- The President (Art. 7) Sec. 1 - Marcos v.

Manglapus I and II ROVERO

G.R. No. 88211 October 27, 1989 FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents. FACTS: - Before the Court is a controversy of grave national importance. In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances pose a threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said: In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such time as the government, be it under this administration or the succeeding one, shall otherwise decide. PETITIONERS Contention: -On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments: 1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution; 2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and 3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court reconsider its decision, 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. Motion for reconsideration was denied. Reasons: 1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court. 2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision. Hence, 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. Issue: -whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines. RULING:

-YES, the death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which the Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the matter "should be brought to all the courts of the world." - Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant of executive power. And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the Constitution should not be confused with the power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of the specific power of legislation. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision. ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit."

- Neri v. Senate SALVARINO - Almonte v. Vasquez ABANILLA

Case Number: 17 Case title: COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and ELISA RIVERA, petitioners, vs. HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents. GR Number: G.R. No. 95367 Date: May 23, 1995 Facts: this case started out when an employee of the Economic Intelligence and Investigation Bureau

(EIIB, for brevity) wrote a letter addressed to the Sec. of Finance, alleging that the funds representing savings from unfilled positions in the EIIB had been illegally disbursed. Copies of this letter were furnished to several government offices, including the OFFICE OF THE OMBUDSMAN. The letter reads in pertinent parts:
1 These are the things that I have been observing. During the implementation of E.O. 127 on May 1, 1988, one hundred ninety (190) personnel were dismissed. Before that implementation, we had a monthly savings of P500,000.00 from unfilled plantilla position plus the implementation of RA 6683 wherein seventy (70) regular employees availed a total amount of P1,400,000.00 was saved from the government monthly. The question is, how do they used or disbursed this savings? The EIIB has a syndicate headed by the Chief of Budget Division who is manipulating funds and also the brain of the so called "ghost agents" or the "Emergency Intelligence Agents" (EIA). The Commissioner of EIIB has a biggest share on this. Among his activities are: a) Supporting RAM wherein he is involved. He gives big amount especially during the Dec. Failed coup. b) Payment for thirty five (30) mini UZI's. c) Payment for the purchased of Maxima '87 for personal used of the Commissioner. d) Another observation was the agents under the Director of NCR EIIB is the sole operating unit within Metro Manila which was approved by no less than the Commissioner due to anomalous activities of almost all agents assigned at the central office directly under the Commissioner. Retired Brig. Gen. Almonte as one of the Anti-Graft board member of the Department of Finance should not tolerate this. However, the Commissioner did not investigate his own men instead, he placed them under the 15-30 payroll. e) Many more which are personal. 2. Sir, my question is this. Can your good office investigate EII intelligence funds particularly Personal Services (01) Funds? I wonder why the Dep't of Budget & Mgmt. cannot compel EIIB to submit an actual filled up position because almost half of it are vacant and still they are releasing it. Are EIIB plantilla position classified? It is included in the Personal Services Itemization (PSI) and I believe it is not classified and a ruling from Civil Service Commission that EIIB is not exempted from Civil Service. Another info, when we had salary differential last Oct '88 all money for the whole plantilla were released and from that alone, Millions were saved and converted to ghost agents of EIA. 3. Another thing that I have observed was the Chief Budget Division possesses high caliber firearms such as a mini UZI, Armalite rifle and two (2) 45 cal. pistol issued to him by the Assistant Commissioner wherein he is not an agent of EIIB and authorized as such according to memorandum order number 283 signed by the President of the Republic of the Philippines effective 9 Jan. 1990. Another observation was when EIIB agents apprehended a certain civilian who possesses numerous assorted high powered firearms. Agents plus one personnel from the legal proclaimed only five (5) firearms and the remaining was pilfered by them. Another observation is almost all EIIB agents collects payroll from the big time smuggler syndicate monthly and brokers every week for them not to be apprehended. Another observation is the commissioner allocates funds coming from the intelligence funds to the media to sustain their good image of the bureau.

