. &Tel Co.,65 it was held that "much of this spirit of compromise is reflected in the generality of language found in the Constitution." It proceeded to state: Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one another when a conflict in authority arises. Rather each branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the conflicting branches in the particular fact situation. It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch and the immediate functioning of government. It is the long-

term staying power of government that is enhanced by the mutual accommodation required by the separation of powers." In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be subordinated to the needs of a particular situation. As magistrates, our mandate is to rule objectively and dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers inherent in cases of this nature, thus: "some accident of immediate and overwhelming interestappeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend."66 In this present crusade to "search for truth," we should turn to the fundamental constitutional principles which underlie our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but, imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court's mandate is to preserve these constitutional principles at all times to keep the political branches of government within constitutional bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only way we can preserve the stability of our democratic institutions and uphold the Rule of Law. WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified. SO ORDERED

Republic of the Philippines SUPREME COURT Manila EN BANC 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 Courts 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 Taada 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 peoples 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 VicePresident 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.14 He 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 Representatives 16 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 Courts 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 petitioners 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 individuals "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 persons 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 countrys 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 Monsods 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 ones 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 ones 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 welldebated 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 ones 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 petitioners 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. Petitioners 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 Taada 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 vicepresident, 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--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 wellsecured. 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--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." 44 In 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 factfinding 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 and regulations to effectively implement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedure in drafting rules and regulations to implement a law the legislature grants an administrative agency the authority to craft the rules and regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular field of 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 review, amend and revise the law, but certainly not to approve, review, revise and amend the IRR of the COMELEC. 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 VOID for 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. The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim the winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winning candidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution. The constitutionality of Section 5(d) is UPHELD. Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect.

SO ORDERED

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991 ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896. Antonio P. Coronel for petitioners in 83815. FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 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. 3 4 83815 and as Annex "B" in G.R. No. 83896 from holding any other office or employment during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions. Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6 Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers one, the President and her official family, and the other, public servants in general allegedly "abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead by example." 7 Article IX-B, Section 7, par. (2) 8 provides: Sec. 7. . . . . . Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion No. 129, series of 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. Roo of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Pea of ten (10) each. 13 The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably excessive compensation therefrom would be discontinued. But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other offices or employment in the government or elsewhere is concerned. Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or employment in the Government." It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in

the Government." The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private office or employment. Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions. Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their case." 14 Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and assistants. This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of the Constitution as to when the 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. Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This observation applies particularly to the VicePresident 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 VicePresidency 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 Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. 19 In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory. 20 Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not, however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation in an ex-officio capacity as provided by law and as required 22 by the primary functions of said officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited. The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies. The Secretaries of Finance and Budget cannot sit in the Monetary Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy direction in the areas of money, banking and credit. 25 Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if possible, should be avoided. 26 To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely, not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office." 27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and without further warrant or appointment. 28 To illustrate, by express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to qualify they need only be designated by the respective department heads. With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from the other offices. No new appointments are necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in addition to those already performed under their original appointments." 32 The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The term is not restricted to the singular but may refer to the plural. 33 The additional duties must not only be closely related to, but must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry Authority 34 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 fail 42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention "are of value as 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

Republic of the Philippines SUPREME COURT Manila EN BANC 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 petitioners 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 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. 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 PEZAs 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 petitioners 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. The COA anchors the disallowance of per diems in the case of Civil Liberties Union v. Executive 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 Courts ruling was in conformity with Section 13, Article VII of the 1987 Constitution which reads: 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 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 Courts 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 petitioners 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 petitioners contentions are untenable. It must be noted that the petitioners 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 petitioners 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 latters 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. 8748 16 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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 85468 September 7, 1989 QUINTIN S. DOROMAL, petitioner, vs. SANDIGANBAYAN, OMBUDSMAN AND SPECIAL PROSECUTOR, respondents. GRIO-AQUINO, J.: Brought up for review before this Court is the order dated August 19, 1988 of the Sandiganbayan denying petitioner's motion to quash the information against him in Criminal Case No. 12893, entitled "People of the Philippines vs. Hon. Quintin S. Doromal," and the Sandiganbayan's order suspending him from office during the pendency of the case. In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a preliminary investigation of the charge against the petitioner, Quintin S. Doromal, a former Commissioner of the Presidential Commission on Good Government (PCGG), for- violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and position as president and director of the Doromal International Trading Corporation (DITC) which submitted bids to supply P61 million worth of electronic, electrical, automotive, mechanical and airconditioning equipment to the Department of Education, Culture and Sports (or DECS) and the National Manpower and Youth Council (or NMYC). On January 25,1988, with the approval of Special Prosecutor Raul Gonzales, Caoili filed in the Sandiganbayan an information against the petitioner (Criminal Case No. 12766) alleging : That in or about the period from April 28, 19866 to October 16, 1987, in Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then Commissioner of the Presidential Commission on Good Government, did then and there wilfully and unlawfully have direct or indirect financial interest in the Doromal International Trading Corporation, an entity which transacted or entered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, both agencies of the government which business, contracts or transactions he is prohibited by law and the constitution from having any interest. (pp. 246-247, Rollo; Emphasis supplied.) The petitioner filed a petition for certiorari and prohibition in this Court questioning the jurisdiction of the "Tanodbayan" to file the information without the approval of the

Ombudsman after the effectivity of the 1987 Constitution (G.R. No. 81766, entitled "Doromal vs. Sandiganbayan"). On June 30, 1988, this Court annulled the information in accordance with its decision in the consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos. 79690-707 and Zaldivar vs. Gonzales, G.R. No. 80578, April 27, 1988 (160 SCRA 843), where it ruled that: ... the incumbent Tanodbayan (called Special Prosecutor under the 1987 Constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1 987. From that time, he has been divested of such authority. Upon the annulment of the information against the petitioner, the Special Prosecutor sought clearance from the Ombudsman to refile it. In a Memorandum dated July 8,1988, the Ombudsman, Honorable Conrado Vasquez, granted clearance but advised that "some changes be made in the information previously filed." (p. 107, Rollo.) Complying with that Memorandum, a new information, duly approved by the Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893), alleging that: ..., the above-named accused [Doromal] a public officer, being then a Commissioner of the Presidential Commission on Good Government, did then and there wilfully and unlawfully, participate in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo; Emphasis supplied.) On July 25, 1988, petitioner filed a "Motion to Quash" the information for being: (a) invalid because there had been no preliminary investigation; and (b) defective because the facts alleged do not constitute the offense charged (Annex C). The Sandiganbayan denied the motion to quash in its orders dated July 25,1988 and August 19,1988 (Annexes D, N and 0, pp. 81,173 & 179, Rollo). On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused Pendente Lite" pursuant to Section 13 of the Anti- Graft and Corrupt Practices Act (R.A. 3019). Over the petitioner's objection (because the President had earlier approved his application for indefinite leave of absence as PCGG commissioner "effective immediately and until final decision of the courts in your case" [Annex S-1, p. 189, Rollo]), the Sandiganbayan on September 5, 1988 ordered his suspension pendente lite from his position as PCGG Commissioner and from any other office he may be holding (Annex T). His motion for reconsideration of that order was also denied by the Court (Annex Y). Hence, this petition for certiorari and prohibition alleging that the Sandiganbayan gravely abused its discretion: (1) in denying the petitioner's motion to quash the information in Criminal Case No. 12893; and, (2) in suspending the petitioner from office despite the President's having previously approved his indefinite leave of absence " until final decision" in this case. The petitioner contends that as the preliminary investigation that was conducted prior to the filing of the original information in Criminal Case No. 12766 was nullified by this Court, another preliminary investigation should have been conducted before the new information in Criminal Case No. 12893 was filed against him. The denial of his right to such investigation allegedly violates his right to due process and constitutes a ground to quash the information. On the other hand, the public respondent argues that another preliminary investigation is unnecessary because both old and new informations involve the same subject matter a violation of Section 3 (H) of R.A. No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 Constitution. Moreover, the petitioner allegedly waived the second preliminary investigation by his failure to comply with the Court's Order dated August 12, 1988 directing him to submit a statement of new or additional facts, duly supported by photo copies of documents which he would present should a new preliminary investigation be ordered (Annex H, p. 94, Rollo). The petition is meritorious. A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity (a dead limb on the judicial tree which should be lopped off and wholly disregarded"-Anuran vs. Aquino, 38 Phil. 29)

but also because the accused demands it as his right. Moreover, the charge against him had been changed, as directed by the Ombudsman. Thus, while the first information in Criminal Case No. 12766 charge that the DITCentered into a business transaction or contract with the Department of Education, Culture and Sports and the National Manpower and Youth Council, ... which business, contracts or transactions he [petitioner] is prohibited by law and the constitution from having any interest. (P. 70, Rollo.) the new information in Criminal Case No. 12883 alleges that the petitioner: unlawfully participate[d] in a business through the Doromal International Trading Corporation, a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports and the National Manpower & Youth Council, which act or participation is prohibited by law and the constitution. (p. 68, Rollo.) The petitioner's right to a preliminary investigation of the new charge is secured to him by the following provisions of Rule 112 of the 1985 Rules on Criminal Procedure: SEC. 3. Procedure. ... no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted. ..... SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court, the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted; on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rules .... If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. That right of the accused is "a substantial one." Its denial over his opposition is a "prejudicial error, in that it subjects the accused to the loss of life, liberty, or property without due process of law" (U.S. vs. Marfori, 35 Phil. 666). The need to conduct a new preliminary investigation when the defendant demands it and the allegations of the complaint have been amended, has been more than once affirmed by this Court: III. (a) ..., the Court finds that since the information for alleged violation of the Anti-Graft Law was filed without any previous notice to petitioners and due preliminary investigation thereof, and despite the dismissal of the original charge for falsification as being 'without any factual or legal basis, 'petitioners are entitled to a new preliminary investigation for the graft charge, with all the rights to which they are entitled under section 1 of Republic Act No. 5180, approved September 8, 1967, as invoked by them anew from respondent court, viz, the submittal of the testimonies in affidavit form of the complainant and his witnesses duly sworn to before the investigating fiscal, and the right of accused, through counsel, to cross-examine them and to adduce evidence in their defense. In line with the settled doctrine as restated in People vs. Abejuela (38 SCRA 324), respondent court shall hold in abeyance all proceedings in the case before it until after the outcome of such new preliminary investigation. (Luciano vs. Mariano, 40 SCRA 187, 201; emphasis ours). The right of the accused not to be brought to trial except when remanded therefor as a result of a preliminary examination before a committing magistrate, it has been held is a substantial one. Its denial over the objections of the accused is prejudicial error in that it subjects the accused to the loss of life, liberty or property without due process of law. (Conde vs. Judge of Court of First Instance of Tayabas, 45 Phil. 173,176.) The absence of a preliminary investigation if it is not waived may amount to a denial of due process. (San Diego vs. Hernandez, 24 SCRA 110, 114.) In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law. (Mariano Marcos, et al. vs. Roman A. Cruz, 68 Phil. 96; Emphasis supplied.) The Solicitor General's argument that the right to a preliminary investigation may be waived and was in fact waived by the petitioner, impliedly admits that the right exists.

Since the right belongs to the accused, he alone may waive it. If he demands it, the State may not withhold it. However, as the absence of a preliminary investigation is not a ground to quash the complaint or information (Sec. 3, Rule 117, Rules of Court), the proceedings upon such information in the Sandiganbayan should be held in abeyance and the case should be remanded to the office of the Ombudsman for him or the Special Prosecutor to conduct a preliminary investigation. Thus did We rule in Luciano vs. Mariano, 40 SCRA 187, 201; Ilagan vs. Enrile 139 SCRA 349 and more recently in Sanciangco, Jr. vs. People, 149 SCRA 1, 3-4: The absence of preliminary investigation does not affect the court's jurisdiction over the case. Nor do they impair the validity of the information or otherwise render it defective; but, if there were no preliminary investigations and the defendants, before entering their plea, invite the attention of the court to their absence, the court, instead of dismissing the information should conduct such investigation, order the fiscal to conduct it or remand the case to the inferior court so that the preliminary investigation may be conducted. (See People vs. Gomez, 117 SCRA 72, 77-78; citing People vs. Casiano, 1 SCRA 478). In this case, the Tanodbayan has the duty to conduct the said investigation. There is no merit in petitioner's insistence that the information should be quashed because the Special Prosecutor admitted in the Sandiganbayan that he does not possess any document signed and/or submitted to the DECS by the petitioner after he became a PCGG Commissioner (p. 49, Rollo). That admission allegedly belies the averment in the information that the petitioner "participated' in the business of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3h, RA No. 3019). The Sandiganbayan in its order of August 19, 1988 correctly observed that "the presence of a signed document bearing the signature of accused Doromal as part of the application to bid ... is not a sine qua non" (Annex O, p. 179. Rollo), for, the Ombudsman indicated in his Memorandum/Clearance to the Special Prosecutor, that the petitioner "can rightfully be charged ...with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest." (pp. 107-108, Rollo). Section 13, Article VII of the 1987 Constitution provides that "the President, VicePresident, the members of the Cabinet and their deputies or assistants shall not... during (their) tenure, ...directly or indirectly... participate in any business." The constitutional ban is similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that "Pursuit of private business ... without the permission required by Civil Service Rules and Regulations" shall be a ground for disciplinary action against any officer or employee in the civil service. On the suspension of the petitioner from office, Section 13 of the Anti-Graft and Corrupt Practices Act (RA 3019) provides: SEC. 13. Suspension and loss of benefits.-Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence is not a bar to his preventive suspension for, as indicated by the Solicitor General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the incumbent. Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985), a preventive suspension for an indefinite period of time, such as one that would last until the case against the incumbent official shall have been finally terminated, would (4 outrun the bounds of reason and result in sheer oppression" and a denial of due process. In the case of Garcia vs. The Executive Secretary, 6 SCRA 1 (1962), this Court ordered the immediate reinstatement, to his position as chairman of the National Science Development Board, of a presidential appointee whose preventive suspension had

lasted for nearly seven (7) months. Some members of the Court held that the maximum period of sixty (60) days provided in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) was applicable to the petitioner. The others believed, however, that period may not apply strictly to cases of presidential appointees, nevertheless, the preventive suspension shall be limited to a reasonable period. Obviously, the Court found the petitioner's preventive suspension for seven (7) months to be unreasonable. The Court stated: To adopt the theory of respondents that an officer appointed by the President, facing administrative charges can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing; contrary to the express mandate of the Constitution (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. [Art. XII, Sec. 4, Constitution of the Philippines]) and the Civil Service Law (No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law and after due process). ... In the guise of a preventive suspension, his term of office could be shortened and he could, in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. .... Pursuant to the guarantee of equal protection of the laws in the Bill of Rights of our Constitution, that same ruling was applied in Deloso vs. Sandiganbayan, G.R. Nos. 86899-903, May 15,1989. The petitioner herein is no less entitled to similar protection. Since his preventive suspension has exceeded the reasonable maximum period of ninety (90) days provided in Section 42 of the Civil Service Decree of the Philippines (P.D. 807), it should now be lifted. WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office of the Ombudsman for preliminary investigation and shall hold in abeyance the proceedings before it pending the result of such investigation. The preventive suspension of the petitioner is hereby lifted. No costs. SO ORDERED

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 138965 March 5, 2007 PUBLIC INTEREST CENTER, INC., LAUREANO T. ANGELES and JOCELYN P. CELESTINO, Petitioners, vs. MAGDANGAL B. ELMA, as Chief Presidential Legal Counsel and as Chairman of the Presidential Commission on Good Government, and RONALDO ZAMORA, as Executive Secretary, Accused-Appellant. RESOLUTION CHICO-NAZARIO, J.: For consideration is the Omnibus Motion, dated 14 August 2006, where respondent Magdangal B. Elma sought: (1) the reconsideration of the Decision in the case of Public Interest Center, Inc., et al. v. Magdangal B. Elma, et al. (G.R. No. 138965), promulgated on 30 June 2006; (2) the clarification of the dispositive part of the Decision; and (3) the elevation of the case to the Court en banc. The Solicitor General, in behalf of the respondents, filed an Omnibus Motion, dated 11 August 2006, with substantially the same allegations. Respondent Elma was appointed as Chairman of the Presidential Commission on Good Government (PCGG) on 30 October 1998. Thereafter, during his tenure as PCGG Chairman, he was appointed as Chief Presidential Legal Counsel (CPLC). He accepted the second appointment, but waived any renumeration that he may receive as CPLC. Petitioners sought to have both appointments declared as unconstitutional and, therefore, null and void. In its Decision, the Court declared that the concurrent appointments of the respondent as PCGG Chairman and CPLC were unconstitutional. It ruled that the concurrent appointment to these offices is in violation of Section 7, par. 2, Article IX-B of the 1987 Constitution, since these are incompatible offices. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and reviewing investigations involving heads of executive departments. Since the actions of the PCGG Chairman, a head of an executive agency, are subject to the review of the CPLC, such appointments would be incompatible. The Court also decreed that the strict prohibition under Section 13 Article VII of the 1987 Constitution would not apply to the present case, since neither the PCGG Chairman nor the CPLC is a secretary, undersecretary, or assistant secretary. However, had the rule thereunder been applicable to the case, the defect of these two incompatible offices would be made more glaring. The said section allows the concurrent holding of positions only when the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity. Although respondent Elma waived receiving renumeration for the second appointment, the primary functions of the PCGG Chairman do not require his appointment as CPLC. After reviewing the arguments propounded in respondents Omnibus Motions, we find that the basic issues that were raised have already been passed upon. No substantial arguments were presented. Thus, the Court denies the respondents motion for reconsideration. In response to the respondents request for clarification, the Court ruled that respondent Elmas concurrent appointments as PCGG Chairman and CPLC are unconstitutional, for being incompatible offices. This ruling does not render both appointments void. Following the common-law rule on incompatibility of offices, respondent Elma had, in effect, vacated his first office as PCGG Chairman when he accepted the second office as CPLC.1

There also is no merit in the respondents motion to refer the case to the Court en banc. What is in question in the present case is the constitutionality of respondent Elmas concurrent appointments, and not the constitutionality of any treaty, law or agreement. 2 The mere application of constitutional provisions does not require the case to be heard and decided en banc. Contrary to the allegations of the respondent, the decision of the Court in this case does not modify the ruling in Civil Liberties Union v. Executive Secretary. It should also be noted that Section 3 of Supreme Court Circular No. 2-89, dated 7 February 1989 clearly provides that the Court en banc is not an Appellate Court to which decisions or resolutions of a Division may be appealed. WHEREFORE, the Court denies the respondents motion for reconsideration and for elevation of this case to the Court en banc. SO ORDERED

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 79974 December 17, 1987 ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs. SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS, intervenor. PADILLA, J.: Once more the Court is called upon to delineate constitutional boundaries. In this petition for prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison from performing the functions of the Office of Commissioner of the Bureau of Customs and the respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not having been confirmed by the Commission on Appointments. The respondents, on the other hand, maintain the constitutionality of respondent Mison's appointment without the confirmation of the Commission on Appointments. Because of the demands of public interest, including the need for stability in the public service, the Court resolved to give due course to the petition and decide, setting aside the finer procedural questions of whether prohibition is the proper remedy to test respondent Mison's right to the Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing to bring this suit. By the same token, and for the same purpose, the Court allowed the Commission on Appointments to intervene and file a petition in intervention. Comment was required of respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The parties were also heard in oral argument on 8 December 1987. This case assumes added significance because, at bottom line, it involves a conflict between two (2) great departments of government, the Executive and Legislative Departments. It also occurs early in the life of the 1987 Constitution. The task of the Court is rendered lighter by the existence of relatively clear provisions in the Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that: The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it. The intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves. The Court will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide. Section 16, Article VII of the 1987 Constitution says: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other

officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. 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 readily apparent that under the provisions of the 1987 Constitution, just quoted, there are four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we will hereafter refer from time to time, are: First, the heads of the executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution; 2 Second, all other officers of the Government whose appointments are not otherwise provided for by law; 3 Third, those whom the President may be authorized by law to appoint; Fourth, officers lower in rank 4 whose appointments the Congress may by law vest in the President alone. The first group of officers is clearly appointed with the consent of the Commission on Appointments. Appointments of such officers are initiated by nomination and, if the nomination is confirmed by the Commission on Appointments, the President appoints. 5 The second, third and fourth groups of officers are the present bone of contention. Should they be appointed by the President with or without the consent (confirmation) of the Commission on Appointments? By following the accepted rule in constitutional and statutory construction that an express enumeration of subjects excludes others not enumerated, it would follow that only those appointments to positions expressly stated in the first group require the consent (confirmation) of the Commission on Appointments. But we need not rely solely on this basic rule of constitutional construction. We can refer to historical background as well as to the records of the 1986 Constitutional Commission to determine, with more accuracy, if not precision, the intention of the framers of the 1987 Constitution and the people adopting it, on whether the appointments by the President, under the second, third and fourth groups, require the consent (confirmation) of the Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J. Abad Santos in Gold Creek is apropos: In deciding this point, it should be borne in mind that a constitutional provision must be presumed to have been framed and adopted in the light and understanding of prior and existing laws and with reference to them. "Courts are bound to presume that the people adopting a constitution are familiar with the previous and existing laws upon the subjects to which its provisions relate, and upon which they express their judgment and opinion in its adoption." (Barry vs. Truax 13 N.D., 131; 99 N.W., 769,65 L. R. A., 762.) 6 It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that xxx xxx xxx (3) The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. (4) The President shall havethe power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. xxx xxx xxx (7) ..., and with the consent of the Commission on Appointments, shall appoint ambassadors, other public ministers and consuls ... Upon the other hand, the 1973 Constitution provides thatSection 10. The President shall appoint the heads of bureaus and offices, the officers of the Armed Forces of the Philippines from the rank of Brigadier General or Commodore, and all other officers of The government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint. However, the Batasang Pambansa may by law vest in the Prime Minister, members of the Cabinet,

the Executive Committee, Courts, Heads of Agencies, Commissions, and Boards the power to appoint inferior officers in their respective offices. Thus, in the 1935 Constitution, almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. It is now a sad part of our political history that the power of confirmation by the Commission on Appointments, under the 1935 Constitution, transformed that commission, many times, into a venue of "horse-trading" and similar malpractices. On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it was molded and remolded by successive amendments, placed the absolute power of appointment in the President with hardly any check on the part of the legislature. Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973 Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the Commission on Appointments for the first group of appointments and leaving to the President, without such confirmation, the appointment of other officers, i.e., those in the second and third groups as well as those in the fourth group, i.e., officers of lower rank. The proceedings in the 1986 Constitutional Commission support this conclusion. The original text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986 Constitutional Commission, read as follows: Section 16. The president shall nominate and, with the consent of a Commission on Appointment, shall appoint the heads of the executive departments and bureaus, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain and all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may by law vest the appointment of inferior officers in the President alone, in the courts, or in the heads of departments 7 [Emphasis supplied]. The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution. When the frames discussed on the floor of the Commission the proposed text of Section 16, Article VII, a feeling was manifestly expressed to make the power of the Commission on Appointments over presidential appointments more limited than that held by the Commission in the 1935 Constitution. ThusMr. Rama: ... May I ask that Commissioner Monsod be recognized The President: We will call Commissioner Davide later. Mr. Monsod: With the Chair's indulgence, I just want to take a few minutes of our time to lay the basis for some of the amendments that I would like to propose to the Committee this morning. xxx xxx xxx On Section 16, I would like to suggest that the power of the Commission on Appointments be limited to the department heads, ambassadors, generals and so on but not to the levels of bureau heads and colonels. xxx xxx xxx 8 (Emphasis supplied.) 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 9 of the section from the same requirement. The records of the deliberations of the Constitutional Commission show the following: MR. ROMULO: I ask that Commissioner Foz be recognized THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, my proposed amendment is on page 7, Section 16, line 26 which is to delete the words "and bureaus," and on line 28 of the same page, to change the phrase 'colonel or naval captain to MAJOR GENERAL OR REAR ADMIRAL. This last amendment which is co-authored by Commissioner de Castro is to put a period (.) after the word ADMIRAL, and on line 29 of the same page, start a new sentence with: HE SHALL ALSO APPOINT, et cetera. MR. REGALADO: May we have the amendments one by one. The first proposed amendment is to delete the words "and bureaus" on line 26. MR. FOZ: That is correct.

MR. REGALADO: For the benefit of the other Commissioners, what would be the justification of the proponent for such a deletion? MR. FOZ: The position of bureau director is actually quite low in the executive department, and to require further confirmation of presidential appointment of heads of bureaus would subject them to political influence. MR. REGALADO: The Commissioner's proposed amendment by deletion also includes regional directors as distinguished from merely staff directors, because the regional directors have quite a plenitude of powers within the regions as distinguished from staff directors who only stay in the office. MR. FOZ: Yes, but the regional directors are under the supervisiopn of the staff bureau directors. xxx xxx xxx MR. MAAMBONG: May I direct a question to Commissioner Foz? The Commissioner proposed an amendment to delete 'and bureaus on Section 16. Who will then appoint the bureau directors if it is not the President? MR. FOZ: It is still the President who will appoint them but their appointment shall no longer be subject to confirmation by the Commission on Appointments. MR. MAAMBONG: In other words, it is in line with the same answer of Commissioner de Castro? MR. FOZ: Yes. MR. MAAMBONG: Thank you. THE PRESIDENT: Is this clear now? What is the reaction of the Committee? xxx xxx xxx MR. REGALADO: Madam President, the Committee feels that this matter should be submitted to the body for a vote. MR. DE CASTRO: Thank you. MR. REGALADO: We will take the amendments one by one. We will first vote on the deletion of the phrase 'and bureaus on line 26, such that appointments of bureau directors no longer need confirmation by the Commission on Appointment. Section 16, therefore, would read: 'The President shall nominate, and with the consent of a Commission on Appointments, shall appoint the heads of the executive departments, ambassadors. . . . THE PRESIDENT: Is there any objection to delete the phrase 'and bureaus' on page 7, line 26? (Silence) The Chair hears none; the amendments is approved. xxx xxx xxx MR. ROMULO: Madam President. THE PRESIDENT: The Acting Floor Leader is recognized. THE PRESIDENT: Commissioner Foz is recognized MR. FOZ: Madam President, this is the third proposed amendment on page 7, line 28. 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY. MR. REGALADO: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. MR. DAVIDE: Madam President. THE PRESIDENT: Commissioner Davide is recognized. xxx xxx xxx MR. DAVIDE: So would the proponent accept an amendment to his amendment, so that after "captain" we insert the following words: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION? FR. BERNAS: It is a little vague. MR. DAVIDE: In other words, there are positions provided for in the Constitution whose appointments are vested in the President, as a matter of fact like those of the different constitutional commissions. FR. BERNAS: That is correct. This list of officials found in Section 16 is not an exclusive list of those appointments which constitutionally require confirmation of the Commission on Appointments, MR. DAVIDE: That is the reason I seek the incorporation of the words I proposed. FR. BERNAS: Will Commissioner Davide restate his proposed amendment? MR. DAVIDE: After 'captain,' add the following: AND OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM IN THIS CONSTITUTION.

FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS CONSTITUTION"? MR. DAVIDE: Yes, Madam President, that is modified by the Committee. FR. BERNAS: That will clarify things. THE PRESIDENT: Does the Committee accept? MR. REGALADO: Just for the record, of course, that excludes those officers which the Constitution does not require confirmation by the Commission on Appointments, like the members of the judiciary and the Ombudsman. MR. DAVIDE: That is correct. That is very clear from the modification made by Commissioner Bernas. THE PRESIDENT: So we have now this proposed amendment of Commissioners Foz and Davide. xxx xxx xxx THE PRESIDENT: Is there any objection to this proposed amendment of Commissioners Foz and Davide as accepted by the Committee? (Silence) The Chair hears none; the amendment, as amended, is approved 10 (Emphasis supplied). It is, therefore, clear that appointments to the second and third groups of officers can be made by the President without the consent (confirmation) of the Commission on Appointments. It is contended by amicus curiae, Senator Neptali Gonzales, that the second sentence of Sec. 16, Article VII readingHe (the President) shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law and those whom he may be authorized by law to appoint . . . . (Emphasis supplied) with particular reference to the word "also," implies that the President shall "in like manner" appoint the officers mentioned in said second sentence. In other words, the President shall appoint the officers mentioned in said second sentence in the same manner as he appoints officers mentioned in the first sentence, that is, by nomination and with the consent (confirmation) of the Commission on Appointments. Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean "in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition) which meanings could, on the contrary, stress that the word "also" in said second sentence means that the President, in addition to nominating and, with the consent of the Commission on Appointments, appointing the officers enumerated in the first sentence, can appoint (without such consent (confirmation) the officers mentioned in the second sentenceRather than limit the area of consideration to the possible meanings of the word "also" as used in the context of said second sentence, the Court has chosen to derive significance from the fact that the first sentence speaks of nomination by the President and appointment by the President with the consent of the Commission on Appointments, whereas, the second sentence speaks only of appointment by the President. And, this use of different language in two (2) sentences proximate to each other underscores a difference in message conveyed and perceptions established, in line with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but, more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and expressly justify such differences. As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there are officers whose appointments require no confirmation of the Commission on Appointments, even if such officers may be higher in rank, compared to some officers whose appointments have to be confirmed by the Commission on Appointments under the first sentence of the same Sec. 16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in the Armed Forces of the Philippines or a consul in the Consular Service. But these contrasts, while initially impressive, merely underscore the purposive intention and deliberate judgment of the framers of the 1987 Constitution that, except as to those officers whose appointments require the consent of the Commission on Appointments by express mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the President without need of confirmation by the Commission on Appointments. This conclusion is inevitable, if we are to presume, as we must, that the

framers of the 1987 Constitution were knowledgeable of what they were doing and of the foreseable effects thereof. Besides, the power to appoint is fundamentally executive or presidential in character. Limitations on or qualifications of such power should be strictly construed against them. Such limitations or qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions therein enumerated require the consent of the Commission on Appointments. As to the fourth group of officers whom the President can appoint, the intervenor Commission on Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution, which reads: The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. [Emphasis supplied]. and argues that, since a law is needed to vest the appointment of lower-ranked officers in the President alone, this implies that, in the absence of such a law, lower-ranked officers have to be appointed by the President subject to confirmation by the Commission on Appointments; and, if this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed by the President, subject also to confirmation by the Commission on Appointments. The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII, abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of the various departments, agencies, commissions, or boards in the government. No reason however is submitted for the use of the word "alone" in said third sentence. The Court is not impressed by both arguments. It is of the considered opinion, after a careful study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone" after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the following provision appears at the end of par. 3, section 1 0, Article VII thereof ...; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. [Emphasis supplied]. The above provision in the 1935 Constitution appears immediately after the provision which makes practically all presidential appointments subject to confirmation by the Commission on Appointments, thus3. The President shall nominate and with the consent of the Commission on Appointments, shall appoint the heads of the executive departments and bureaus, officers of the Army from the rank of colonel, of the Navy and Air Forces from the rank of captain or commander, and all other officers of the Government whose appointments are not herein provided for, and those whom he may be authorized by law to appoint; ... In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by way of an exception to such rule, to provide that Congress may, however, by law vest the appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987 Constitution) in the President alone, in the courts, or in the heads of departments, In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its framers was to exclude presidential appointments from confirmation by the Commission on Appointments, except appointments to offices expressly mentioned in the first sentence of Sec. 16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article VII the word "alone" after the word "President" in providing that Congress may by law vest the appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of departments, because the power to appoint officers whom he (the President) may be authorized by law to appoint is already vested in the President, without need of confirmation by the Commission on Appointments, in the second sentence of the same Sec. 16, Article VII. Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of lower-ranked officers, the Congress may by law vest their appointment in the President, in the courts, or in the heads of various departments of the government. In short, the word "alone" in the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the last part of par. 3, section 10, Article VII of the

1935 Constitution, appears to be redundant in the light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the clear and positive intent of the framers of the 1987 Constitution that presidential appointments, except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to confirmation by the Commission on Appointments. Coming now to the immediate question before the Court, it is evident that the position of Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first group of appointments where the consent of the Commission on Appointments is required. As a matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus" among those officers whose appointments need the consent of the Commission on Appointments, the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus" from appointments that need the consent (confirmation) of the Commission on Appointments. Moreover, the President is expressly authorized by law to appoint the Commissioner of the Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the Philippines on 22 June 1957, reads as follows: 601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as the 'Commissioner') and Assistant Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing laws. The Assistant Commissioner of Customs shall be appointed by the proper department head. Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No. 34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now reads as follows: Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall have one chief and one assistant chief, to be known respectively as the Commissioner (hereinafter known as Commissioner) and Deputy Commissioner of Customs, who shall each receive an annual compensation in accordance with the rates prescribed by existing law. The Commissioner and the Deputy Commissioner of Customs shall be appointed by the President of the Philippines (Emphasis supplied.) Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity of the 1935 Constitution, under which the President may nominate and, with the consent of the Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the Bureau of Customs. After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment he is authorizedby law to make, such appointment, however, no longer needs the confirmation of the Commission on Appointments. Consequently, we rule that the President of the Philippines acted within her constitutional authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of Customs, without submitting his nomination to the Commission on Appointments for confirmation. He is thus entitled to exercise the full authority and functions of the office and to receive all the salaries and emoluments pertaining thereto. WHEREFORE, the petition and petition in intervention should be, as they are, hereby DISMISSED. Without costs. SO ORDERED. Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Separate Opinions TEEHANKEE, C.J., concurring: The Court has deemed it necessary and proper, in consonance with its constitutional duty, to adjudicate promptly the issue at bar and to rule that the direct appointment of respondent Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a prior nomination to the Commission on Appointments and securing its confirmation) is valid and in accordance with the President's constitutional authority to so appoint officers of the Government as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and the exigencies of the public service

demand that any doubts over the validity of such appointments be resolved expeditiously in the test case at bar. It should be noted that the Court's decision at bar does not mention nor deal with the Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An Act Providing For the Confirmation By the Commission on Appointments of All Nominations and Appointments Made by the President of the Philippines" was passed on 23 October 1987 and was "set for perusal by the House of Representatives. " This omission has been deliberate. The Court has resolved the case at bar on the basis of the issues joined by the parties. The contingency of approval of the bill mentioned by intervenor clearly has no bearing on and cannot affect retroactively the validity of the direct appointment of respondent Mison and other appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor- Santiago." The Court does not deal with constitutional questions in the abstract and without the same being properly raised before it in a justiciable case and after thorough discussion of the various points of view that would enable it to render judgment after mature deliberation. As stressed at the hearing of December 8, 1987, any discussion of the reported bill and its validity or invalidity is premature and irrelevant and outside the scope of the issues resolved in the case at bar. MELENCIO-HERRERA, J., concurring: I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and simply wish to add my own reading of the Constitutional provision involved. Section 16, Article VII, of the 1987 Constitution provides: The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of the departments, agencies, commissions or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress (Emphasis and 1st three paragraphings, supplied). The difference in language used is significant. Under the first sentence it is clear that the President "nominates" and with the consent of the Commission on Appointments "appoints" the officials enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any reference to nomination. Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the second sentence from confirmation by the Commission on Appointments is, to my mind, quite clear. So also is the fact that the term "appoint" used in said sentence was not meant to include the three distinct acts in the appointing process, namely, nomination, appointment, and commission. For if that were the intent, the same terminologies in the first sentence could have been easily employed. There should be no question either that the participation of the Commission on Appointments in the appointment process has been deliberately decreased in the 1987 Constitution compared to that in the 1935 Constitution, which required that all presidential appointments be with the consent of the Commission on Appointments. The interpretation given by the majority may, indeed, lead to some incongruous situations as stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the future. The task of constitutional construction is to ascertain the intent of the framers of the Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source from which to ascertain constitutional intent is the language of the Constitution itself. SARMIENTO, J., concurring: I concur. It is clear from the Constitution itself that not all Presidential appointments are subject to prior Congressional confirmation, thus:

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 recess of the Congress, whether voluntary or compulsory, but such appointment shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. 1 By its plain language, the Constitution has intended that only those grouped under the first sentence are required to undergo a consenting process. This is a significant departure from the procedure set forth in the 1935 Charter: (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 to commander, and all other officers of the Government whose appointments are not herein otherwise provided for, and those whom he may be authorized by law to appoint; but the Congress may by law vest the appointment of inferior officers, in the President alone, in the courts, or in the heads of departments. 2 under which, as noted by the majority, "almost all presidential appointments required the consent (confirmation) of the Commission on Appointments. 3 As far as the present Charter is concerned, no extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is to say, to require all Presidential appointments clearance from the Commission on Appointments, they could have simply reenacted the Constitution's 1935 counterpart. 4 I agree that the present Constitution classifies four types of appointments that the President may make: (1) appointments of heads of executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those of other officers whose appointments are vested in him under the Constitution, including the regular members of the Judicial and Bar Council, 5 the Chairman and Commissioners of the Civil Service Commission, 6 the Chairman and Commissioners of the Commission on Elections, 7 and the Chairman and Commissioners of the Commission on Audit; 8 (2) those officers whose appointments are not otherwise provided for by law; (3) those whom he may be authorized by law to appoint; and (4) officers lower in rank whose appointments the Congress may vest in the President alone. But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have written a "rather confused Constitution" 9 with respect, to a large extent, to its other parts, and with respect, to a certain extent, to the appointing clause itself, in the sense that it leaves us for instance, with the incongruous situation where a consul's appointment needs confirmation whereas that of Undersecretary of Foreign Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to judge. That is a question addressed to the electorate, and who, despite those "eccentricities," have stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the applicable constitutional provisions, not in accordance with how the executive or the legislative department may want them construed, but in accordance with what they say and provide." 10 It must be noted that the appointment of public officials is essentially an exercise of executive power. 11 The fact that the Constitution has provided for a Commission on Appointments does not minimize the extent of such a power, much less, make it a shared executive-legislative prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment to office is intrinsically an executive act involving the exercise of discretion." 12 Springer v. Philippine Islands 13 on the other hand, underscored the fact that while the legislature may create a public office, it cannot name the official to discharge the functions appurtenant thereto. And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications, which would unduly narrow the President's choice. In that event, it is as if it is the legislature itself conferring the appointment.

Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive retains his supremacy as the appointing authority. In case of doubt, the same should be resolved in favor of the appointing power. It is the essence of a republican form of government, like ours, that "[e]ach department of the government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine republican systems, no power is absolutely separate from the other. For republicanism operates on a process of checks and balances as well, not only to guard against excesses by one branch, but more importantly, "to secure coordination in the workings of the various departments of the government." 15 Viewed in that light, the Commission on Appointments acts as a restraint against abuse of the appointing authority, but not as a means with which to hold the Chief Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in our history under the regime of the 1935 Constitution. The system of checks and balances is not peculiar to the provision on appointments. The prohibition, for instance, against the enactment of a bill of attainder operates as a bar against legislative encroachment upon both judicial and executive domains, since the determination of guilt and punishment of the guilty address judicial and executive functions, respective y. 16 And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both ways. In a very real sense, the power of appointment constitutes a check against legislative authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the law enforcement process by retaining a power to appoint the individual who will execute the laws." 18 This is so, according to one authority, because "the appointments clause, rather than 'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative authority in the interest of avoiding an undue concentration of power in Congress. " 19 The President has sworn to "execute [the] laws. 20 For that matter, no other department of the Government may discharge that function, least of all Congress. Accordingly, a statute conferring upon a commission the responsibility of administering that very legislation and whose members have been determined therein, has been held to be repugnant to the Charter. 21 Execution of the laws, it was held, is the concern of the President, and in going about this business, he acts by himself or through his men and women, and no other. The President, on the other hand, cannot remove his own appointees "except for cause provided by law." 22 Parenthetically, this represents a deviation from the rule prevailing in American jurisdiction that "the power of removal . . . [is] incident to the power of appointment, 23 although this has since been tempered in a subsequent case, 24 where it was held that the President may remove only "purely executive officers, 25 that is, officers holding office at his pleasure. In Ingles v. Mutuc, 26 this Court held that the President may remove incumbents of offices confidential in nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the meaning of civil service laws, but that his term merely expires. It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987 Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. 27 Accordingly, the failure of the Commission to either consent or not consent to the appointments preferred before it within the prescribed period results in a de facto confirmation thereof Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing powers emerges a structure whose parts are at times jealous of each other, but which are ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so elegantly articulated: xxx xxx xxx 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. ... When we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on. 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. 28 xxx xxx xxx We are furthermore told: xxx xxx xxx ... (I)t will be vital not to forget that all of these "checks and counterpoises, which Newton might readily have recognized as suggestive of the mechanism of the heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)] can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192: "The Constitution cannot be regarded as a mere legal document, to be read as a will or a contract would be. It must, of the necessity of the case, be a vehicle of life.") The great difficulty of any theory less rich, Woodrow Wilson once warned, "is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks, and five." (Id. at 56.) Yet because no complex society can have its centers of power not "offset against each other as checks," and resist tyranny, the Model of Separated and Divided Powers offers continuing testimony to the undying dilemmas of progress and justice. 29 xxx xxx xxx As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately denied the legislature (the National Assembly under the 1971 draft Constitution) the power to check executive appointments, and hence, granted the President absolute appointing power. 30 As a delegate to, and Vice-President of, the illfated 1971 Constitutional Convention, and more so as the presiding officer of most of its plenary session, I am aware that the Convention did not provide for a commission on appointments on the theory that the Prime Minister, the head of the Government and the sole appointing power, was himself a member of parliament. For this reason, there was no necessity for a separate body to scrutinize his appointees. But should such appointees forfeit the confidence of the assembly, they are, by tradition, required to resign, unless they should otherwise have been removed by the Prime Minister. 31 In effect, it is parliament itself that "approves" such appointments. Unfortunately, supervening events forestalled our parliamentary experiment, and beginning with the 1976 amendments and some 140 or so amendments thereafter, we had reverted to the presidential form, 32 without provisions for a commission on appointments. In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a mere safeguard against abuse with respect to those appointments. It does not accord Congress any more than the power to check, but not to deny, the Chief Executive's appointing power or to supplant his appointees with its own. It is but an exception to the rule. In limiting the Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the 1987 Constitution has simply recognized the reality of that exception. GUTIERREZ, JR., J., dissenting: I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of the land, should never have any of its provisions interpreted in a manner that results in absurd or irrational consequences. The Commission on Appointments is an important constitutional body which helps give fuller expression to the principles inherent in our presidential system of government. Its functions cannot be made innocuous or unreasonably diminished to the confirmation of a limited number of appointees. In the same manner that the President shares in the enactment of laws which govern the nation, the legislature, through its Commission on Appointments, gives assurance that only those who can pass the scrutiny of both the President and Congress will help run the country as officers holding high appointive positions. The third sentence of the first paragraph " ... 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." specifies only "officers lower in rank" as those who may, by law, be appointed by the President alone. If as expounded in the majority opinion, only the limited number of officers in the first sentence of Section 16 require confirmation, the clear intent of the third sentence is lost.

In fact both the second and third sentences become meaningless or superfluous. Superfluity is not to be read into such an important part of the Constitution. I agree with the intervenor that all provisions of the Constitution on appointments must be read together. In providing for the appointment of members of the Supreme Court and judges of lower courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the Vice President as a member of cabinet (Section 3, Article VII) and, of course, those who by law the President alone may appoint, the Constitution clearly provides no need for confirmation. This can only mean that all other appointments need confirmation. Where there is no need for confirmation or where there is an alternative process to confirmation, the Constitution expressly so declares. Without such a declaration, there must be confirmation. The 1973 Constitution dispensed with confirmation by a Commission on Appointments because the government it set up was supposed to be a parliamentary one. The Prime Minister, as head of government, was constantly accountable to the legislature. In our presidential system, the interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping with the system of government organized under the Constitution. I, therefore vote to grant the petition. CRUZ, J., dissenting: The view of the respondent, as adopted by the majority opinion, is briefly as follows: Confirmation is required only for the officers mentioned in the first sentence of Section 16, to wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4) other officers whose appointments are vested in the President in the Constitution. No confirmation is required under the second sentence for (1) all other officers whose appointments are not otherwise provided for by law, and (2) those whom the President may be authorized by law to appoint. Neither is confirmation required by the third sentence for those other officers lower in rank whose appointment is vested by law in the President alone. Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his department, does not have to be confirmed by the Commission on Appointments, but the ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard lower in rank than the Chairman of the Commission on Human Rights, which was created by the Constitution; yet the former is subject to confirmation but the latter is not because he does not come under the first sentence. The Special Prosecutor, whose appointment is not vested by the Constitution in the President, is not subject to confirmation under the first sentence, and neither are the Governor of the Central Bank and the members of the Monetary Board because they fall under the second sentence as interpreted by the majority opinion. Yet in the case of the multisectoral members of the regional consultative commission, whose appointment is vested by the Constitution in the President under Article X, Section 18, their confirmation is required although their rank is decidedly lower. I do not think these discrepancies were intended by the framers as they would lead to the absurd consequences we should avoid in interpreting the Constitution. There is no question that bureau directors are not required to be confirmed under the first sentence of Section 16, but that is not the provision we ought to interpret. It is the second sentence we must understand for a proper resolution of the issues now before us. Significantly, although there was a long discussion of the first sentence in the Constitutional Commission, there is none cited on the second sentence either in the Solicitor-General's comment or in the majority opinion. We can therefore only speculate on the correct interpretation of this provision in the light of the first and third sentences of Section 16 or by reading this section in its totality. The majority opinion says that the second sentence is the exception to the first sentence and holds that the two sets of officers specified therein may be appointed by the President without the concurrence of the Commission on Appointments. This interpretation is pregnant with mischievous if not also ridiculous results that presumably were not envisioned by the framers. One may wonder why it was felt necessary to include the second sentence at all, considering the majority opinion that the enumeration in the first sentence of the officers subject to confirmation is exclusive on the basis of expressio unius est exclusio alterius. If that be so, the first sentence would have been sufficient by itself to convey the Idea that all other appointees of the President would not need confirmation.

One may also ask why, if the officers mentioned in the second sentence do not need confirmation, it was still felt necessary to provide in the third sentence that the appointment of the other officers lower in rank will also not need confirmation as long as their appointment is vested by law in the President alone. The third sentence would appear to be superfluous, too, again in view of the first sentence. More to the point, what will follow if Congress does not see fit to vest in the President alone the appointment of those other officers lower in rank mentioned in the third sentence? Conformably to the language thereof, these lower officers will need the confirmation of the Commission on Appointments while, by contrast, the higher officers mentioned in the second sentence will not. Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in rank than the bureau director, will have to be confirmed if the Congress does not vest their appointment in the President alone under the third sentence. On the other hand, their superior, the bureau director himself, will not need to be confirmed because, according to the majority opinion, he falls not under the first sentence but the second. This is carefulness in reverse, like checking the bridesmaids but forgetting the bride. It must be borne in mind that one of the purposes of the Constitutional Commission was to restrict the powers of the Presidency and so prevent the recurrence of another dictatorship. Among the many measures taken was the restoration of the Commission on Appointments to check the appointing power which had been much abused by President Marcos. We are now told that even as this body was revived to limit appointments, the scope of its original authority has itself been limited in the new Constitution. I have to disagree. My own reading is that the second sentence is but a continuation of the Idea expressed in the first sentence and simply mentions the other officers appointed by the President who are also subject to confirmation. The second sentence is the later expression of the will of the framers and so must be interpreted as complementing the rule embodied in the first sentence or, if necessary, reversing the original intention to exempt bureau directors from confirmation. I repeat that there were no debates on this matter as far as I know, which simply means that my humble conjecture on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read and rely on the same records. At any rate, this view is more consistent with the general purpose of Article VII, which, to repeat, was to reduce the powers of the Presidency. The respondent cites the following exchange reported in page 520, Volume II, of the Record of the Constitutional Convention: Mr. Foz: Madam President, this is the third proposed amendment on page 7, line 28, 1 propose to put a period (.) after 'captain' and on line 29, delete 'and all' and substitute it with HE SHALL ALSO APPOINT ANY. Mr. Regalado: Madam President, the Committee accepts the proposed amendment because it makes it clear that those other officers mentioned therein do not have to be confirmed by the Commission on Appointments. However, the records do not show what particular part of Section 16 the committee chairman was referring to, and a reading in its entirety of this particular debate will suggest that the body was considering the first sentence of the said section, which I reiterate is not the controversial provision. In any case, although the excerpt shows that the proposed amendment of Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in the session or reworded by the style committee or otherwise replaced for whatever reason will need another surmise on this rather confused Constitution. I need only add that the records of the Constitutional Commission are merely extrinsic aids and are at best persuasive only and not necessarily conclusive. Interestingly, some quarters have observed that the Congress is not prevented from adding to the list of officers subject to confirmation by the Commission on Appointments and cite the debates on this matter in support of this supposition. It is true enough that there was such a consensus, but it is equally true that this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article VII. Which should prevail then the provision as worded or the debates? It is not disputed that the power of appointment is executive in nature, but there is no question either that it is not absolute or unlimited. The rule re- established by the new Constitution is that the power requires confirmation by the Commission on Appointments as a restraint on presidential excesses, in line with the system of checks

and balances. I submit it is the exception to this rule, and not the rule, that should be strictly construed. In my view, the only officers appointed by the President who are not subject to confirmation by the Commission on Appointments are (1) the members of the judiciary and the Ombudsman and his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their appointment is vested by law in the President alone. It is clear that this enumeration does not include the respondent Commissioner of Customs who, while not covered by the first sentence of Section 16, comes under the second sentence thereof as I would interpret it and so is also subject to confirmation. I vote to grant the petition

Republic of SUPREME Manila EN BANC G.R. No. 92008 July 30, 1990 RAMON P. vs. PETER D. GARRUCHO, JR., respondent. Ledesma, Saludo & Associates for petitioner.

the

Philippines COURT

BINAMIRA,

petitioner,

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 ViceChairman 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, 2 copy 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, 4 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. 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).itc-asl 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 ViceChairman 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

Republic SUPREME Baguio City

of

the

Philippines COURT

EN BANC 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-InCharge, 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 COMELECs Education and Information Department ("EID" for brevity). The Facts On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairperson Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 2001, Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2 On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and 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, 200111 addressed to petitioner as Director IV of the EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the Law Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioners reassignment in a Memorandum dated April 14, 2001 12 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayos failure to consult the Commissioner-in-Charge of the EID in the reassignment of petitioner. On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the Law Department. 13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benipayo denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which states in part: "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an

exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001.15 Petitioner also filed an administrative and criminal complaint16 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 interim appointments of Benipayo as COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 They all took their oaths of office anew. The Issues The issues for resolution of this Court are as follows: 1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review in constitutional cases; 2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution; 3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution; 4. Whether or not Benipayos removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Department is illegal and without authority, having been done without the approval of the COMELEC as a collegial body; 5. Whether or not the Officer-in-Charge of the COMELECs Finance Services Department, in continuing to make disbursements in favor of Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction. First Issue: Propriety of Judicial Review Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review in constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Court to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason unless all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substantial interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4) the constitutional issue is the lis mota of the case.19Respondents argue that the second, third and fourth requisites are absent in this case. Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a direct injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out that petitioner does not claim to be lawfully entitled to any of the positions assumed by Benipayo, Borra or Tuason. Neither does petitioner claim to be directly injured by the appointments of these three respondents.

