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G.R. No. 97794 May 13, 1994 GAGA G. MAUNA, petitioner, vs. CIVIL SERVICE COMMISSION, and CRISTETO J. LIMBACO, respondents. KAPUNAN, J.: This special civil action for certiorari impugns the decision promulgated on February 14, 1990 of the Merit Systems Protection Board (MSPB) finding private respondent Cristeto Limbaco's appeal meritorious thereby revoking the petitioner's appointment as Chief Election Officer of the Precincts and Barangay Affairs Department of the Commission on Elections (COMELEC) and directing the Chairman of the COMELEC to appoint private respondent in petitioner's stead, the decision of the MSPB dated May 24, 1990 denying the petitioner's Motion for Reconsideration, as well as the Resolution No. 90-1001 promulgated on November 9, 1990 of respondent Civil Service Commission (CSC) dismissing petitioner's appeal for having been filed out of time and Resolution No. 91-215 dated February 11, 1991 denying the petitioner's Motion for Reconsideration. The antecedent facts are as follows: On November 16, 1987, the COMELEC Chairman Ramon H. Felipe, Jr. appointed petitioner Gaga G. Mauna as Chief Election Officer of the Precincts and Voting Centers Division of the Election and Barangay Affairs Department (EBAD) of the COMELEC. Said appointment was approved by Celerina G. Gotladera, authorized representative of CSC. On December 28, 1987, private respondent Cristeto J. Limbaco, the incumbent Assistant Chief Election Officer filed a protest against the petitioner's appointment before the COMELEC on the grounds that (1) he is more qualified than petitioner; (2) he is next-in-rank as Assistant Chief Election Officer; and (3) he is more senior than petitioner, having been employed by the COMELEC since 1979. The COMELEC en banc dismissed the private respondent's protest, reasoning that:

Considering the choice as to who would be appointed to the contested position, to borrow the words of the Supreme Court, is a political question involving consideration of wisdom which only the appointing authority can decide; in appointing protestee to the contested position, the Chairman exercised this discretion, and in the absence of showing that there was grave abuse of discretion, his judgment on the matter should not be interfered with, on motion duly seconded, the Commission resolved to dismiss the protest filed by Atty. Cristeto v. Limbaco against the appointment of Atty. Gaga G. Mauna as Chief Officer, Precincts and voting Centers Division, EBAD, forlack of merit.

Aggrieved by the said resolution, private respondent filed an appeal on March 15, 1988 before the Merit System Protection Board (MSPB) of respondent Civil Service Commission reiterating the grounds earlier raised before the COMELEC. Commenting thereon, the Commission on Elections (COMELEC) through Nancy H. Madarang, Manager of the Personnel Department, alleged that: It is to be admitted that the position of protestant is the next lower position relative to the contested office. To that extent protestant may claim to be next-in-rank. But in actuality the appointing authority widened his choice to admit another one who is equally qualified within the department, and this is the protestee. In doing so, judgment was exercised on the principle that there is no mandatory nor peremptory requirement that persons nextin-rank are entitled to preference in appointment. What the law provides is that they would be among the first to be considered, if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. (Taduran vs. Civil Service Commission, 131 SCRA 66). Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by the law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving consideration of wisdom which only the appointing authority can decide. (Luego vs. Civil Service Commission, 143 SCRA 327)

Let it be noted that both protestant-appellant and protesteeappellee possess the qualifications required of the position. This being so, the choice as to who would be appointed to the contested position became a political question involving consideration of wisdom which only the appointing authority (could) decide. The Chairman exercised this discretion, and in the absence of showing that there was grave abuse of discretion, his judgment on the matter should not be interfered with. Further, in point of seniority, it is submitted that protesteeappellee Mauna has an added advantage. He has been in the department (Election and Barangay Affairs Department (EBAD) where the contested position organizationally belongs, ahead of protestant-appellant. Protestee-appellee joined the Election and Barangay Affairs Department in July 1985 whereas protestant first worked in said department only in October 1986, although protestant Limbaco entered into the service of the Comelec in 1979. But, as a matter of policy seniority is not a decisive factor in the process of personnel recruitment or appointment. What is important is that the appointee possesses the qualifications required for the position. The fact that protestant-appellant is also qualified, or even granting but without admitting, that he is better qualified than protestee-appellee, may not be used to revoke protestee-appellee's appointment. To do so would be to encroach on the discretion vested solely in the appointing authority.
Protestant-appellant contends that the challenged appointment violated the constitutional requirement that appointments in the civil service shall be made only according to merit and fitness. Let it be noted that from the comparative qualifications of protestantappellant and protestee-appellee (Appeal, p. 2), their qualifications are at par. Hence, the criteria of merit and fitness were considered.

On February 14, 1990, the MSPB rendered its decision finding the appeal of private respondent meritorious, the dispositive portion of which reads:
WHEREFORE, premises considered, the Board finds the appeal meritorious. Accordingly, the appointment of appellee Atty. Gaga Mauna to the contested position is hereby revoked and the Chairman, Commission on Elections is hereby directed to appoint appellant Atty. Cristeto Limbaco in his stead.

Petitioner filed a motion for reconsideration of the said decision, but the same was denied by the MSPB in its decision dated May 24, 1990. Thereafter, petitioner appealed to public respondent CSC. However, in Resolution No. 90-1001 dated November 9, 1990, the said respondent dismissed the appeal for being filed out of time. Petitioner moved for reconsideration but this was denied by the CSC in Resolution No. 91-215 dated February 17, 1991. Aggrieved by the foregoing resolution, petitioner filed the instant petition for certiorari with prayer for preliminary injunction or restraining order. On July 8, 1991, the Solicitor General filed its Comment recommending that the petition be given due course and praying that public respondent CSC be granted a new period within which to submit its Comment. On October 10, 1991, public respondent CSC filed its Comment to the petition, while private respondent Limbaco did likewise on May 9, 1991. In our resolution of January 21, 1992, we resolved to give due course to the petition and required the parties to file their respective memoranda, to which they all complied. The central issue raised for resolution in this petition is whether respondent Civil Service Commission committed grave abuse of discretion in revoking the appointment of petitioner and ordering appointment of private respondent in his place. Petitioner takes the position that public respondent has no authority to revoke his appointment on the ground that another person is more qualified and to direct the appointment of a substitute of its choice. In support of said contention, petitioner cites the case of Orbos vs. Civil Service Commission, where we ruled that the authority of the CSC is limited to approving or disapproving an appointment, its duty being merely to attest appointments. The CSC has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It will be in excess of its power if it substitutes its will for that of the appointing authority. The CSC does not have the authority to direct the appointment of a substitute of its choice. The principles defining the power of the appointing authority vis-a-vis that of the Civil Service Commission are well-settled. The power of

appointment is essentially discretionary and the CSC cannot substitute its judgment for that of the appointing power. Neither does it have the power to overrule such discretion even if it finds that there are other persons more qualified to the contested position. The CSC may only approve or disapprove the appointment after determining whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. It cannot order or direct the appointment of a successful protestant. Thereafter its participation in the appointment process ceases. Substituting its judgment for that of the appointing authority constitutes encroachment on the latter's discretion. In fact, even this Court cannot control the appointing authority's discretion as long as it is exercised properly and judiciously. Thus, in the leading case of Luego vs. Civil Service Commission, the Court ruled: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving consideration of wisdom which only the appointing authority can decide. xxx xxx xxx It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shall have inter alia the power to: 9(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required qualifications. (Emphasis supplied)

However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does, his appointment is approved; it not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it acts on or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities. Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. That recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply because it believed that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested solely in the city mayor. The same doctrine was reiterated in the case of Central Bank vs. Civil Service Commission, where it was stated: . . . It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Laws. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the qualifications required by law. Respondent CSC's further insistence in disregarding the choice of the appointment authority, drew a stern rebuke from the Court in Lapinid vs. Civil Service Commission, et. al., thus:

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission not to understand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then that is an entirely different matter and shall be treated accordingly. We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. We must therefore make the following injunctions which the Commission must note well and follow strictly. Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has liniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner. While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them. The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril. One last time in Felipa Guieb vs. Civil Service Commission, et. al. , respondent CSC was reminded in no uncertain terms of the limits of its

power to approve or disapprove appointments in the Civil Service. This Court said: . . . As a creation of the Constitution, the respondent Commission should be the last to trivialize the judiciary, one of the three most important touchstones of our democratic government. Regardless of the views of the respondent Commission, it is this court that has been endowed with the exclusive and ultimate authority to interpret the laws of the land, including the fundamental law itself, which often times requires throwing light to the many intersecting shadows that blur the boundaries of power of our different branches of government. Our people have entrusted to this Court the power to be the final arbiter of all questions of law and the rule of law demands that as disputes ought to reach an end in the interest of societal peace, submission should follow this court's final fiat. To undermine the authority of this Court as the final arbiter of legal disputes is to foster chaos and confusion in our administration of justice. Furthermore, as a civil service employee with a permanent appointment, petitioner cannot be removed except for cause provided by law. Wellentrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee assumes a position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing. Finally, when the public respondent was asked to review the decision of the MSPB dated February 14, 1990 and May 24, 1990, it affirmed the same and dismissed the petitioner's appeal for being filed out of time. Assuming for the sake of argument that the petitioner's appeal was filed out of time, it is within the power of this Court to temper rigid rules in favor of substantial justice. While it is desirable that the Rules of Court be faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not really impair the proper administration of justice. If the rules are intended to ensure the orderly conduct of litigation, it

is because of the higher objective they seek which is the protection of substantive rights of the parties. As held by the Court in a number of cases:
. . . Because there is no vested right in technicalities, in meritorious cases, a liberal, not literal, interpretation of the rules becomes imperative and technicalities should not be resorted to in derogation of the intent and purpose of the rules which is the proper and just determination of litigation. Litigations, should as much as possible, be decided on their merits and not on technicality. Dismissal of appeals purely on technical grounds is frowned upon, and the rules of procedure ought not to be applied in a very rigid, technical sense, for they are adopted to help secure, not override, substantial justice, and thereby defeat their very aims. As has been the constant rulings of this Court, every party-litigant should be afforded the amplest opportunity for the proper and just disposition of his cause, free from the constraints of technicalities. . .

WHEREFORE, the questioned decisions of the Merit Systems Protection Board dated February 14, 1990 and May 24, 1990 and the resolutions of respondent Civil Service Commission dated November 9, 1990 and February 11, 1991 are hereby set aside, and the petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated November 16, 1987. No costs. SO ORDERED.

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[A.M. No. 98-5-01-SC. November 9, 1998]

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. DECISION
NARVASA, CJ.:

The question presented for resolution in the administrative matter at bar is whether, during the period of the ban on appointments imposed by Section 15, Article VII of the Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII. A corollary question is whether he can make appointments to the judiciary during the period of the ban in the interest of public service. Resolution of the issues is needful; it will preclude a recurrence of any conflict in the matter of nominations and appointments to the Judiciary - as that here involved - between the Chief Executive, on the one hand, and on the other, the Supreme Court and the Judicial and Bar Council over which the Court exercises general supervision and wields specific powers including the assignment to it of other functions and duties in addition to its principal one of recommending appointees to the Judiciary, and the determination of its Members' emoluments. I The Relevant Facts The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the relevant facts and is for that reason hereunder reproduce in full.

Referred to the Court En Banc by the Chief Justice are the appointments signed by His Excellency the President under the date of 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. The appointments were received at the Chief Justice's chambers on May 12, 1998. The referral was made in view of the serious constitutional issue concerning said appointments arising from the pertinent antecedents. The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9, 1998. The meeting had been called, according to the Chief Justice as Ex Officio Chairman, to discuss the question raised by some sectors about the "constitutionality of *** appointments" to the Court of Appeals, specifically, in light of the forthcoming presidential elections. Attention was drawn to Section 15, Article VII of the Constitution reading as follows:

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"SEC 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." On the other hand, appointments to fill vacancies in the Supreme court during the period mentioned in the provision just quoted could seemingly be justified by another provision of the same Constitution. Section 4(1) of Article VIII which states: "SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof." Also pertinent although not specifically discussed is Section 9 of the same Article VIII which provides that for the lower courts, the President shall issue the appointments - from a list of at least three nominees prepared by the Council for every vacancy - within ninety days from the submission of the list. The view was then expressed by Senior associate Justice Florenz D. Regalado, Consultant of the Council, who had been a member of the Committee of the Executive Department and of the Committee on the Judicial Department of the 1986 Constitutional Commission, that on the basis of the Commission's records, the election ban had no application to appointments to the Court of Appeals. Without any extended discussion or any prior research and study on the part of the other Members of the JBC, this hypothesis was accepted, and was then submitted to the President for consideration, together with the Council's nominations for eight (8) vacancies in the Court of Appeals. On April 6, 1998 the Chief Justice received an official communication from the Executive Secretary transmitting the appointments of eight (8) Associate Justices of the Court of Appeals all of which had been duly signed on March 11, 1998 by His Excellency, the President. In view of the fact that all the appointments had been signed on March 11, 1998 - the day immediately before the commencement of the ban on appointments imposed by Section 15, Article VII of the Constitution - which impliedly but no less clearly indicated that the President's Office did not agree with the hypothesis that appointments to the Judiciary were not covered by said ban, the Chief Justice resolved to defer consideration of nominations for the vacancy in the Supreme Court created by the retirement of Associate Justice Ricardo J. Francisco, specially considering that the Court had scheduled sessions in Baguio City in April, 1998, that the legislature's representatives to the JBC were occupied with the forthcoming elections, and that a member of the Council was going on a trip out of the country.