Petitioners denied the allegations in the letter. PETITIONER ALMONTES CONTENTION:

Only funds released to his agency by the Dept. of budget and Management (DBM) were those
corresponding 947 plantilla positions which were filled. cleared by the Commission on Audit (COA)

Petitioner Almonte denied the alleged ghost employees by caliming that the plantilla has been

 The 30 Uzis had already been investigated by the Congress That contrary to the charge that a Maxima car had been purchased for his use, he was using a
government issued car from the NICA; that it was his prerogative as Commissioner to "ground" agents in the EIIB main office so that they could be given reorientation and retraining; that the allegation that the EIIB operatives pilfered smuggled firearms was without factual basis because the firearms were the subject of seizure proceedings before the Collector of Customs, Port of Manila; that the EIIB had been uncompromising toward employees found involved in anomalous activities; and that intelligence funds had not been used for media propaganda and if media people went to the EIIB it was because of newsworthy stories. Petitioner asked that the complaint be dismissed and the case considered closed. PETITIONER PEREZS CONTENTION:

That the savings had been realized from the implementation of E.O 127 , since the DBM provided
allocations for only the remaining 947 personnel.

That the disbursement of funds for the plantilla positions for "overt" and "covert" personnel had
been cleared by the COA and that the high-powered firearms had been issued for the protection of EIIB personnel attending court hearings and the Finance Officer in withdrawing funds from the banks. Jose F. Sano, the Graft Investigation Officer of the Ombudsman found the comments of the Petitioners unsatisfactory as it does not meet specifically with the points raised by the Complainant. He asked for an authority to conduct preliminary investigation. Assuming for the granting of the same, he issued subpoena to Almonte and Perez requiring them to submit their counter-affidavits and the affidavits of their witnesses, and SUBPOENA DUCES TECUM to the Chief of the EIIB's Accounting Division ordering him to bring "all documents relating to Personal Services Funds for the year 1988 and all evidence, such as vouchers (salary) for the whole plantilla of EIIB for 1988." The petitioners moved to quash the orders. Only the subpoena was granted by the Ombudsman while the subpoena duces tecum was denied on the ground that petitioners were not being forced to produce evidence against themselves, since the subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of the Records a Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator "all documents relating to Personnel Service Funds, for the year 1988, and all documents, salary vouchers for the whole plantilla of the EIIB for 1988. The petitioners moved for its reconsideration but the same was denied by the Ombudsman. Disclosure of documents is resisted on the ground that knowledge of EIIBs documents relative to its Personal Services Funds and its Plantilla will necessarily lead to knowledge of its operatons, movements, targets, strategies, and tactics and the whole of its being and this could destroy the EIIB. Petitioners do not question the power of the Ombudsman to issue a subpoena duces tecum nor the relevancy or materiality of the documents required to be produced, to the pending investigation in the Ombudsman's office. Accordingly, the focus of discussion should be on the Government's claim of privilege. Issue: whether the Petitioners can be ordered to produce documents relating to personal services and salary vouchers of the EIIB employees on the plea that such documents are classified. Held: At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This is, however, not applicable to the case at bar, there being no claim of military or diplomatic secrets that will be disclosed by the production of records pertaining to the personnel of the EIIB. Indeed, EIIBs function is the gathering and evaluation of intelligence reports and informations.