Respondents also contend that petitioner failed to question the constitutionality of the ad interim appointments at the earliest opportunity. Petitioner filed the petition only on August 3, 2001 despite the fact that the ad interim appointments of Benipayo, Borra and Tuason were issued as early as March 22, 2001. Moreover, the petition was filed after the third time that these three respondents were issued ad interim appointments. Respondents insist that the real issue in this case is the legality of petitioners reassignment from the EID to the Law Department. Consequently, the constitutionality of the ad 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 Benipayos authority as Chairman of the Commission on Elections, and as the Commissions Chief Executive Officer."21 Evidently, respondents anchor the legality of petitioners reassignment on Benipayos authority as Chairman of the COMELEC. The real issue then turns on whether or not Benipayo is the lawful Chairman of the COMELEC. Even if petitioner is only an Acting Director of the EID, her reassignment is without legal basis if Benipayo is not the lawful COMELEC Chairman, an office created by the Constitution. On the other hand, if Benipayo is the lawful COMELEC Chairman because he assumed office in accordance with the Constitution, then petitioners reassignment is legal and she has no cause to complain provided the reassignment is in accordance with the Civil Service Law. Clearly, petitioner has a personal and material stake in the resolution of the constitutionality of Benipayos assumption of office. Petitioners personal and substantial injury, if Benipayo is not the lawful COMELEC Chairman, clothes her with the requisite locus standi to raise the constitutional issue in this petition. Respondents harp on petitioners belated act of questioning the constitutionality of the ad interim appointments of Benipayo, Borra and Tuason. Petitioner filed the instant petition only on August 3, 2001, when the first ad interim appointments were issued as early as March 22, 2001. However, it is not the date of filing of the petition that determines whether the constitutional issue was raised at the earliest opportunity. The earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, "if it is not raised in the pleadings, it cannot be considered at the trial, and, if not considered at the trial, it cannot be considered on appeal."22 Petitioner questioned the constitutionality of the ad 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 petitioners reassignment hinges on the constitutionality of Benipayos ad interim appointment and assumption of office. Unless the constitutionality of Benipayos ad interim appointment and assumption of office is resolved, the legality of petitioners reassignment from the EID to the Law Department cannot be determined. Clearly, the lis mota of this case is the very constitutional issue raised by petitioner. In any event, the issue raised by petitioner is of paramount importance to the public. The legality of the directives and decisions made by the COMELEC in the conduct of the May 14, 2001 national elections may be put in doubt if the constitutional issue raised by petitioner is left unresolved. In keeping with this Courts duty to determine whether other agencies of government have remained within the limits of the Constitution and have not abused the discretion given them, this Court may even brush aside technicalities of procedure and resolve any constitutional issue raised. 24 Here the petitioner has complied with all the requisite technicalities. Moreover, public interest requires the resolution of the constitutional issue raised by petitioner. Second Issue: The Nature of an Ad Interim Appointment Petitioner argues that an ad interim appointment to the COMELEC is a temporary appointment that is prohibited by Section 1 (2), Article IX-C of the Constitution, which provides as follows: "The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five years, and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of the

predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity." (Emphasis supplied) Petitioner posits the view that an ad interim appointment can be withdrawn or revoked by the President at her pleasure, and can even be disapproved or simply by-passed by the Commission on Appointments. For this reason, petitioner claims that an ad interim appointment is temporary in character and consequently prohibited by the last sentence of Section 1 (2), Article IX-C of the Constitution. Based on petitioners theory, there can be no ad interim appointment to the COMELEC or to the other two constitutional commissions, namely the Civil Service Commission and the Commission on Audit. The last sentence of Section 1 (2), Article IX-C of the Constitution is also found in Article IX-B and Article IX-D providing for the creation of the Civil Service Commission and the Commission on Audit, respectively. Petitioner interprets the last sentence of Section 1 (2) of Article IX-C to mean that the ad interim appointee cannot assume office until his appointment is confirmed by the Commission on Appointments for only then does his appointment become permanent and no longer temporary in character. The rationale behind petitioners theory is that only an appointee who is confirmed by the Commission on Appointments can guarantee the independence of the COMELEC. A confirmed appointee is beyond the influence of the President or members of the Commission on Appointments since his appointment can no longer be recalled or disapproved. Prior to his confirmation, the appointee is at the mercy of both the appointing and confirming powers since his appointment can be terminated at any time for any cause. In the words of petitioner, a Sword of Damocles hangs over the head of every appointee whose confirmation is pending with the Commission on Appointments. We find petitioners argument without merit. An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Section 16, Article VII of the Constitution provides as follows: "The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." (Emphasis supplied) Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. The fear that the President can withdraw or revoke at any time and for any reason an ad interim appointment is utterly without basis. More than half a century ago, this Court had already ruled that an ad interim appointment is permanent in character. In Summers vs. Ozaeta,25 decided on October 25, 1948, we held that: "x x x an ad interim appointment is one made in pursuance of paragraph (4), Section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad 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 interim appointment takes effect immediately. The appointee can at once assume office and exercise, as a de jure officer, all the powers pertaining to the office. In Pacete vs. Secretary of the Commission on Appointments,26 this Court elaborated on the nature of an ad 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 Blacks Law Dictionary which defines the term "ad interim" to mean "in the meantime" or "for the time being." Hence, petitioner argues that an ad interim appointment is undoubtedly temporary in character. This argument is not new and was answered by this Court in Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court,27 where we explained that: "x x x From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several ad interim appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word ad interim which creates such belief. The term is defined by Black to mean "in the meantime" or "for the time being". Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Blacks Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Estebans appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. x x x." (Emphasis supplied) Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence. The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Court of Appeals,28 where the Court stated: "We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indicative of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In the instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limitation as to tenure. The permanent status of private respondents appointment as Executive Assistant II was recognized and attested to by the Civil Service Commission Regional Office No. 12. Petitioners submission that private respondents ad interim appointment is synonymous with a temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent but their terms are only until the Board disapproves them." (Emphasis supplied) An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law."29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad 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 interim appointees.

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power.31 A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down as unconstitutional 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 Presidents power to extend ad interim appointments. To hold that the independence of the COMELEC requires the Commission on Appointments to first confirm ad interim appointees before the appointees can assume office will negate the Presidents power to make ad interim appointments. This is contrary to the rule on statutory construction to give meaning and effect to every provision of the law. It will also run counter to the clear intent of the framers of the Constitution. The original draft of Section 16, Article VII of the Constitution - on the nomination of officers subject to confirmation by the Commission on Appointments - did not provide for ad 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 DyLiacco Flores was also February 15, 2002, while that of Commissioner Julio F. Desamito was November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flores and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ruling, there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away. To their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more before this Court the applicability of the Gaminde ruling to their own situation. In a 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 intervention44 in the Gaminde case but this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June considering that many of the members of the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to June 3, 2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments only on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections. If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would only have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requires that "all x x x election cases shall be heard and decided in division",46 the remaining one division would have been swamped with election cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere absence of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners are expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduct of the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 national elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democracy. Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented the occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to make ad 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 longstanding 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 Presidents power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointing and confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad interim appointment until the Commission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the evil of disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against the evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the Presidents appointing power to the checking power of the legislature. This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COMELEC are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all the COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed 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. Inocentes53 why by-passed ad interim appointees could be extended new appointments, thus: "In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not continue holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply because the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction during the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, never by omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the President could no longer appoint those so by-passed by the Commission. But,

the fact is that the President may reappoint them, thus clearly indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from said omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad interim appointments or reappointments." (Emphasis supplied) Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution on ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by the President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the President can renew the appointments of by-passed ad interim appointees. This is a continuation of the wellrecognized 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 interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A bypassed 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 Vera57 that a "[r]eappointment is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term will not exceed nine years in all." This was the interpretation despite the express provision in the 1935 Constitution that a COMELEC member "shall hold office for a term of nine years and may not be reappointed." To foreclose this interpretation, the phrase "without reappointment" appears twice in Section 1 (2), Article IX-C of the present Constitution. The first phrase prohibits reappointment of any person previously appointed for a term of seven years. The second phrase prohibits reappointment of any person previously appointed for a term of five or three years pursuant to the first set of appointees under the Constitution. In either case, it does not matter if the person previously appointed completes his term of office for the intention is to prohibit any reappointment of any kind. However, an ad interim appointment that has lapsed by inaction of the Commission on Appointments does not constitute a term of office. The period from the time the ad 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 Presidents power to make ad interim appointments. In the great majority of cases, the Commission on Appointments usually fails to act, for lack of time, on the ad interim appointments first issued to appointees. If such ad interim appointments can no longer be renewed, the President will certainly hesitate to make ad interim appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This will nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in vital government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services. The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohibited reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirmed even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not serve beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, who sponsored58the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles, to wit: "Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissions, and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commission in the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuity of functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decrease salaries of the members of the Commissions during their term of office; and 4) appointments of members would not require confirmation."59 (Emphasis supplied) There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discussed earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to the constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year term, in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The following exchange in the deliberations of the Constitutional Commission is instructive: "MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsors attention, first of all, to Section 2 (2) on the Civil Service Commission wherein

it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in the Committees proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in concluding that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Francisco Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and then in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion, he occupied that position for about 12 years in violation of the Constitution? MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissions does not serve beyond 7 years."60 (Emphasis supplied) Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner: "MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefore as a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this does not happen by including in the appointment both temporary and acting capacities."61 (Emphasis supplied) Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand, the prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that may result in an appointees total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very specific reappointment of any kind and exceeding ones term in office beyond the maximum period of seven years. Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who might wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violators of the Constitution, as shown in the following discussion in the Constitutional Commission: "MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the whole sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say? MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary or acting capacity." MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointment and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constitutional limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissioner on Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there will be no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity." MR. FOZ: The amendment is accepted, Mr. Presiding Officer. MR. DE LOS REYES: Thank you. THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62 The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition on reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointment presupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not breach the seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed term expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, there is no danger whatsoever that the renewal of the ad 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 Benipayos Authority to Reassign Petitioner Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitioner further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maintains that a reassignment without her consent amounts to removal from office without due process and therefore illegal. Petitioners posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMELEC. We have ruled, however, that Benipayo is the de 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. Petitioners appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y" and "Z" to her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is not a Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications for holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission.65 Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66 this Court held that: "As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position cannot be considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig: It is settled that a permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. And being so, it could be withdrawn at will by the appointing authority and at a moments notice, conformably to established jurisprudence x x x. The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he does not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place, or as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannot be regarded as permanent even if it may be so designated x x x." Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position of Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigorous argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing power happens to apply squarely to her situation. Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omnibus Election Code, which provides as follows: "Section 261. Prohibited Acts. The following shall be guilty of an election offense: xxx

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon prior approval of the Commission." Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COMELEC personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer or reassignment of COMELEC personnel during the election period. Contrary to petitioners allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,68 exempting the COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part: "WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows: xxx Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: xxx (h) Transfer of officers and employees in the civil service Any public official who makes or causes any transfer or detail whatever of any officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission. WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001; WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited period in order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections; "NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election Code and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire new employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functions during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before election day shall be effected after due notice and hearing." (Emphasis supplied) The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made within thirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under the Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reassign COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuant to COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revised Administrative Code, an act the COMELEC en banc cannot legally do. COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrence of the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless since the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution No. 3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a second approval from the COMELEC en banc to actually implement such transfer or reassignment. The COMELEC Chairman is the official expressly authorized by law to transfer or reassign COMELEC personnel. The person holding that office, in a de jure capacity, is Benipayo. The COMELEC en banc, in COMELEC Resolution No. 3300, approved the transfer or reassignment of COMELEC personnel during the election period. Thus, Benipayos order reassigning petitioner from the EID to the Law Department does not violate Section 261 (h) of the Omnibus Election Code. For the same reason, Benipayos order designating Cinco Officer-in-Charge of the EID is legally unassailable. Fifth Issue: Legality of Disbursements to Respondents Based on the foregoing discussion, respondent Gideon C. De Guzman, Officer-inCharge of the Finance Services Department of the Commission on Elections, did not act in excess of jurisdiction in paying the salaries and other emoluments of Benipayo, Borra, Tuason and Cinco.

WHEREFORE, the petition is dismissed for lack of merit. Costs against petitioner. SO ORDERED

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

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 transgresses Section 16, Article VII by expanding the confirmation powers of the Commission on Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the Solicitor General, with the following exposition: As interpreted by this Honorable Court in the Mison case, confirmation by the Commission on Appointments is required exclusively for the heads of executive departments, ambassadors, public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution, such as the members of the various Constitutional Commissions. With respect to the other officers whose appointments are not otherwise provided for by the law and to those whom the President may be authorized by law to appoint, no confirmation by the Commission on Appointments is required. Had it been the intention to allow Congress to expand the list of officers whose appointments must be confirmed by the Commission on Appointments, the Constitution would have said so by adding the phrase "and other officers required by law" at the end of the first sentence, or the phrase, "with the consent of the Commission on Appointments" at the end of the second sentence. Evidently, our Constitution has significantly 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

Republic SUPREME Manila EN BANC

of

the

Philippines COURT

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 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). 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. 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 occupy the said office. 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

Republic of the Philippines SUPREME COURT EN BANC G.R. No. 164978 October 13, 2005 AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. OSMEA III, Petitioners vs. EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C. YAP, Respondents. DECISION CARPIO, J.: The Case This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of preliminary injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo ("President Arroyo") through Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as acting secretaries of their respective departments. The petition also seeks to prohibit respondents from performing the duties of department secretaries. Antecedent Facts The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July 2004. The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004. Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries of their respective departments. Appointee Department Date of Appointment

Agriculture 15 August 2004 Foreign Affairs 23 August 2004 Justice 23 August 2004 Education 23 August 2004 National Defense 23 August 2004 Agrarian Reform 23 August 2004 Tourism 23 August 2004 Environment and Natural 23 August 2004 Resources The appointment papers are uniformly worded as follows: Sir: Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office. (signed) Gloria Arroyo Respondents took their oath of office and assumed duties as acting secretaries. On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. EjercitoEstrada ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and Sergio R. Osmea, III ("Senator Osmea") ("petitioners") filed the present petition as Senators of the Republic of the Philippines. Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments3 to respondents as secretaries of the departments to which they were previously appointed in an acting capacity. The appointment papers are uniformly worded as follows: Sir: Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate department). By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing this Office and the Civil Service Commission with copies of your oath of office. (signed) Gloria Arroyo Issue The petition questions the constitutionality of President Arroyos appointment of respondents as acting secretaries without the consent of the Commission on Appointments while Congress is in session. The Courts Ruling The petition has no merit. Preliminary Matters On the Mootness of the Petition The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad interim appointments on 23 September 2004 immediately after the recess of Congress. As a rule, the writ of prohibition will not lie to enjoin acts already done. 4 However, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.5 In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of the Presidents appointment of department secretaries in an acting capacity while Congress is in session will arise in every such appointment. On the Nature of the Power to Appoint The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere.6 Limitations on the executive power to

Arthur C. Yap Alberto G. Romulo Raul M. Gonzalez Florencio B. Abad Avelino J. Cruz, Jr. Rene C. Villa Joseph H. Durano Michael T. Defensor

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. xxx9 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 Secretary12 as basis, thus: To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution. An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a resort to the courts. Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim standing in the present case as members of Congress. President Arroyos issuance of acting appointments while Congress is in session impairs no power of Congress. Among the petitioners, only the following are members of the Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmea as members. Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmea have standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of Congress, possess no standing in the present petition. The Constitutionality of President Arroyos Issuance of Appointments to Respondents as Acting Secretaries Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary." 13 Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"), 14 which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads: SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall: xxx (5) Temporarily discharge the duties of the Secretary in the latters absence or inability to discharge his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall likewise make the temporary designation of Acting Secretary from among them; and xxx

Petitioners further assert that "while Congress is in session, there can be no appointments, whether regular or acting, to a vacant position of an office needing confirmation by the Commission on Appointments, without first having obtained its consent."15 In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads: SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress. Respondents also rely on EO 292, which devotes a chapter to the Presidents power of appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read: SEC. 16. Power of Appointment. The President shall exercise the power to appoint such officials as provided for in the Constitution and laws. SEC. 17. Power to Issue Temporary Designation. (1) The President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists a vacancy[.] (2) The person designated shall receive the compensation attached to the position, unless he is already in the government service in which case he shall receive only such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid out of the funds appropriated for the office or agency concerned. (3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied) Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the law does not give the President such power. In contrast, respondents insist that the President can issue such appointments because no law prohibits such appointments. The essence of an appointment in an acting capacity is its temporary nature. It is a stopgap measure intended to fill an office for a limited time until the appointment of a permanent occupant to the office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the office of a department secretary, the President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could assume office. Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be. The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch." Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent. Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution, because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions. 17 Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments. In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on constitutional law has observed: Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments. 18 However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyos issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year. WHEREFORE, we DISMISS the present petition for certiorari and prohibition. SO ORDERED

EN BANC ANAK MINDANAO PARTY-LIST G.R. No. 166052 GROUP, as represented by Rep. Mujiv Present: S. Hataman, and MAMALO PUNO, C.J., DESCENDANTS ORGANIZATION, QUISUMBING, INC., as represented by its Chairman YNARES-SANTIAGO, Romy Pardi, SANDOVAL-GUTIERREZ, Petitioners, CARPIO, - versus AUSTRIA-MARTINEZ, THE EXECUTIVE CORONA, SECRETARY, THE HON. EDUARDO CARPIO MORALES, R. ERMITA, and THE SECRETARY AZCUNA, OF AGRARIAN/LAND REFORM, THE TINGA, HON. RENE C. VILLA, CHICO-NAZARIO, Respondents. GARCIA, VELASCO, JR., NACHURA, and REYES, JJ. Promulgated: August 29, 2007 x----------------------------------------------------------------------------------------x DECISION CARPIO MORALES, J.: Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI) assail 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. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, reads: EXECUTIVE ORDER NO. 364 TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice and Basic [N]eeds; 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 AntiCorruption 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; NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President of the Republic of the Philippines, do hereby order: SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department of Land Reform. It shall be responsible for all land reform in the country, including agrarian reform, urban land reform, and ancestral domain reform. SECTION 2. The PCUP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the PCUP shall be ex-officio Undersecretary of the Department of Land Reform for Urban Land Reform.

SECTION 3. The NCIP is hereby placed under the supervision and control of the Department of Land Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the Department of Land Reform for Ancestral Domain Reform. SECTION 4. The PCUP and the NCIP shall have access to the services provided by the Departments Finance, Management and Administrative Office; Policy, Planning and Legal Affairs Office, Field Operations and Support Services Office, and all other offices of the Department of Land Reform. SECTION 5. All previous issuances that conflict with this Executive Order are hereby repealed or modified accordingly. SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring supplied) E.O. No. 379, which amended E.O. No. 364 a month later or on October 26, 2004, reads: EXECUTIVE ORDER NO. 379 AMENDING EXECUTIVE ORDER NO. 364 ENTITLED 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, pursuant to the Administrative Code of 1987, the President has the continuing authority to reorganize the administrative structure of the National Government. 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) Petitioners contend that the two presidential issuances are unconstitutional for violating: - 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 Presidential Commission3 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 AMIN5 has the requisite legal standing to file this suit as member6 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. Ermita17 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. Fernando18 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 duty23 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. Torres54 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

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 160093 July 31, 2007 MALARIA EMPLOYEES AND WORKERS ASSOCIATION OF THE PHILIPPINES, INC. (MEWAP), represented by its National President, DR. RAMON A. SULLA, and MEWAP DOH Central Office Chapter President, DR. GRACELA FIDELA MINARAMOS, and PRISCILLA CARILLO, and HERMINIO JAVIER, petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY ALBERTO ROMULO, (substituting the former Executive Secretary Renato de Villa), THE HONORABLE SECRETARY OF HEALTH MANUEL DAYRIT and THE HONORABLE SECRETARY OF BUDGET AND MANAGEMENT EMILIA T. BONCODIN, respondents. DECISION PUNO, CJ.: At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 65475 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 on May 24, 1999 pursuant to Section 20, Chapter 7, Title I, Book III of E.O. No. 292, otherwise known as the Administrative Code of 1987, and Sections 78 and 80 of Republic Act (R.A.) No. 8522, also known as the General Appropriations Act (GAA) of 1998. E.O. No. 102 provided for structural changes and redirected the functions and operations of the Department of Health. 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 adopting the procedures and standards set forth in R.A. No. 66564 or the "Rules on Governmental Reorganization," Civil Service Rules and Regulations, Sections 76 to 78 of the GAA for the Year 2000, and Section 42 of E.O. No. 292. On August 29, 2000, the Secretary of Health issued Department Memorandum No. 157, Series of 2000, viz.: Pursuant to the Notice of Organization, Staffing and Compensation Action (NOSCA) approved by the DBM on 8 July 2000 and Memorandum Circular No. 62 issued by the Presidential Committee on Effective Governance (PCEG) on 17 July 2000, Implementing E.O. 102 dated 24 May 1999, the following approved Placement List of DOH Personnel is hereby disseminated for your information and guidance. All personnel are hereby directed to report to their new assignments on or before 2 October 2000 pending processing of new appointments, required clearances and other pertinent documents. All Heads of Office/Unit in the Department of Health are hereby directed to facilitate the implementation of E.O. 102, to include[,] among others, the transfer or movement of personnel, properties, records and documents to appropriate office/unit and device other necessary means to minimize disruption of office functions and delivery of health services. 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 the Appeals Committee chaired by Dr. Gerardo Bayugo. All Appeals Forms shall be submitted to the Re-Engineering Secretariat xxx not later than 18 September 2000. 5 Petitioner Malaria Employees and Workers Association of the Philippines, Inc. (MEWAP) is a union of affected employees in the Malaria Control Service of the Department of Health. MEWAP filed a complaint, docketed as Civil Case No. 00-98793, with the Regional Trial Court of Manila seeking to nullify Department Memorandum No. 157, the NOSCA and the Placement List of Department of Health Personnel and other issuances implementing E.O. No. 102. 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 Larin16 and Buklod ng Kawanihang EIIB v. Zamora17 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. 665619 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

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION 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 Resolution 1 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. 965442, 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 Zuo issued a Resolution (Zuo 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 Zuo 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 43 2 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. 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 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

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 147780 May 10, 2001 PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001 RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001 THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. RESOLUTION MELO, J.: On May 1, 2001, President Macapagal-Arroyo, faced by an "angry and violent mob armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons" assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring that there was a state of rebellion in the National Capital Region. She likewise issued General Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and promoters of the "rebellion" were thereafter effected. Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests, the following four related petitions were filed before the Court (1) G. R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an urgent application for the issuance of temporary restraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus, with prayer for the suspension of the privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by Miriam Defensor-Santiago; (3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by Ronaldo A. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino.

All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as having no basis both in fact and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo ordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot and academic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion." He states that what is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as stated in respondents' Joint Comments: [I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from the courts for all acts committed prior to and until May 1, 2001 which means that preliminary investigations will henceforth be conducted. (Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24) With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest. In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion." Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in his defense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this is without prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time (Section 2 and 3, Rule 65, Rules of Court).1wphi1.nt Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar. G.R. No. 147780 In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court before whom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until the instant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filed against any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecution conducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant. As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio, it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention to leave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose. Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149 [1991]), a matter which remains speculative up to this very day. G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear and complete. Mandamus will not issue unless the right to relief is clear at the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact, the authorities have categorically stated that petitioner will not be arrested without a warrant. G.R. No. 147799 Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion" is violative of the doctrine of separation of powers, being an encroachment on the domain of the judiciary which has the constitutional prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exception to the general rule on the allocation of the governmental powers. We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he 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" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15, 2000): x x x 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. x x x (at pp.22-23) The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38 having been lifted. G.R. No. 147810 Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest. The rule requires that a party must show a personal stake in the outcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's jurisdiction and to justify the exercise of the court's remedial powers in his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legal right has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement. At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expression and freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to the Constitution. However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the first instance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all

persons acting for and in their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to or in connection with the may 1, 2001 siege of Malacaang. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Mendoza, Panganiban, Gonzaga-Reyes, JJ., concur. Vitug, separate opinion. Kapunan, dissenting opinion. Pardo, join the dissent of J. Kapunan. Sandoval-Gutierrez, dissenting opinion. Quisumbing, Buena, Ynares-Santiago, De Leon, Jr., on leave.

G.R. No. 147780 May 10, 2001 PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. SEPARATE OPINION VITUG, J.: I concur insofar as the resolution enjoins any continued warrantless arrests for acts related to, or connected with, the May 1st incident but respectfully dissent from the order of dismissal of the petitions for being said to be moot and academic. The petitions have raised important constitutional issues that, in my view, must likewise be fully addressed.