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On May 4, 1998, the Chief Justice received a letter from the President, addressed to the JBC requesting transmission of the "list of final nominees" for the vacancy "no later than Wednesday, May 6, 1998," in view of the duty imposed on him by the Constitution "to fill up the vacancy *** within ninety (90) days from February 13, 1998, the date the present vacancy occurred." On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for "guidance" respecting the expressed desire of the "regular members" of the JBC to hold a meeting immediately to fill up the vacancy in the Court in line with the President's letter of May 4. The Chief Justice advised Secretary Bello to await the reply that he was drafting to the President's communication, a copy of which he would give to the Secretary the following day. On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating that no sessions had been scheduled for the Council after the May elections for the reason that apparently the President's Office did not share the view posited by the JBC that Section 15, Article VII of the Constitution had no application to JBCrecommended appointments - the appointments to the Court of Appeals having been all uniformly dated March 11, 1998, before the commencement of the prohibition in said provision - thus giving rise to the "need to undertake further study of the matter," prescinding from "the desire to avoid any constitutional issue regarding the appointment to the mentioned vacancy" and the further fact that "certain senior members of the Court of Appeals *** (had) asked the Council to reopen the question of their exclusion on account of age from such (final) list." He closed with the assurance that the JBC expected to deliberate on the nominations "forthwith upon the completion of the coming elections." The letter was delivered to Malacaang at about 5 o'clock in the afternoon of May 6, 1998, and a copy given to the Office of Justice Secretary Bello shortly before that hour. It would appear, however, that the Justice Secretary and the regular members of the Council had already taken action without awaiting the Chief Justice's promised response to the President's letter of May 4, 1998. On that day, May 6, 1998, they met at some undisclosed place, deliberated, and came to an agreement on a resolution which they caused to be reduced to writing and thereafter signed. In that two-page Resolution they drew attention to Section 4 (1), Article VIII of the Constitution (omitting any mention of Section 15, Article VII) as well as to the President's letter of May 4 in which he "emphatically requested that the required list of final nominee be submitted to him;" and pointing out that the "Council would be remiss in its duties" should it fail to submit the nominations, closed with an appeal that the Chief Justice convene the Council for the purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This Resolution they transmitted to the Chief Justice together with their letter, also dated May 6, in which they emphasized that "we are pressed for time"

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again drawing attention to Section 4 (1). In Article VIII of the Constitution (and again omitting any reference to Section 15, Article VII). They ended their letter with the following intriguing paragraph: "Should the Chief Justice be not disposed to call for the meeting aforesaid, the undersigned members constituting the majority will be constrained to convene the Council for the purpose of complying with its Constitutional mandate." It seems evident, as just intimated, that the resolution and the covering letter were deliberated on, prepared and signed hours before delivery of the Chief Justice's letter to the President and the Justice Secretary. Since the Members of the Council appeared determined to hold a meeting regardless of the Chief Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock in the afternoon of May 7, 1998. Present at the meeting were Chief Justice, Secretary Bello, ex officio member and the regular members of the Council; Justice Regino Hermosisima, Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on the invitation of the Chief Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice reviewed the events leading to the session, and after discussion, the body agreed to give the President time to answer the Chief Justice's letter of May 6, 1998. On May 7, 1998, the Chief Justice received a letter from His Excellency the President in reply to his letter of May 6 (which the President said had been "received early this morning"). The President expressed the view that "the election-ban provision (Article VII, Sec. 15) *** applies only to executive appointments or appointments in the executive branch of government," the whole article being "entitled 'EXECUTIVE DEPARTMENT.'" He also observed that further proof of his theory "is the fact that appointments to the judiciary have special, specific provisions applicable to them" (citing Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly and respectfully reiterate(d) *** (his) request for the Judicial and Bar Council to transmit *** the final list of nominees for the lone Supreme Court vacancy." The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief Justice's letter explains the issue quite plainly, it is here quoted in full. "Thank you for your letter of May 7, 1998, responding to my own communication of May 6, 1998 which, I would like to say, reflects the collective sentiments of my colleagues in the Supreme Court. Knowing how busy you are, I will deal straightaway with the points set out in your letter.

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The dating of the latest appointments to the Court of Appeals was adverted to merely to explain how we in the Court and the JBC came to have the impression that you did not share the view expressed in the JBC minutes of March 9, 1998 'that there is no election ban with regard to the JBC appointments.' Be this as it may, the Court feels that there is a serious question concerning the matter in light of the seemingly inconsistent provisions of the Constitution. The first of these is Section 15, Article VII, which reads: 'SEC. 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 second is Section 4(1) of Article VIII which states: 'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof.' As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition on the President: he "shall not make appointments" within the period mentioned, and since there is no specification of which appointments are proscribed, the same may be considered as applying to all appointments of any kind and nature. This is the general rule then, the only exception being only as regards "executive positions" as to which "temporary appointments" may be made within the interdicted period "when continued vacancies therein will prejudice public service or endanger public safety." As the exception makes reference only to "executive" positions, it would seem that "judicial" positions are covered by the general rule. On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme Court "shall be filled within ninety days from the occurrence thereof." Unlike Section 15, Article VII, the duty of filling the vacancy is not specifically imposed on the President; hence, it may be inferred that it is a duty shared by the Judicial and Bar council and the President. Now, in view of the general prohibition in the first-quoted provision, how is the requirement of filling vacancies in the Court within ninety days to be construed? One interpretation that immediately suggests itself is that Section 4(1), Article VIII is a general provision while Section 15, Article VII is a particular one; that is to say, normally, when there are no presidential elections - which after all occur only every six years - Section 4(1), Article VIII shall apply: vacancies in the Supreme Court shall be filled within 90 days; but when (as now) there are presidential elections, the

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prohibition in Section 15, Article VII comes into play: the President shall not make any appointments. The reason for said prohibition, according to Fr. J. Bernas, S.J., an authority on Constitutional Law and himself a member of the Constitutional Commission, is "(I)n order not to tie the hands of the incoming President through midnight appointments." Another interpretation is that put forth in the Minutes of the JBC Meeting of March 9, 1998. I must emphasize that the validity of any appointment to the Supreme Court at this time hinges on the correct interpretation of the foregoing sections of the Constitution. On account of the importance of the question, I consulted the Court about it but, as I stated in my letter of May 6, 1998, "it declined to take any position, since obviously there had not been enough time to deliberate on the same *** (although it) did agree that further study was necessary ***." Since the question has actually come up, and its importance cannot be gainsaid, and it is the Court that is empowered under the Constitution to make an authoritative interpretation of its (provisions) or of those of any other law. I believe that the Court may now perhaps consider the issue ripe for determination and come to grips with it, to avoid any possible polemics concerning the matter. However the Court resolves the issue, no serious prejudice will be done. Should the Court rule that the President is indeed prohibited to make appointments in a presidential election year, then any appointment attempted within the proscribed period would be void anyway. If the Court should adjudge that the ban has no application to appointments to the Supreme Court, the JBC may submit nominations and the President may make the appointment forthwith upon such adjudgment. The matter is a delicate one, quite obviously, and must thus be dealt with with utmost circumspection, to avoid any question regarding the validity of an appointment to the Court at this time, or any accusation of "midnight" appointments or rash, hasty action on the part of the JBC or the President. In view thereof, and upon the advice and consent of the Members of the Court, I am requesting the regular Members of the Judicial and Bar Council to defer action on the matter until further advice by the Court. I earnestly make the same request of you, Your Excellency, I assure you, however, that as befits a matter in which the Chief Executive has evinced much interest, my colleagues and I will give it preferential and expeditious attention and consideration. To this end, I intend to convene the Court by next week, at the latest." On May 8, 1998, again on the insistence of the regular Members of the JBC, another meeting was held at which were present the Chief Justice, the Secretary of Justice and the three regular Members above mentioned, as well as Justices Hilario G. Davide, Jr.,

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Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a resolution that "the constitutional provisions *** (in question) be referred to the Supreme Court En Banc for appropriate action, together with the request that the Supreme Court consider that the ninety-day period stated in Section 4 (1), Article VIII be suspended or interrupted in view of the peculiar circumstances ***." On May 12, 1998, the Chief Justice received from Malacaang the appointments of two (2) Judges of the Regional Trial Court mentioned above. This places on the Chief Justice the obligation of acting thereon; i.e., transmitting the appointments to the appointees so that they might take their oaths and assume their duties of their office. The trouble is that in doing so, the Chief Justice runs the risk of acting in a manner inconsistent with the Constitution, for these appointments appear prima facie, at least, to be expressly prohibited by Section 15, Article VII of the charter. This circumstance, and the referral of the constitutional question to the Court in virtue of the Resolution of May 8, 1998, supra, operate to raise a justiciable issue before the Court, an issue of sufficient importance to warrant consideration and adjudication on the merits. Accordingly, the Court Resolved to (1) CONSIDER the case at bar an administrative matter and cause it to be appropriately docketed; (2) to DIRECT the Clerk of Court to immediately serve copies of this Resolution on (a) the Office of the President, (b) the Office of the Solicitor General, (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses recorded in the Judicial and Bar Council); and (3) to REQUIRE the Office of the President, the Office of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B. Vallarta to file their comments on this Resolution within fifteen (15) days from notice thereof. The Court further Resolved that (1) pending the foregoing proceedings and the deliberation by the Court on the matter, and until further orders, no action be taken on the appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime shall be held in abeyance and not given any effect and said appointees shall refrain from taking their oath of office; and that (2) exercising its power of supervision over the Judicial and Bar Council, said Council and its ex officio and regular Members herein mentioned be INSTRUCTED, as they are hereby INSTRUCTED, to defer all action on the matter of nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until further orders. SO ORDERED.
II The Relevant Pleadings

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In compliance with the foregoing Resolution, the following pleadings and other documents were filed, to wit:
1) the manifestation dated May 28, 1998 of Hon. Mateo A. Velenzuela in compliance with the Resolution of May 14, 1998; 2) the letter dated June 1, 1998 of Hon. Placido B. Vallarta in compliance with the same Resolution; 3) the "Comments" of Hon. Valenzuela dated May 25, 1998; 4) his "Addendum to Comments" dated June 8, 1998; 5) his "Explanation" dated June 8, 1998; 6) the letter of Hon. Vallarta dated June 8, 1998; 7) his letter dated June 16, 1998; 8) the "Explanation" of Hon. Valenzuela dated July 17, 1998; and 9) the "Comment" of the Office of the Solicitor General dated August 5, 1998.

A. Valenzuela's Assumption of Duty as Judge on May 14, 1998 In his Manifestation dated May 28, 1998, Judge Valenzuela alleged inter alia:

"***that on May 14, 1998, he took his Oath of Office as Judge, RTC Branch 62, Bago City, before Hon. Anastacio C. Rufon, Judge RTC, Branch 52, Bacolod City, pursuant to Appointment dated March 30, 1998, (and) he also reported for duty as such before said RTC Branch 62, Bago City *** (and that he did so) "faultlessly," *** without knowledge of the on-going deliberations on the matter."
At that time, the originals of the appointments of Messrs. Valenzuela and Vallarta, dated March 30, 1998 - addressed to them "Thru: the Chief Justice, Supreme Court of the Philippines, Manila." and which had been sent to and received by the Chief Justice on May 12, 1998 -- were still in the latter's Office, and had not been transmitted to them precisely because of the serious issue concerning the validity of their appointments. Indeed, one of the directives in the Resolution of May 14, 1998 was that "pending *** deliberation by the Court on the matter, and until further orders, no action be taken on the appointments *** which in the meantime shall be held in abeyance and not given any effect ***." For this reason, by Resolution dated June 23, 1998, the Court required Valenzuela to EXPLAIN by what authority he had taken his oath on May 14, 1998 as Judge of Branch 62 of the RTC at Bago City. In his "Explanation" dated July 17, 1998. Valenzuela stated that he did so because on May 7, 1998 he "received from Malacaang copy of his appointment ***" which contained the following direction: "By virtue hereof, you may qualify and enter upon the performance of the duties of the office***." The Court then deliberated on the pleadings and documents above mentioned, in relation to the facts and circumstances on record, and thereafter Resolved to promulgate the following opinion. III The Relevant Constitutional Provisions

18

The provision of the Constitution material to the inquiry at bar read as follows: Section 15, Article VII:

"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 execute positions when continued vacancies therein will prejudice public service or endanger public safety."
Section 4 (1), Article VIII:

"The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof."
Section 9, Article VIII:

"The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the 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."
IV The Court's View The Court's view is that during the period stated in Section 15, Article VII of the Constitution - "(t)wo months immediately before the next presidential elections and up to the end of his term" - the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is noteworthy that the prohibition on appointments comes into effect only once every six years. 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

19

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 notmake appointments" The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a "uniform rule" for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power "two months immediately before the next presidential elections up to the end of his term" - was approved without discussion. VI. Analysis of Provisions

Now, 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.:

SEC. 261. Prohibited Acts. - The following shall be guilty of an election offense: (a) Vote buying and vote selling - (1) Any person who gives, offers or promises money or anything of value, gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for the nomination of choice of a candidate in a convention or similar selection process of a political party. . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. - During the period of forty five days before a regular election and thirty days before a special election, (1) any head, official or appointing officer of a

20

government office, agency or instrumentality whether national or local, including government-owned or controlled corporations, who appoints or hires any new employee, whether provisional, temporary, or casual, or creates and fills any new position, except upon prior authority of the Commission. The Commission shall not grant the authority sought unless, it is satisfied that the position to be filled is essential to the proper functioning of the office or agency concerned, and that the position shall not be filled in a manner that may influence the election.
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