Neither is there any law or regulation which considers personnel records of the EIIB as classified information. To the contrary, COA Circular No. 88-293, which petitioners invoke to support their contention that there is adequate safeguard against misuse of public funds, provides that the " only item of expenditure which should be treated strictly confidential" is that which refers to the "purchase of information and payment of rewards."

statutes and regulations 21 invoked by petitioners in support of their contention that the documents sought in the subpoena duces tecum of the Ombudsman are classified merely indicate the confidential nature of the EIIB's functions, but they do not exempt the EIIB from the duty to account for its funds to the proper authorities. Indeed by denying that there were savings made from certain items in the agency and alleging that the DBM had released to the EIIB only the allocations needed for the 947 personnel retained after its reorganization, petitioners in effect invited inquiry into the veracity of their claim. If, as petitioners claim, the subpoenaed records have been examined by the COA and found by it to be regular in all respects, there is no reason why they cannot be shown to another agency of the government which by constitutional mandate is required to look into any complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that several items in the EIIB were filled by fictitious persons and that the allotments for these items in 1988 were used for illegal purposes. The plantilla and other personnel records are relevant to his investigation. He and his Deputies are designated by the Constitution "protectors of the people" and as such they are required by it "to act promptly on complaints in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporation Petitioners contend that under Art. XI, 13(4) the Ombudsman can act only "in any appropriate case, and subject to such limitations as may be provided by law" and that because the complaint in this case is unsigned and unverified, the case is not an appropriate one. This contention lacks merit. As already stated, the Constitution expressly enjoins the Ombudsman to act on any complaint filed "in any form or manner" concerning official acts or omissions. Thus, Art. XI, 12 provides: The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations and shall in appropriate cases, notify the complainants of the action taken and the result thereof. Finally, it is contended that the issuance of the subpoena duces tecum would violate petitioners' right against self-incrimination. It is enough to state that the documents required to be produced in this case are public records and those to whom the subpoena duces tecum is directed are government officials in whose possession or custody the documents are. Moreover, if, as petitioners claim the disbursement by the EIIB of funds for personal service has already been cleared by the COA, there is no reason why they should object to the examination of the documents by respondent Ombudsman.

Senate v. Ermita (E.O. 464) (GR 169777) ALMONEDA

Senate v. Ermita G.R. No. 169777, July 14, 2006

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Requisites of Judicial Review Legislative Inquiry vs. Executive Privilege

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Executive Privilege, defined Kinds of Executive Privilege Executive Privilege as applied to an official Constitutionality of EO 464

FACTS:This case is regarding the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group as well as the Wiretapping activity of the ISAFP, and the Fertilizer scam.The Senate Committees sent invitations to various officials of the Executive Department and AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date arrived, Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a postponement of the hearing on Sept. 29 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 refused the request.On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others, mandated that 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. Pursuant to this Order, Executive Sec. Ermita communicated to the Senate that the executive and AFP officials would not be able to attend the meeting since the President has not yet given her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials invited, attended the investigation. Both faced court marshal for such attendance.Hence, these petitions. ISSUES:

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Whether or not EO 464 contravenes the power of inquiry vested in Congress

Whether or not EO 464 violates the right of the people to information on matters of public concern Whether or not respondents have committed grave abuse of discretion when they implemented EO 464 prior to its publication in a newspaper of general circulation

RULING: ESSENTIAL REQUISITES OF JUDICIAL REVIEW:

1. 2.

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. 4. the question of constitutionality must be raised as the earliest opportunity; and the issue of constitutionality must be the very lis mota of the case.

3. 4.

LEGAL STANDING Standing of the SenateThat 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 legislation is not disputed. EO 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. 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 EO 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.Standing of an ordinary citizenIt 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 Francisco v. House of Representatives, 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.Requisites for transcendental importance: 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. ACTUAL CASE/CONTROVERSY 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 EO 464 is concerned. For EO 464 does not require either a deliberative 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 EO 464. The power of inquiryThe Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as 1950 (the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno, the Court already recognized that the power of inquiry is inherent in the power to legislate. xxxThat 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...is co-extensive with the power to legislate. 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.xxx the power of inquiry, with process to enforce it, is grounded on the necessity of the 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. The power of inquiry is subject to judicial review xxx 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 Sec. 1, Art. VIII.For one...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...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 investigations, 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.Sec. 21, Art. 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. Sec. 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.Exemption to power of inquiryEven where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions falls under the