G.R. No. 147780 May 10, 2001 PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001 RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001 THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION KAPUNAN, J.:

The right against unreasonable searches and seizure has been characterized as belonging "in the catalog of indispensable freedoms." Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.1 Invoking the right against unreasonable searches and seizures, petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao II now seek a temporary restraining order and/or injunction from the Court against their impending warrantless arrests upon order of the Secretary of Justice.2 Petitioner Laban ng Demokratikong Pilipino (LDP), likewise, seeks to enjoin the arrests of its senatorial candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam Defensor-Santiago, Senator Gregorio B. Honasan and General Panfilo Lacson.3 Separate petitioners were also filed by Senator Juan Ponce Enrile.4 Former Ambassador Ernesto M. Maceda,5 Senator Miriam Defensor-Santiago,6 Senator Gregorio B. Honasan,7 and the Integrated Bar of the Philippines (IBP).8 Briefly, the order for the arrests of these political opposition leaders and police officers stems from the following facts: On April 25, 2001, former President Joseph Estrada was arrested upon the warrant issued by the Sandiganbayan in connection with the criminal case for plunder filed against him. Several hundreds of policemen were deployed to effect his arrest. At the time, a number of Mr. Estrada's supporters, who were then holding camp outside his residence in Greenhills Subdivision, sought to prevent his arrest. A skirmish ensued between them and the police. The police had to employ batons and water hoses to control the rock-throwing pro-Estrada rallyists and allow the sheriffs to serve the warrant. Mr. Estrada and his son and co-accused, Mayor Jinggoy Estrada, were then brought to Camp Crame where, with full media coverage, their fingerprints were obtained and their mug shots taken. Later that day, and on the succeeding days, a huge gathered at the EDSA Shrine to show its support for the deposed President. Senators Enrile, Santiago, Honasan, opposition senatorial candidates including petitioner Lacson, as well as other political personalities, spoke before the crowd during these rallies. In the meantime, on April 28, 2001, Mr. Estrada and his son were brought to the Veterans memorial Medical Center for a medical check-up. It was announced that from there, they would be transferred to Fort Sto. Domingo in Sta. Rosa, Laguna. In the early morning of May 1, 2001, the crowd at EDSA decided to march to Malacaang Palace. The Armed Forces of the Philippines (AFP) was called to reinforce the Philippine National Police (PNP) to guard the premises of the presidential residence. The marchers were able to penetrate the barricades put up by the police at various points leading to Mendiola and were able to reach Gate 7 of Malacaan. As they were being dispersed with warning shots, tear gas and water canons, the rallyists hurled stones at the police authorities. A melee erupted. Scores of people, including some policemen, were hurt. At noon of the same day, after the crowd in Mendiola had been dispersed, President Gloria Macapagal-Arroyo issued Proclamation No. 38 declaring a "state of rebellion" in Metro Manila: Presidential Proclamation No. 38 DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize power, and have and continue to rise publicly, shown open hostility, and take up arms against the duly constituted Government for the purpose of removing from the allegiance to the Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which

constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law hereby recognize and confirm the existence of an actual and ongoing rebellion compelling me to declare a state of rebellion; In view of the foregoing, I am issuing General Order NO. 1 in accordance with Section 18, Article VII of the Constitution calling upon the Armed Forces of the Philippines and the Philippine National police to suppress and quell the rebellion. City of Manila, May 1, 2001. The President likewise issued General Order No. 1 which reads: GENERAL ORDER NO. 1 DIRECTING THE ARMED FORCES OF THE PHILIPPIENS AND THE PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION IN THE NATIONAL CAPITAL REGION WHEREAS, the angry and violent mob, armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons, in great part coming from the mass gathering at the EDSA Shrine, and other armed groups, having been agitated and incited and, acting upon the instigation and under the command and direction of known and unknown leaders, have and continue to assault and attempt to break into Malacaang with the avowed purpose of overthrowing the duly constituted Government and forcibly seize political power, and have and continue to rise publicly, show open hostility, and take up arms against the duly constituted Government certain bodies of the Armed Forces of the Philippines and the Philippine National Police, and to deprive the President of the Republic of the Philippines, wholly and partially, of her powers and prerogatives which constitute the continuing crime of rebellion punishable under Article 134 of the Revised Penal Code; WHEREAS, armed groups recruited by known and unknown leaders, conspirators, and plotters have continue (sic) to rise publicly by the use of arms to overthrow the duly constituted Government and seize political power; WHEREAS, under Article VII, Section 18 of the Constitution, whenever necessary, the President as the Commander-in-Chief of all armed forces of the Philippines, may call out such armed forces to suppress the rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines and Commander-in-Chief of all armed forces of the Philippines and pursuant to Proclamation No. 38, dated May 1, 2001, do hereby call upon the Armed Forces of the Philippines and the Philippine national police to suppress and quell the rebellion. I hereby direct the Chief of Staff of the Armed Forces of the Philippines and the Chief of the Philippine National Police and the officers and men of the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary and appropriate actions and measures to suppress and quell the rebellion with due regard to constitutional rights. City of Manila, May 1, 2001. Pursuant to the proclamation, several key leaders of the opposition were ordered arrested. Senator Enrile was arrested without warrant in his residence at around 4:00 in the afternoon. Likewise arrested without warrant the following day was former Ambassador Ernesto Maceda. Senator Honasan and Gen. Lacson were also ordered arrested but the authorities have so far failed to apprehend them. Ambassador Maceda was temporarily released upon recognizance while Senator Ponce Enrile was ordered released by the Court on cash bond. The basic issue raised by the consolidated petitions is whether the arrest or impending arrest without warrant, pursuant to a declaration of "state of rebellion" by the President of the above-mentioned persons and unnamed other persons similarly situated suspected of having committed rebellion is illegal, being unquestionably a deprivation of liberty and violative of the Bill of Rights under the Constitution.

The declaration of a "state of rebellion" is supposedly based on Section 18, Article VII of the Constitution which reads: The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. Section 18 grants the President, as Commander-in-Chief, the power to call out the armed forces in cases of (1) lawless violence, (2) rebellion and (3) invasion. 9 In the latter two cases, i.e., rebellion or invasion, the President may, when public safety requires, also (a) suspend the privilege of the writ of habeas corpus, or (b) place the Philippines or any part thereof under martial law. However, in the exercise of this calling out power as Commander-in-Chief of the armed forces, the Constitution does not require the President to make a declaration of a "state of rebellion" (or, for that matter, of lawless violence or invasion). The term "state of rebellion" has no legal significance. It is vague and amorphous and does not give the President more power than what the Constitution says, i. e, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. As Justice Mendoza observed during the hearing of this case, such a declaration is "legal surplusage." But whatever the term means, it cannot diminish or violate constitutionallyprotected rights, such as the right to due process,10 the rights to free speech and peaceful assembly to petition the government for redress of grievances, 11 and the right against unreasonable searches and seizures,12 among others. In Integrated Bar of the Philippines vs. Zamora, et al.,13 the Court held that: x x x [T]he distinction (between the calling out power, on one hand, and the power to suspend the privilege of the write of habeas corpus and to declare martial law, on the other hand) places the calling out power in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided for their revocation and review without any qualification. Expressio unius est exclusio alterius. xxx The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the President the widest leeway and broadest discretion in using the "calling out" power because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating affirmation by Congress and, in appropriate cases, review by this Court.

On the other hand, if the motive behind the declaration of a "state of rebellion" is to arrest persons without warrant and detain them without bail and, thus, skirt the Constitutional safeguards for the citizens' civil liberties, the so-called "state of rebellion" partakes the nature of martial law without declaring on its face, yet, if it is applied and administered by public authority with an evil eye so as to practically make it unjust and oppressive, it is within the prohibition of the Constitution. 14 In an ironic sense, a "state of rebellion" declared as a subterfuge to effect warrantless arrest and detention for an unbailable offense places a heavier burden on the people's civil liberties than the suspension of the privilege of the writ of habeas corpus the declaration of martial law because in the latter case, built-in safeguards are automatically set on motion: (1) The period for martial law or suspension is limited to a period not exceeding sixty day; (2) The President is mandated to submit a report to Congress within forty-eight hours from the proclamation or suspension; (3) The proclamation or suspension is subject to review by Congress, which may revoke such proclamation or suspension. If Congress is not in session, it shall convene in 24 hours without need for call; and (4) The sufficiency of the factual basis thereof or its extension is subject to review by the Supreme Court in an appropriate proceeding.15 No right is more fundamental than the right to life and liberty. Without these rights, all other individual rights may not exist. Thus, the very first section in our Constitution's Bill of Rights, Article III, 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. And to assure the fullest protection of the right, more especially against government impairment, Section 2 thereof provides: SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Indeed, there is nothing in Section 18 which authorizes the President or any person acting under her direction to make unwarranted arrests. The existence of "lawless violence, invasion or rebellion" only authorizes the President to call out the "armed forces to prevent or suppress lawless violence, invasion or rebellion." Not even the suspension of the privilege of the writ of habeas corpus or the declaration of martial law authorizes the President to order the arrest of any person. The only significant consequence of the suspension of the writ of habeas corpus is to divest the courts of the power to issue the writ whereby the detention of the person is put in issue. It does not by itself authorize the President to order the arrest of a person. And even then, the Constitution in Section 18, Article VII makes the following qualifications: The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. In the instant case, the President did not suspend the writ of habeas corpus. Nor did she declare martial law. A declaration of a "state of rebellion," at most, only gives notice to the nation that it exists, and that the armed forces may be called to prevent or suppress it, as in fact she did. Such declaration does not justify any deviation from the Constitutional proscription against unreasonable searches and seizures. As a general rule, an arrest may be made only upon a warrant issued by a court. In very circumscribed instances, however, the Rules of Court allow warrantless arrests. Section 5, Rule 113 provides: SEC. 5. Arrest without warrant; when lawful. A police officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and xxx

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. It must be noted that the above are exceptions to the constitutional norm enshrined in the Bill of Rights that a person may only be arrested on the strength of a warrant of arrest issued by a "judge" after determining "personally" the existence of "probable cause" after examination under oath or affirmation of the complainant and the witnesses he may produce. Its requirements should, therefore, be scrupulously met: The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrests is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.16 A warrantless arrest may be justified only if the police officer had facts and circumstances before him which, had they been before a judge, would constitute adequate basis for a finding of probable cause of the commission of an offense and that the person arrested is probably guilty of committing the offense. That is why the Rules of Criminal Procedure require that when arrested, the person "arrested has committed, is actually committing, or is attempting to commit an offense" in the presence of the arresting officer. Or if it be a case of an offense which had "just been committed," that the police officer making the arrest "has personal knowledge of facts or circumstances that the person to be arrested has committed it." Petitioners were arrested or sought to be arrested without warrant for acts of rebellion ostensibly under Section 5 of Rule 113. Respondents' theory is based on Umil vs. Ramos,17 where this Court held: The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assault against the State and are in the nature of continuing crimes.18 Following this theory, it is argued that under Section 5(a), a person who "has committed, is actually committing, or is attempting to commit" rebellion and may be arrested without a warrant at any time so long as the rebellion persists. Reliance on Umil is misplaced. The warrantless arrests therein, although effected a day or days after the commission of the violent acts of petitioners therein, were upheld by the Court because at the time of their respective arrests, they were members of organizations such as the Communist Party of the Philippines, the New Peoples Army and the National United Front Commission, then outlawed groups under the AntiSubversion Act. Their mere membership in said illegal organizations amounted to committing the offense of subversion19 which justified their arrests without warrants. In contrast, it has not been alleged that the persons to be arrested for their alleged participation in the "rebellion" on May 1, 2001 are members of an outlawed organization intending to overthrow the government. Therefore, to justify a warrantless arrest under Section 5(a), there must be a showing that the persons arrested or to be arrested has committed, is actually committing or is attempting to commit the offense of rebellion.20 In other words, there must be an overt act constitutive of rebellion taking place in the presence of the arresting officer. In United States vs. Samonte,21 the term" in his [the arresting officer's] presence" was defined thus: An offense is said to be committed in the presence or within the view of an arresting officer or private citizen when such officer or person sees the offense, even though at a distance, or hears the disturbance created thereby and proceeds at once to the scene thereof; or the offense is continuing, or has not been consummated, at the time the arrest is made.22 This requirement was not complied with particularly in the arrest of Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition for habeas corpus filed by Senator Enrile, the Court noted that the sworn statements of the policemen who purportedly arrested him were hearsay.23 Senator Enrile was arrested two (2) days after he delivered allegedly seditious speeches. Consequently, his arrest without warrant cannot be justified under Section 5(b) which states that an arrest without a warrant is lawful when made after an offense has just been committed and the arresting officer or private

person has probable cause to believe based on personal knowledge of facts and circumstances that the person arrested has committed the offense. At this point, it must be stressed that apart from being inapplicable to the cases at bar, Umil is not without any strong dissents. It merely re-affirmed Garcia-Padilla vs. Enrile,24 a case decided during the Marcos martial law regime.25 It cannot apply when the country is supposed to be under the regime of freedom and democracy. The separate opinions of the following Justices in the motion for reconsideration of said case 26 are apropos: FERNAN C.J., concurring and dissenting: Secondly, warrantless arrests may not be allowed if the arresting officers are not sure what particular provision of law had been violated by the person arrested. True it is that law enforcement agents and even prosecutors are not all adept at the law. However, erroneous perception, not to mention ineptitude among their ranks, especially if it would result in the violation of any right of a person, may not be tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits" (Resolution, p. 18) that he was exercising a right which the arresting officer considered as contrary to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law enforcers wrongly perceived his action.27 (Underscoring supplied) GUTIERREZ, JR., J., concurring and dissenting opinion Insofar as G.R. NO. 81567 is concerned, I joint the other dissenting Justices in their observations regarding "continuing offenses." To base warrantless arrests on the doctrine of continuing offense is to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or sedition are political offenses where the line between overt acts and simple advocacy or adherence to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be validated, it should be Congress and not this Court which should draw strict and narrow standards. Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up with those actually taking up arms against the Government. The belief of law enforcement authorities, no matter how well-grounded on past events, that the petitioner would probably shoot other policemen whom he may meet does not validate warrantless arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's surfacing from underground, and ounce on him with no legal authority instead of securing warrants of arrest for his apprehension.28 (Underscoring supplied) CRUZ, J., concurring and dissenting: I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests made in the cases before us is a step back to that shameful past when individual rights were wantonly and systematically violated by the Marcos dictatorship. It seem some of us have short memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate defender of the Constitution, this Court should not gloss over the abuses of those who, out of mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill of Rights, no more and no less than any other person in this country. That is what democracy is all about. 29 (Underscoring supplied) FELICIANO, J., concurring and dissenting: 12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some of the elements of the offense charged are shown to have been committed by the person arrested without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a crime, begun or committed elsewhere, continued to be committed by the person arrested in the presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous criminal acts with a definite beginning and end in time and space (such as the killing or wounding of a person or kidnapping and illegal detention or arson) but rather or such problematic offenses as membership in or affiliation with or

becoming a member of, a subversive association or organization. For in such cases, the overt constitutive acts may be morally neutral in themselves, and the unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for instance, the following acts which constitute prima facie evidence of "membership in any subversive association:" a) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or any other document of the organization; b) Subjecting himself to the discipline of such or association or organization in any form whatsoever; c) Giving financial contribution to such association or organization in dues, assessments, loans or in any other forms; xxx f) Conferring with officers or other members of such association or organization in furtherance of any plan or enterprise thereof; xxx g) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the objectives and purposes of such association or organization; xxx k) Participating in any way in the activities, planning action, objectives, or purposes of such association or organization. It may well be, as the majority implies, that the constitutional rule against warrantless arrests and seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces but rather to protect the liberties of private individuals. Our police forces must simply learn to live with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness or excess of zeal, the very freedoms which make our policy worth protecting and saving.30 (Underscoring supplied) It is observed that a sufficient period has lapsed between the fateful day of May 1, 2001 up to the present. If respondents have ample evidence against petitioners, then they should forthwith file the necessary criminal complaints in order that the regular procedure can be followed and the warrants of arrest issued by the courts in the normal course. When practicable, resort to the warrant process is always to be preferred because "it interposes an orderly procedure involving 'judicial impartiality' whereby a neutral and detached magistrate can make informed and deliberate determinations on the issue of probable cause."31 The neutrality, detachment and independence that judges are supposed to possess is precisely the reason the framers of the 1987 Constitution have reposed upon them alone the power to issue warrants of arrest. To vest the same to a branch of government, which is also charged with prosecutorial powers, would make such branch the accused's adversary and accuser, his judge and jury.32 A declaration of a state of rebellion does not relieve the State of its burden of proving probable cause. The declaration does not constitute a substitute for proof. It does not in any way bind the courts, which must still judge for itself the existence of probable cause. Under Section 18, Article VII, the determination of the existence of a state of rebellion for purposes of proclaiming martial law or the suspension of the privilege of the writ of habeas corpus rests for which the President is granted ample, though not absolute, discretion. Under Section 2, Article III, the determination of probable cause is a purely legal question of which courts are the final arbiters. Justice Secretary Hernando Perez is reported to have announced that the lifting of the "state of rebellion" on May 7, 2001 does not stop the police from making warrantless arrests.33 If this is so, the pernicious effects of the declaration on the people's civil liberties have not abated despite the lifting thereof. No one exactly knows who are in the list or who prepared the list of those to be arrested for alleged complicity in the "continuing" crime of "rebellion" defined as such by executive fiat. The list of the perceived leaders, financiers and supporters of the "rebellion" to be arrested and incarcerated could expand depending on the appreciation of the police. The coverage and duration of effectivity of the orders of arrest are thus so open-ended and limitless as to place in constant and continuing peril the people's Bill of Rights. It is of no small significance that four of he petitioners are opposition candidates for the Senate. Their campaign activities have been to a large extent immobilized. If the arrests and orders of

arrest against them are illegal, then their Constitutional right to seek public office, as well as the right of he people to choose their officials, is violated. In view of the transcendental importance and urgency of the issues raised in these cases affecting as they do the basic liberties of the citizens enshrined in our Constitution, it behooves us to rule thereon now, instead of relegating the cases to trial courts which unavoidably may come up with conflicting dispositions, the same to reach this Court inevitably for final ruling. As we aptly pronounced in Salonga vs. Cruz Pao:34 The Court also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees. Petitioners look up in urgent supplication to the Court, considered the last bulwark of democracy, for relief. If we do not act promptly, justly and fearlessly, to whom will they turn to? WHEREFORE, I vote as follows: (1) Give DUE COURSE to and GRANT the petitions; (2) Declare as NULL and VOID the orders of arrest issued against petitioners; (3) Issue a WRIT OF INJUNCTION enjoining respondents, their agents and all other persons acting for and in their behalf from effecting warrantless arrests against petitioners and all other persons similarly situated on the basis of Proclamation No. 38 and General Order No. 1 of the President. SO ORDERED. Footnote 1 Dissention Opinion, J. Jackson, in Brinegar vs. United States, 338 U.S. 2084 (1949). 2 G.R. No. 147780, for Prohibition, Injunction, Mandamus and Habeas Corpus. 3 G.R. No. 147810, for Certiorari and Prohibition. 4 G.R. No. 147785, for Habeas Corpus. 5 G.R. No. 147787, for Habeas Corpus. 6 G.R. No. 147781, for Mandamus. 7 G.R. No. 147818, for Injunction. 8 G.R. No. 147819, for Certiorari and Mandamus. 9 Integrated Bar of the Philippines vs. Zamora, et al. G.R. No. 141284, August 15, 2000. 10 Constitution, Article III, Section 1. 11 Constitution, Article III, Section 4. 12 Constitution, Article III, Section 2. 13 G.R. No. 141284, supra. 14 See Yick Wo vs. Hopkins, 118 U.S. 356. 15 Id., at Article VII, Section 18. 16 People vs. Burgos, 144 SCRA 1, 14 (1986). 17 187 SCRA 311 (1990). 18 Id., at 318. 19 187 SCRA 311, 318, 321, 323-24. (1990). 20 Under Article 134 of the Revised Penal Code, these acts would involve rising publicly and taking up arms against the Government: (1) to remove from the allegiance of the Government or its laws, the entire, or a portion of Philippine territory, or any body of land, naval or other armed forces, or (2) to deprive the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives. 21 16 Phil 516 (1910). 22 Id., at 519. 23 G.R. No. 147785. 24 121 SCRA 472 (1983). 25 See Note 396 in Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 180. 26 Umil vs. Ramos, 202 SCRA 251 (1991). 27 Id., at 274. 28 Id., at 279. 29 Id., at 284. 30 Id., at 293-295. 31 LAFAVE, I SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (1987), pp. 548-549. Citations omitted. 32 Presidential Anti-Dollar Salting Task Force vs. CA, 171 SCRA 348 (1989).

33

Manila Bulletin issue of May 8, 2001 under the heading "Warrantless arrest continue" by Rey G. Panaligan: Justice Secretary Hernando Perez said yesterday the lifting of the state of rebellion in Metro Manila does not ban the police from making warrantless arrest of suspected leaders of the failed May 1 Malacaang siege. In a press briefing, Perez said, "we can make warrantless arrest because that is provided for in the Rules of Court," citing Rule 113. 34 134 SCRA 438 (1985).

G.R. No. 147780 May 10, 2001 PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147781 May 10, 2001 MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of National Defense, ET AL., respondents. ---------------------------------------G.R. No. 147799 May 10, 2001 RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO BERROYA, respondents. ---------------------------------------G.R. No. 147810 May 10, 2001 THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO MENDOZA, respondents. DISSENTING OPINION SANDOVAL-GUTIERREZ, J.: The exercise of certain powers by the President in an atmosphere of civil unrest may sometimes raise constitutional issues. If such powers are used arbitrarily and capriciously, they may degenerate into the worst form of despotism. It is on this premise that I express my dissent. The chain of events which led to the present constitutional crisis are as follows: On March 2, 2001, the Supreme Court rendered the landmark decision that would bar further questions on the legitimacy of Gloria Macapagal-Arroyo's presidency.1 In a unanimous decision, the Court declared that Joseph Ejercito Estrada had effectively resigned his post and that Macapagal-Arroyo is the legitimate President of the Philippines. Estrada was stripped of all his powers and presidential immunity from suit. Knowing that a warrant of arrest may at any time be issued against Estrada, his loyalists rushed to his residence in Polk Street, North Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil in the vicinity swearing that no one can take away their "president." Then the dreadful day for the Estrada loyalists came. On April 25, 2001, the Third Division of the Sandiganbayan issued warrants of arrest against Estrada, his son Jinggoy, Charlie "Atong" Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan and Delia Rajas.2 Emotions ran high as an estimated 10,000 Estrada loyalists, ranging from tattooed teenagers of Tondo to wellheeled Chinese, gathered in Estrada's neighborhood.3 Supporters turned hysterical. Newspapers captured pictures of raging men and wailing women. 4 When policemen came, riots erupted. Police had to use their batons as well as water hoses to control the rock-throwing Estrada loyalists.5

It took the authorities about four hours to implement the warrant of arrest. At about 3:30 o'clock in the afternoon of the same day, Philippine National Police (PNP) Chief, Director General Leandro R. Mendoza, with the aid of PNP's Special Action Force and reinforcements from the Philippine Army and Marines, implemented the warrant of arrest against Estrada.6 Like a common criminal, Estrada was fingerprinted and had his mug shots taken at the detention center of the former Presidential Anti-Organized Task Force at Camp Crame. The shabby treatment, caught on live TV cameras nationwide, had sparked off a wave of protest all over the country. Even international news agencies like CNN and BBC were appalled over the manner of Estrada's arrest calling it "overkill." In a taped message aired over radio and television, Estrada defended himself and said, "I followed the rule of law to the letter. I asked our people now to tell the powers to respect our constitution and the rule of law." Being loyal to the end, the supporters of Estrada followed him to Camp Crame. About 3,000 of them massed up in front of the camp. They were shouting "Edsa Three! Edsa Three! They vowed not to leave the place until Estrada is released. When asked how long they planned to stay, the protesters said, "Kahit isang buwan, kahit isang taon.7 At about 6:00 o' clock in the afternoon, also of the same day, the PNP's anti-riot squads dispersed them. Thus, they proceeded to the Edsa Shrine in Mandaluyong City where they joined forces with hundreds more who came from North Greenhills. 8 Hordes of Estrada loyalists began gathering at the historic shrine. On April 27, 2001, the crowd at Edsa begun to swell in great magnitude. Estrada loyalists from various sectors, most of them obviously belonging to the "masses," brought with them placards and streamers denouncing the manner of arrest done to the former president.9 In the afternoon, buses loaded with loyalists from the nearby provinces arrived at the Edsa Shrine. One of their leaders said that the Estrada supporters will stay at Edsa Shrine until the former president gets justice from the present administration.10 An estimated 1,500 PNP personnel from the different parts of the metropolis were deployed to secure the area.11 On April 28, 2001, the PNP and the Armed Forces declared a "nationwide red alert."12 Counter-intelligence agents checked on possible defectors from the military top officials. Several senators were linked to an alleged junta plot. During the rally, several Puwersa Ng Masa candidates delivered speeches before the crowd. Among those who showed up at the rally were Senators Miriam DefensorSantiago, Gregorio Honasan, Juan Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP Director General Panfilo Lacson and former Ambassador Ernesto Maceda.13 On April 30, 2001, the government started to prepare its forces. A 2,000-strong military force backed up by helicopter gunships, Scorpion tanks and armored combat vehicles stood ready to counter any attempt by Estrada loyalists to mount a coup. And to show that it meant business, the task force parked two MG-520 attack helicopters armed to the teeth with rockets on the parade ground at Camp Aguinaldo, Quezon City. Also deployed were two armored personnel carriers and troops in camouflage uniforms. 14 Over 2,500 soldiers from the army, navy, and air force were formed into Task Force Libra to quell the indignant Estrada loyalists.15 On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd at Edsa started their march to Malacaang.16 Along the way, they overran the barricades set up by the members of the PNP Crowd Dispersal Control Management.17 Shortly past 5:00 o'clock in the morning of the same day, the marchers were at the gates of Malacaang chanting, dancing, singing and waving flags. 18 At around 10:00 o'clock in the morning, the police, with the assistance of combat-ready soldiers, conducted dispersal operations. Some members of the dispersal team were unceasingly firing their high-powered firearms in the air, while the police, armed with truncheons and shields, were slowly pushing the protesters away from the gates of Malacaang. Television footages showed protesters hurling stones and rocks on the advancing policemen, shouting invectives against them and attacking them with clubs. They burned police cars, a motorcycle, three pick-ups owned by a television station, construction equipment and a traffic police outpost along Mendiola Street. 19 They also attacked Red Cross vans, destroyed traffic lights, and vandalized standing structures. Policemen were seen clubbing protesters, hurling back stones, throwing teargas under the fierce midday sun, and firing guns towards the sky. National Security Adviser Roilo