21

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. To the contention that may perhaps be asserted, that Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because they may be considered later expressions of the people when they adopted the Constitution, it suffices to point out that the Constitution must be construed in its entirety as one, single, instrument. To be sure, instances may be conceived of the imperative need for an appointment, during the period of the ban, not only in the executive but also in the Supreme Court. This may be the case should the membership of the court be so reduced that it will have no quorum or should the voting on a particularly important question requiring expeditious resolution be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII nor Section 4 (1) and 9 of Article VIII. VII. A Last Word

A final word, concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of RTC Branch 62, Bago City, on May 14, 1998. Standing practice is for the originals of all appointments to the Judiciary - from the highest to the lowest courts - to be sent by the Office of the President to the Office of the Chief Justice, the appointments being addressed to the appointees "Thru: the Chief Justice, Supreme Court, Manila." It is a Clerk of Court of the Supreme Court, in the Chief Justice's behalf, who thereafter advises the individual appointees of their appointments and also of the date of commencement of the pre-requisite orientation seminar, to be conducted by the Philippine Judicial Academy for new Judges. The rationale of this procedure is salutary and readily perceived. The procedure ensures the authenticity of the appointments, enables the Court, particularly of the Office of the Court Administrator, to enter in the appropriate records all appointments to the Judiciary as well as other relevant data such as the dates of qualification, the completion by the appointees of their pre-requisite orientation seminars, their assumption of duty, etc. The procedure also precludes the possibility, however remote, of Judges acting on spurious or otherwise defective appointments. It is obviously not advisable, to say the least, for a Judge to take his oath of office and enter upon the performance of his duties on the basis alone of a document purporting to be a copy of his appointment coming from Malacaang, the authenticity of which has not been verified from the latter of the Office of the Court Administrator; or otherwise to begin performing his duties as Judge without the Court Administrator knowing of that fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela who acted, with no little impatience or rashness, on a mere copy of his supposed appointment, without having received any formal notice from this Court, and without verifying the authenticity of the appointment or the propriety of taking oath on the basis thereof. Had he bothered to inquire about his appointment from the Court Administrator's Office, he would have been informed of the question concerning it and the Court's injunction.

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VIII.

Conclusion

The appointments of Messrs. Valenzuela and Vallarta on March 30, 1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were unquestionably made during the period of the ban. Consequently, they come within the operation of the first prohibition relating to appointments which are considered to be for the purpose of buying votes or influencing the election. While the filling of vacancies in the judiciary is undoubtedly in the public interest, there is no showing in this case of any compelling reason to justify the making of the appointments during the period of the ban. On the other hand, as already discussed, there is a strong public policy for the prohibition against appointments made within the period of the ban. In view of the foregoing considerations, the Court Resolved to DECLARE VOID the appointments signed by His Excellency the President under date of 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, and to order them, forthwith on being served with notice of this decision, to forthwith CEASE AND DESIST from discharging the office of Judge of the Courts to which they were respectively appointed on March 30, 1998. This, without prejudice to their being considered anew by the Judicial and Bar Council for re-nomination to the same positions. IT IS SO ORDERED.

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March 17, 2010 G. R. No. 191002 ARTURO M. DE CASTRO, Petitioner, - versus - JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYO, Respondents. x-----------------------x G.R. No. 191032 JAIME N. SORIANO, Petitioner - versus - JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x G.R. No. 191057 PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), Petitioner, - versus - 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, - versus - JUDICIAL AND BAR COUNCIL (JBC). Respondent. x - - - - - - - - - - - - - - - - - - - - - - - -x PETER IRVING CORVERA;CHRISTIAN ROBERT S. LIM; ALFONSO V. TAN, JR.;NATIONAL UNION OF PEOPLES 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 ADVANCEMENT 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;

24

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., (IBPGovernorSouthern Luzon), and ATTY. ROLAND B. INTING (IBP GovernorEastern Visayas), Petitioners,- versus - JUDICIAL AND BAR COUNCIL (JBC), Respondent. x-----------------------x G.R. No. 191420 PHILIPPINE BAR ASSOCIATION, INC., Petitioner, - versus-JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA MACAPAGALARROYO, Respondents. 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

25

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. 191002 and G.R. No. 191149 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, 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, 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

26

covered by the prohibition that applies only to appointments in the Executive Department.

In Administrative Matter No. 10-2-5-SC, 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, 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), 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.

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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. 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.

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 t he 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.

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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. PHILCONSA further believes and submits that now is the time to revisit and reviewValenzuela, the strange and exotic Decision of the Court en banc.

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.

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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.

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, thatvacancy 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, which reads:

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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, 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.

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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.

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 nominationswithout 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. 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).

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).

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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.

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

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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.

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

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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 midnightappointments two months immediately preceding the next presidential elections until the end of her term? b. Is any act performed by the JBC, including the vetting of the candidates for the position of Chief Justice, constitutionally invalid in view of the JBCs illegal composition allowing each member

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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. It stated:
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.

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The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from performing its principal function under the Constitution to recommend appointees in the Judiciary; (b) the JBCs function to recommend is a continuing process, which does not begin with each vacancy or end with each nomination, because the goal is to submit the list of nominees to Malacaang on the very day the vacancy arises; 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; (c) petitioner Sorianos theory that it is the Supreme Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his misinterpretation of the phrase members of the Supreme Court found in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the Chief Justice; (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; and (e) a writ ofmandamus cannot issue to compel the JBC to include or exclude particular candidates as nominees, considering that there is no imperative duty on its part to include in or exclude from the list particular individuals, but, on the contrary, the JBCs determination of who it nominates to the President is an exercise of a discretionary duty.

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution

37

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; 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; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political pressures, 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; 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.

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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; (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); (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; 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.

On March 9, 2010, the Court admitted the following comments/oppositionsin-intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving Corvera (Corvera); (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);

39

(d) The comment/opposition-in-intervention dated March 1, 2010 of the National Union of Peoples Lawyers (NUPL); (e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano (Ubano); (f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P. Torreon (IBP- Davao del Sur); (g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L. Boiser (Boiser); (h)The consolidated comment/opposition-in-intervention dated February 26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M. Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS) Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines (CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines (SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.); (i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and Loretta Ann P. Rosales (Bello et al.); and (j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty. Yolanda QuisumbingJavellana; 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).

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Intervenors

Tan, WTLOP, BAYAN et

al., Corvera,

IBP

Davao

del Sur, and NUPL take the position that De Castros petition was bereft of any basis, because under Section 15, Article VII, the outgoing President is constitutionally banned from making any appointments from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief Justice Puno. Hence,mandamus does not lie to compel the JBC to submit the list of nominees to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the prohibition against midnight appointments was applied by the Court to the appointments to the Judiciary made by then President Ramos, with the Court holding that the duty of the President to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court) or from the submission of the list (for all other courts) was not an excuse to violate the constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al. oppose the insistence that Valenzuelarecognizes the possibility that the President may appoint the next Chief Justice if exigent circumstances warrant the appointment, because that recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate Justice does not cause epic damage or absolute disruption or paralysis in the operations of the Judiciary. They insist that even without the successor of Chief Justice Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of three, five or seven members at its discretion; that a full membership of the Court is not necessary; that petitioner De Castros fears are unfounded and baseless, being based on a mere possibility, the occurrence of which is entirely

41

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.

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Intervenor Boiser adds that De Castros prayer to compel the submission of nominees by the JBC to the incumbent President is off-tangent because the position of Chief Justice is still not vacant; that to speak of a list, much more a submission of such list, before a vacancy occurs is glaringly premature; that the proposed advance appointment by the incumbent President of the next Chief Justice will be unconstitutional; and that no list of nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction between the kinds of appointments made by the President; and that the Court, in Valenzuela, ruled that the appointments by the President of the two judges during the prohibition period were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not apply only to the appointments in the Executive Department, but also to judicial appointments, contrary to the submission of PHILCONSA; that Section 15 does not distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial appointments.

Intervenor WTLOP further posits that petitioner Sorianos contention that the power to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated under Section 9, Article VIII; and that, at any rate, the term members was interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and the Associate Justices of the

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Supreme Court; that PHILCONSAs prayer that the Court pass a resolution declaring that persons who manifest their interest as nominees, but with conditions, shall not be considered nominees by the JBC is diametrically opposed to the arguments in the body of its petition; that such glaring inconsistency between the allegations in the body and the relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the JBC cannot be separated from the constitutional prohibition on the President; and that the Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly elected President after the period of the constitutional ban against midnight appointments has expired. Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial nor a quasi-judicial body has no duty under the Constitution to resolve the question of whether the incumbent President can appoint a Chief Justice during the period of prohibition; that even if the JBC has already come up with a short list, it still has to bow to the strict limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is not arrogating unto itself a judicial function, but simply respecting the clear mandate of the Constitution; and that the application of the general rule in Section 15, Article VII to the Judiciary does not violate the principle of separation of powers, because said provision is an exception. Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of nominating appointees to the Supreme Court is purely ministerial and does not involve the exercise of judgment; that there can be no default on the part of the JBC in submitting the list of nominees to the President, considering that the call for applications only begins from the occurrence of the vacancy in the Supreme Court;

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and that the commencement of the process of screening of applicants to fill the vacancy in the office of the Chief Justice only begins from the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any party to claim that the submission or non-submission of the list of nominees to the President by the JBC is a matter of right under law. The main question presented in all the filings herein because it involves two seemingly conflicting provisions of the Constitution imperatively demands the attention and resolution of this Court, the only authority that can resolve the question definitively and finally. The imperative demand rests on the ever-present need, first, to safeguard the independence, reputation, and integrity of the entire Judiciary, particularly this Court, an institution that has been unnecessarily dragged into the harsh polemics brought on by the controversy; second, to settle once and for all the doubt about an outgoing Presidents power to appoint to the Judiciary within the long period starting two months before the presidential elections until the end of the presidential term; and third, to set a definite guideline for the JBC to follow in the discharge of its primary office of screening and nominating qualified persons for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus standi.

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Black defines locus standi as a right of appearance in a court of justice on a given question. 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.:
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. 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.

It is true that as early as in 1937, in People v. Vera, 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, Manila Race Horse Trainers Association v. De la Fuente, Anti-Chinese League of the Philippines v. Felix, and Pascual v. Secretary of Public Works.

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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, 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.

In the 1975 decision in Aquino v. Commission on Elections, 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.

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

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equip the petitioner with adequate interest to sue. In David v. MacapagalArroyo, 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 inBeauchamp v. Silk, where it was held that the plaintiff in a taxpayers suit is in a different category from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case v. Collins: In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public grievance be remedied . With respect to taxpayers suits, Terr v. Jordan held that the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.

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.

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.

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,

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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 andEastern Visayas. They allege that they have the legal standing to enjoin the submission of the list of nominees by the JBC to the President, for [a]n adjudication of the proper interpretation and application of the constitutional ban on midnight appointments with regard to respondent JBCs function in submitting the list of nominees is well within the concern of petitioners, who are duty bound to ensure that obedience and respect for the Constitution is upheld, most especially by government offices, such as respondent JBC, who are specifically tasked to perform crucial functions in the whole scheme of our democratic institution. They further allege that, reposed in them as members of the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court, and in the selection of the Chief Justice, considering that the person appointed becomes a member of the body that has constitutional supervision and authority over them and other members of the legal profession.

The Court rules that the petitioners have each demonstrated adequate interest in the outcome of the controversy as to vest them with the requisite locus standi. The issues before us are of transcendental importance to the people as a whole, and to the petitioners in particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones personal interest in life, because they concern that great doubt about the authority of the incumbent President to appoint not only the successor of the retiring incumbent Chief Justice, but also

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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.

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.,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.

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,

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there is no imminent controversy as to whether such list must be submitted to the incumbent President, or reserved for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial determination, pointing out that petitioner De Castro has not even shown that the JBC has already completed its selection process and is now ready to submit the list to the incumbent President; and that petitioner De Castro is merely presenting a hypothetical scenario that is clearly not sufficient for the Court to exercise its power of judicial review. Intervenors Corvera and Lim separately opine that De Castros petition rests on an overbroad and vague allegation of political tension, which is insufficient basis for the Court to exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory opinion on what the JBC and the President should do, and are not invoking any issues that are justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege any action taken by the JBC, but simply avers that the conditional manifestations of two Members of the Court, accented by the divided opinions and interpretations of legal experts, or associations of lawyers and law students on the issues published in the daily newspapers are matters of paramount and transcendental importance to the bench, bar and general public; that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the duty, but also to indicate what specific action should be done by the JBC; that Mendoza does

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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

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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 counterinsistence 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.

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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. 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.

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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

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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.

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

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before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.

Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that theValenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the Constitutional Commission, about the prohibition not being intended to apply to the appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned, should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present Constitution discloses that the original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that that number would not be reduced for any appreciable length of time (even only temporarily), and to this end proposed that any vacancy must be filled within two months from the date that the vacancy occurs. His proposal to have a 15-member Court was not initially adopted. Persisting however in his desire to make certain that the size of the Court would not be decreased for any substantial period as a result of vacancies, Lerum proposed the insertion in the provision (anent the Courts membership) of the same mandate that IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE THEREOF. He later agreed to suggestions to make the period three, instead of two, months. As thus amended, the proposal was approved. As it turned out, however, the Commission ultimately agreed on a fifteen-member Court.Thus it was that the section fixing the composition of the Supreme Court came to

57

include a command to fill up any vacancy therein within 90 days from its occurrence. In this connection, it may be pointed out that that instruction that any vacancy shall be filled within ninety days (in the last sentence of Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article VII, which is couched in stronger negative language - that a President or Acting President shall not make appointments The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now Section 9 of Article VIII, the following paragraph: WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST (of nominees by the Judicial and Bar Council to the President). Davide stated that his purpose was to provide a uniform rule for lower courts. According to him, the 90-day period should be counted from submission of the list of nominees to the President in view of the possibility that the President might reject the list submitted to him and the JBC thus need more time to submit a new one. On the other hand, Section 15, Article VII - which in effect deprives the President of his appointing power two months immediately before the next presidential elections up to the end of his term - was approved without discussion.