rubric of executive privilege.Executive privilege, definedSchwartz defines executive privilege as the power of the Government to withhold information from the public, the courts, and the Congress. 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. Kinds of executive privilegeOne variety of the privilege...is the state secrets privilege...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.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. The principle of executive privilegeExecutive 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.xxxWhen 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. Constitutionality of Sec. 1, EO 464 Section 1, in view of its specific reference to Sec. 22 of Art. VI 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 Sec. 22, Art. VI xxx 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 Sec. 22, Art. VI, 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 Sec. 2 and 3, EO 464 En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege...is properly invoked in relation to specific categories of information and not to categories of persons.The claim of executive privilege must be accompanied by specific allegation of basis thereofCertainly,

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 xxxAbsent 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 xxxUpon 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. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination xxxThe claim of privilege under Sec. 3, EO 464 in relation to Sec. 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 EO 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 EO 464 must be invalidated.EO 464 unlawfully delegated authority to the heads of offices in Sec. 2(b) to determine certain information as privileged 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 exception nature of the privilege. Executive privilege...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, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact that certain informations (sic) 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. How executive privilege should be applied in the case of an official xxx 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, afer 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.Right to InformationThere 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 assistance 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 governmental officials through various legal means allowed by their freedom of expression xxxThe impairment of the right of the people to information as a consequence of EO 464 is, therefore, in the sense explained above, just as direct as its violation of the legislatures power of inquiry. Implementation of EO 464 prior to its publicationWhile EO 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 genera, Tanada 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 the 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.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, EO 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.

Sec. 13 - Estrada v. Arroyo BOLAURO - Clinton v. Jones DEL PILAR --- ALMONEDA PLEASE TAKE OVER

U.S. Supreme Court

Syllabus CLINTON v. JONES certiorari to the united states court of appeals for the eighth circuit No. 95-1853. Argued January 13, 1997 Decided May 27, 1997 Respondent sued under 42 U.S.C. 1983 and 1985 and Arkansas law to recover damages from petitioner, the current President of the United States, alleging, inter alia, that while he was Governor of Arkansas, petitioner made "abhorrent" sexual advances to her, and that her rejection of those advances led to punishment by her supervisors in the state job she held at the time. Petitioner promptly advised the Federal