Golez said the Street had to be bleared of rioters at all costs because "this is like an arrow, a dagger going all the way to (Malacaang) Gate 7."20 Before noontime of that same day, the Estrada loyalists were driven away. The violent street clashes prompted President Macapagal-Arroyo to place Metro Manila under a "state of rebellion." Presidential Spokesperson Rigoberto Tiglao told reporters, "We are in a state of rebellion. This is not an ordinary demonstration."21 After the declaration, there were threats of arrests against those suspected of instigating the march to Malacaang. At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was arrested in his house in Dasmarias Village, Makati City by a group led by Reynaldo Berroya, Chief of the Philippine National Police Intelligence Group.22 Thereafter, Berroya and his men proceeded to hunt re-electionist Senator Gregorio Honasan, former PNP Chief Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald Lumbao and Cesar Tanega of the People's Movement Against Poverty (PMAP). 23 Justice Secretary Hernando Perez said that he was "studying" the possibility of placing Senator Miriam Defensor Santiago "under the Witness protection program." Director Victor Batac,24 former Chief of the PNP Directorate for Police Community Relations, and Senior Superintendent Diosdado Valeroso, of the Philippine Center for Transnational Crime, surrendered to Berroya. Both denied having plotted the siege. On May 2, 2001, former Ambassador Ernesto Maceda was arrested. The above scenario presents three crucial queries: First, is President MacapagalArroyo's declaration of a "state of rebellion" constitutional? Second, was the implementation of the warrantless arrests on the basis of the declaration of a "state of rebellion" constitutional? And third, did the rallyists commit rebellion at the vicinity of Malacaang Palace on May 1, 2001? The first and second queries involve constitutional issues, hence, the basic yardstick is the 1987 Constitution of the Philippines. The third query requires a factual analysis of the events which culminated in the declaration of a state of rebellion, hence, an examination of Article 134 of the Revised Penal Code is in order. On May 7, 2001, President Macapagal-Arroyo issued Proclamation No. 39, "DECLARING THAT THE STATE OF REBELLION IN THE NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in effect, has lifted the previous Proclamation No. 38. I beg to disagree with the majority opinion in ruling that the instant petitions have been rendered moot and academic with the lifting by the President of the declaration of a "state of rebellion". I believe that such lifting should not render moot and academic the very serious and unprecedented constitutional issues at hand, considering their grave implications involving the basic human rights and civil liberties of our people. A resolution of these issues becomes all the more necessary since, as reported in the papers, there are saturation drives (sonas) being conducted by the police wherein individuals in Metro Manila are picked up without warrants of arrest. Moreover, the acts sought to be declared illegal and unconstitutional are capable of being repeated by the respondents. In Salva v. Makalintat (G.R. No. 132603, Sept. 18, 2000), this Court held that "courts will decide a question otherwise moot and academic if it is 'capable of repetition, yet evading review' " I & II President Macapagal-Arroyo's declaration of a "state of rebellion" and the implementation of the warrantless arrests premised on the said declaration are unconstitutional. Nowhere in the Constitution can be found a provision which grants upon the executive the power to declare a "state of rebellion," much more, to exercise on the basis of such declaration the prerogatives which a president may validly do under a state of martial law. President-Macapagal-Arroyo committed a constitutional short cut. She disregarded the clear provisions of the Constitution which provide: "Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall

submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released." 25 Obviously, the power of the President in cases when she assumed the existence of rebellion is properly laid down by the Constitution. I see no reason or justification for the President's deviation from the concise and plain provisions. To accept the theory that the President could disregard the applicable statutes, particularly that which concerns arrests, searches and seizures, on the mere declaration of a "state of rebellion" is in effect to place the Philippines under martial law without a declaration of the executive to that effect and without observing the proper procedure. This should not be countenanced. In a society which adheres to the rule of law, resort to extraconstitutional measures is unnecessary where the law has provided everything for any emergency or contingency. For even if it may be proven beneficial for a time, the precedent it sets is pernicious as the law may, in a little while, be disregarded again on the same pretext but for evil purposes. Even in time of emergency, government action may vary in breath and intensity from more normal times, yet it need not be less constitutional.26 My fear is rooted in history. Our nation had seen the rise of a dictator into power. As a matter of fact, the changes made by the 1986 Constitutional Commission on the martial law text of the Constitution were to a large extent a reaction against the direction which the Supreme Court took during the regime of President Marcos. 27 Now, if this Court would take a liberal view, and consider that the declaration of a "state of rebellion" carries with it the prerogatives given to the President during a "state of martial law," then, I say, the Court is traversing a very dangerous path. It will open the way to those who, in the end, would turn our democracy into a totalitarian rule. History must not be allowed to repeat itself. Any act which gears towards possible dictatorship must be severed at its inception. The implementation of warrantless arrests premised on the declaration of a "state of rebellion" is unconstitutional and contrary to existing laws. The Constitution provides that "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."28 If a state of martial law "does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians, where civil courts are able to function, nor automatically suspend the privilege of the writ,"28(a) then it is with more reason, that a mere declaration of a state of rebellion could not bring about the suspension of the operation of the Constitution or of the writ of habeas corpus. Neither can we find the implementation of the warrantless arrests justified under the Revised Rules on Criminal Procedure. Pertinent is Section 5, Rule 113, thus: "Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and x x x." Petitioners cannot be considered "to have committed, is actually committing, or is attempting to commit an offense" at the time they were hunted by Berroya for the implementation of the warrantless arrests. None of them participated in the riot which took place in the vicinity of the Malacaang Palace. Some of them were on their respective houses performing innocent acts such as watching television, resting etc. The sure fact however is that they were not in the presence of Berroya. Clearly, he did not see whether they had committed, were committing or were attempting to commit the crime of rebellion. But of course, I cannot lose sight of the legal implication of President Macapagal-Arroyo's declaration of a "state of rebellion." Rebellion is a continuing offense and a suspected insurgent or rebel may be arrested anytime as he is considered to be committing the crime. Nevertheless, assuming ex gratia argumenti that the declaration of a state of rebellion is constitutional, it is imperative that the said declaration be reconsidered. In view of the changing times, the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil v. Ramos,29 quoted below must be given a second look. "I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla vs. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the 'continuing' offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for." I need not belabor that at the time some of the suspected instigators were arrested, (the others are still at-large), a long interval of time already passed and hence, it cannot be legally said that they had just committed an offense. Neither can it be said that Berroya or any of his men had "personal knowledge of facts or circumstances that the persons to be arrested have committed a crime." That would be far from reality. III The acts of the rallyists at the vicinity of Malacaang Palace on May 1, 2001 do not constitute rebellion. Article 134 of the Revised Penal Code reads: "ART. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection is committed by rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives." (As amended by RA No. 6968, O.G. 52, p. 9864, 1990) From the foregoing provisions, the elements o the crime of rebellion may be deduced, thus: first, that there be (a) public uprising and (b) taking arms against the government; second, that the purpose of the uprising or movement is either (a) to remove from the allegiance to said government or its laws (1) the territory of the Philippines or any part thereof; or (2) anybody of land, naval or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.30 Looking at the events on a magnified scale, I am convinced that the two elements of the crime of rebellion are lacking.

First, there was no "taking of arms" against the government. To my mind, "taking arms" connotes the multitude's deliberate and conscious resort to arms or weapons for the purpose of aiding them in accomplishing any of the purposes of rebellion. Admittedly, the Estrada loyalists pelted the policemen with rocks and stones and attacked them with sticks and clubs, but such was merely a result of the heightening tension between opposite camps during the period of dispersal. The stones, rocks, sticks, clubs and other improvised weapons were not deliberately resorted to by the Estrada loyalists to further any of the purposes of rebellion. They availed of them, at the precise moment of dispersal (this explains why their weapons were those which could be easily gathered on the street) and only for the purpose of stopping the policemen from dispersing them. In this age of modernity, one who intends to overthrow the government will not only settle for stones, woods, rocks, sticks or clubs as means to disable the government. It will be extremely pathetic and the result will only be in vain. Unlike a true rebellion which is organized, what happened at the vicinity of Malacaang was merely a riot, a mob violence, or a tumultuous uprising. At this juncture, it bears stressing that the crime of rebellion is a vast movement of men and a complex net of intrigues and plots.31 It must be distinguished from riot and offenses connected with mob violence. In rebellion/insurrection, there is an organized and armed uprising against authority. 32 Second, the purpose of the Estrada loyalists was neither (a) to remove from the allegiance to the government or its laws (1) the territory of the Philippines or any part thereof; or (2) any part of land, naval or other armed forces; nor (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives. I looked at the chronology of events, and one thing surfaced the Estrada loyalists mainly demanded that their beloved "president" should not be incarcerated. The crowd at Edsa swelled in great magnitude on April 25, 2001, the day Estrada was arrested. In fact, when they followed Erap at Camp Crame, they were shouting "Edsa! Edsa! And they vowed not to leave until Estrada is released."33 One must not be swayed by the theory of respondents that the purpose of those people who gathered in Edsa and marched to Malacaang was to commit rebellion. For sure, there were a thousand and one reasons why they proceeded to Edsa. In determining their purpose, one must trace the roots, - what prompted them to go to Edsa? They were the Estrada loyalists who wanted him to be freed. If indeed there were minorities who advocated another cause, the same should not be considered as the prevailing one in the determination of what crime was committed. Facts should not be stretched just to build a case of rebellion. This runs counter to the principle of due process. As a final word, I subscribe to the principle that the rule of law implies the precept that similar cases be treated similarly. Men can not regulate their actions by means of rule if this precept is not followed. Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging people to overthrow the government were uttered in all these occasions. Injuries were sustained, policemen were attacked, standing structures were vandalized in all these scenarios, one cannot be said to be extremely away from the other. The only difference is that the first two succeeded, while the last failed. This should not result to an unbridled or unlimited exercise of power by the duly constituted authorities. It is during these trying times that fealty to the Constitution is strongly demanded from all, especially the authorities concerned.1wphi1.nt WHEREFORE, I vote to give DUE COURSE to the petitions and GRANT the same and to enjoin the respondents from arresting the petitioners in G.R. Nos. 147780, 147781, and 147799 without the corresponding warrants. SO ORDERED

Republic of the Philippines SUPREME COURT Manila G.R. No. 171396 May 3, 2006 PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners, vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,

EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents. x-------------------------------------x G.R. No. 171409 May 3, 2006 NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, vs. HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents. x-------------------------------------x G.R. No. 171485 May 3, 2006 FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners, vs. EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents. x-------------------------------------x G.R. No. 171483 May 3, 2006 KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners, vs. HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents. x-------------------------------------x G.R. No. 171400 May 3, 2006 ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents. G.R. No. 171489 May 3, 2006 JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents. x-------------------------------------x G.R. No. 171424 May 3, 2006 LOREN B. LEGARDA, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTORGENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE

PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents. DECISION SANDOVAL-GUTIERREZ, J.: All powers need some restraint; practical adjustments rather than rigid formula are necessary.1 Superior strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding the constitutional rights of the citizens, specifically their liberty. Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: "In cases involving liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental rights come to the courts "with a heavy presumption against their constitutional validity." 2 These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional. Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty becomes license?3 On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus: NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. She cited the following facts as bases: WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPPNPA and the extreme Right, represented by military adventurists the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, this series of actions is hurting the Philippine State by obstructing governance including hindering the growth of the economy and sabotaging the peoples confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State and who are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the dulyconstituted Government elected in May 2004; WHEREAS, these conspirators have repeatedly tried to bring down our republican government; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering the growth of the economy and sabotaging the peoples confidence in the government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to intensify their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government; WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National Emergency; NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of terrorism and lawless violence in the country; I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence. On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads: WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency; WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may be necessary; WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and rebellion; NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist. In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo.4 They considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present danger. During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners counsels. The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that PP 1017 was

without factual bases. While he explained that it is not respondents task to state the facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues. On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They called upon the people to "show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left arms." 5 On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice of her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a bomb was found and detonated at the PMA parade ground. On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalos D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I." On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty." On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother, businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Armys elite Scout Ranger. Lim said "it was all systems go for the planned movement against Arroyo."8 B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio. Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist Party and revolutionary movement and the entire people look forward to the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable to rule that it will not take much longer to end it."9 On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in the field." He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests.10 By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all their men and ensure that the chain of command remains solid and undivided. To protect the young students from any possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National Capital Region. For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."11 Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street in Makati City.12 According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their assemblies. During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen from the Manila Police District were stationed outside the building.13 A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." The PNP warned that it would take over any media organization that would not follow "standards set by the government during the state of national emergency." Director General Lomibao stated that "if they do not follow the standards and the standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He asked for "balanced reporting" from broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage when the national security is threatened.14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody. Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely. Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et al., are not being raised in these petitions. On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to exist. In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent. In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the term "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no emergency" that warrants the issuance of PP 1017. In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of freedom of expression" and "a declaration of martial law." They alleged that President Arroyo "gravely abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless violence and a showing that there is necessity to do so." In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to redress their grievances. In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution. In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that "it amounts to an exercise by the President of emergency powers without congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and function of a proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987 Constitution." In this regard, she stated that these issuances prevented her from fully prosecuting her election protest pending before the Presidential Electoral Tribunal. In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the peoples right to free expression and redress of grievances. On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which may be summarized as follows: A. PROCEDURAL: 1) Whether the issuance of PP 1021 renders the petitions moot and academic. 2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing. B. SUBSTANTIVE: 1) Whetherthe Supreme Court can review the factual bases of PP 1017. 2) Whether PP 1017 and G.O. No. 5 are unconstitutional. a. Facial Challenge b. Constitutional Basis c. As Applied Challenge A. PROCEDURAL First, we must resolve the procedural roadblocks. I- Moot and Academic Principle One of the greatest contributions of the American system to this country is the concept of judicial review enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation -The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It confers limited powers on the national government. x x x If the government consciously or unconsciously oversteps these limitations there must be some authority competent to hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of judicial review.22 But the power of judicial review does not repose upon the courts a "self-starting capacity."23 Courts may exercise such power only when the following requisites are present: first, there must be an actual case or controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the determination of the case itself.24 Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon. An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real and substantial controversy admitting of specific relief.25 The Solicitor General refutes the existence of such actual case or controversy, contending that the present petitions were rendered "moot and academic" by President Arroyos issuance of PP 1021. Such contention lacks merit. A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events,26 so that a declaration thereon would be of no practical use or value.27 Generally, courts decline jurisdiction over such case28 or dismiss it on ground of mootness.29 The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged

illegal acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal contemplation, inoperative."30 The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the Constitution;31 second, the exceptional character of the situation and the paramount public interest is involved; 32 third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;33 and fourth, the case is capable of repetition yet evading review.34 All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the present petitions, the military and the police, on the extent of the protection given by constitutional guarantees.35 And lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review. In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V. Panganibans Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account the Chief Justices very statement that an otherwise "moot" case may still be decided "provided the party raising it in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance." The present case falls right within this exception to the mootness rule pointed out by the Chief Justice. II- Legal Standing In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more than passing discussion on legal standing or locus standi. Locus standi is defined as "a right of appearance in a court of justice on a given question."37 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."38 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,39 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:40 "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. Jordan41 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,42 later reaffirmed in

Tileston v. Ullman.43 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,44 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,45 Manila Race Horse Trainers Association v. De la Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix.48 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,49 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,50 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.51 Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been allowed to sue under the principle of "transcendental importance." Pertinent are the following cases: (1) Chavez v. Public Estates Authority,52 where the Court ruled that the enforcement of the constitutional right to information and the equitable diffusion of natural resources are matters of transcendental importance which clothe the petitioner with locus standi; (2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held that "given the transcendental importance of the issues involved, the Court may relax the standing requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review" of the Visiting Forces Agreement; (3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the cases must be settled promptly and definitely and standing requirements may be relaxed. 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) the 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. Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing. In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a peoples organization does not give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered. In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the "direct injury" test with respect to concerned citizens cases involving constitutional issues. It held that "there must be a showing that the citizen

personally suffered some actual or threatened injury arising from the alleged illegal official act." In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters. In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson. Now, the application of the above principles to the present petitions. The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same holds true with petitioners in G.R. No. 171409, CachoOlivares and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP 1017. Rightly so, the Solicitor General does not question their legal standing. In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic rights. In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Taada v. Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their members.65 We take judicial notice of the announcement by the Office of the President banning all rallies and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5. In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court declares that petitioner have locus standi. In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the enforcement of these issuances prevented her from pursuing her occupation. Her submission that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of the issue involved, this Court may relax the standing rules. It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this Court on this very critical matter. The petitions thus

call for the application of the "transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP 1017 cases."1avvphil.net This Court holds that all the petitioners herein have locus standi. Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President, during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the people 68 but he may be removed from office only in the mode provided by law and that is by impeachment.69 B. SUBSTANTIVE I. Review of Factual Bases Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to issue such Proclamation. The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-ofwar always cuts across the line defining "political questions," particularly those questions "in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government." 75 Barcelon and Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and balances, "under which the President is supreme, x x x only if and when he acts within the sphere allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous Court of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of whether the validity of the imposition of Martial Law is a political or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case, ratiocinating that "in times of war or national emergency, the President must be given absolute control for the very life of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the People, and God."79 The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent to these cases at bar -- echoed a principle similar to Lansang. While the Court considered the Presidents "calling-out" power as a discretionary power solely vested in his wisdom, it stressed that "this does not prevent an examination of whether such power was exercised within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion."This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political departments. Under the new definition of judicial power, the courts are authorized not only "to settle actual controversies involving rights which are legally demandable and enforceable," but also "to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government." The latter part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of the government.81 It speaks of judicial prerogative not only in terms of power but also of duty.82

As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that "judicial inquiry can go no further than to satisfy the Court not that the Presidents decision is correct," but that "the President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. 83 In Integrated Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the Presidents decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his assertion, then "this Court cannot undertake an independent investigation beyond the pleadings." Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid. Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty. II. Constitutionality of PP 1017 and G.O. No. 5 Doctrines of Several Political Theorists on the Power of the President in Times of Emergency This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion. John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the Crown retained a prerogative "power to act according to discretion for the public good, without the proscription of the law and sometimes even against it."84 But Locke recognized that this moral restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven."85 Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government in time of emergency. According to him: The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their operation. Even Sparta allowed its law to lapse... If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear that the peoples first intention is that the State shall not perish.86 Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him, it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship.87 John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88 Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government, furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra constitutional measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed rules for applying it.89 Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time of emergency, with effective constitutional restraints. 90 Contemporary political theorists, addressing themselves to the problem of response to emergency by constitutional democracies, have employed the doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason why absolutism should not be used as a means for the defense of liberal institutions," provided it "serves to protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed by a prompt return to the previous forms of political life."92 He recognized the two (2) key elements of the problem of emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while at the same time "imposing limitation upon that power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are the conditions of success of such a dictatorship: "The period of dictatorship must be relatively shortDictatorship should always be strictly legitimate in characterFinal authority to determine the need for dictatorship in any given case must never rest with the dictator himself"94 and the objective of such an emergency dictatorship should be "strict political conservatism." Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power in a government where power has consciously been divided to cope with situations of unprecedented magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers, when, for how long, and to what end."96 Friedrich, too, offered criteria for judging the adequacy of any of scheme of emergency powers, to wit: "The emergency executive must be appointed by constitutional means i.e., he must be legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the constitutional order."97 Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France, Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as solution to the vexing problems presented by emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of success of the "constitutional dictatorship," thus: 1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is necessary or even indispensable to the preservation of the State and its constitutional order 2) the decision to institute a constitutional dictatorship should never be in the hands of the man or men who will constitute the dictator 3) No government should initiate a constitutional dictatorship without making specific provisions for its termination 4) all uses of emergency powers and all readjustments in the organization of the government should be effected in pursuit of constitutional or legal requirements 5) no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more than is absolutely necessary for the conquest of the particular crisis . . . 6) The measures adopted in the prosecution of the a constitutional dictatorship should never be permanent in character or effect 7) The dictatorship should be carried on by persons representative of every part of the citizenry interested in the defense of the existing constitutional order. . . 8) Ultimate responsibility should be maintained for every action taken under a constitutional dictatorship. . . 9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was instituted 11) the termination of the crisis must be followed by a complete return as possible to the political and governmental conditions existing prior to the initiation of the constitutional dictatorship99 Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places great faith in the effectiveness of congressional investigating committees.100 Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that, "the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger to the nation is not based upon sound constitutional theory." To appraise emergency power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering emergency powers. However used, "constitutional dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus, they favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain: A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the existence of adequate processes for keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He found that the really effective checks on despotism have consisted not in the weakening of government but, but rather in the limiting of it; between which there is a great and very significant difference. In associating constitutionalism with "limited" as distinguished from "weak" government, McIlwain meant government limited to the orderly procedure of law as opposed to the processes of force. The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.101 In the final analysis, the various approaches to emergency of the above political theorists - from Locks "theory of prerogative," to Watkins doctrine of "constitutional dictatorship" and, eventually, to McIlwains "principle of constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of political responsibility and under effective limitations and checks. Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice Jacksons "balanced power structure."102 Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed procedural limitations. a. "Facial Challenge" Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for. First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases, also known under the American Law as First Amendment cases.103 A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,104 the US Supreme Court held that "we have not recognized an overbreadth doctrine outside the limited context of the First Amendment" (freedom of speech). Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was held: It remains a matter of no little difficulty to determine when a law may properly be held void on its face and when such summary action is inappropriate. But the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from pure speech toward conduct and that conduct even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation. Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and only as a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the Court.108 A writer and scholar in Constitutional Law explains further: The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties. In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction that its very existence may cause others not before the Court to refrain from constitutionally protected speech or expression. In Younger v. Harris,109 it was held that: [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of

detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully, since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners did not even attempt to show whether this situation exists. Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted. Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application."110 It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of common intelligence cannot understand the meaning and application of PP 1017. b. Constitutional Basis of PP 1017 Now on the constitutional foundation of PP 1017. The operative portion of PP 1017 may be divided into three important provisions, thus: First provision: "by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion" Second provision: "and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;" Third provision: "as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency." First Provision: Calling-out Power The first provision pertains to the Presidents calling-out power. In Sanlakas v. Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows: Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it. The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only criterion for the exercise of the calling-out power is that "whenever it becomes necessary," the President may call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." Are these conditions present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her Offices vast intelligence network, she is in the best position to determine the actual condition of the country. Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations. It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides: SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. President Arroyos declaration of a "state of rebellion" was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in the case of Sanlakas. Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out power. The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law."113 In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V. Mendoza,114 an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides: A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President to the armed forces to prevent or suppress lawless

violence. As such, it cannot be used to justify acts that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any act done contrary to its command is ultra vires. Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas corpus. Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless violence. Second Provision: "Take Care" Power The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads: SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the effect that as President of the Philippines, he will, among others, "execute its laws."116 In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces of the country,117 including the Philippine National Police118 under the Department of Interior and Local Government.119 Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction." \ Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted120 from Former President Marcos Proclamation No. 1081, which partly reads: NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: "to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction." Is it within the domain of President Arroyo to promulgate "decrees"? PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally or upon my direction." The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative Code of 1987). She may issue any of the following: Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in executive orders. Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of public moment or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be promulgated in proclamations which shall have the force of an executive order. Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government shall be embodied in memorandum orders. Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in memorandum circulars. Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders. President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category and binding force as statutes because they were issued by the President in the exercise of his legislative power during the period of Martial Law under the 1973 Constitution. 121 This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. Can President Arroyo enforce obedience to all decrees and laws through the military? As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. Third Provision: Power to Take Over The pertinent provision of PP 1017 states: x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby declare a state of national emergency. The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to the provision of Section 17, Article XII which reads: Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017? The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned public utility or business affected with public interest. This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971 Constitutional Convention.122 In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated September 22, 1972 instructing the Secretary of National Defense to take over "the management, control and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers. This is an area that needs delineation. A distinction must be drawn between the Presidents authority to declare "a state of national emergency" and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise. Section 23, Article VI of the Constitution reads: SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (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. It may be pointed out that the second paragraph of the above provision refers not only to war but also to "other national emergency." If the intention of the Framers of our Constitution was to withhold from the President the authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not intend that Congress should first authorize the President before he can declare a "state of national emergency." The logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in the absence of a Congressional enactment. But the exercise of emergency powers, such as the taking over of privately owned public utility or business affected with public interest, is a different matter. This requires a delegation from Congress. Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be construed together and considered in the light of each other.123 Considering that Section 17 of Article XII and Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the exercise of emergency powers. Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus: (1) There must be a war or other emergency. (2) The delegation must be for a limited period only. (3) The delegation must be subject to such restrictions as the Congress may prescribe. (4) The emergency powers must be exercised to carry out a national policy declared by Congress.124 Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest," it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125 held: It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power

should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the United States. The order cannot properly be sustained as an exercise of the Presidents military power as Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nations lawmakers, not for its military authorities. Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the Presidents power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States. . ."126 Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency." Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of intensity, variety, and perception.127 Emergencies, as perceived by legislature or executive in the United Sates since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic,128 b) natural disaster,129 and c) national security.130 "Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. 131 This is evident in the Records of the Constitutional Commission, thus: MR. GASCON. Yes. What is the Committees definition of "national emergency" which appears in Section 13, page 5? It reads: When the common good so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters. MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots? MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency." MR. BENGZON. Unless they are of such proportions such that they would paralyze government service.132 xxxxxx MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could this be economic emergency?" MR. VILLEGAS. Yes, it could refer to both military or economic dislocations. MR. TINGSON. Thank you very much.133 It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable to delegate to the President the power to take over privately-owned public utility or business affected with public interest. In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis. "x x x After all the criticisms that have been made against the efficiency of the system of the separation of powers, the fact remains that the Constitution has set up this form of

government, with all its defects and shortcomings, in preference to the commingling of powers in one man or group of men. The Filipino people by adopting parliamentary government have given notice that they share the faith of other democracy-loving peoples in this system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United States, the basic features of whose Constitution have been copied in ours, have specific functions of the legislative branch of enacting laws been surrendered to another department unless we regard as legislating the carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our concept of constitutional government, in times of extreme perils more than in normal circumstances the various branches, executive, legislative, and judicial, given the ability to act, are called upon to perform the duties and discharge the responsibilities committed to them respectively." Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress. Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. c. "AS APPLIED CHALLENGE" One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights suffered the greatest blow. Of the seven (7) petitions, three (3) indicate "direct injury." In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest. In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned to guard their office as a possible "source of destabilization." Again, the basis was PP 1017. And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I. A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does the illegal implementation of a law render it unconstitutional? Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its effects in a particular case.137 PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing

the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights. Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the essential basis for the exercise of power, and not a mere incidental result arising from its exertion.138 This is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time ago. President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the executive officer to his subordinates precisely for the proper and efficient administration of law. Such rules and regulations create no relation except between the official who issues them and the official who receives them. 139 They are based on and are the product of, a relationship in which power is their source, and obedience, their object.140 For these reasons, one requirement for these rules to be valid is that they must be reasonable, not arbitrary or capricious. G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence." Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism. In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our country, but the international community as well. The following observations are quite apropos: In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic slogans when it comes to the justification of the use of force against certain states and against groups operating internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being updated according to criteria that are not always known to the public, but are clearly determined by strategic interests. The basic problem underlying all these military actions or threats of the use of force as the most recent by the United States against Iraq consists in the absence of an agreed definition of terrorism. Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed groups such as liberation movements, or by individuals. The dilemma can by summarized in the saying "One countrys terrorist is another countrys freedom fighter." The apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later became internationally respected statesmen. What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing those acts from eventually legitimate acts of national resistance or selfdefense? Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious groups within a state is concerned. The dilemma facing the international community can best be illustrated by reference to the contradicting categorization of organizations and movements such as Palestine Liberation Organization (PLO) which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the Kashmiri resistance groups who are terrorists