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 ofCommissioner Eulogio Lerum, a command [to the President] to fill up any vacancy therein within 90 days from its occurrence, of which the

even Valenzuela conceded. The

exchanges

during deliberations

Constitutional Commission on October 8, 1986further 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.

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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.

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced should not be disregarded. Thereby, Sections 4(1) imposes on the President

the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language. Such interpretation even turned out to be conjectural, in light of the records of the Constitutional Commissions deliberations on Section 4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted. According to an authority on statutory construction:

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xxx the court should seek to avoid any conflict in the provisions of the statute by endeavoring to harmonize and reconcile every part so that each shall be effective. It is not easy to draft a statute, or any other writing for that matter, which may not in some manner contain conflicting provisions. But what appears to the reader to be a conflict may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a definite reason. Often by considering the enactment in its entirety, what appears to be on its face a conflict may be cleared up and the provisions reconciled. Consequently, that construction which will leave every word operative will be favored over one which leaves some word or provision meaningless because of inconsistency. But a word should not be given effect, if to do so gives the statute a meaning contrary to the intent of the legislature. On the other hand, if full effect cannot be given to the words of a statute, they must be made effective as far as possible. Nor should the provisions of a statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It may be that two provisions are irreconcilable; if so, the one which expresses the intent of the law-makers should control. And the arbitrary rule has been frequently announced that where there is an irreconcilable conflict between the different provisions of a statute, the provision last in order of position will prevail, since it is the latest expression of the legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied, and probably then only where an irreconcilable conflict exists between different sections of the same act, and after all other means of ascertaining the meaning of the legislature have been exhausted. Where the conflict is between two statutes, more may be said in favor of the rules application, largely because of the principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is timely and appropriate. Valenzuelaarbitrarily 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.

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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. 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 eliminatemidnight 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. In fact, in Valenzuela, the Court so observed, stating that:
xxx it appears that Section 15, Article VII is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared election offenses in the Omnibus Election Code, viz.: xxx The second type of appointments prohibited by Section 15, Article VII consists of the so-called midnight appointments. In Aytona v. Castillo, it was held that after the proclamation of Diosdado Macapagal as duly elected President, President Carlos P. Garcia, who was defeated in his bid for reelection, became no

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more than a caretaker administrator whose duty was to prepare for the orderly transfer of authority to the incoming President. Said the Court:
The filling up of vacancies in important positions, if few, and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and the planned induction of almost all of them in a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make the corresponding appointments.

As indicated, the Court recognized that there may well be appointments to important positions which have to be made even after the proclamation of the new President. Such appointments, so long as they are few and so spaced as to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointees qualifications, can be made by the outgoing President. Accordingly, several appointments made by President Garcia, which were shown to have been well considered, were upheld. Section 15, Article VII has a broader scope than the Aytona ruling. It may not unreasonably be deemed to contemplate not only midnight appointments those made obviously for partisan reasons as shown by their number and the time of their making but also appointments presumed made for the purpose of influencing the outcome of the Presidential election. On the other hand, the exception in the same Section 15 of Article VII allowing appointments to be made during the period of the ban therein provided is much narrower than that recognized in Aytona. The exception allows only the making of temporary appointments to executivepositions when continued vacancies will prejudice public service or endanger public safety. Obviously, the article greatly restricts the appointing power of the President during the period of the ban. Considering the respective reasons for the time frames for filling vacancies in the courts and the restriction on the President's power of appointment, it is this Courts view that, as a general proposition, in case of conflict, the former should yield to the latter. Surely, the prevention of vote-buying and similar evils outweighs the need for avoiding delays in filling up of court vacancies or the disposition of some cases. Temporary vacancies can abide the period of the ban which, incidentally and as earlier pointed out, comes to exist only once in every six years. Moreover, those occurring in the lower courts can be filled temporarily by designation. But prohibited appointments are long-lasting and permanent in their effects. They may, as earlier pointed out, in fact influence the results of elections and, for that reason, their making is considered an election offense.

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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 bemidnight 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, the appointments to the Judiciary made after the establishment of the JBC would not be suffering from such defects because of the JBCs prior processing of candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the purpose of the enactment is a step in the process of ascertaining the intent or meaning of the enactment, because the reason for the enactment must necessarily shed considerable light on the law of the statute, i.e., the intent; hence, the enactment should be construed with reference to its intended scope and purpose, and the court should seek to carry out this purpose rather than to defeat it.

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

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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 midnightappointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, the election ban had no application to appointments to the Court of Appeals. 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.

The fault of Valenzuela was that it accorded no weight and due consideration to the confirmation of Justice Regalado.Valenzuela was weak, because it relied on interpretation to determine the intent of the framers rather than on the deliberations of the Constitutional Commission. Much of the unfounded doubt about the Presidents power to appoint during the period of prohibition in Section 15, Article VII could have been dispelled since its promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the confirmation of a distinguished member of the Constitutional Commission like Justice Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President.

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Section 14 speaks of the power of the succeeding President to revoke appointments made by an Acting President, and evidently refers only to appointments in the Executive Department. It has no application to appointments in the Judiciary, becausetemporary or acting appointments can only undermine the independence of the Judiciary due to their being revocable at will. 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.

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. It is absurd to assume that the framers deliberately situated

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Section 15between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement byMay 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

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The argument also rests on the fallacious assumption that there will still be time remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily demonstrable, as the OSG has shown in its comment.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity. In fact, in their deliberations on the mandatory period for the appointment of Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-day period, or vice versa. They did not need to, because they never intended Section 15, Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to

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appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court. Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation. xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a deeper analysis if and when circumstances permit. It should be a good issue for the proposed Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles statement that the President can appoint the Chief Justice from among the sitting justices of the Court even without a JBC list. II The Judiciary Act of 1948

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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.

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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 temporarycapacity. 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

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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;

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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. 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. 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.

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:

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Section 8. xxx (5) The Council shall have the principal function of recommending appointees to the Judiciary. xxx Section 9. The Members of the Supreme Court and judges of lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation. For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within 90 days from the submission of the list, in the case of the lower courts. The 90-day period is directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.

Under the Constitution, it is mandatory for the JBC to submit to the President the list of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint one of them within the 90-day period from the occurrence of the vacancy. The JBC has no discretion to submit the list to the President after the vacancy occurs, because that shortens the 90-day period allowed by the Constitution for the President to make the appointment. For the JBC to do so will be unconscionable on its part, considering that it will thereby effectively and illegally deprive the President of the ample time granted under the Constitution to reflect on the qualifications of the nominees named in the list of the JBC before making the appointment.

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The duty of the JBC to submit a list of nominees before the start of the Presidents mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC. The object of the petitions for mandamus herein should only refer to the duty to submit to the President the list of nominees for every vacancy in the Judiciary, because in order to constitute unlawful neglect of duty, there must be an unjustified delay in performing that duty. 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.

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.

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IV Writ of prohibition does not lie against the JBC

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

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

WHEREFORE, the Court:

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

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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.

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G.R. No. 191002

April 20, 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 PEOPLES 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;

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BAGONG ALYANSANG BAYAN (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 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; AQUILINO Q. PIMENTEL, JR.;Intervenors. x - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191342 ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-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. BERSAMIN, J.:

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On March 17, 2010, the Court promulgated its decision, holding: 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. Motions for Reconsideration Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino and Roland B. Inting (G.R. No. 191342), and Philippine Bar Association (G.R. No. 191420), as well as intervenors Integrated Bar of the Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others (BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell John L. Boiser; and Walden F. Bello

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and Loretta Ann P. Rosales (Bello, et al.), filed their respective motions for reconsideration. Also filing a motion for reconsideration was Senator Aquilino Q. Pimentel, Jr., whose belated intervention was allowed. We summarize the arguments and submissions of the various motions for reconsideration, in the aforegiven order: Soriano 1. The Court has not squarely ruled upon or addressed the issue of whether or not the power to designate the Chief Justice belonged to the Supreme Court en banc. 2. The Mendoza petition should have been dismissed, because it sought a mere declaratory judgment and did not involve a justiciable controversy. 3. All Justices of the Court should participate in the next deliberations. The mere fact that the Chief Justice sits as ex officio head of the JBC should not prevail over the more compelling state interest for him to participate as a Member of the Court. Tolentino and Inting 1. A plain reading of Section 15, Article VII does not lead to an interpretation that exempts judicial appointments from the express ban on midnight appointments. 2. In excluding the Judiciary from the ban, the Court has made distinctions and has created exemptions when none exists. 3. The ban on midnight appointments is placed in Article VII, not in Article VIII, because it limits an executive, not a judicial, power. 4. Resort to the deliberations of the Constitutional Commission is superfluous, and is powerless to vary the terms of the clear prohibition. 5. The Court has given too much credit to the position taken by Justice Regalado. Thereby, the Court has raised the Constitution to the level of a venerated text whose intent can only be divined by its

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framers as to be outside the realm of understanding by the sovereign people that ratified it. 6. Valenzuela should not be reversed. 7. The petitioners, as taxpayers and lawyers, have the clear legal standing to question the illegal composition of the JBC. Philippine Bar Association 1. The Courts strained interpretation of the Constitution violates the basic principle that the Court should not formulate a rule of constitutional law broader than what is required by the precise facts of the case. 2. Considering that Section 15, Article VII is clear and straightforward, the only duty of the Court is to apply it. The provision expressly and clearly provides a general limitation on the appointing power of the President in prohibiting the appointment of any person to any position in the Government without any qualification and distinction. 3. The Court gravely erred in unilaterally ignoring the constitutional safeguard against midnight appointments. 4. The Constitution has installed two constitutional safeguards:- the prohibition against midnight appointments, and the creation of the JBC. It is not within the authority of the Court to prefer one over the other, for the Courts duty is to apply the safeguards as they are, not as the Court likes them to be. 5. The Court has erred in failing to apply the basic principles of statutory construction in interpreting the Constitution. 6. The Court has erred in relying heavily on the title, chapter or section headings, despite precedents on statutory construction holding that such headings carried very little weight. 7. The Constitution has provided a general rule on midnight appointments, and the only exception is that on temporary appointments to executive positions.

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8. The Court has erred in directing the JBC to resume the proceedings for the nomination of the candidates to fill the vacancy to be created by the compulsory retirement of Chief Justice Puno with a view to submitting the list of nominees for Chief Justice to President Arroyo on or before May 17, 2010. The Constitution grants the Court only the power of supervision over the JBC; hence, the Court cannot tell the JBC what to do, how to do it, or when to do it, especially in the absence of a real and justiciable case assailing any specific action or inaction of the JBC. 9. The Court has engaged in rendering an advisory opinion and has indulged in speculations. 10. The constitutional ban on appointments being already in effect, the Courts directing the JBC to comply with the decision constitutes a culpable violation of the Constitution and the commission of an election offense. 11. The Court cannot reverse on the basis of a secondary authority a doctrine unanimously formulated by the Court en banc. 12. The practice has been for the most senior Justice to act as Chief Justice whenever the incumbent is indisposed. Thus, the appointment of the successor Chief Justice is not urgently necessary. 13. The principal purpose for the ban on midnight appointments is to arrest any attempt to prolong the outgoing Presidents powers by means of proxies. The attempt of the incumbent President to appoint the next Chief Justice is undeniably intended to perpetuate her power beyond her term of office. IBP-Davao del Sur, et al. 1. Its language being unambiguous, Section 15, Article VII of the Constitution applies to appointments to the Judiciary. Hence, no cogent reason exists to warrant the reversal of the Valenzuela pronouncement. 2. Section 16, Article VII of the Constitution provides for presidential appointments to the Constitutional Commissions and the JBC with the consent of the Commission on Appointments. Its phrase "other

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officers whose appointments are vested in him in this Constitution" is enough proof that the limitation on the appointing power of the President extends to appointments to the Judiciary. Thus, Section 14, Section 15, and Section 16 of Article VII apply to all presidential appointments in the Executive and Judicial Branches of the Government. 3. There is no evidence that the framers of the Constitution abhorred the idea of an Acting Chief Justice in all cases. Lim 1. There is no justiciable controversy that warrants the Courts exercise of judicial review. 2. The election ban under Section 15, Article VII applies to appointments to fill a vacancy in the Court and to other appointments to the Judiciary. 3. The creation of the JBC does not justify the removal of the safeguard under Section 15 of Article VII against midnight appointments in the Judiciary. Corvera 1. The Courts exclusion of appointments to the Judiciary from the Constitutional ban on midnight appointments is based on an interpretation beyond the plain and unequivocal language of the Constitution. 2. The intent of the ban on midnight appointments is to cover appointments in both the Executive and Judicial Departments. The application of the principle of verba legis (ordinary meaning) would have obviated dwelling on the organization and arrangement of the provisions of the Constitution. If there is any ambiguity in Section 15, Article VII, the intent behind the provision, which is to prevent political partisanship in all branches of the Government, should have controlled. 3. A plain reading is preferred to a contorted and strained interpretation based on compartmentalization and physical

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arrangement, especially considering that the Constitution must be interpreted as a whole. 4. Resort to the deliberations or to the personal interpretation of the framers of the Constitution should yield to the plain and unequivocal language of the Constitution. 5. There is no sufficient reason for reversing Valenzuela, a ruling that is reasonable and in accord with the Constitution. BAYAN, et al. 1. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable controversy. The issues it raised were not yet ripe for adjudication, considering that the office of the Chief Justice was not yet vacant and that the JBC itself has yet to decide whether or not to submit a list of nominees to the President. 2. The collective wisdom of Valenzuela Court is more important and compelling than the opinion of Justice Regalado. 3. In ruling that Section 15, Article VII is in conflict with Section 4(1), Article VIII, the Court has violated the principle of ut magis valeat quam pereat (which mandates that the Constitution should be interpreted as a whole, such that any conflicting provisions are to be harmonized as to fully give effect to all). There is no conflict between the provisions; they complement each other. 4. The form and structure of the Constitutions titles, chapters, sections, and draftsmanship carry little weight in statutory construction. The clear and plain language of Section 15, Article VII precludes interpretation. Tan, Jr. 1. The factual antecedents do not present an actual case or controversy. The clash of legal rights and interests in the present case are merely anticipated. Even if it is anticipated with certainty, no actual vacancy in the position of the Chief Justice has yet occurred.