District Court that he would file a motion to dismiss on Presidential immunity grounds, and requested that all other pleadings and motions be deferred until the immunity issue was resolved. After the court granted that request, petitioner filed a motion to dismiss without prejudice and to toll any applicable statutes of limitation during his Presidency. The District Judge denied dismissal on immunity grounds and ruled that discovery could go forward, but ordered any trial stayed until petitioner's Presidency ended. The Eighth Circuit affirmed the dismissal denial, but reversed the trial postponement as the "functional equivalent" of a grant of temporary immunity to which petitioner was not constitutionally entitled. The court explained that the President, like other officials, is subject to the same laws that apply to all citizens, that no case had been found in which an official was granted immunity from suit for his unofficial acts, and that the rationale for official immunity is inapposite where only personal, private conduct by a President is at issue. The court also rejected the argument that, unless immunity is available, the threat of judicial interference with the Executive Branch would violate separation of powers. Held: 1. This Court need not address two important constitutional issues not encompassed within the questions presented by the certioraripetition: (1) whether a claim comparable to petitioner's assertion of immunity might succeed in a state tribunal, and (2) whether a court may compel the President's attendance at any specific time or place. Pp. 7-9. 2. Deferral of this litigation until petitioner's Presidency ends is not constitutionally required. Pp. 7-28. (a) Petitioner's principal submission--that in all but the most exceptional cases, the Constitution affords the President temporary immunity from civil damages litigation arising out of events that occurred before he took office--cannot be sustained on the basis of precedent. The principal rationale for affording Presidents immunity from damages actions based on their official acts--i.e., to enable them to perform their designated functions effectively without fear that a particular decision may give rise to personal liability, see, e.g., Nixon v. Fitzgerald, 457 U.S. 731, 749 , 752, and n. 32--provides no support for an immunity for unofficial conduct. Moreover, immunities for acts clearly within official capacity are grounded in the nature of the function performed, not the identity of the actor who performed it. Forrester v. White, 484 U.S. 219, 229 . The Court is also unpersuaded by petitioner's historical evidence, which sheds little light on the question at issue, and is largely canceled by conflicting evidence that is itself consistent with both the doctrine of presidential immunity as set forth in Fitzgerald, and rejection of the immunity claim in this case. Pp. 9-15. (b) The separation of powers doctrine does not require federal courts to stay all private actions against the President until he leaves office. Even accepting the unique importance of the Presidency in the constitutional scheme, it does not follow that that doctrine would be violated by allowing this action to proceed. The doctrine provides a self executing safeguard against the encroachment or aggrandizement of one of the three co equal branches of Government at the expense of another. Buckley v. Valeo, 424 U.S. 1, 122 . But in this case there is no suggestion that the Federal Judiciary is being asked to perform any function that might in some way be described as "executive." Respondent is merely asking the courts to exercise their core Article III jurisdiction to decide cases and controversies, and, whatever the outcome, there is no possibility that the decision here will curtail the scope of the Executive Branch's official powers. The Court rejects petitioner's contention that this case--as well as the potential additional litigation that an affirmance of the Eighth Circuit's judgment might spawn--may place unacceptable burdens on the President that will hamper the performance of his official duties. That assertion finds little support either in history, as evidenced by the paucity of suits against sitting Presidents for their private actions, or in therelatively narrow compass of the issues raised in this particular case. Of greater significance, it is settled that the Judiciary may severely burden the Executive Branch by reviewing the legality of the President's official conduct, see e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , and may direct appropriate process to the President himself, see e.g., United States v. Nixon, 418 U.S. 683 . It must follow that the federal courts have power to determine the legality of the President's unofficial conduct. The reasons for rejecting a categorical rule requiring federal courts to stay private actions during the President's term apply as well to a rule that would, in petitioner's words, require a stay "in all but the most exceptional cases." Pp. 15-24.

(c) Contrary to the Eighth Circuit's ruling, the District Court's stay order was not the "functional equivalent" of an unconstitutional grant of temporary immunity. Rather, the District Court has broad discretion to stay proceedings as an incident to its power to control its own docket. See, e.g., Landis v. North American Co., 299 U.S. 248, 254 . Moreover, the potential burdens on the President posed by this litigation are appropriate matters for that court to evaluate in its management of the case, and the high respect owed the Presidency is a matter that should inform the conduct of the entire proceeding. Nevertheless, the District Court's stay decision was an abuse of discretion because it took no account of the importance of respondent's interest in bringing the case to trial, and because it was premature in that there was nothing in the record to enable a judge to assess whether postponement of trial after the completion of discovery would be warranted. Pp. 25-27. (d) The Court is not persuaded of the seriousness of the alleged risks that this decision will generate a large volume of politically motivated harassing and frivolous litigation and that national security concerns might prevent the President from explaining a legitimate need for a continuance, and has confidence in the ability of federal judges to deal with both concerns. If Congress deems it appropriate to afford the President stronger protection, it may respond with legislation. Pp. 27-28. 72 F. 3d 1354, affirmed. Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Breyer, J., filed an opinion concurring in the judgment.