in the perception of India, liberation fighters in that of Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the Socialist camp or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way because of opposing political interests that are at the roots of those perceptions. How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-versa. The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly because of these conflicting interests of sovereign states that determine in each and every instance how a particular armed movement (i.e. a nonstate actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence. This "definitional predicament" of an organization consisting of sovereign states and not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even more serious in the present global power constellation: one superpower exercises the decisive role in the Security Council, former great powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has become even more acute since the terrorist attacks of 11 September 2001 I the United States.141 The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining the same as such and imposing the corresponding penalty thereon. So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word "terrorism" is mentioned in the following provision: "That one who conspires with any other person for the purpose of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x." P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional. Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are considered illegal. We first examine G.R. No. 171396 (David et al.) The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects against unreasonable search and seizure of whatever

nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."142 The plain import of the language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is that between person and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest.143 In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence. Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides: Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and x x x. Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even known whether petitioner David was the leader of the rally.147 But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest violated, but also their right to peaceably assemble. Section 4 of Article III guarantees: No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. "Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required. The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to justify the arresting officers conduct. In De Jonge v. Oregon,148 it was held that peaceable assembly cannot be made a crime, thus: Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the

conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved, is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge. On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear and present danger that the State may deny the citizens right to exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected and unprotected assemblies was eliminated. Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their permits.150 The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal defect. When a persons right is restricted by government action, it behooves a democratic government to see to it that the restriction is fair, reasonable, and according to procedure. G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily Tribunes offices were searched without warrant;second, the police operatives seized several materials for publication; third, the search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search was conducted in the absence of any official of the Daily Tribune except the security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices. Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was quoted as saying that such raid was "meant to show a strong presence, to tell media outlets not to connive or do anything that would help the rebels in bringing down this government." Director General Lomibao further stated that "if they do not follow the standards and the standards are if they would contribute to instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend a takeover." National Telecommunications Commissioner Ronald Solis urged television and radio networks to "cooperate" with the government for the duration of the state of national emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during times when the national security is threatened.151 The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a

direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives. Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that -As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum" newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to disobey. 153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta principiis.154 Incidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for any purpose," thus: JUSTICE CALLEJO: You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in admission of the admissibility of these clippings that were taken from the Tribune? SOLICITOR GENERAL BENIPAYO: Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are inadmissible for any purpose.155 xxxxxxxxx SR. ASSO. JUSTICE PUNO: These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues. So why do you have to go there at 1 oclock in the morning and without any search warrant? Did they become suddenly part of the evidence of rebellion or inciting to sedition or what? SOLGEN BENIPAYO: Well, it was the police that did that, Your Honor. Not upon my instructions. SR. ASSO. JUSTICE PUNO: Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on Proclamation 1017. SOLGEN BENIPAYO: It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police could go and inspect and gather clippings from Daily Tribune or any other newspaper. SR. ASSO. JUSTICE PUNO: Is it based on any law? SOLGEN BENIPAYO: As far as I know, no, Your Honor, from the facts, no. SR. ASSO. JUSTICE PUNO: So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO: Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is premature to say this, we do not condone this. If the people who have been injured by this would want to sue them, they can sue and there are remedies for this.156 Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General, illegal and cannot be condoned, thus: CHIEF JUSTICE PANGANIBAN: There seems to be some confusions if not contradiction in your theory. SOLICITOR GENERAL BENIPAYO: I dont know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the law. These are acts of the police officers, that is their responsibility.157 The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result in no constitutional or statutory breaches if applied according to their letter." The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens rights under the Constitution, this Court has to declare such acts unconstitutional and illegal. In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an integral part of this ponencia. SUMMATION In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties should not be "evaded;" they must now be resolved to prevent future constitutional aberration. The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest. In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard that the military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence."But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No. 5. On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on the individual police officers concerned. They have not been individually identified and given their day in court. The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative liabilities. It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples liberty. Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political responsibility of the government to the governed.158 WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it constitutes a call by President Gloria MacapagalArroyo on the AFP to prevent or suppress lawless violence. However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President to take over privately-owned public utility or business affected with public interest without prior legislation. G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL. The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL. No costs. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice (On REYNATO Associate Justice S. leave) PUNO LEONARDO A. QUISUMBING Asscociate Justice ANTONIO T. Asscociate Justice RENATO C. Asscociate Justice CARPIO

CONSUELO YNARES-SANTIAGO Associate Justice MA. ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO Associate Justice MORALES

CORONA

ROMEO J. CALLEJO, Asscociate Justice

SR.

ADOLFO S. Associate Justice MINITA V. Associate Justice

AZCUNA

DANTE O. Asscociate Justice CANCIO C. Asscociate Justice

TINGA

CHICO-NAZARIO

GARCIA

PRESBITERO J. VELASCO, JR. Associate Justice CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. ARTEMIO V. PANGANIBAN Chief Justice Footnotes 1 Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark Lecturer, Volume XIX, 1971, p. 29. 2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006. 3 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who propounded universal impermanence and that all things, notably opposites are interrelated. 4 Respondents Comment dated March 6, 2006. 5 Ibid. 6 Ibid. 7 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex "I" of Respondents Consolidated Comment. 8 Respondents Consolidated Comment. 9 Ibid. 10 Ibid. 11 Petition in G.R. No. 171396, p. 5. 12 Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed were broadcast as "breaking news" by the major television stations of this country. 13 Petition in G.R. No. 171400, p. 11. 14 Ibid. 15 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. 16 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. 17 The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. 18 No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances. 19 (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately, shall have the sole power to declare the existence of a state of war. (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. 20 In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take

over or direct the operation of any privately owned public utility or business affected with public interest. 21 1 Cranch 137 [1803]. 22 Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on the Constitution of the United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77. 23 The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79). 24 Cruz, Philippine Political Law, 2002 Ed., p. 259. 25 Ibid. 26 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736. 27 Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA 129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma v. Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590. 28 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA 21; Vda. De Dabao v. Court of Appeals, supra. 29 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756. 30 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425. 31 Province of Batangas v. Romulo, supra. 32 Lacson v. Perez, supra. 33 Province of Batangas v. Romulo, supra. 34 Albaa v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona, Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085, February 3, 2004, 421 SCRA 656. 35 Salonga v. Cruz Pao, et al., No. L- 59524, February 18, 1985, 134 SCRA 438. 36 G.R. No. 159085, February 3, 2004, 421 SCRA 656. 37 Blacks Law Dictionary, 6th Ed. 1991, p. 941. 38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951). 39 275 Ky 91, 120 SW2d 765 (1938). 40 19 Wend. 56 (1837). 41 232 NC 48, 59 SE2d 359 (1950). 42 302 U.S. 633. 43 318 U.S. 446. 44 65 Phil. 56 (1937). 45 G.R. No. 117, November 7, 1945 (Unreported). 46 G.R. No. 2947, January 11, 1959 (Unreported). 47 110 Phil. 331 (1960). 48 77 Phil. 1012 (1947). 49 84 Phil. 368 (1949) The Court held: "Above all, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure." 50 L-No. 40004, January 31, 1975, 62 SCRA 275. 51 Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the question is one of public duty and the enforcement of a public right, the people are the real party in interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law; Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and part of the general public which possesses the right. Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371, where the Court held that objections to taxpayers lack of personality to sue may be disregarded in determining the validity of the VAT law; Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no expenditure of public funds was involved under the questioned contract, nonetheless considering its important role in the economic development of the country and the magnitude of the financial consideration involved, public interest was definitely involved and this clothed petitioner with the legal personality under the disclosure provision of the Constitution to question it.

Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered by the definition of a "proper party," nonetheless, it has the discretion to waive the requirement, in determining the validity of the implementation of the CARP. Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that it enjoys the open discretion to entertain taxpayers suit or not and that a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised. Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to illegal expenditure of public money; Osmea v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the Court held that where serious constitutional questions are involved, the "transcendental importance" to the public of the cases involved demands that they be settled promptly and definitely, brushing aside technicalities of procedures; De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the importance of the issues involved concerning as it does the political exercise of qualified voters affected by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi. 52 G.R. No. 133250, July 9, 2002, 384 SCRA 152. 53 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449. 54 G.R. No. 151445, April 11, 2002, 380 SCRA 739. 55 Supra. 56 G.R. No. 118910, November 16, 1995, 250 SCRA 130. 57 G.R. No. 132922, April 21, 1998, 289 SCRA 337. 58 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756. 59 G.R. No. 159085, February 3, 2004, 421 SCRA 656. 60 235 SCRA 506 (1994). 61 Supra. 62 Supra. 63 197 SCRA 52, 60 (1991). 64 Supra. 65 See NAACP v. Alabama, 357 U.S. 449 (1958). 66 G.R. No. 141284, August 15, 2000, 338 SCRA 81. 67 From the deliberations of the Constitutional Commission, the intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon, Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302). 68 Section 1, Article XI of the Constitution provides: Public Office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and justice, and lead modest lives. 69 Ibid., Sec. 2. 70 No. 2908, September 30, 2005, 471 SCRA 87. 71 91 Phil. 882 (1952). 72 No. L-33964, December 11, 1971, 42 SCRA 448. 73 No. L-35546, September 17, 1974, 59 SCRA 183. 74 No. L-61388, April 20, 1983, 121 SCRA 472. 75 Taada v. Cuenco, 103 Phil. 1051 (1957). 76 Lansang v. Garcia, supra, pp. 473 and 481. 77 Supra. 78 "Five Justices Antonio, Makasiar, Esguerra, Fernandez, and Aquino took the position that the proclamation of martial law and the arrest and detention orders accompanying the proclamation posed a "political question" beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion concurred in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a strong presidency and had concentrated powers in times of emergency in the hands of the President and had given him broad authority and discretion which the Court was bound to respect. He made reference to the decision in Lansang v. Garcia but read it as in effect upholding the "political question" position. Fernandez, in a separate opinion, also argued Lansang, even understood as giving a narrow scope of review authority to the Court, affirmed the

impossible task of checking the action taken by the President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the abandonment of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, MuozPalma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x Barredo, however, wanted to have the best of both worlds and opted for the view that "political questions are not per se beyond the Courts jurisdiction ... but that as a matter of policy implicit in the Constitution itself the Court should abstain from interfering with the Executives Proclamation." (Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 794.) 79 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra. 80 Supra. 81 Cruz, Philippine Political Law, 2002 Ed., p. 247. 82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756. 83 Supra, 481-482. 84 Smith and Cotter, Powers of the President during Crises, 1972, p. 6. 85 Ibid. 86 The Social Contract (New York: Dutton, 1950), pp. 123-124. 87 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7. 88 Representative Government, New York, Dutton, 1950, pp. 274, 277-78. 89 The Discourses, Bk. 1, Ch. XXXIV. 90 Smith and Cotter, Powers of the President During Crises, 1972. p. 8. 91 Ibid. 92 See The Problem of Constitutional Dictatorship, p. 328. 93 Ibid., p. 353. 94 Ibid., pp. 338-341. 95 Smith and Cotter, Powers of the President During Crises, 1972, p. 9. 96 Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580. 97 Ibid, pp. 574-584. 98 Smith and Cotter, Powers of the President During Crises, 1972, p. 10. 99 Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306. 100 Smith and Cotter, Powers of the President During Crises, 1972, p. 11. 101 Smith and Cotter, Powers of the President During Crises, 1972, p. 12. 102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See Concurring Opinion J. Jackson. 103 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560, November 19, 2001, 369 SCRA 393. 104 481 U.S. 739, 95 L. Ed. 2d 697 (1987). 105 Supra. 106 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra. 107 Broadrick v. Oklahoma, 413 U.S. 601 (1973). 108 Ibid. 109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524 (1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989). 110 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20 SCRA 849 (1967). 111 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President Arroyos declaration of a "state of rebellion" pursuant to her calling-out power. 112 Supra. 113 Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v. Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)]. 114 Retired Associate Justice of the Supreme Court. 115 Section 1, Article VII of the Constitution. 116 Section 5, Article VII of the Constitution. 117 Section 18, Article VII of the Constitution. 118 Section 6, Article XVI of the Constitution. 119 See Republic Act No. 6975. 120 Ironically, even the 7th Whereas Clause of PP 1017 which states that "Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic

institutions and the State the primary duty of Government" replicates more closely Section 2, Article 2 of the 1973 Constitution than Section 4, Article 2 of the 1987 Constitution which provides that, "[t[he prime duty of the Government is to serve and protect the people." 121 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115 SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra. 122 Section 17, Article XIV of the 1973 Constitution reads: "In times of national emergency when the public interest so requires, the State may temporarily take over or direct the operation of any privately owned public utility or business affected with public interest." 123 Antieau, Constitutional Construction, 1982, p.21. 124 Cruz, Philippine Political Law, 1998, p. 94. 125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952). 126 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257. 127 Smith and Cotter, Powers of the President During Crises, 1972, p. 14 128 The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression created a serious emergency, due to wide-spread unemployment and the inadequacy of State and local relief funds, . . . making it imperative that the Federal Government cooperate more effectively with the several States and Territories and the District of Columbia in furnishing relief to their needy and distressed people. President Roosevelt in declaring a bank holiday a few days after taking office in 1933 proclaimed that "heavy and unwarranted withdrawals of gold and currency from banking institutions for the purpose of hoarding; ... resulting in "sever drains on the Nations stocks of gold have created a national emergency," requiring his action. Enacted within months after Japans attack on Pearl Harbor, the Emergency Price Control Act of 1942 was designed to prevent economic dislocations from endangering the national defense and security and the effective prosecution of the war. (Smith and Cotter, Powers of the President During Crises, 1972, p.18) 129 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and necessity for relief in stricken agricultural areas and in another section referred to "the present drought emergency."[129] The India Emergency Food Aid Act of 1951 provided for emergency shipments of food to India to meet famine conditions then ravaging the great Asian sub-continent. The Communication Act of 1934 and its 1951 amendment grant the President certain powers in time of "public peril or disaster." The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood, tornado, cyclone, hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April 1937. It made "funds available for the control of incipient or emergency outbreaks of insect pests or plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec. 2 [a]) Supra. 130 National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense, and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series of attacks by an enemy of the United States which conceivably would cause substantial damage or injury to civilian property or persons in the United States by any one of several means; sabotage, the use of bombs, shellfire, or atomic, radiological, chemical, bacteriological means or other weapons or processes. Such an occurrence would cause a "National Emergency for Civil Defense Purposes," or "a state of civil defense emergency," during the term which the Civil Defense Administrator would have recourse to extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an illustration in this context for emergency cooperation. "Emergency" as used in this compact shall mean and include invasion, or other hostile action, disaster, insurrection or imminent danger thereof. ( Id., p.15-16) 131 Cruz, Philippine Political Law, 1998, p. 95. 132 Record of the Constitutional Commission, Vol. III, pp. 266-267. 133 Record of the Constitutional Convention, pp. 648-649. 134 84 Phil. 368 (1949). 135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173. 136 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US 610, 74 L ed 653, 50 S Ct 158.

137

Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548. 138 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370. 139 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115. 140 Ibid. 141 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series, Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the International Progress Organization, speaking on "The United Nations, The International Rule of Law and Terrorism" cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No. 151445, April 11, 2002, 380 SCRA 739. 142 Section 2, Article III of the 1987 Constitution. 143 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51. 144 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273. 145 An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition the Government for Other Purposes. 146 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273. 147 Ibid. 148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278. 149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553. 150 Section 5. Application requirements - All applications for a permit shall comply with the following guidelines: xxxxxx (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. 151 Petition in G.R. No. 171400, p. 11. 152 No. L-64161, December 26, 1984, 133 SCRA 816. 153 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653, 102925 & 102983, March 5, 1992, 207 SCRA 1. 154 Boyd v. United States, 116 U.S. 616 (1886). 155 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470. 156 Ibid., pp. 432-433. 157 Ibid, pp. 507-508. 158 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146. SUMMARY OF THE VOTING IN THE PP 1017 DECISION Fourteen of the 15 SC justices participated in the decision. Senior Associate Justice Reynato S. Puno was on leave. Justice Angelina Sandoval Gutierrezs 78-page ponencia was concurred in by 10 Justices: Chief Justice Artemio V. Panganiban and Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio T. Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and Cancio C. Garcia. Both the Chief Justice and Justice Ynares-Santiago wrote separate concurring opinions. The Chief Justices concurring opinion was joined by Justices Carpio, Carpio Morales, and Callejo, Sr. Justice Dante O. Tingas dissenting opinion was joined by Justices Renato C. Corona and Presbitero J. Velasco, Jr. EN BANC G.R. No. 171396 DAVID et al. v. ARROYO, etc., et al. and related cases (G.R. Nos. 171409, 171483, 171485, 171400, 171424 and 171489) Promulgated on: May 3, 2006 x --------------------------------------------------------------------------- x CONCURRING OPINION CJ: I was hoping until the last moment of our deliberations on these consolidated cases that the Court would be unanimous in its Decision. After all, during the last two weeks, it decided with one voice two equally contentious and nationally significant controversies

involving Executive Order No. 4641 and the so-called Calibrated Preemptive Response policy.2 However, the distinguished Mr. Justice Dante O. Tingas Dissenting Opinion has made that hope an impossibility. I now write, not only to express my full concurrence in the thorough and elegantly written ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but more urgently to express a little comment on Justice Tingas Dissenting Opinion (DO). The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong with PP 1017. It labels the PP a harmless pronouncement -- "an utter superfluity" -- and denounces the ponencia as an "immodest show of brawn" that "has imprudently placed the Court in the business of defanging paper tigers." Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017 under its present language and nuance. I respectfully disagree. Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to some minds" -- "may have flirted with power." With due respect, this is a masterful understatement. PP 1017 may be a paper tiger, but -- to borrow the colorful words of an erstwhile Asian leader -- it has nuclear teeth that must indeed be defanged. Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives and the perseverance of this Court in safeguarding the peoples constitutionally enshrined liberty. They are playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down the country. History will never forget, much less forgive, this Court if it allows such misadventure and refuses to strike down abuse at its inception. Worse, our people will surely condemn the misuse of legal hocus pocus to justify this trifling with constitutional sanctities. And even for those who deeply care for the President, it is timely and wise for this Court to set down the parameters of power and to make known, politely but firmly, its dogged determination to perform its constitutional duty at all times and against all odds. Perhaps this country would never have had to experience the wrenching pain of dictatorship; and a past President would not have fallen into the precipice of authoritarianism, if the Supreme Court then had the moral courage to remind him steadfastly of his mortality and the inevitable historical damnation of despots and tyrants. Let not this Court fall into that same rut. ARTEMIO V. PANGANIBAN Chief Justice Footnotes 1 Senate v. Ermita, GR No. 169777, April 20, 2006. 2 Bayan v. Ermita, GR No. 169838, April 25, 2006. EN BANC G.R. No. 171396 --- Professor Randolf S. David, et al., Petitioners, versus Gloria Macapagal-Arroyo, as President and Commander-in-Chief, et al, Respondents. G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune Publishing Co., Inc., Petitioners, versus Honorable Secretary Eduardo Ermita and Honorable Director General Arturo C. Lomibao, Respondents. G.R. No. 171485 --- Francis Joseph G. Escudero, et al. Petitioners, versus Eduardo R. Ermita, et al., Respondents. G.R. No. 171483 --- Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary General Joel Maglunsod, et al., Petitioners, versus Her Excellency President Gloria Macapagal Arroyo, et al., Respondents. G.R. No. 171400 --- Alternative Law Groups, Inc.. (ALG), Petitioners, versus Executive Secretary, Eduardo Ermita, et al., Respondents. G.R. No. 171489 Jose Anselmo I. Cadiz, et al., Petitioners, versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents. G.R. No. 171424 --- Loren B. Legarda, Petitioner, versus President Gloria Macapagal-Arroyo, in her capacity as President and Commander-in-Chief, et al., Respondents; Promulgated: May 3, 2006 x ---------------------------------------------------------------------------------------- x CONCURRING OPINION YNARES-SANTIAGO, J.:

The only real security for social well-being is the free exercise of mens minds. -Harold J. Laski, Professor of Government and Member of the British Labor Party, in his book, Authority in the Modern State (1919). The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo once wrote, are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, the scorn and derision of those who have no patience with general principles.1 In an open and democratic society, freedom of thought and expression is the matrix, the indispensable condition, of nearly every other form of freedom.2 I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President Gloria Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO No. 5), issued by the President pursuant to the same proclamation are both partly unconstitutional. I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President, as the Commander-in-Chief of all armed forces of the Philippines, of her power to call out such armed forces whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion. This is allowed under Section 18, Article VII of the Constitution. However, such "calling out" power does not authorize the President to direct the armed forces or the police to enforce laws not related to lawless violence, invasion or rebellion. The same does not allow the President to promulgate decrees with the force and effect similar or equal to laws as this power is vested by the Constitution with the legislature. Neither is it a license to conduct searches and seizures or arrests without warrant except in cases provided in the Rules of Court. It is not a sanction to impose any form of prior restraint on the freedom of the press or expression or to curtail the freedom to peaceably assemble or frustrate fundamental constitutional rights. In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S. Azcuna emphasized that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. These rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. On the other hand, the direct reference to Section 17, Article XII of the Constitution as the constitutional basis for the declaration of a state of national emergency is misplaced. This provision can be found under the article on National Economy and Patrimony which presupposes that "national emergency" is of an economic, and not political, nature. Moreover, the said provision refers to the temporary takeover by the State of any privately-owned public utility or business affected with public interest in times of national emergency. In such a case, the takeover is authorized when the public interest so requires and subject to "reasonable terms" which the State may prescribe. The use of the word "State" as well as the reference to "reasonable terms" under Section 17, Article XII can only pertain to Congress. In other words, the said provision is not self-executing as to be validly invoked by the President without congressional authorization. The provision merely declares a state economic policy during times of national emergency. As such, it cannot be taken to mean as authorizing the President to exercise "takeover" powers pursuant to a declaration of a state of national emergency. The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the power to take over or direct the operation of any privately owned public utility or business affected with public interest without Congressional authorization. To do so would constitute an ultra vires act on the part of the Chief Executive, whose powers are limited to the powers vested in her by Article VII, and cannot extend to Article XII without the approval of Congress. Thus, the Presidents authority to act in times of national emergency is still subject to the limitations expressly prescribed by Congress. This is a featured component of the doctrine of separation of powers, specifically, the principle of checks and balances as applicable to the political branches of government, the executive and the legislature. With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed forces and the national police "to prevent and suppress acts of terrorism and lawless violence in the country." There is presently no law enacted by Congress that defines terrorism, or classifies what acts are punishable as acts of terrorism. The notion of terrorism, as well as acts constitutive thereof, is at best fraught with ambiguity. It is therefore subject to different interpretations by the law enforcement agencies.