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2. The ruling that Section 15, Article VII does not apply to a vacancy in the Court and the Judiciary runs in conflict with long standing principles and doctrines of statutory construction. The provision admits only one exception, temporary appointments in the Executive Department. Thus, the Court should not distinguish, because the law itself makes no distinction. 3. Valenzuela was erroneously reversed. The framers of the Constitution clearly intended the ban on midnight appointments to cover the members of the Judiciary. Hence, giving more weight to the opinion of Justice Regalado to reverse the en banc decision in Valenzuela was unwarranted. 4. Section 15, Article VII is not incompatible with Section 4(1), Article VIII. The 90-day mandate to fill any vacancy lasts until August 15, 2010, or a month and a half after the end of the ban. The next President has roughly the same time of 45 days as the incumbent President (i.e., 44 days) within which to scrutinize and study the qualifications of the next Chief Justice. Thus, the JBC has more than enough opportunity to examine the nominees without haste and political uncertainty.
1avv phi 1

5. When the constitutional ban is in place, the 90-day period under Section 4(1), Article VIII is suspended. 6. There is no basis to direct the JBC to submit the list of nominees on or before May 17, 2010. The directive to the JBC sanctions a culpable violation of the Constitution and constitutes an election offense. 7. There is no pressing necessity for the appointment of a Chief Justice, because the Court sits en banc, even when it acts as the sole judge of all contests relative to the election, returns and qualifications of the President and Vice-President. Fourteen other Members of the Court can validly comprise the Presidential Electoral Tribunal. WTLOP 1. The Court exceeded its jurisdiction in ordering the JBC to submit the list of nominees for Chief Justice to the President on or before May 17, 2010, and to continue its proceedings for the nomination of

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the candidates, because it granted a relief not prayed for; imposed on the JBC a deadline not provided by law or the Constitution; exercised control instead of mere supervision over the JBC; and lacked sufficient votes to reverse Valenzuela. 2. In interpreting Section 15, Article VII, the Court has ignored the basic principle of statutory construction to the effect that the literal meaning of the law must be applied when it is clear and unambiguous; and that we should not distinguish where the law does not distinguish. 3. There is no urgency to appoint the next Chief Justice, considering that the Judiciary Act of 1948 already provides that the power and duties of the office devolve on the most senior Associate Justice in case of a vacancy in the office of the Chief Justice. Ubano 1. The language of Section 15, Article VII, being clear and unequivocal, needs no interpretation 2. The Constitution must be construed in its entirety, not by resort to the organization and arrangement of its provisions. 3. The opinion of Justice Regalado is irrelevant, because Section 15, Article VII and the pertinent records of the Constitutional Commission are clear and unambiguous. 4. The Court has erred in ordering the JBC to submit the list of nominees to the President by May 17, 2010 at the latest, because no specific law requires the JBC to submit the list of nominees even before the vacancy has occurred. Boiser 1. Under Section 15, Article VII, the only exemption from the ban on midnight appointments is the temporary appointment to an executive position. The limitation is in keeping with the clear intent of the framers of the Constitution to place a restriction on the power of the outgoing Chief Executive to make appointments.

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2. To exempt the appointment of the next Chief Justice from the ban on midnight appointments makes the appointee beholden to the outgoing Chief Executive, and compromises the independence of the Chief Justice by having the outgoing President be continually influential. 3. The Courts reversal of Valenzuela without stating the sufficient reason violates the principle of stare decisis. Bello, et al. 1. Section 15, Article VII does not distinguish as to the type of appointments an outgoing President is prohibited from making within the prescribed period. Plain textual reading and the records of the Constitutional Commission support the view that the ban on midnight appointments extends to judicial appointments. 2. Supervision of the JBC by the Court involves oversight. The subordinate subject to oversight must first act not in accord with prescribed rules before the act can be redone to conform to the prescribed rules. 3. The Court erred in granting the petition in A.M. No. 10-2-5-SC, because the petition did not present a justiciable controversy. Pimentel 1. Any constitutional interpretative changes must be reasonable, rational, and conformable to the general intent of the Constitution as a limitation to the powers of Government and as a bastion for the protection of the rights of the people. Thus, in harmonizing seemingly conflicting provisions of the Constitution, the interpretation should always be one that protects the citizenry from an ever expanding grant of authority to its representatives. 2. The decision expands the constitutional powers of the President in a manner totally repugnant to republican constitutional democracy, and is tantamount to a judicial amendment of the Constitution without proper authority. Comments

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The Office of the Solicitor General (OSG) and the JBC separately represent in their respective comments, thus: OSG 1. The JBC may be compelled to submit to the President a short list of its nominees for the position of Chief Justice. 2. The incumbent President has the power to appoint the next Chief Justice. 3. Section 15, Article VII does not apply to the Judiciary. 4. The principles of constitutional construction favor the exemption of the Judiciary from the ban on midnight appointments.
1awph!1

5. The Court has the duty to consider and resolve all issues raised by the parties as well as other related matters. JBC 1. The consolidated petitions should have been dismissed for prematurity, because the JBC has not yet decided at the time the petitions were filed whether the incumbent President has the power to appoint the new Chief Justice, and because the JBC, having yet to interview the candidates, has not submitted a short list to the President. 2. The statement in the decision that there is a doubt on whether a JBC short list is necessary for the President to appoint a Chief Justice should be struck down as bereft of constitutional and legal basis. The statement undermines the independence of the JBC. 3. The JBC will abide by the final decision of the Court, but in accord with its constitutional mandate and its implementing rules and regulations. For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC) submits his comment even if the OSG and the JBC were the only ones the Court has required to do so. He states that the motions for reconsideration were

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directed at the administrative matter he initiated and which the Court resolved. His comment asserts: 1. The grounds of the motions for reconsideration were already resolved by the decision and the separate opinion. 2. The administrative matter he brought invoked the Courts power of supervision over the JBC as provided by Section 8(1), Article VIII of the Constitution, as distinguished from the Courts adjudicatory power under Section 1, Article VIII. In the former, the requisites for judicial review are not required, which was whyValenzuela was docketed as an administrative matter. Considering that the JBC itself has yet to take a position on when to submit the short list to the proper appointing authority, it has effectively solicited the exercise by the Court of its power of supervision over the JBC. 3. To apply Section 15, Article VII to Section 4(1) and Section 9, Article VIII is to amend the Constitution. 4. The portions of the deliberations of the Constitutional Commission quoted in the dissent of Justice Carpio Morales, as well as in some of the motions for reconsideration do not refer to either Section 15, Article VII or Section 4(1), Article VIII, but to Section 13, Article VII (on nepotism). Ruling We deny the motions for reconsideration for lack of merit, for all the matters being thereby raised and argued, not being new, have all been resolved by the decision of March 17, 2010. Nonetheless, the Court opts to dwell on some matters only for the purpose of clarification and emphasis. First: Most of the movants contend that the principle of stare decisis is controlling, and accordingly insist that the Court has erred in disobeying or abandoning Valenzuela. The contention has no basis.

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Stare decisis derives its name from the Latin maxim stare decisis et non quieta movere, i.e., to adhere to precedent and not to unsettle things that are settled. It simply means that a principle underlying the decision in one case is deemed of imperative authority, controlling the decisions of like cases in the same court and in lower courts within the same jurisdiction, unless and until the decision in question is reversed or overruled by a court of competent authority. The decisions relied upon as precedents are commonly those of appellate courts, because the decisions of the trial courts may be appealed to higher courts and for that reason are probably not the best evidence of the rules of law laid down. Judicial decisions assume the same authority as a statute itself and, until authoritatively abandoned, necessarily become, to the extent that they are applicable, the criteria that must control the actuations, not only of those called upon to abide by them, but also of those duty-bound to enforce obedience to them. In a hierarchical judicial system like ours, the decisions of the higher courts bind the lower courts, but the courts of co-ordinate authority do not bind each other. The one highest court does not bind itself, being invested with the innate authority to rule according to its best lights. The Court, as the highest court of the land, may be guided but is not controlled by precedent. Thus, the Court, especially with a new membership, is not obliged to follow blindly a particular decision that it determines, after re-examination, to call for a rectification. The adherence to precedents is strict and rigid in a common-law setting like the United Kingdom, where judges make law as binding as an Act of Parliament. But ours is not a common-law system; hence, judicial precedents are not always strictly and rigidly followed. A judicial pronouncement in an earlier decision may be followed as a precedent in a subsequent case only when its reasoning and justification are relevant, and the court in the latter case accepts such reasoning and justification to be applicable to the case. The application of the precedent is for the sake of convenience and stability. For the intervenors to insist that Valenzuela ought not to be disobeyed, or abandoned, or reversed, and that its wisdom should guide, if not control, the Court in this case is, therefore, devoid of rationality and foundation. They seem to conveniently forget that the Constitution itself recognizes the innate authority of the Court en banc to modify or reverse a doctrine or principle of law laid down in any decision rendered en banc or in division.

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Second: Some intervenors are grossly misleading the public by their insistence that the Constitutional Commission extended to the Judiciary the ban on presidential appointments during the period stated in Section 15, Article VII. The deliberations that the dissent of Justice Carpio Morales quoted from the records of the Constitutional Commission did not concern either Section 15, Article VII or Section 4(1), Article VIII, but only Section 13, Article VII, a provision on nepotism. The records of the Constitutional Commission show that Commissioner Hilario G. Davide, Jr. had proposed to include judges and justices related to the President within the fourth civil degree of consanguinity or affinity among the persons whom the President might not appoint during his or her tenure. In the end, however, Commissioner Davide, Jr. withdrew the proposal to include the Judiciary in Section 13, Article VII "(t)o avoid any further complication," such that the final version of the second paragraph of Section 13, Article VII even completely omits any reference to the Judiciary, to wit: Section 13. xxx 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 their subsidiaries. Last: The movants take the majority to task for holding that Section 15, Article VII does not apply to appointments in the Judiciary. They aver that the Court either ignored or refused to apply many principles of statutory construction. The movants gravely err in their posture, and are themselves apparently contravening their avowed reliance on the principles of statutory construction. For one, the movants, disregarding the absence from Section 15, Article VII of the express extension of the ban on appointments to the Judiciary, insist that the ban applied to the Judiciary under the principle of verba legis. That is self-contradiction at its worst.

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Another instance is the movants unhesitating willingness to read into Section 4(1) and Section 9, both of Article VIII, the express applicability of the ban under Section 15, Article VII during the period provided therein, despite the silence of said provisions thereon. Yet, construction cannot supply the omission, for doing so would generally constitute an encroachment upon the field of the Constitutional Commission. Rather, Section 4(1) and Section 9 should be left as they are, given that their meaning is clear and explicit, and no words can be interpolated in them. Interpolation of words is unnecessary, because the law is more than likely to fail to express the legislative intent with the interpolation. In other words, the addition of new words may alter the thought intended to be conveyed. And, even where the meaning of the law is clear and sensible, either with or without the omitted word or words, interpolation is improper, because the primary source of the legislative intent is in the language of the law itself. Thus, the decision of March 17, 2010 has fittingly observed: Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court. We cannot permit the meaning of the Constitution to be stretched to any unintended point in order to suit the purposes of any quarter. Final Word It has been insinuated as part of the polemics attendant to the controversy we are resolving that because all the Members of the present Court were appointed by the incumbent President, a majority of them are now granting to her the authority to appoint the successor of the retiring Chief Justice. The insinuation is misguided and utterly unfair.

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The Members of the Court vote on the sole basis of their conscience and the merits of the issues. Any claim to the contrary proceeds from malice and condescension. Neither the outgoing President nor the present Members of the Court had arranged the current situation to happen and to evolve as it has. None of the Members of the Court could have prevented the Members composing the Court when she assumed the Presidency about a decade ago from retiring during her prolonged term and tenure, for their retirements were mandatory. Yet, she is now left with an imperative duty under the Constitution to fill up the vacancies created by such inexorable retirements within 90 days from their occurrence. Her official duty she must comply with. So must we ours who are tasked by the Constitution to settle the controversy. ACCORDINGLY, the motions for reconsideration are denied with finality. SO ORDERED.