Sec. 17 Sec. 18 - David v. Arroyo (PP 1017) (GR 171396) ECHARRI David vs. Arroyo G.R. No. 171396 May 3, 2006 Facts: On February 24, 2006, as the nation celebrated the 20th Anniversary of the EDSA People Power I, President Gloria Macapagal-Arroyo, in a move to suppress alleged plans to overthrow the government, issued Presidential Proclamation No. 1017 (PP 1017), declaring a state of national emergency. She cited as factual bases for the said issuance the escape of the Magdalo Group and 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. On the same day, she issued General Order No. 5 (G.O. No. 5) setting the standards which the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) should follow in the suppression and prevention of acts of lawless violence. The following were considered as additional factual bases for the issuance of PP 1017 and G.O. No. 5: the bombing of telecommunication towers and cell sites in Bulacan and Bataan; the raid of an army outpost in Benguet resulting in the death

of three soldiers; and 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. Immediately, the Office of the President announced the cancellation of all programs and activities related to the 20th People Power I anniversary celebration. It revoked permits to hold rallies. Members of the Kilusang Mayo Uno (KMU) and the National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), who marched from various parts of Metro Manila to converge at the EDSA Shrine, were violently dispersed by anti-riot police. Professor Randolf David,Akbayan party- list president Ronald Llamas, and members of the KMU and NAFLU-KMU were arrested without a warrant. In the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection Group (CIDG) raided the Daily Tribune offices in Manila and confiscated news stories, documents, pictures, and mock-ups of the Saturday issue. Policemen were stationed inside the editorial and business offices, as well as outside the building. A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another proopposition paper, Malaya, and its sister publication, the tabloid Abante. 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. On March 3, 2006, exactly one week from the declaration of a state of national emergency and after all the present petitions had been filed, President Arroyo issued Presidential Proclamation No. 1021 (PP 1021), declaring that the state of national emergency has ceased to exist and lifting PP 1017. These consolidated petitions for certiorari and prohibition allege that in issuing PP 1017 and G.O. No. 5, President Arroyo committed grave abuse of discretion. It is contended 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. Issues: 1.) Whether or not PP 1017 is a declaration of Martial Law; 2.) Whether or not PP 1017 arrogates unto the President the power to legislate;

3.) Whether or not PP 1017 authorizes the President to take over privately-owned public utility or business affected with public interest; and Held: The Petitions are PARTLY GRANTED. PP 1017 is not a declaration of Martial Law, but merely an invocation of the Presidents calling-out power. Section 18, Article VII of the Constitution 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. 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. 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. But the President must be careful in the exercise of her powers. Every act that goes beyond the Presidents calling-out power is considered illegal or ultra vires. There lies the wisdom of our Constitution, the greater the power, the greater are the limitations . In declaring a state of national emergency, President Arroyo did not only rely on Sec. 18, Art. VII of the Constitution, but also on Sec. 17, Art. XII, a provision on the States extraordinary power to take over privately-owned public utility and business affected with public interest. It is plain in the wordings of PP 1017 that what President Arroyo invoked was her calling-out power. PP 1017 is not a declaration of Martial Law. As such, it cannot be used to justify acts that can be done only under a valid declaration of Martial Law. Specifically, arrests and seizures without judicial warrants, ban on public assemblies, take-over of news media and agencies and press censorship, and 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.

PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. The second provision of the operative portion of PP 1017 states: and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction. The operative clause of PP 1017 was lifted from PP 1081, which gave former President Marcos legislative power. The ordinance power granted to President Arroyo under the Administrative Code of 1987 is limited to executive orders, administrative orders, proclamations, memorandum orders, memorandum circulars, and general or special orders. 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. Legislative power is peculiarly within the province of the Legislature. Neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees. It follows that these decrees are void and, therefore, cannot be enforced. She cannot call the military to enforce or implement certain laws. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence. PP 1017 does not authorize President Arroyo 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. Generally, Congress is the repository of emergency powers. 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: (a) there must be a war or other emergency; (b) the delegation must be for a limited period only; (c) the delegation must be subject to such restrictions as the Congress may prescribe; and (d) the emergency powers must be exercised to carry out a national policy declared by Congress.