As can be gleaned from the facts, the lack of a clear definition of what constitutes "terrorism" have led the law enforcement officers to necessarily guess at its meaning and differ as to its application giving rise to unrestrained violations of the fundamental guarantees of freedom of peaceable assembly and freedom of the press. In Kolender v. Lawson,4 the United States Supreme Court nullified a state statute requiring persons who loitered or wandered on streets to provide "credible and reliable" identification and to account for their presence when requested to do so by a police officer. Writing for the majority, Justice Sandra Day OConnor noted that the most important aspect of vagueness doctrine was the imposition of guidelines that prohibited arbitrary, selective enforcement on constitutionally suspect basis by police officers. This rationale for invocation of that doctrine was of special concern in this case because of the potential for arbitrary suppression of the fundamental liberties concerning freedom of speech and expression, as well as restriction on the freedom of movement. Thus, while I recognize that the President may declare a state of national emergency as a statement of a factual conditionpursuant to our ruling in Sanlakas v. Executive Secretary,5 I wish to emphasize that the same does not grant her any additional powers. Consequently, while PP 1017 is valid as a declaration of a factual condition, the provisions which purport to vest in the President additional powers not theretofore vested in her must be struck down. The provision under GO No. 5 ordering the armed forces to carry out measures to prevent or suppress "acts of terrorism" must be declared unconstitutional as well. Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed under the Bill of Rights cannot be preemptive in meeting any and all perceived or potential threats to the life of the nation. Such threats must be actual, or at least gravely imminent, to warrant government to take proper action. To allow government to preempt the happening of any event would be akin to "putting the cart before the horse," in a manner of speaking. State action is proper only if there is a clear and present danger of a substantive evil which the state has a right to prevent. We should bear in mind that in a democracy, constitutional liberties must always be accorded supreme importance in the conduct of daily life. At the heart of these liberties lies freedom of speech and thought not merely in the propagation of ideas we love, but more importantly, in the advocacy of ideas we may oftentimes loathe. As succinctly articulated by Justice Louis D. Brandeis: Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. x x x But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. 6 IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions. CONSUELO YNARES-SANTIAGO Associate Justice Footnotes 1 Cardozo, B. Nature of Judicial Process, 1921. 2 Palko v. State of Connecticut, 302 U.S. 319 (1937). 3 G.R. Nos. 169838, 169848, 169881, April 25, 2006. 4 461 U.S. 352 (1983). 5 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656. 6 Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357 (1927). G.R. No. 171396 (Prof. Randolf S. David, Lorenzo Taada III, Ronald Llamas, H. Harry L. Roque, Jr., Joel Ruiz Butuyan, Roger R. Rayel, Gary S. Mallari, Romel Regalado Bagares, Christopher F.C. Bolastig, petitioners, v. Gloria Macapagal-Arroyo, as President and Commander-in-Chief, Executive Secretary Eduardo Ermita, Hon. Avelino

Cruz II, Secretary of National Defense, General Generoso Senga, Chief of Staff, Armed Forces of the Philippines, Director General Arturo Lomibao, Chief, Philippine National Police, respondents.) G.R. No. 171409 (Niez Cacho-Olivares and Tribune Publishing Co., Inc., petitioner, v. Honorable Secretary Eduardo Ermita and Honorable Director General Arturo Lomibao, respondents.) G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago, Teodoro A. Casino, Agapito A. Aquino, Mario G. Aguja, Satur C. Ocampo, Mujiv S. Hataman, Juan Edgardo Angara, Teofisto DL. Guingona III, Emmanuel Josel J. Villanueva, Liza L. Maza, Imee R. Marcos, Renato B. Magtubo, Justin Marc SB. Chipeco, Roilo Golez, Darlene Antonio-Custudio, Loretta Ann P. Rosales, Josel G. Virador, Rafael V. Mariano, Gilbert C. Remulla, Florencio G. Noel, Ana Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F. Leonenen, Neri Javier Colmenares, Movement of Concerned Citizens for Civil Liberties, represented by Amado Gat Inciong, petitioners, v. Eduardo R. Ermita, Executive Secretary, Avelino J. Cruz, Jr., Secretary, DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga, AFP Chief of Staff, Arturo Lumibao, Chief PNP, respondents.) G.R. No. 171483 (Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary General Joel Maglunsod, National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), represented by its National President, Joselito v. Ustarez, Antonio C. Pascual, Salvador t. Carranza, Emilia P. Dapulang, Martin Custodio, Jr., and Roque M. Tan, petitioners, v. Her Excellency, President Gloria Macapagal-Arroyo, The Honorable Executive Secretary, Eduardo Ermita, The Chief of Staff, Armed Forces of the Philippines, Generoso Senga, and the PNP Director General, Arturo Lomibao, respondents.) G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v. Executive Secretary Eduardo L. Ermita. Lt. Gen. Generoso Senga, and Director General Arturo Lomibao, respondents.) G.R. No. 171489 (Jose Anselmo I. Cadiz, Feliciano M. Bautista, Romulo R. Rivera, Jose Amor M. Amorado, Alicia A. Risos-Vidal, Felimon C. Abelita III, Manuel P. Legaspi, J.B., Jovy C. Bernabe, Bernard L. Dagcuta, Rogelio V. Garcia and Integrated Bar of the Philippines (IBP), petitioners, v. Hon. Executive Secretary Eduardo Ermita, General Generoso Senga, in his capacity as AFP Chief of Staff, and Direcotr General Arturo Lomibao, in his capacity as PNP Chief, respondents.) G.R. No. 171424 (Loren B. Legarda, petitioner, v. Gloria Macapagal-Arroyo, in her capacity as President and Commander-in-Chief; Arturo Lomibao, in his capacity as Director-General of the Philippine National Police (PNP); Generoso Senga, in his capacity as Chief of Staff of the Armed Forces of the Philippine (AFP); and Eduardo Ermita, in his capacity as Executive Secretary, respondents.) x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DISSENTING OPINION TINGA, J: I regret to say that the majority, by its ruling today, has imprudently placed the Court in the business of defanging paper tigers. The immodest show of brawn unfortunately comes at the expense of an exhibition by the Court of a fundamental but sophisticated understanding of the extent and limits of executive powers and prerogatives, as well as those assigned to the judicial branch. I agree with the majority on some points, but I cannot join the majority opinion, as it proceeds to rule on non-justiciable issues based on fears that have not materialized, departing as they do from the plain language of the challenged issuances to the extent of second-guessing the Chief Executive. I respectfully dissent. The key perspective from which I view these present petitions is my own ponencia in Sanlakas v. Executive Secretary,1 which centered on Presidential Proclamation No. 427 (PP 427), declaring a "state of rebellion" in 2003. The Court therein concluded that while the declaration was constitutional, such declaration should be regarded as both regarded as "an utter superfluity", which "only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it", and "devoid of any legal significance", and "cannot diminish or violate constitutionally protected rights." I submit that the same conclusions should be reached as to Proclamation No. 1017 (PP 1017). Following the cardinal precept that the acts of the executive are presumed constitutional is the equally important doctrine that to warrant unconstitutionality, there must be a clear and unequivocal breach of the Constitution,

not a doubtful and argumentative implication.2 Also well-settled as a rule of construction is that where thee are two possible constructions of law or executive issuance one of which is in harmony with the Constitution, that construction should be preferred. 3 The concerns raised by the majority relating to PP 1017 and General Order Nos. 5 can be easily disquieted by applying this well-settled principle. I. PP 1017Has No Legal Binding Effect; Creates No Rights and Obligations; and Cannot Be Enforced or Invoked in a Court< Of Law First, the fundamentals. The President is the Chief of State and Foreign Relations, the chief of the Executive Branch,4 and the Commander-in-Chief of the Armed Forces.5 The Constitution vests on the President the executive power.6 The President derives these constitutional mandates from direct election from the people. The President stands as the most recognizable representative symbol of government and of the Philippine state, to the extent that foreign leaders who speak with the President do so with the understanding that they are speaking to the Philippine state. Yet no matter the powers and prestige of the presidency, there are significant limitations to the office of the President. The President does not have the power to make or legislate laws,7 or disobey those laws passed by Congress.8 Neither does the President have to power to create rights and obligations with binding legal effect on the Filipino citizens, except in the context of entering into contractual or treaty obligations by virtue of his/her position as the head of State. The Constitution likewise imposes limitations on certain powers of the President that are normally inherent in the office. For example, even though the President is the administrative head of the Executive Department and maintains executive control thereof,9 the President is precluded from arbitrarily terminating the vast majority of employees in the civil service whose right to security of tenure is guaranteed by the Constitution.10 The President has inherent powers,11 powers expressly vested by the Constitution, and powers expressly conferred by statutes. The power of the President to make proclamations, while confirmed by statutory grant, is nonetheless rooted in an inherent power of the presidency and not expressly subjected to constitutional limitations. But proclamations, as they are, are a species of issuances of extremely limited efficacy. As defined in the Administrative Code, proclamations are merely "acts of the President fixing a date or declaring a status or condition of public moment or interest upon the existence of which the operation of a specific law or regulation is made to depend". 12 A proclamation, on its own, cannot create or suspend any constitutional or statutory rights or obligations. There would be need of a complementing law or regulation referred to in the proclamation should such act indeed put into operation any law or regulation by fixing a date or declaring a status or condition of a public moment or interest related to such law or regulation. And should the proclamation allow the operationalization of such law or regulation, all subsequent resultant acts cannot exceed or supersede the law or regulation that was put into effect. Under Section 18, Article VII of the Constitution, among the constitutional powers of the President, as Commander-in-Chief, is to "call out such armed forces to prevent or suppress lawless violence, invasion or rebellion".13 The existence of invasion or rebellion could allow the President to either suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law, but there is a fairly elaborate constitutional procedure to be observed in such a case, including congressional affirmation or revocation of such suspension or declaration, as well as the availability of judicial review. However, the existence of lawless violence, invasion or rebellion does not ipso facto cause the "calling out" of the armed forces, the suspension of habeas corpus or the declaration of martial law it remains within the discretion of the President to engage in any of these three acts should said conditions arise. Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such declaration could ostensibly predicate the suspension of the privilege of the writ of habeas corpus or the declaration of martial law, but the President did not do so. Instead, PP 427, and the accompanying General Order No. 4, invoked the "calling out" of the Armed Forces to prevent lawless violence, invasion and rebellion. Appreciably, a state of lawless violence, invasion or rebellion could be variable in scope, magnitude and gravity; and Section 18, Article VII allows for the President to respond with the appropriate measured and proportional response. Indeed, the diminution of any constitutional rights through the suspension of the privilege of the writ or the declaration of martial law is deemed as "strong medicine" to

be used sparingly and only as a last resort, and for as long as only truly necessary. Thus, the mere invocation of the "calling out" power stands as a balanced means of enabling a heightened alertness in dealing with the armed threat, but without having to suspend any constitutional or statutory rights or cause the creation of any new obligations. For the utilization of the "calling out" power alone cannot vest unto the President any new constitutional or statutory powers, such as the enactment of new laws. At most, it can only renew emphasis on the duty of the President to execute already existing laws without extending a corresponding mandate to proceed extraconstitutionally or extra-legally. Indeed, the "calling out" power does not authorize the President or the members of the Armed Forces to break the law. These were the premises that ultimately informed the Courts decision in Sanlakas, which affirmed the declaration of a "state of rebellion" as within the "calling out" power of the President, but which emphasized that for legal intents and purposes, it should be both regarded as "an utter superfluity", which "only gives notice to the nation that such a state exists and that the armed forces may be called to prevent or suppress it," and "devoid of any legal significance," as it could not "cannot diminish or violate constitutionally protected rights." The same premises apply as to PP 1017. A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in order. PP 427 PP 1017 NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion. In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to immediately carry out the necessary actions and measures to suppress and quell the rebellion with due regard to constitutional rights. NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . . rebellion. . .," and in my capacity as their Commanderin-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two distinct phases. The first is the declaration itself of a status or condition, a "state of rebellion" in PP 437, and a "state of national emergency" under PP 1017. Both "state of rebellion" and "state of national emergency" are terms within constitutional contemplation. Under Section 18, Article VII, the existence of a "state of rebellion" is sufficient premise for either the suspension of the privilege of the writ of habeas corpus or the declaration of martial law, though in accordance with the strict guidelines under the same provision. Under Section 17, Article XII, the existence of a state of national emergency is sufficient ground for the State, during the emergency, under reasonable terms prescribed by it, and when the public interest so requires, to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest. Under Section 23(2), Article VI, the existence of a state of national emergency may also allow Congress to 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.

Certainly, the declaration could stand as the first step towards constitutional authorization for the exercise by the President, the Congress or the State of extraordinary powers and prerogatives. However, the declaration alone cannot put into operation these extraordinary powers and prerogatives, as the declaration must be followed through with a separate act providing for the actual utilization of such powers. In the case of the "state of rebellion," such act involves the suspension of the writ or declaration of martial law. In the case of the "state of national emergency," such act involves either an order for the takeover or actual takeover by the State of public utilities or businesses imbued with public interest or the authorization by Congress for the President to exercise emergency powers. In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the writ or the declaration of martial law. In PP 1017, the declaration of a "state of national emergency" did not lead to an authorization for the takeover or actual takeover of any utility or business, or the grant by Congress to the President of emergency powers. Instead, both declarations led to the invocation of the calling out power of the President under Section 18, Article VII, which the majority correctly characterizes as involving only "ordinary police action." I agree with the ponencias holding that PP 1017 involves the exercise by the President of the "calling out" power under Section 18, Article VII. In Integrated Bar v. Zamora,14 the Court was beseeched upon to review an order of President Estrada commanding the deployment of the Marines in patrols around Metro Manila, in view of an increase in crime.15 The Court, speaking through Justice Santiago Kapunan, affirmed the Presidents order, asserting that "it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the Presidents exercise of judgment deserves to be accorded respect from this Court." 16 Tellingly, the order of deployment by President Estrada was affirmed by the Court even though we held the view that the power then involved was not the "calling out" power, but "the power involved may be no more than the maintenance of peace and order and promotion of the general welfare." 17 It was also maintained in Integrated Bar that while Section 18, Article VII mandated two conditions actual rebellion or invasion and the requirement of public safety before the suspension of the privilege of the writ of habeas corpus or the declaration of martial law could be declared, "these conditions are not required in the case of the power to call out the armed forces. The only criterion is that whenever it becomes necessary, the President may call the armed forces to suppress lawless violence, invasion or rebellion."18 The Court concluded that the implication was "that the President is given full discretion and wide latitude in the exercise of the power to call as compared to the two other powers."19 These propositions were affirmed in Sanlakas, wherein the invocation of the calling out power was expressly made by President Arroyo. The Court noted that for the purpose of exercising the calling out power, the Constitution did not require the President to make a declaration of a state of rebellion.20 At the same time, the Court in Sanlakas acknowledged that "the Presidents authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers."21 For still unclear reasons, the majority attempts to draw a distinction between Sanlakas and the present petitions by that the statutory authority to declare a "state of rebellion" emanates from the Administrative Code of 1987, particularly the provision authorizing the President to make proclamations. As such, the declaration of a "state of rebellion," pursuant to statutory authority, "was merely an act declaring a status or condition of public moment or interest." The majority grossly misreads Sanlakas, which expressly roots the declaration of a state of rebellion from the wedded powers of the Chief Executive, under Section 1, Article VII, and as Commander-in-Chief, under Section 18, Article VII. Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the directive to the Armed Forces of the Philippines to "suppress all forms of lawless violence". But there are nuances to the calling out power invoked in PP 1017 which the majority does not discuss. The directive "to suppress all forms of lawless violence" is addressed not only to the Armed Forces but to the police as well. The "calling out" of the police does not derive from Section 17, Article VII, or the commander-in-chief

clause, our national police being civilian in character. Instead, the calling out of the police is sourced from the power of the President as Chief Executive under Section 1, Article VII, and the power of executive control under Section 18, Article VII. Moreover, while the permissible scope of military action is limited to acts in furtherance of suppressing lawless violence, rebellion, invasion, the police can be commanded by the President to execute all laws without distinction in light of the presidential duty to execute all laws.22 Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the discretion of the Chief Executive in the exercise of the "calling out" power due to a recognition that the said power is of limited import, directed only to the Armed Forces of the Philippines, and incapable of imposing any binding legal effect on the citizens and other branches of the Philippines. Indeed, PP 1017 does not purport otherwise. Nothing in its operative provisions authorize the President, the Armed Forces of the Philippines, or any officer of the law, to perform any extra-constitutional or extra-legal acts. PP 1017 does not dictate the suspension of any of the peoples guarantees under the Bill of Rights. If it cannot be made more clear, neither the declaration of a state of emergency under PP 1017 nor the invocation of the calling out power therein authorizes warrantless arrests, searches or seizures; the infringement of the right to free expression, peaceable assembly and association and other constitutional or statutory rights. Any public officer who nonetheless engaged or is engaging in such extra-constitutional or extra-legal acts in the name of PP 1017 may be subjected to the appropriate civil, criminal or administrative liability. To prove this point, let us now compare PP 1017 with a different presidential issuance, one that was intended to diminish constitutional and civil rights of the people. The said issuance, Presidential Proclamation No. 1081, was issued by President Marcos in 1972 as the instrument of declaring martial law. The operative provisions read: PD. 1081 PP 1017 Now, thereof, I, Ferdinand E. Marcos, President Of the Philippines, by virtue of the powers vested upon me by article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in the article I, Section 1, of the Constitution under martial law, and in my capacity as their commander-in-chief, do hereby command the arned forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction. In addition, I do hereby order that all persons presently detained, as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes, against the fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . . rebellion. . .," and in my capacity as their Commanderin-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative. (emphasis supplied) Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017 merely declared the existence of a state of rebellion, an act ultimately observational in character, PP 1081 "placed the entire Philippines under martial law," an active implement23 that, by itself, substituted civilian governmental authority with military authority. Unlike in the 1986 Constitution, which was appropriately crafted with an aversion to the excesses of Marcosian martial rule, the 1935 Constitution under which PP 1081 was issued left no intervening safeguards that tempered or limited the declaration of martial law. Even the contrast in the verbs used, "place" as opposed to "declare," betrays some significance. To declare may be simply to acknowledge the existence of a particular condition, while to place ineluctably goes beyond mere acknowledgement, and signifies the imposition of the actual condition even if it did not exist before. Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts of such power are wildly distaff in light of PP 1081s accompanying declaration of martial law. Since martial law involves the substitution of the military in the civilian functions of government, the calling out power involved in PP 1081 is significantly greater than the one involved in PP 1017, which could only contemplate the enforcement of existing laws in relation to the suppression of lawless violence, rebellion or invasion and the maintenance of general peace and order. Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner that PP 1017 does not even ponder upon is the subsequent paragraph cited, which authorizes the detention and continued detention of persons for a plethora of crimes not only directly related to the rebellion or lawless violence, but of broader range such as those "against national security," or "public order." The order of detention under PP 1081 arguably includes every crime in the statute book. And most alarmingly, any person detained by virtue of PP 1081 could remain in perpetual detention unless otherwise released upon order of President Marcos or his duly authorized representative. Another worthy point of contrast concerns how the Supreme Court, during the martial law era, dealt with the challenges raised before it to martial law rule and its effects on civil liberties. While martial law stood as a valid presidential prerogative under the 1935 Constitution, a ruling committed to safeguard civil rights and liberties could have stood ground against even the most fundamental of human rights abuses ostensibly protected under the 1935 and 1973 constitutions and under international declarations and conventions. Yet a perusal of Aquino v. Enrile,24 the case that decisively affirmed the validity of martial law rule, shows that most of the Justices then sitting exhibited diffidence guised though as deference towards the declaration of martial law. Note these few excerpts from the several opinions submitted in that case which stand as typical for those times: The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial precedents. xxx In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within the cognizance not only of the courts but of all observant people residing here at that time. xxx The state of rebellion continues up to the present. The argument that while armed hostilities go on in several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no need to maintain martial law all over the

country, ignores the sophisticated nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting. Underground propaganda, through printed newssheets or rumors disseminated in whispers; recruiting of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column activities including sabotage and intelligence all these are part of the rebellion which by their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that context.25 xxx [T]he fact that courts are open cannot be accepted as proof that the rebellion and insurrection, which compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the many surface indicia adverted to by the petitioners (the increase in the number of tourists, the choice of Manila as the site of international conferences and of an international beauty contest) to be regarded as evidence that the threat to public safety has abated. There is actual armed combat, attended by the somber panoply of war, raging in Sulu and Cotabato, not to mention the Bicol region and Cagayan Valley. I am hard put to say, therefore, that the Governments claim is baseless. I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte Moyer, if it were the liberty alone of the petitioner Diokno that is in issue we would probably resolve the doubt in his favor and grant his application. But the Solicitor General, who must be deemed to represent the President and the Executive Department in this case, has manifested that in the Presidents judgment peace and tranquility cannot be speedily restored in the country unless the petitioners and others like them meantime remain in military custody. For, indeed, the central matter involved is not merely the liberty of isolated individuals, but the collective peace, tranquility and security of the entire nation.26 xxx It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would justify the imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is not of general knowledge to the public cannot conceivably be dangerous to public safety. But precisely because it is capable of judicial notice, no inquiry is needed to determine the propriety of the Executives action. Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may actually pose to the public safety are not always easily perceptible to the unpracticed eye. In the present day practices of rebellion, its inseparable subversion aspect has proven to be more effective and important than "the rising (of persons) publicly and taking arms against the Government" by which the Revised Penal Code characterizes rebellion as a crime under its sanction. Subversion is such a covert kind of anti-government activity that it is very difficult even for army intelligence to determine its exact area of influence and effect, not ot mention the details of its forces and resources. By subversion, the rebels can extend their field of action unnoticed even up to the highest levels of the government, where no one can always be certain of the political complexion of the man next to him, and this does not exclude the courts. Arms, ammunition and all kinds of war equipment travel and are transferred in deep secrecy to strategic locations, which can be ones neighborhood without him having any idea of what is going on. There are so many insidious ways in which subversives act, in fact too many to enumerate, but the point that immediately suggests itself is that they are mostly incapable of being proven in court, so how are We to make a judicial inquiry about them that can satisfy our judicial conscience. The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith act as promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to the life of the nation. He must do this with unwavering conviction, or any hesitancy or indecision on his part will surely detract from the needed precision in his choice of the means he would employ to repel the aggression. The apprehension that his decision might be held by the Supreme Court to be a transgression of the fundamental law he has sworn to defend and preserve would deter him from acting when precisely it is most urgent and critical that he should act, since the enemy is about to strike the mortal blow.27 xxx

To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least, evident insurgency, what with the numerous easily verifiable reports of open rebellious activities in different parts of the country and the series of rallies and demonstrations, often bloody, in Manila itself and other centers of population, including those that reached not only the portals but even the session hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either were indifferent or did not know what to do under the circumstances. Instead of taking immediate measures to alleviate the conditions denounced and decried by the rebels and the activists, they debated and argued long on palliatives without coming out with anything substantial much less satisfactory in the eyes of those who were seditiously shouting for reforms. In any event, in the face of the inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called for immediate action, the only alternative open to the President was to resort to the other constitutional source of extraordinary powers, the Constitution itself.28 xxx Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of persons, the Proclamation pointedly limits arrests and detention only to those "presently detained, as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offences committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes, against the fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction." Indeed, even in the affected areas, the Constitution has not been really suspended much less discarded. As contemplated in the fundamental law itself, it is merely in a state of anaesthesia, to the end that the much needed major surgery to save the nations life may be successfully undertaken. 29 xxx The quoted lines of reasoning can no longer be sustained, on many levels, in these more enlightened times. For one, as a direct reaction to the philosophy of judicial inhibition so frequently exhibited during the Marcos dictatorship, our present Constitution has explicitly mandated judicial review of the acts of government as part of the judicial function. As if to rebuff Aquino, the 1987 Constitution expressly allows the Supreme Court to review the sufficiency of the factual basis of the proclamation of martial law and decide the same within 30 days from the filing of the appropriate case. 30 The Constitution also emphasizes that a state of martial law did not suspend the operation of the Constitution or supplant the functioning of the judicial and legislative branches.31 The expediency of hiding behind the political question doctrine can no longer be resorted to. For another, the renewed emphasis within domestic and international society on the rights of people, as can be seen in worldwide democratic movements beginning with our own in 1986, makes it more difficult for a government established and governed under a democratic constitution, to engage in official acts that run contrary to the basic tenets of democracy and civil rights. If a government insists on proceeding otherwise, the courts will stand in defense of the basic constitutional rights of the people. Still, the restoration of rule under law, the establishment of national governmental instrumentalities, and the principle of republicanism all ensure that the constitutional government retains significant powers and prerogatives, for it is through such measures that it can exercise sovereign will in behalf of the people. Concession to those presidential privileges and prerogatives should be made if due. The abuses of past executive governments should not detract from these basic governmental powers, even as they may warrant a greater degree of wariness from those institutions that balance power and the people themselves. And the rule of law should prevail above all. The damage done by martial rule was not merely personal but institutional, and the proper rebuke to the caprices and whims of the iniquitous past is to respect the confines of the restored rule of law.32 Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to matching PP 1081. It is a rank insult to those of us who suffered or stood by

those oppressed under PP 1081 to even suggest that the innocuous PP 1017 is of equivalent import. PP 1017 Does Not Purport or Pretend that the President Has The Power to Issue Decrees There is one seeming similarity though in the language of PP 1017 and PP 1081, harped upon by some of the petitioners and alluded to by the majority. PP 1017 contains a command to the Armed Forces "to enforce obedience to all the laws and to all decrees, orders and regulations by [the President]". A similar command was made under PP 1081. That in itself should not be a cause of surprise, since both PP 1017 and PP 1081 expressly invoked the "calling out" power, albeit in different contexts. The majority however considers that since the President does not have the power to issue decrees, PP 1017 is unconstitutional insofar as it enforces obedience "to all decrees." For one, it should be made clear that the President currently has no power to issue decrees, and PP 1017 by no measure seeks to restore such power to the President. Certainly, not even a single decree was issued by President Arroyo during the several days PP 1017 was in effect, or during her term thus far for that matter. At the same time, such power did once belong to the President during the Marcos era and was extensively utilized by President Marcos. It has to be remembered that chafed as we may have under some of the Marcos decrees, per the 1987 Constitution they still remain as part of the law of the land unless particularly stricken down or repealed by subsequent enactments. Indeed, when the President calls upon the Armed Forces to enforce the laws, those subsisting presidential decrees issued by President Marcos in the exercise of his legislative powers are included in the equation. This view is supported by the rules of statutory construction. The particular passage in PP 1017 reads ""to enforce obedience to all the laws and to all decrees, orders and regulations," with the phrases "all the laws and to all decrees" separated by a comma from "orders and regulations promulgated by me." Inherently, laws and those decrees issued by President Marcos in the exercise of his legislative powers, and even those executive issuances of President Aquino in the exercise of her legislative powers, belong to the same class, superior in the hierarchy of laws than "orders and regulations." The use of the conjunction "and" denotes a joinder or union, "relating the one to the other."33 The use of "and" establishes an association between laws and decrees distinct from orders and regulations, thus permitting the application of the doctrine of noscitur a sociis to construe "decrees" as those decrees which at present have the force of law. The dividing comma further signifies the segregation of concepts between "laws and decrees" on one hand, and "orders and regulations" on the other. Further proof that "laws and decrees" stand as a class distinct from "orders and regulations" is the qualifying phrase "promulgated by me," which necessarily refers only to orders and regulations. Otherwise, PP 1017 would be ridiculous in the sense that the obedience to be enforced only relates to laws promulgated by President Arroyo since she assumed office in 2001. "Laws and decrees" do not relate only to those promulgated by President Arroyo, but other laws enacted by past sovereigns, whether they be in the form of the Marcos presidential decrees, or acts enacted by the American Governor-General such as the Revised Penal Code. Certainly then, such a qualification sufficiently addresses the fears of the majority that PP 1017 somehow empowers or recognizes the ability of the current President to promulgate decrees. Instead, the majority pushes an interpretation that, if pursued to its logical end, suggests that the President by virtue of PP 1017 is also arrogating unto herself, the power to promulgate laws, which are in the mold of enactments from Congress. Again, in this respect, the grouping of "laws" and "decrees" separately from "orders" and "regulations" signifies that the President has not arrogated unto herself the power to issue decrees in the mold of the infamous Marcos decrees. Moreover, even assuming that PP 1017 was intended to apply to decrees which the current President could not very well issue, such intention is of no consequence, since the proclamation does not intend or pretend to grant the President such power in the first place. By no measure of contemplation could PP 1017 be interpreted as reinstating to the President the power to issue decrees. I cannot see how the phrase "enforce obedience to decrees" can be the source of constitutional mischief, since the implementation of PP 1017 will not vest on the President the power to issue such decrees. If the Court truly feels the need to clarify this point, it can do so with the expediency of one sentence or even a footnote. A solemn