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G.R. No. 78946 April 15, 1988 DR. NENITA PALMA-FERNANDEZ, petitioner, vs. DR. ADRIANO DE LA PAZ, DR. SOSEPATRO AGUILA, and THE SECRETARY OF HEALTH, respondents. MELENCIO-HERRERA, J.: This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita PalmaFernandez, claiming entitlement to the position of Assistant Director for Professional Services at the East Avenue Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by private respondent, Dr. Sosepatro Aguila. The background facts follow: On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then Minister of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin. Previous to this appointment, petitioner, a career physician, occupied the positions of Medical Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her appointment as Chief of Clinics on 1 May 1985. Even during her incumbency as Medical Specialist II, petitioner was already designated as Acting Chief of Clinics since September 1983 up to her permanent appointment to said position. As Chief of Clinics, petitioner exercised direct control and supervision over all heads of departments in the Medical Center In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics to Assistant Director for Professional Services. In partial implementation of this new set-up, respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30, Series of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional Services (Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control and supervision over all heads of departments in the Medical Center.

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On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the Ministry of Health" was promulgated. On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr. Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services "vice Dr. Nenita PalmaFernandez, who will be transferred to the Research Office." (Hospital Order No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the interest of the hospital service." On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by respondent De la Paz, whereby petitioner was relieved "of her present duties and responsibilities as Chief of Clinic and hereby transferred to the Research Office. This order being issued in the interest of the hospital service. Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as well as to the Commissioner of Civil Service and the Chairman of the Government Reorganization Commission. Failing to secure any action on her protest within a month's time, petitioner filed on 8 July 1987 the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr. de la Paz, Dr. Aguila, and the Secretary of Health. On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the implementation of Hospital Orders Nos. 21 and 22, series of 1987. After considering and deliberating on all Comments, the Reply, and the Rejoinder of the Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to the Petition, and dispensing with memoranda, declared the case submitted for resolution. The Solicitor General has aptly framed the issues for resolution as follows: 1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital Orders in question; 2. Whether or not petitioner has a valid cause of action; and

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3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the instant Petition. The Solicitor General, on behalf of the Secretary of Health, makes common cause with petitioner and answers the first and third issues in the negative, and the second in the affirmative. For their part, Respondents De la Paz and Aguila uphold the opposite views. We rule for petitioner. 1. Since the East Avenue Medical Center is one of the National Health Facilities attached to the Department of Health, the power to appoint and remove subordinate officers and employees, like petitioner, is vested in the Secretary of Health, not the Medical Center Chief. The latter's function is confined to recommendation. Thus, Section 79 (D). of the Revised Administrative Code provides: Section 79 (D). Power to appoint and remove. The Department Head, upon the recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate officers and employees whose appointment is not expressly vested by law in the President of the Philippines, and may remove or punish them, except as especially provided otherwise, in accordance with the Civil Service Law... The Department Head also may, from time to time, in the interest of the service, change the distribution among the several bureaus and offices of his Department of the employees or subordinates authorized by law. Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise states: SEC. 26. New Structure and Pattern... The new position structure and staffing pattern of the Ministry shag be prescribed by the Minister within one hundred twenty (120) days from the approval of this executive order subject to approval by the Office of Compensation and Classification and the authorized positions created thereunder shall be filled

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thereafter with regular appointments by him or the President, as the case may be as herein provided... Respondent Medical Center Chiefs argument that petitioner was not appointed but was merely transferred in the interest of the public service to the Research Office pursuant to Section 24 (c) of Presidential Decree No. 807, or the Civil Service Decree of the Philippines will not alter the situation. Even a transfer requires an appointment, which is beyond the authority of respondent Medical Center Chief to extend, supra. Besides, the transfer was without petitioner's consent, was tantamount to removal without valid cause, and as such is invalid and without any legal effect (Garcia, et al. vs. Lejano, et al., 109 Phil. 116). A removal without cause is violative of the Constitutional guarantee that "no officer or employee of the civil service shall be removed or suspended except for cause provided by law" (Article IX, B, Section 2(3),1987 Constitution). Petitioner's "designation" as Assistant Director for Professional Services on 8 August 1986 in accordance with the organizational structure of the Department of Health under Hospital Order No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her occupancy of that position temporary in character. It bears stressing that the positions of Chief of Clinics and Assistant Director for Professional Services are basically one and the same except for the change in nomenclature. Petitioner's permanent appointment on 1 May 1985 to the position of Chief of Clinics, therefore, remained effective. Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom Constitution and its Implementing Rules and Regulations embodied in Executive Order No. 17, Series of 1986. The relevant provision was effective only "within a period of one year from February 25, 1 986." The Hospital Orders in question were issued only on 29 May, 1987. Executive Order No. 119, or the 'Reorganization Act of the Ministry of Health" promulgated on 30 January 1987, neither justifies petitioner's removal. The pertinent provision thereof reads: Sec. 26. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry shall, in a holdover capacity, continue to perform their

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respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to Executive Order No. 17 (1986) or Article III of the Freedom Constitution. The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she continued in the performance of her duties merely in a hold over capacity and could be transferred to another position without violating any of her legal rights, is untenable. The occupancy of a position in a hold over capacity was conceived to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but advanced to 2 February 1987 when the 1987 Constitution became effective (De Leon, et al. vs. Hon. Benjamin B. Esquerra, et al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure govern. And while it may be that the designation of respondent Aguila as Assistant Director for Professional Services and the relief of petitioner from the said position were not disapproved by respondent Secretary of Health, it by no means implies that the questioned acts of respondent Medical Center Chief were approved by the former official. 2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota vs. Court of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715). 3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from seeking judicial relief This rule is not a hard and fast one but admits of exceptions among which are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is 'patently illegal" (Carino vs. ACCFA, No. L-19808, September 29,1966,18 SCRA 183). The questions involved here are purely legal. The subject Hospital Orders violated petitioner's constitutional right to security of in tenure and were, therefore, "patently illegal." Judicial intervention was called for to enjoin the implementation of the controverted acts. There was substantial compliance by petitioner with the requirement of exhaustion of administrative remedies since she had filed a letter-protest

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With the respondent Secretary of Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the Government Reorganization Commission, but the same remained unacted upon and proved an inadequate remedy. Besides, an action for quo warranto must be filed within one year after the cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of administrative remedies does not operate to suspend the running of the one-year period (Cornejo vs. Secretary of Justice L-32818, June 24, 1974, 57 SCRA 663). WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita Palma-Fernandez, is hereby held entitled to the position of Assistant Director of Professional Services of the East Avenue Medical Center up to the expiration of her term. The Temporary Restraining Order heretofore issued enjoining the implementation of Hospital Orders Nos. 21 and 22, both dated 29 May 1987, is hereby made permanent. SO ORDERED.

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[G.R. No. 146873. May 9, 2002]

REMEDIOS PASTOR, petitioner, vs. CITY OF PASIG, MAYOR VICENTE EUSEBIO, THE COURT OF APPEALS (15th Division), and the CIVIL SERVICE COMMISSION, respondents. DECISION
MENDOZA, J.:

Petitioner Remedios Pastor is Budget Officer of the Municipality (now City) of Pasig. In 1992, she was reassigned to the Office of the Municipal Administrator pending investigation of reports against her concerning the issuance of Advice of Allotments by her. In 1995, after three years with no case filed against her, she asked for reinstatement to her former position. But she was instead reassigned to another unit of the now city government. Upon her complaint, the Civil Service Commission ordered her reinstatement as Budget Officer of the City of Pasig. However, on appeal of the city government, the Court of Appeals set aside the decision of the Civil Service Commission (CSC). Hence this petition for certiorari. The question is whether the decision of the Court of Appeals should be set aside and that of the CSC reinstated. We answer the question in the affirmative. The facts are as follows: Petitioner Remedios Pastor was appointed Budget Officer of the then Municipality (now City) of Pasig on May 1, 1986. Her appointment was confirmed by the Department of Budget and Management on July 17, 1987. On July 6, 1992, the newly-elected Mayor of Pasig, Vicente P. Eusebio, issued a memorandum relieving petitioner from her position as Municipal Budget Officer and reassigning her to the Office of the Municipal Administrator of Pasig. The Mayors order stated:

In view of the adverse report of the Committee on Budget that you issued Advice of Allotments without sufficient cash collections and pending thorough investigation there[on], you are hereby relieved of your position as Municipal Budget Officer and temporarily detailed [sic] with the Office of the Municipal Administrator. Upon receipt hereof, you are hereby directed to turn over all records, properties, and responsibilities to MR. EDENISON FAINSAN who is hereby designated as OfficerIn-Charge, Municipal Budget Officer. In this connection, you are hereby ordered to report to the Office of the Municipal Administrator for temporary assignment. This order is issued in the interest of public service and shall take effect immediately.

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On March 6, 1995, Mayor Eusebio issued another memorandum (Memorandum Order No. 06-95) directing petitioner to conduct an in-depth evaluation/study of the operations of the Pasig City Hall Annex. Alleging that since her relief as Budget Officer, no investigation had been conducted regarding the charge that she had issued Advice of Allotments without sufficient cash collections, petitioner filed on October 20, 1995 a complaint with the CSC. She contended that her protracted detail to the Office of the City Administrator and the deletion of her name from the payroll for the City Budget Office for the period October 1-15, 1995 were in violation of Civil Service laws, rules, and regulations and that they constituted oppression and abuse of authority on the part of Mayor Eusebio. Petitioner prayed for her reinstatement as City Budget Officer of Pasig and for an order enjoining Mayor Eusebio from designating another person to that petition. On December 6, 1995, Pasig City Administrator Atty. Reynaldo P. Dionisio issued a memorandum directing petitioner in the exigency of the service, in addition to your present duties, to [conduct a] study on how to improve budgeting and disbursement procedures of city funds, as well as [a] study on how to enhance the revenue of the city in preparation [for] the adverse effects of the Supreme Court Ruling on Realty Tax against the City of Pasig. In his comment on petitioners complaint before the CSC, respondent City Mayor alleged, among other things, that petitioner had been reassigned to the Office of the Municipal (now City) Administrator in view of her long years of experience in finance and [that she had been] tasked to conduct studies best suited to her qualifications; that instead of being suspended for issuing Advice of Allotments without sufficient cash collections, she was reassigned for her professional productive growth [and for the benefit] of the city; that her reassignment was in the best interest of the service and did not involve any diminution of salary or rank as a department head; and that the deletion of petitioners name from the payroll for October 15, 1995 was due to a management directive that every personnel should be in the payroll of actual office assignment and that in fact petitioner received her salary for that period and continued to receive the salary and benefits attached to her position. In its Resolution No. 96-1190, dated February 5, 1996, the CSC ordered:

WHEREFORE, the appeal of Remedios Pastor is hereby found meritorious. She should already be returned to her former position or assigned to an office where she can perform as head of a department.
The CSC held that, while petitioners reassignment was originally made in the exigency of the service without reduction in her rank, status, or salary, respondent City Mayor failed to advance sufficient reason to warrant petitioners continuous reassignment for more than three years which appears too long for one to conduct the study assigned to her. Respondent City of Pasig did not ask for reconsideration of Resolution No. 961190. Instead, apparently in compliance with the same, it designated petitioner head of the Pasig City Hall Annex, Karangalan, Pasig City. But petitioner was not satisfied. She asked the CSC for a clarification of its Resolution. She alleged that there was no position of Head of Pasig City Hall Annex in the plantilla of the city government nor an ordinance creating the Office of

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Pasig City Hall Annex which, she claimed, was in fact just a small bungalow -type building located at Karangalan Village, Barangay Manggahan, Pasig City, manned by one (1) representative each from about five (5) departments who report directly to their respective Department Heads at the Pasig City Hall. Hence, there was really nothing for her to oversee. In its Resolution No. 97-2845, dated May 20, 1997, the CSC found petitioners reassignment to the Pasig City Hall Annex to be not in compliance with its decision. It held that the so-called Pasig City Hall Annex was not a department of the City Government of Pasay but a mere extension of the City Hall. The CSC also cited the fact that under Municipal Ordinance No. 0192 of the City, it was the Vice-Mayor who was Officer-in-Charge of the extension office. The CSC ordered further reassignments of petitioner to other offices be stopped since [she] has been out of her official station as Budget Officer for such a long time. Respondent Mayor Eusebio moved for a reconsideration, arguing that (1) the Pasig City Hall Annex was, for all intents and purposes, a department of the Pasig local government and (2) Municipal Ordinance No. 01-92 had been amended and now provides that the officer-in-charge of the Pasig City Hall Annex shall be either the Vice-Mayor or a department head or official of equivalent rank. His motion was denied, however, by the CSC in its Resolution No. 990200. The CSC held that the position of Head of the Pasig City Hall Annex was not equivalent to the position of City Budget Officer because the Annex was not a line department. Petitioner then wrote Mayor Eusebio informing him of her intention to resume her duties as City Budget Officer. She was advised, however, to wait because the city government intended to appeal the decision of the CSC. Respondent City of Pasig then filed with the Court of Appeals a petition, denominated for writ of certiorari, under Rule 43 of the 1997 Rules of Civil Procedure, impleading only the Civil Service Commission as respondent. On January 15, 1999, the appeals court rendered a decision, the dispositive portion of which reads:

WHEREFORE, the assailed Resolution (No. 99-0200) of the Civil Service Commission dated January 15, 1999 is SET ASIDE and RECALLED.
The appeals court held that petitioners reassignment, first to the Office of the Municipal (now City) Administrator and later as head of the Pasig City Hall Annex, was a valid exercise of the extraordinary powers of the respondent City Government. It pointed out that the reassignment to the Office of the Municipal Administrator was only temporary in nature and that, in designating petitioner as head of the City Hall Annex, the city government had substantially complied with Resolution No. 96-1190 of the CSC:

The City Hall Annex was a creation of Municipal Ordinance (No. 01-92) dated January 22, 1992 to bring the services of the government expeditiously and efficiently to the residents of Manggahan, Dela Paz, and Santolan, Pasig City. There was no reduction of [petitioners] rank, status, or salary. The officer-in-charge shall either be the Vice-Mayor [or] a department head or official of equivalent rank (Ordinance No. 22, Series of 1997. See: Annex D) It is, according to [respondents], a small version of the Pasig City Hall. [Petitioners] power was that of a department head exercising

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general supervision, direction, and control over the operations of the postal services, library, Office of the Civil Registry, Police Headquarters, Offices of the Treasurer and Assessor, Engineering and Building Office [and the] Community Relation and Information Office. She was to oversee the payment of fees/revenues and communication facilities, and provided with sufficient funds for its operation and maintenance. (Municipal Ordinance No. 01-92, Annex E, Petition) [Respondents] therefore had advanced sufficient reasons to warrant [petitioners] assignment as head of the Pasig City Hall Annex in Manggahan, Pasig City pursuant to resolution No. 961190.
On January 29, 2001, the Court of Appeals denied the CSCs motion for extension of time to file a motion for reconsideration on the ground that the same is not allowed under its internal rules. Petitioner filed this petition alleging that
I. THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT HAD TAKEN COGNIZANCE AND PASSED JUDGMENT ON THE CIVIL SERVICE COMMISSIONS ORDER PARTICULARLY CSC RES. NO. 990200, WHICH WAS A MERE CLARIFICATORY ORDER OF CSC RESOLUTION NO. 961190 WHICH HAD LONG ATTAINED FINALITY AND EXECUTORY CHARACTER AFTER THE LAPSE OF THE 15-DAY REGLEMENTARY PERIOD AND NO [MOTION FOR] RECONSIDERATION WAS EVER FILED BY THE RESPONDENT CITY OF PASIG AND THUS FAILED TO CONSIDER THE LATTERS OBLIGATION (COMPELLABLE BY MANDAMUS) TO COMPLY WITH THE SUBJECT CSC RESOLUTIONS. II. THE RESPONDENT APPELLATE COURT HAS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT FAILED TO CONSIDER THAT THE RESPONDENT CITY OF PASIG NOT BEING THE PERSON ADVERSELY AFFECTED [BY] THE CSC RESOLUTION NO. 961190 AND OTHER CLARIFICATORY RESOLUTIONS HAS NO RIGHT NOR PERSONALITY TO APPEAL AND/OR ASSAIL VIA CERTIORARI IN SAID CA-G.R. S.P. NO. 51098 ASSAILING THE CSC RESOLUTIONS/ORDER FOR THE REINSTATEMENT OF THE HEREIN PETITIONER TO HER PREVIOUS POSITION AS CITY BUDGET OFFICER. III. WITHOUT PREJUDICE TO GROUND NO. 2, ABOVE STATED, THE RESPONDENT COURT OF APPEALS HAS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT DID NOT DISMISS RESPONDENT CITY OF PASIGS PETITION IN C.A. G.R. S.P. NO. 51098 FOR FAILURE TO IMPLEAD AND/OR EVEN JUST FURNISH A COPY TO THE HEREIN PETITION OF THEIR SAID PETITION DESPITE THE FACT THAT PETITIONER IS A NECESSARY AND INDISPENSABLE PARTY [WHICH CONSTITUTES] A GROSS VIOLATION OF DUE PROCESS.

Petitioner prays that the decision of the Court of Appeals be set aside and that a writ of mandamus be issued for the enforcement of CSC Resolution Nos. 96-1190, 97-2845, and 990200. The Court finds for petitioner Remedios Pastor.

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Appeals from the decisions or final orders of the Civil Service Commission to the Court of Appeals should be by a petition for review pursuant to Rule 43 of the 1997 Rules of Civil Procedure. As provided by 5 thereof, a copy of the petition should be served on the adverse party and on the Civil Service Commission. Section 6(a) provides that the petition should state the full names of the parties to the case without impleading the Civil Service Commission either as petitioner or respondent. Section 7 provides that the failure of the petitioner to comply with any of the foregoing requirements regarding proof of service and the contents of the petition is a sufficient ground for the dismissal of the same. The petition for writ of certiorari filed by respondent city government should therefore have been dismissed for its failure to implead petitioner as the adverse party and to serve a copy of the petition on her. We do not agree with petitioners contention, however, that respondent City of Pasig did not have the requisite personality to file the petition in the Court of Appeals. Petitioner cites our ruling in University of the Philippines v. Civil Service Commission in support of her counterclaim that the phrase party adversely affected in P.D. No. 807, 39 refers only to the person or the respondent employee against whom the administrative disciplinary case is filed. Petitioners contention is without merit. The ruling cited, first made in Paredes v. Civil Service Commission, does not apply since it refers to administrative disciplinary cases, which this case is not. Moreover, said ruling has already been modified in Civil Service Commission v. Dacoycoy, so that appeal now lies from a decision exonerating a civil service employee of administrative charges. We turn now to the merits of the case. Book V, Title I, Subtitle A, 26(7) of Executive Order No. 292, otherwise known as the Administrative Code of 1987, provides:

Reassignment. An employee may be reassigned from one organizational unit to another in the same agency: Provided, That such reassignment shall not involve a reduction in rank, status, or salary.
It has been held that a reassignment that is indefinite and results in a reduction in rank, status, and salary is in effect a constructive removal from the service. In this case, contrary to the ruling of the Court of Appeals, petitioners reassignment to different offices in the local government of Pasig City is indefinite. Petitioner has been on virtual floating assignments which cannot but amount to a diminution of her rank, hence impermissible under the law. As already noted, her reassignment began in 1992 with her detail to the Office of the (now) City Administrator pending investigation of reports that she had issued Advice of Allotments without sufficient cash collections. However, no investigation appears to have ever been conducted on the said charge. To justify her continuing reassignment, respondent City Mayor claimed that the same was due to petitioners long years of experience in finance which especially fitted her for studies regarding the citys revenues. A similar justification was invoked in Gloria v. Court of Appeals for the reassignment of Dr. Bienvenido Icasiano, Superintendent of the Division of City Schools of Quezon City as Vocational School Superintendent of the Marikina Institute of Science and Technology. It was contended that the reassignment would best fit his qualification and experience as an expert in vocational and technical education. Considering the reason given for the reassignment, it was

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held that the same was more than [merely] temporary and hence violative of Dr. Icasianos security of tenure. For the same reason, petitioners reassignment to various offices should be considered more than merely a temporary one. For all intents and purposes, her reassignment, lasting nearly ten years now, is a removal without cause as Budget Officer of the City of Pasig. Indeed, her duties in her new assignment as head of the Pasig City Hall Annex
1. Oversee the operation of all units in the City Hall Annex and submit weekly accomplishment reports to the City Mayor; 2. Institute measures to improve collections of all income-generating units and submit periodic progress reports with specific recommendations to the City Mayor through the City Administrator; 3. Prepare and submit the annual budget of City Hall Annex for inclusion in the regular city budget; 4. Prepare a sound personnel program to promote careerism and staff development; and 5. Perform other duties that may be assigned by the City Mayor or Ordinance-

show the more than temporary nature of her reassignment. That she has suffered a diminution in her rank is also evident. Under 30 of the Charter of the City of Pasig, her duties and functions as City Budget Officer are to:

(c) . . . take charge of the City Budget Office, and . . . (1) Prepare forms, orders, and circulars embodying instructions on budgetary and appropriation matters for the signature of the city mayor; (2) Review and consolidate the budget proposals of different departments and offices of the City; (3) Assist the city mayor in the preparation of the budget and during budget hearings; (4) Study and evaluate budgetary implications of proposed legislation and submit comments and recommendations thereon; (5) Submit periodic budgetary reports to the Department of Budget and Management; (6) Coordinate with the city treasurer, the city accountant, and the city planning and development coordinator for the purpose of budgeting; (7) Assist the sangguniang panlungsod in reviewing the approved budgets of component barangays of the City;

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(8) Coordinate with the city planning and development coordinator in the formulation of the development plan of the City; and (9) Perform such other duties and functions and exercise such other powers as provided for under Republic Act No. 7160, otherwise known as the Local Government Code of 1991, and those that are prescribed by law or ordinance.
In contrast, as head of the Pasig City Hall Annex, petitioners budget proposals for the same will be subject to review by the City Budget Officer. Moreover, the position of City Budget Officer is created by statute, while that of the head of the Pasig City Hall Annex is created by mere ordinance. We agree with the CSC that petitioner should now be returned to her original position for her indefinite detail to other positions would amount to her removal without cause from the position to which she has been permanently appointed. As we said in Cruz v. Navarro:

There is no question that we recognize the validity and indispensable necessity of the well established rule that for the good of public service and whenever public interest demands, [a] public official may be temporarily assigned or detailed to other duties even over his objection without necessarily violating his fundamental and legal rights to security of tenure in the civil service. But as we have already stated, such cannot be undertaken when the transfer of the employee is with a view to his removal and if the transfer is resorted to as a scheme to lure the employee away from his permanent position because such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service.
WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals is SET ASIDE. Respondent City of Pasig is ordered to forthwith REINSTATE petitioner Remedios Pastor to her original position as Budget Officer of the City of Pasig. SO ORDERED.

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[G.R. No. 130872. March 25, 1999]

FRANCISCO M. LECAROZ vs. SANDIGANBAYAN PHILIPPINES,respondents.

and and

LENLIE LECAROZ, petitioners, PEOPLE OF THE

DECISION
BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of thirteen (13) counts of estafa through falsification of public documents. They now seek a review of their conviction as they insist on their innocence. Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays. In the 1985 election for the Kabataang Barangay Jowil Red won as KB Chairman of Barangay Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz did not run as candidate in this electoral exercise as he was no longer qualified for the position after having already passed the age limit fixed by law. Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his appointment papers would be sent to him in due time through the KB Regional Office. Red received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz. On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram was included in the agenda as one of the subjects discussed in the meeting. Red finally received his appointment papers sometime in January 1986. But it was only on 23 April 1986, when then President Corazon C. Aquino was already in power, that he forwarded these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian. Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenascovering the period 16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986

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and then authorized someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf. On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz. Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz alone. On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa through falsification of public documents and sentenced each of them to a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES; b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000), and c) perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal Code.

x x x (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality of Sta. Cruz, Marinduque in restitution.
The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as such, was no longer the legitimate representative of the youth sector in the municipal council of Sta. Cruz, Marinduque. In convicting both accused on the falsification charges, the Sandiganbayan elucidated -

x x x x when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period starting January 15, 1986, reinstating accused LENLIE LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE LECAROZ was a member of the

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Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself no longer attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did not personally pick up his salaries anymore. The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads: Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. - The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary public who, taking advantage of his official position, shall falsify a document by committing any of the following acts: x x x x 4. Making untruthful statements in a narration of facts.
xxxx

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ. Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from the municipality to which he was not entitled for services he had admittedly not rendered. This constitutes Estafa x x x x the deceit being the falsification made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not entitled thereto. Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently substantiated by the evidence presented. There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He could not have had any other purpose than to enable his son LENLIE to draw salaries thereby. This conclusion is inescapable considering that the very purpose of a payroll is precisely that -- to authorize the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the salaries during the periods covered, albeit through another person whom he had authorized. By the facts proven, there was conspiracy in the commission of Estafa between father and son.
However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3.019, the Sandiganbayan acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB because he was not properly appointed thereto nor had he shown to the

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mayor sufficient basis for his alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume the position of Kagawad. On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the accused. This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan erred: First, in holding that Red had validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assemblywoman Carmencita Reyes on 27 September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term of office as KB representative to the SB had accordingly expired; Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a holdover capacity, despite the vacancy therein; Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from continuing in office as KB Sectoral Representative to the SB even in a holdover capacity; Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity; Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they had been convicted required criminal intent and malice as essential elements; Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the trial court erred in not holding - considering the difficult legal questions involved that the accused acted in good faith and committed merely an error of judgment, without malice and criminal intent; and, Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the Information under which the accused were arraigned and tried. The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold over after his term expired because pertinent laws do not provide for holdover. To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide -

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Sec. 7. Term of Office. - Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. In the case of the members of the sanggunian representing the association of barangay councils and the president of the federation of kabataang barangay, their terms of office shall be coterminous with their tenure is president of their respective association and federation .
xxxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November 1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this Constitution.
The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an authenticated copy of his appointment papers; neither did he take a valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already expired. The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB. We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does not also say that he is proscribed from holding over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, otherwise it is reasonable to assume that the law-making body favors the same. Indeed, the law abhors a vacuum in public offices, and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy and to avoid a hiatus in the performance of government functions.