The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Sec. 17, Art. XII of the Constitution 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. Whether or not the President may exercise such power is dependent on whether Congress may delegate it to her pursuant to a law prescribing the reasonable terms thereof. There is a distinction between the Presidents authority to declare a state of national emergency and her authority to exercise emergency powers. Her authority to declare a state of national emergency is granted by Sec. 18, Art. VII of the Constitution, hence, no legitimate constitutional objection can be raised. 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. 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 she 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.

Sec. 19 - Monsanto v. Factoran, Garcia v. Chairman GOTEL

SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR., respondent. G.R. No. 78239 February 9, 1989 FACTS: In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex crime of estafa thru falsification of public documents and sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately. Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same. She then filed a motion for reconsideration but while said motion was pending, she was extended on December 17, 1984 by then President Marcos absolute pardon which she accepted on December 21, 1984.

By reason of said pardon, she wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Her letter-request was referred to the Ministry of Finance for resolution in view of the provision of the Local Government Code transferring the power of appointment of treasurers from the city governments to the said Ministry. The Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. It also directed the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. She again seek for reconsideration and wrote the Ministry on April 17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension which is August 1, 1982; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50. The Ministry of Finance, however, referred petitioner's letter to the Office of the President for further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary Fulgenio S. Factoran, Jr. held that Salvacion A. Monsanto is not entitled to an automatic reinstatement on the basis of the absolute pardon granted her but must secure an appointment to her former position and that, notwithstanding said absolute pardon, she is liable for the civil liability concomitant to her previous conviction. Her subsequent motion for reconsideration having been denied, petitioner filed the present petition in her behalf We gave due course on October 13, 1987. ISSUE: whether or not a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment. OR whether or not the plenary pardon had the effect of removing the disqualifications prescribed by the Revised Penal Code. Monsatos contention: the general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited. In other words, without that final judgment of conviction, the accessory penalty of forfeiture of office did not attach and the status of her employment remained "suspended." More importantly, when pardon was issued before the final verdict of guilt, it was an acquittal because there was no offense to speak of. In effect, the President has declared her not guilty of the crime charged and has accordingly dismissed the same. RULING: No, the ruling of factoran was affirmed REASON: The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature of pardon and its legal consequences. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." At the time the antecedents of the present case took place, the pardoning power was governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads: The President may, except in cases of impeachment, grant reprieves, commutations and pardons, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. The 1981 amendments had deleted the earlier rule that clemency could be extended only upon final conviction, implying that clemency could be given even before conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was pending in the High Court. It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction was restored. But be that as it may, it is our

view that in the present case, it is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed the character of finality. Consider the following broad statements: (stated in Ex Parte Garland case) A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. Such generalities have not been universally accepted, recognized or approved. The modern trend of authorities now rejects the unduly broad language of the Garland case (reputed to be perhaps the most extreme statement which has been made on the effects of a pardon). To our mind, this is the more realistic approach. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. The better considered cases regard full pardon (at least one not based on the offender's innocence) as relieving the party from all the punitive consequences of his criminal act, including the disqualifications or disabilities based on the finding of guilt. But it relieves him from nothing more. "To say, however, that the offender is a "new man", and "as innocent as if he had never committed the offense;" is to ignore the difference between the crime and the criminal. A person adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of punishment, though left unpunished; and the law may regard him as more dangerous to society than one never found guilty of crime, though it places no restraints upon him following his conviction." A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. "Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required." This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede that pardon may remit all the penal consequences of a criminal indictment if only to give meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of an individual and that once he is absolved, he should be treated as if he were innocent. For whatever may have been the judicial dicta in the past, we cannot perceive how pardon can produce such "moral changes" as to equate a pardoned convict in character and conduct with one who has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will take into account in their subsequent dealings with the actor." Pardon granted after conviction frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. But unless expressly grounded on the person's innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. This must be constantly kept in mind lest we lose track of the true character and purpose of the privilege. Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted felon to public office necessarily relinquished or forfeited by reason of the conviction although such pardon undoubtedly restores his eligibility for appointment to that office.

A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction. the pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.