declaration that the phrase is unconstitutional would be like killing a flea with dynamite when insect powder would do. PP 1017 A Valid Exercise of Prerogatives Inherent and Traditional in the Office of The Presidency Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in relation to the citizenry, the courts or on Congress. Still, there is another purpose and dimension behind PP 1017 that fall within the valid prerogatives of the President. The President, as head of state, is cast in a unique role in our polity matched by no other individual or institution. Apart from the constitutional powers vested on the President lie those powers rooted in the symbolic functions of the office. There is the common expectation that the President should stand as the political, moral and social leader of the nation, an expectation not referred to in of the oath of office, but expected as a matter of tradition. In fact, a President may be cast in crisis even if the Chief Executive has broken no law, and faithfully executed those laws that exist, simply because the President has failed to win over the hearts and minds of the citizens. As a Princeton academic, Woodrow Wilson once observed that with the People, the President is everything, and without them nothing, and the sad decline of his own eventual presidency is no better proof of the maxim. Such are among the vagaries of the political office, and generally beyond judicial relief or remedy. Justice Robert Jacksons astute observation in Youngstown Sheet & Tube Co. v. Sawyer34 on the unique nature of the presidency, has been widely quoted: Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude, and finality, his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.35 Correspondingly, the unique nature of the office affords the President the opportunity to profoundly influence the public discourse, not necessarily through the enactment or enforcement of laws, but specially by the mere expediency of taking a stand on the issues of the day. Indeed, the President is expected to exercise leadership not merely through the proposal and enactment of laws, but by making such vital stands. U.S. President Theodore Roosevelt popularized the notion of the presidency as a "bully pulpit", in line with his belief that the President was the steward of the people limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers. Many times, the President exercises such prerogative as a responsive measure, as after a mass tragedy or calamity. Indeed, when the President issues a declaration or proclamation of a state of national mourning after a disaster with massive casualties, while perhaps de rigeur, is not the formalistic exercise of tradition, but a statement that the President, as the representative of the Filipino people, grieves over the loss of life and extends condolences in behalf of the people to the bereaved. This is leadership at its most solemn. Yet the President is not precluded, in the exercise of such role, to be merely responsive. The popular expectation in fact is of a pro-active, dynamic chief executive with an ability to identify problems or concerns at their incipience and to respond to them with all legal means at the earliest possible time. The President, as head of state, very well has the capacity to use the office to garner support for those great national quests that define a civilization, as President Kennedy did when by a mere congressional address, he put America on track to the goal of placing a man on the moon. Those memorable presidential speeches memorized by schoolchildren may have not, by themselves, made operative any law, but they served not only merely symbolic functions, but help profoundly influence towards the right direction, the public opinion in the discourse of the times. Perhaps there was no more dramatic example of the use of the "bully pulpit" for such noble purposes than in 1964, when an American President from Texas stood before a Congress populated by many powerful bigots, and fully committed himself as no other President before to the cause of civil rights with his intonation of those lines from the civil rights anthem, "we shall overcome." From an earlier era in American history, Lincolns Emancipation Proclamation stands out as a presidential declaration which clearly staked American polity on the side of the

democratic ideal, even though the proclamation itself was of dubitable legal value. The proclamation, in short form, "freed the slaves", but was not itself free of legal questions. For one, the notion that the President could, by himself, alter the civil and legal status of an entire class of persons was dubious then and now, although President Lincoln did justify his action as in the exercise of his powers as commander-in-chief during wartime, "as a fit and necessary war measure for suppressing [the] rebellion." Moreover, it has been pointed out that the Proclamation only freed those slaves in those states which were then in rebellion, and it eventually took the enactment of the Thirteenth Amendment of the U.S. Constitution to legally abolish involuntary servitude. 36 Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still stands as a defining example not only of the Lincoln Presidency, but of American democratic principles. It may be remembered to this day not exactly as an operational means by which slaves were actually freed, but as a clear rhetorical statement that slavery could no longer thenceforth stand. The President as Chief Government Spokesperson of the democratic ideals is entrusted with a heady but comfortable pursuit. But no less vital, if somewhat graver, is the role of the President as the Chief Defender of the democratic way of life. The "calling out" power assures the President such capability to a great extent, yet it will not fully suffice as a defense of democracy. There is a need for the President to rally the people to defend the Constitution which guarantees the democratic way of life, through means other than coercive. I assert that the declaration of a state of emergency, on premises of a looming armed threat which have hardly been disputed, falls within such proper functions of the President as the defender of the Constitution. It was designed to inform the people of the existence of such a threat, with the expectation that the citizenry would not aid or abet those who would overturn through force the democratic government. At the same time, the Proclamation itself does not violate the Constitution as it does not call for or put into operation the suspension or withdrawal of any constitutional rights, or even create or diminish any substantive rights. I submit that it would be proper for the Court to recognize that PP 1017 strikes a commendable balance between the Constitution, the "calling out" power, and the inherent function of the Presidency as defender of the democratic constitution. PP 1017 keeps within the scope and limitations of these three standards. It asserts the primacy of the democratic order, civilian control over the armed forces, yet respects constitutional and statutory guarantees of the people. II. Section 17, Article XII of the Constitution In Relation to PP 1017 My next issue with the majority pertains to the assertion that the President does not have the power to take over public utilities or businesses impressed with public interest under Section 17, Article XII of the Constitution without prior congressional authorization. I agree that the power of the State to take over such utilities and businesses is highly limited, and should be viewed with suspicion if actually enforced. Yet qualifications are in order with regard to how Section 17, Article XII actually relates of PP 1017. I agree with the majority that a distinction should be asserted as between the power of the President to declare a state of emergency, and the exercise of emergency powers under Section 17, Article XII. The President would have the power to declare a state of emergency even without Section 17, Article XII. At the same time, it should be recognized that PP 1017, on its face and as applied, did not involve the actual takeover of any public utility or business impressed with public interest. To some minds, the police action in relation to the Daily Tribune may have flirted with such power, yet ultimately the newspaper was able to independently publish without police interference or court injunction. It may be so that since PP 1017 did make express reference to Section 17, Article XII, but it should be remembered that the constitutional provision refers to a two-fold power of the State to declare a national emergency and to take over such utilities and enterprises. The first power under Section 17, Article XII is not distinct from the power of the President, derived from other constitutional sources, to declare a state of national emergency. Reference to Section 17, Article XII in relation to the power to declare a state of national emergency is ultimately superfluous. A different situation would obtain though if PP 1017 were invoked in the actual takeover of a utility or business, and in such case, full consideration of the import of Section 17, Article XII would be warranted. But no such situation obtains in this case, and any discussion relating to the power of the State to

take over a utility or business under Section 17, Article XII would ultimately be obiter dictum. I respectfully submit that the Court, in these petitions, need not have engaged this potentially contentious issue, especially as it extends to whether under constitutional contemplation, the President may act in behalf of the State in exercising the powers under Section 17, Article XII. Nonetheless, considering that the majority has chosen to speak out anyway, I will express agreement that as a general rule, the President may exercise such powers under Section 17, Article XII only under the grant of congressional approval. Certainly, the notion that congressional authority is required under Section 17, Article XII is not evident from the provision. Even Fr. Bernas notes that Section 17 does not require, as does Article VI, Section 23(2), that the authorization be "by law", thus leaving the impression that the authorization can come from the President.37 After the 1989 coup detat, President Aquino issued issued Proclamation No. 503 on 6 December 1989, declaring a state of national emergency, and referring therein to Section 17, Article XII by citing the entire provision. The declaration was subsequently reaffirmed by Congress when two weeks after, it enacted Republic Act No. 6826. Notably, Section 3(3) of the law authorized the President "to temporarily takeover or direct the operation of any privately-owned public utility or business affected with public interest that violates the herein declared national policy". Tellingly, however, such authority was granted by Congress expressly "pursuant to Article VI, Section 23(2) of the Constitution", and not the take-over provision in Section 17, Article XII. Evidently, the view that Section 17, Article XII requires prior congressional authority has some novelty to it. Still, I concede that it is fundamentally sound to construe Section 17 as requiring congressional authority or approval before the takeover under the provision may be effected. After all, the taking over of a privately owned public utility or business affected with public interest would involve an infringement on the right of private enterprise to profit; or perhaps even expropriation for a limited period. Constitutionally, the taking of property can only be accomplished with due process of law, 38 and the enactment of appropriate legislation prescribing the terms and conditions under which the President may exercise the powers of the State under Section 17 stands as the best assurance that due process of law would be observed. The fact that Section 17 is purposely ambivalent as to whether the President may exercise the power therein with or without congressional approval leads me to conclude that it is constitutionally permissible to recognize exceptions, such as in extreme situations wherein obtention of congressional authority is impossible or inexpedient considering the emergency. I thus dissent to any proposition that such requirement is absolute under all circumstances. I maintain that in such extreme situations, the President may exercise such authority subject to judicial review. It should be admitted that some emergencies are graver and more imminent than others. It is not within the realm of impossibility that by reason of a particularly sudden and grave emergency, Congress may not be able to convene to grant the necessary congressional authority to the President. Certainly, if bombs from a foreign invader are falling over Manila skies, it may be difficult, not to mention unnecessarily onerous, to require convening Congress before the President may exercise the functions under Section 17, Article XII. The proposition of the majority may be desirable as the general rule, but the correct rule that should be adopted by the Court should not be so absolute so as to preclude the exercise by the President of such power under extreme situations. In response to this argument, the majority cites portions of Araneta v. Dinglasan,39 most pertinent of which reads: "The point is, under this framework of government, legislation is preserved for Congress all the time, not excepting periods of crisis no matter how serious." For one, Araneta did not involve a situation wherein the President attempted to exercise emergency powers without congressional authority; concerning as it did the exercise by President Quirino of those emergency powers conferred several years earlier by Congress to President Quezon at the onset of the Pacific phase of World War II. The Court therein ruled that the emergency that justified then the extraordinary grant of powers had since expired, and that there no longer existed any authority on the part of the President to exercise such powers, notwithstanding that the law, Commonwealth Act No. 671, "did not in term fix the duration of its effectiveness".

Clearly, the context in which the Court made that observation in Araneta is not the same context within which my own observations oscillate. My own submission is premised on the extreme situation wherein Congress may be physically unable to convene, an exceptional circumstance which the hard-line stance of the majority makes no concessions for. Indeed, even the factual milieu recounted in Araneta conceded that such extreme circumstance could occur, when it noted President Quezons claim that he was impelled to call for a special session of the National Assembly after foreseeing that "it was most unlikely that the Philippine Legislature would hold its next regular session which was to open on January 1, 1942."40 That the National Assembly then was able to convene and pass Commonwealth Act No. 671 was fortunate, but somewhat a luxury nonetheless. Indeed, it is not beyond the realm of possibility that the emergency contemplated would be so grave that a sufficient number of members of Congress would be physically unable to convene and meet the quorum requirement. Ultimately though, considering that the authorized or actual takeover under Section 17, Article XII, is not presented as a properly justiciable issue. Nonetheless, and consistent with the general tenor, the majority has undertaken to decide this non-justiciable issue, and to even place their view in the dispositive portion in a bid to enshrine it as doctrine. In truth, the Courts pronouncement on this point is actually obiter. It is hoped that should the issue become ripe for adjudication before this Court, the obiter is not adopted as a precedent without the qualification that in extreme situations wherein congressional approval is impossible or highly impractical to obtain, the powers under Section 17, Article XII may be authorized by the President. III. Overbreadth and "Void for Vagueness" Doctrines Applicable Not Only To Free Speech Cases The majority states that "the overbreadth doctrine is an analytical tool developed for testing on their faces statutes in free speech cases" 41, and may thus be entertained "in cases involving statutes which, by their terms, seek to regulate only spoken words, and not conduct. A similar characterization is made as to the "void for vagueness" doctrine, which according to the majority, is "subject to the same principles governing overbreadth doctrine also an analytical tool for testing on their faces statutes in free speech cases."42 As I noted in my Separate Opinion in Romualdez v. Sandiganbayan, 43 citing Justice Kapunan, there is a viable distinction between "void for vagueness" and "overbreadth" which the majority sadly ignores. A view has been proferred that "vagueness and overbreadth doctrines are not applicable to penal laws." These two concepts, while related, are distinct from each other. On one hand, the doctrine of overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand, the "void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other fundamental constitutional right. (not merely those that regulate speech or other fundamental constitutional rights.) The fact that a particular criminal statute does not infringe upon free speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed.44 The distinction may prove especially crucial since there has been a long line of cases in American Supreme Court jurisprudence wherein penal statutes have been invalidated on the ground that they were "void for vagueness." As I cited in Romualdez v. Sandiganbayan,45 these cases are Connally v. General Construction Co,.46 Lanzetta v. State of New Jersey,47 Bouie v. City of Columbia,48 Papachristou v. City of Jacksonville,49 Kolender v. Lawson,50 and City of Chicago v. Morales.51 Granting that perhaps as a general rule, overbreadth may find application only in "free speech"52 cases, it is on the other hand very settled doctrine that a penal statute regulating conduct, not speech, may be invalidated on the ground of "void for vagueness". In Romualdez, I decried the elevation of the suspect and radical new doctrine that the "void for vagueness" challenge cannot apply other than in free speech cases. My view on this point has not changed, and insofar as the ponencia would hold otherwise, I thus dissent. Moreover, even though the argument that an overbreadth challenge can be maintained only in free speech cases has more jurisprudential moorings, the rejection of the challenge on that basis alone may prove unnecessarily simplistic. I maintain that there is an even stronger ground on which the overbreadth and "void for vagueness"

arguments can be refuted that Presidential Proclamation 1017 (PP 1017) neither creates nor diminishes any rights or obligations whatsoever. In fact, I submit again that this proposition is the key perspective from which the petitions should be examined. IV. General Order No. 5 Suffers No Constitutional Infirmity The majority correctly concludes that General Order No. 5 is generally constitutional. However, they make an unnecessary distinction with regard to "acts of terrorism", pointing out that Congress has not yet passed a law defining and punishing terrorism or acts of terrorism. That may be the case, but does the majority seriously suggest that the President or the State is powerless to suppress acts of terrorism until the word "terrorism" is defined by law? Terrorism has a widely accepted meaning that encompasses many acts already punishable by our general penal laws. There are several United Nations and multilateral conventions on terrorism53, as well as declarations made by the United Nations General Assembly denouncing and seeking to combat terrorism.54 There is a general sense in international law as to what constitutes terrorism, even if no precise definition has been adopted as binding on all nations. Even without an operative law specifically defining terrorism, the State already has the power to suppress and punish such acts of terrorism, insofar as such acts are already punishable, as they almost always are, in our extant general penal laws. The President, tasked with the execution of all existing laws, already has a sufficient mandate to order the Armed Forces to combat those acts of terrorism that are already punishable in our Revised Penal Code, such as rebellion, coup detat, murder, homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts which under normal contemplation would constitute terrorism are associated anyway with or subsumed under lawless violence, which is a term found in the Constitution itself. Thus long ago, the State has already seen it fit to punish such acts. Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts, since such power belongs to the legislative alone. Fortunately, General Order No. 5 does not assume to make such redefinitions. It may have been a different matter had General Order No. 5 attempted to define "acts of terrorism" in a manner that would include such acts that are not punished under our statute books, but the order is not comported in such a way. The proper course of action should be to construe "terrorism" not in any legally defined sense, but in its general sense. So long as it is understood that "acts of terrorism" encompasses only those acts which are already punishable under our laws, the reference is not constitutionally infirm. The majority cites a theoretical example wherein a group of persons engaged in a drinking spree may be arrested by the military or police in the belief that they were committing acts of terrorism pursuant to General Order No. 5. Under the same logical framework that group of persons engaged in a drinking spree could very well be arrested by the military or police in the belief that they are committing acts of lawless violence pursuant to General Order No. 5, instead of acts of terrorism. Obviously such act would be "abuse and oppression" on the part of the military and the police, whether justified under "lawless violence" or "acts of terrorism". Yet following the logic of the majority, the directive to prevent acts of "lawless violence" should be nullified as well. If the point of the majority is that there are no justiciable standards on what constitutes acts of terrorism, it should be pointed out that only the following scenarios could ensue. For one, a person would actually be arrested and charged with "acts of terrorism", and such arrest or charge would be thrown out of the courts, since our statute books do not criminalize the specific crime of terrorism. More probably, a person will be arrested and charged for acts that may under the laypersons contemplation constitutes acts of terrorism, but would be categorized in the information and charge sheet as actual crimes under our Revised Penal Code. I simply cannot see how General Order No. 5 could validate arrests and convictions for non-existent crimes. Interestingly, the majority, by taking issue with the lack of definition and possible broad context of "acts of terrorism", seems to be positively applying the arguments of "overbreadth" or "void for vagueness", arguments which they earlier rejected as applicable only in the context of free expression cases. The inconsistency is breathtaking. While I disagree with the majority-imposed limitations on the applicability of the "overbreadth" or "void for vagueness" doctrines, I likewise cannot accede to the application of those doctrines in the context of General Order No. 5, for the same

reason that they should not apply to PP 1017. Neither General Order No. 5 nor PP 1017 is a penal statute, or have an operative legal effect of infringing upon liberty, expression or property. As such, neither General Order No. 5 nor PP 1017 can cause the deprivation of life, liberty or property, thus divorcing those issuances from the context of the due process clause. The same absence of any binding legal effect of these two issuances correspondingly disassociates them from the constitutional infringement of free expression or association. Neither "void for vagueness" nor "overbreadth" therefore lie. Another point. The majority concludes from General Order No. 5 that the military or police is limited in authority to perform those acts that are "necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence," and such acts committed beyond such authority are considered illegal. I do not dispute such conclusion, but it must be emphasized that "necessary and appropriate actions and measures" precisely do not authorize the military or police to commit unlawful and unconstitutional acts themselves, even if they be geared towards suppressing acts of terrorism or lawless violence. Indeed, with the emphasis that PP 1017 does not create new rights or obligations, or diminish existing ones, it necessarily follows that General Order No. 5, even if premised on a state of emergency, cannot authorize the military or police to ignore or violate constitutional or statutory rights, or enforce laws completely alien to the suppression of lawless violence. Again, following the cardinal principle of legal hermeneutics earlier adverted to, General Order No. 5 should be viewed in harmony with the Constitution, and only if it the Order irreconcilably deviates from the fundamental law should it be struck down. V. Court Should Refrain Making Any Further Declaration, For Now, Relating to the Individual Grievances Raised by the Petitioners in Relation To PP 1017 I respectfully disagree with the manner by which the majority would treat the "void as applied" argument presented by the petitioners. The majority adopts the tack of citing three particular injuries alleged by the petitioners as inflicted with the implementation of PP 1017. The majority analyzes the alleged injuries, correlates them to particular violations of the Bill of Rights, and ultimately concludes that such violations were illegal. The problem with this approach is that it would forever deem the Court as a trier or reviewer at first instance over questions involving the validity of warrantless arrests, searches, seizures and the dispersal of rallies, all of which entail a substantial level of factual determination. I agree that PP 1017 does not expand the grounds for warrantless arrests, searches and seizures or dispersal of rallies, and that the proclamation cannot be invoked before any court to assert the validity of such unauthorized actions. Yet the problem with directly adjudicating that the injuries inflicted on David, et al., as illegal, would be that such would have been done with undue haste, through an improper legal avenue, without the appropriate trial of facts, and without even impleading the particular officers who effected the arrests/searches/seizures. I understand that the injurious acts complained of by the petitioners upon the implementation of PP 1017 are a source of grave concern. Indubitably, any person whose statutory or constitutional rights were violated in the name of PP 1017 or General Order No. 5 deserves redress in the appropriate civil or criminal proceeding, and even the minority wishes to makes this point as emphatically clear, if not moreso, as the majority. Yet a ruling from this Court, without the proper factual basis or prayer for remuneration for the injury sustained, would ultimately be merely symbolic. While the Court will not be harmed by a symbolic reaffirmation of commitment to the principles in the Bill of Rights, it will be harmed by a ruling that unduly and inappropriately expands the very limited function of the Court as a trier of facts on first instance. In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that our legal system may run counter-intuitive in the sense that the seemingly or obviously guilty may still, after trial, be properly acquitted or exonerated; to the extent that even an accused who murders another person in front of live television cameras broadcast to millions of sets is not yet necessarily guilty of the crime of murder or homicide. 56 Hence, the necessity of a proper trial so as to allow the entire factual milieu to be presented, tested and evaluated before the court. In my theoretical example, the said accused should nonetheless be acquitted if the presence of exempting circumstances is established. The same principle applies in these cases. Certainly, we in the Court can all agree that PP 1017 cannot be invoked to justify acts by the police or military officers that go

beyond the Constitution and the laws. But the course of prudence dictates that the pronouncement of such a doctrine, while enforceable in a court of law, should not yet extend itself to specific examples that have not yet been properly litigated. The function of this Court is to make legal pronouncements not based on "obvious" facts, but on proven facts. A haphazard declaration by the Court that the arrests or seizures were "illegal" would likewise preclude any meaningful review or reevaluation of pertinent legal doctrines that otherwise could have been reexamined had these acts been properly challenged in regular order. For example, the matter of the warrantless arrests in these cases could have most certainly compelled the Court to again consider the doctrine laid down in Umil v. Ramos on warrantless arrests and rebellion as a continuing crime, a doctrine that may merit renewed evaluation. Yet any healthy reexamination of Umil, or other precedents for that matter, require the presentation and trial of the proper factual predicates, a course which the majority unfortunately "short-cuts" in this present decision. Of course, despite the grandiloquent pronouncement by the majority that the acts complained of by the petitioners and implemented pursuant to General Order No. 5 are illegal, it could nonetheless impose civil, criminal or administrative sanctions on the individual police officers concerned, as these officers had not been "individually identified and given their day in court". Of course, the Court would be left with pie on its face if these persons, once "given their day in court", would be able to indubitably establish that their acts were actually justified under law. Perhaps worse, the pronouncement of the majority would have had the effect of prejudging these cases, if ever lodged, even before trial on the merits. Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify violation of statutory or constitutional rights (a declaration which the minority would have no qualms assenting to) would sufficiently arm those petitioners and other persons whose rights may have been injured in the implementation of PP 1017, with an impeccable cause of action which they could pursue against the violators before the appropriate courts. At the same time, if the officers or officials concerned have basis to contend that no such rights were violated, for justifications independent of PP 1017 or General Order No. 5, such claims could receive due consideration before the courts. Such a declaration would squarely entrench the Court as a defender of the Bill of Rights, foster enforceable means by which the injured could seek actual redress for the injury sustained, and preserve the integrity and order of our procedural law. VI. Conclusion The country-wide attention that the instant petitions have drawn should not make the Court lose focus on its principal mission, which is to settle the law of the case. On the contrary, the highly political nature of these petitions should serve as forewarning for the Court to proceed ex abundante cautelam, lest the institution be unduly dragged into the partisan mud. The credibility of the Court is ensured by making decisions in accordance with the Constitution without regard to the individual personalities involved; with sights set on posterity, oblivious of the popular flavor of the day. By deciding non-justiciable issues and prejudging cases and controversies without a proper trial on the merits, the majority has diminished the potency of this Courts constitutional power in favor of rhetorical statements that afford no quantifiable relief. It is for the poet and the politician to pen beautiful paeans to the peoples rights and liberties, it is for the Court to provide for viable legal means to enforce and safeguard these rights and liberties. When the passions of these times die down, and sober retrospect accedes, the decision of this Court in these cases will be looked upon as an extended advisory opinion. Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested and tasked with preserving our civil liberties. They may even stand, in the appropriate contexts, as viable partisan political issues. But the plain fact remains that, under legal contemplation, these issuances are valid on their face, and should result in no constitutional or statutory breaches if applied according to their letter. I vote to DISMISS all the petitions

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 191002 March 17, 2010 ARTURO M. DE CASTRO, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191032 JAIME N. SORIANO, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191057 PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x A.M. No. 10-2-5-SC

IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, Petitioner, x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191149 JOHN G. PERALTA, Petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC). Respondent. PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.; NATIONAL UNION OF PEOPLE'S LAWYERS; MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER, represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR; MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCE-MENT OF GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN NG SAMBAYANAN 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; WALDEN F. BELLO and LORETTA ANN P. ROSALES; WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON. Intervenors. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191342 ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBP Governor-Eastern Visayas), Petitioners, vs. JUDICIAL AND BAR COUNCIL (JBC), Respondent. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191420 PHILIPPINE BAR ASSOCIATION, INC., Petitioner, vs. JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGALARROYO, Respondents. DECISION BERSAMIN, J.: 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 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 Section 15, Article VII? Does mandamus lie to compel the submission of the shortlist of nominees by the JBC? Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No. 1910021 and G.R. No. 1911492 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 (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 prohibition that applies only to appointments in the Executive Department. In Administrative Matter No. 10-2-5-SC,5 petitioner Estelito M. Mendoza, a former Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether Section 15, Article VII applies to appointments to the Judiciary. In G.R. No. 191342,6 which the Court consolidated on March 9, 2010 with the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively, want to enjoin and restrain the JBC from submitting a list of nominees for the position of Chief Justice to the President for appointment during the period provided for in Section 15, Article VII. All the petitions now before the Court pose as the principal legal question whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That question is undoubtedly impressed with transcendental importance to the Nation, because the appointment of the Chief Justice is any Presidents most important appointment. A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (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. 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 JBC's 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 JBC's 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 Soriano's 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 JBC's 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 President's 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-inintervention, 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 People's 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 Castro's 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 Castro's 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 Castro's 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 Soriano's 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 PHILCONSA's 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 PHILCONSA's 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 JBC's 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 President's 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 taxpayer's suit is in a different category from the plaintiff in a citizen's 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 taxpayer's suits, Terr v. Jordan57 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 JBC's 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 one's 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 Castro's 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 President's or Acting President's term does not refer to the Members of the Supreme Court. Although Valenzuela67 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 Court's 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 90day 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 Commission's 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 rule's application, largely because of the principle of implied repeal. In this connection, PHILCONSA's 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 socalled "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 appointee's 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 Court's 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 JBC's 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) Commission's 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 President's 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 Puno's 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 90day 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 Enrile's 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 90day 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 President's mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty.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 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, Soriano's 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. SO ORDERED