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The Sandiganbayan maintained that by taking his oath of office before Assemblywoman Reyes in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should be noted however that under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not authorized to administer oaths. It was only after the approval of RA No. 6733on 25 July 1989 and its subsequent publication in a newspaper of general circulation that members of both Houses of Congress were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all. To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, or at least a de facto officer entitled to receive the salaries and all the emoluments appertaining to the position. As such, he could not be considered an intruder and liable for encroachment of public office. On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which liability attaches only when it is shown that the malefactors acted with criminal intent or malice.If what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. Was criminal intent then demonstrated to justify petitioners' conviction? It does not so appear in the case at bar. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of a duty or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners. First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee MarcosManotoc informing him of his supposed appointment to the SB, together with a photocopy of a "Mass Appointment." Without authenticated copies of the appointment papers, Red had no right to assume office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz had every right to withhold recognition, as he did, of Red as a member of the Sanggunian. Second. It appears from the records that although Red received his appointment papers signed by President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during which time President Marcos had already been deposed and

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President Aquino had already taken over the helm of government. On 25 March 1986 the Freedom Constitution came into being providing in Sec. 2 of Art. III thereof that -

Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by. proclamation or executive order or upon the designation of their successors if such appointment is made within a period of one (1) year from February 26, 1986 (underscoring supplied).
Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos. The response was the issuance of MILG Provincial MemorandumCircular No. 86-02 and Memorandum-Circular No. 86-17 stating that -

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02 2. That newly elected KB Federation Presidents, without their respective authenticated appointments from the president, cannot, in any way, represent their associations in any sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of their federations by virtue of the July 1985 elections. MEMORANDUM CIRCULAR NO. 86-17 It is informed, however, that until replaced by the Office of the President or by this Ministry the appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to receive compensation due them under existing laws, rules and regulations.
The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President herself or by the Interior Ministry. Explicit therein was the caveat that newly elected KB Federation Presidents could not assume the right to represent their respective associations in any Sanggunian unless their appointments were authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian. Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. This consistently expressed the view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of office in a statute without an express prohibition against holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor a vacancy in the government. Reliance by petitioners on these opinions, as well as on the pertinent directives of the then Ministry of

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Interior and Local Government, provided them with an unassailable status of good faith in holding over and acting on such basis; and, Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the community, would deliberately blemish his good name, and worse, involve his own son in a misconduct for a measly sum of P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario

If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a father to protect my own son and the desire, basic in every man, to preserve one's honor and reputation would suggest a resounding NO to both questions. But the prosecution ventured to prove in these thirteen cases that precisely because they were father and son and despite the relatively small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal payrolls for the purpose of swindling their own town of the amount of P1,894.00 a month, and the majority has found them guilty. I find discomfort with this verdict basically for the reason that there was no criminal intent on their part to falsify any document or to swindle the government.
The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. In Cabungcal v. Cordova we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official. We reiterated this principle in Mabutol v. Pascual which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith. In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances which purportedly indicated criminal intent. It pointed out that the name of accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve and a half (12 -1/2) months was for no other purpose than to enable him to draw salaries from the municipality. There is however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is significant that while Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas,and not merely for the second half of the month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the succeeding payroll period, as held by the court a quo. From all indications, it is possible that the omission was due to the inadequate documentation of Red's appointment to and assumption of office, or the result of a mere clerical

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error which was later rectified in the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a doubt is now created about the import of such omission, the principle of equipoise should properly apply. This rule demands that all reasonable doubt intended to demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. Petitioners have been convicted for falsification of public documents through an untruthful narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be established, the following elements must concur: (a) the offender makes in a document statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person. The first and third elements of the offense have not been established in this case. In approving the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus -

I hereby certify on my official oath that the above payroll is correct, and that the services above stated have been duly rendered. Payment for such services is also hereby approved from the appropriations indicated.
When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of this kind cannot constitute the crime of false pretenses. In People v. Yanza we ruled -

Now then, considering that when defendant certified she was eligible for the position, she practically wrote a conclusion of law which turned out to be inexact or erroneous not entirely groundless - we are all of the opinion that she may not be declared guilty of falsification, specially because the law which she has allegedly violated (Art. 171, Revised Penal Code, in connection with other provisions), punishes the making of untruthful statements in a narration of facts - emphasis on facts x x x x Unfortunately, she made a mistake of judgment; but she could not be held thereby to have intentionally made a false statement of fact in violation of Art. 171 above-mentioned.
The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of holdover. La mera inexactitude no es bastante para integrar este delito. If the statements are not altogether false, there being some colorable truth in them, the crime of falsification is deemed not to have been committed.

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Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case. The court a quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries. These are not legally acceptable indicia, for they are the very same acts alleged in the Informations as constituting the crime of estafa through falsification. They cannot qualify as proof of complicity or unity of criminal intent. Conspiracy must be established separately from the crime itself and must meet the same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together however, the evidence must reasonably be strong enough to show community of criminal design. Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of conspiracy, the Sandiganbayan stressed that the two accused are father and son. Granting that this is not even ad hominem, we are unaware of any presumption in law that a conspiracy exists simply because the conspirators are father and son or related by blood. WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos. 1390413916). The bail bonds posted for their provisional liberty are cancelled and released. Costs de oficio. SO ORDERED.

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G.R. No. 88183 October 3, 1990 ISABELO J. ASTRAQUILLO, petitioner, vs. RAUL MANGLAPUS, THE BOARD OF FOREIGN SERVICE ADMINISTRATION (Manuel T. Yan, Jose D. Ingles,* Rosalinda V. Tirona Ernesto Garrido, Felipe Mabilangan, Jorge Coquia, Edgardo Kalaw, Federico Macaranas, Purificacion Quisumbing, ** Israel Bocobo, Faustino David, members), and DONATO FELICIO, respondents. G.R. No. 88467 October 3, 1990 ALUNAN C. GLANG petitioner, vs. RAUL S. MANGLAPUS, Secretary of Foreign Affairs, respondent. G.R. No. 88672 October 3, 1990 ALEJANDRO MELCHOR, JR., petitioner, vs. RAUL S. MANGLAPUS, Secretary of Foreign Affairs; Undersecretary of Foreign Affairs and Chairman of the Board of Foreign Service Administration MANUEL T. YAN; FELIPE MABILANGAN, Coordinator of the BFSA; ROSALINDA V. TIRONA, Director General of the Office of Personnel Administration; ERNESTO GARRIDO, Director General of Financial Management Services; JORGE COQUIA, Legal Adviser; all members of BFSA; and CATALINO MACARAIG, JR., Executive Secretary, respondents. G.R. No. 88781 October 3, 1990 ISABELO J. ASTRAQUILLO, petitioner, vs. FORTUNATO D. OBLENA, respondent. G.R. No. 88916 October 3, 1990 ALEJANDRO MELCHOR, JR., petitioner, vs. JUAN SAEZ, respondent.

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NARVASA, J.: As the caption indicates, this decision deals with five cases. The cases have been consolidated and jointly considered because they all turn upon a common legal issue, i.e., the validity of the termination, by authority of the President of the Philippines, of the petitioners' appointments as "political" or "non-career" members of the country's Foreign Service. Stated otherwise, the common issue is whether or not their service as Philippine diplomats was under the circumstances, at the pleasure of the president, terminable without cause or need of investigation. G.R. Nos. 88183 and 88781: Isabelo Astraquillo Astraquillo was appointed by the President of the Philippines on July 22,1986 as Ambassador Extraordinary and Plenipotentiary and Chief of Mission (II) to the United Arab Emirates (UAE). After he had occupied the post for two years or so, a confidential memorandum was filed with the Home Office by Atty. Roy Seneres, the Philippine Labor Attache to the United Arab Emirates, accusing Astraquillo, his wife and cousin-in-law of improper interference with his (Seneres') functions. On instructions of the Board of Foreign Service Administration (BFSA) the matter was investigated by Ambassador Pacifico Castro from March 28, to 31, 1989. Thereafter, by Memorandum dated April 11, 1989, the Secretary of Foreign Affairs recommended to the President the termination of Astraquillo's services as ambassador. The recommendation was "APPROVED by authority of the President."Astraquillo was then notified (on April 18, 1989) of the termination of his services effective immediately, and (on May 8,1989) of the designation of Counsellor Donato Felicio as Charges D'Affaires effective May 17, 1989. Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of his services up to May 31, 1989. But on the same day that the telex message extending his services was transmitted, May 12, 1989, Astraquillo filed the petition for certiorari at bar, challenging his removal from his post and the designation of Felicio as Charges D'Affaires. This was docketed as G.R. No. 88183. After Ambassador Fortunato D. Oblena was appointed to replace him as the country's Ambassador Extraordinary and Plenipotentiary to the UAE, Astraquillo filed with this Court a petition

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for quo warranto contesting the appointment. This second case was docketed as G.R. No. 88781. His basic thesis is that the Foreign Affairs Secretary had no power qua department head, and without prior authorization of the President, to terminate his services, he being a presidential appointee; and under the Foreign Service Code of 1983, his removal could be predicated only upon good cause duly established at a hearing of which he was entitled to notice and an opportunity to defend. Corollarily, designation of a replacement for him, either in a temporary or permanent capacity, was also nun and void. G.R. No. 88467: Alunan C. Glang Alunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador Extraordinary and Plenipotentiary and Chief of Mission (Class I) to Kuwait, and assumed his post on January 11, 1987. Two years afterwards, or on May 27, 1989, he received a telex message from the Secretary of Foreign Affairs informing him that his services as ambassador and chief of mission to Kuwait had been terminated and directing him to vacate his post "on or before June 30, 1989." The message further advised that the termination of his services was "explicit in a Memorandum dated 18 May 1989" a copy of which would be furnished him by telefax. The memorandum referred to was one signed by Secretary Raul Manglapus recommending the "recall and subsequent termination of the services of Ambassador Alunan C. Glang as Ambassador to the State of Kuwait . . . which was approved by Executive Secretary Catalino Macaraig, Jr. "BY AUTHORITY OF THE PRESIDENT." On May 30, 1989 Glang sent communications separately addressed to the Office of the President and the Secretary of Foreign Affairs stating that he considered his separation from the service as "illegal and violative of RA No. 704, known as the Foreign Service Act of 1952," as amended, he being entitled to security of tenure and removable only for cause and not at the pleasure of the President. The Foreign Secretary's reply (sent by telex on June 2, 1989) was prompt and simple: the notice of termination of Glang's services "dated 26 May 1989, stands;" he should "accept the President's decision" and seek redress "only through the proper courts of law" if he felt he had been "unlawfully treated."

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Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies upon substantially the same arguments as those advanced by Astraquillo, supra. G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr. Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary and Plenipotentiary on June 27, 1986. On July 3, 1986, Vice-President Salvador H. Laurel, then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R. This post Melchor assumed on September 4, 1986, after which he received another appointment from the President on October 15, 1986 as Chief of Mission, Class, 1. On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow filed a complaint with the Department of Foreign Affairs against Melchor and two others for "acts inimical to the Foreign Service, in violation of the Foreign Service Code (and) blatant disregard of COA rules and regulations and the Civil Service Code." The complaint was investigated by Ambassador Ernesto Garrido, Director General for Financial Management Services of the Foreign Affairs Department, by direction of the Secretary. Garrido's report to the Board of Foreign Service Administration (BSFA) of the Foreign Affairs Department dealt with ten of the fourteen (14) charges but failed to resolve four (4) others. Said Board, after deliberating on the report, directed the filing of a charge sheet against Melchor relative to the four (4) unresolved accusations as to which the latter had filed no written answer; and accordingly, the Director General for Personnel and Administrative Services formally charged Melchor, under date of January 2,1989, with the following offenses, to wit: 1) establishment of a private restaurant on the third floor of the Philippine Embassy Building without prior notice and approval of the Home Office; 2) issuance of visas to persons not qualified to travel to the Philippines; 3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors contrary to existing laws; and 4) leaving his post without permission from the Home Office from October to December 1987 and January 22-26, 1988.

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By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was "no basis for me to reply under oath" (to the charges as required) as "said complaint has not been subscribed and sworn to according to the provisions of P.D. 807," drawing attention, however, to his reply "to the complaint on 22 September 1988 Dispatch No. AM-193-88, Subject: Comments to complaint." He also wrote to President Aquino on the same date regarding the "unfounded charges" against him and requesting that the matter be resolved before his return to his post. He wrote another letter to President Aquino, dated January 19, 1989, this time under oath, inter aliasubmitting his answers to the four unresolved charges against him since, according to him, "it is only the President that can decide my case." Melchor's letter was referred to the Secretary who, acting thereon, issued Memorandum No. 4230 declaring his approval of the BFSA recommendation that Melchor: (a) be allowed to forthwith return to his Moscow post to prepare for the President's state visit, (b) be thereafter transferred to another post, and (c) be reprimanded on account of the four charges against him. The affair was, however, far from ended. On February 10, 1989, Melchor advised the Secretary in writing that he would indeed return to Moscow but protested the reprimand administered to him and his announced transfer to another post after the state visit, claiming that as a "presidential appointee," he was beyond the disciplinary authority of the BFSA and that, furthermore, he had been denied due process. On the same day he directed an "APPEAL" to the President praying that she "nullify, after review by an impartial body . . . the illegal action of Sec. Manglapus and the Board and return . . . (him to his) post in Moscow without the stigma of a reprimand . . . ." It appears that the BFSA re-examined the evidence against Melchor and came to the conclusion that all charges against him should be dropped as there was "no basis" therefor and consequently, his appeal had been rendered moot and academic. This was communicated to the Foreign Affairs Secretary on June 9, 1989 and thence to the Office of the President, with the observation that Melchor's appeal had indeed become moot and academic. On the basis thereof, Executive Secretary Macaraig "terminated" the administrative case against Melchor, by Order dated June 9, 1989. It appears, however, that about a week earlier, or on May 29, 1989, the Secretary of Foreign Affairs had submitted a Memorandum to the President

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recommending the termination of the services of Melchor described as "a political (non-career) Ambassador" as Chief of Mission and as Ambassador" to the U.S.S.R, and that he "should vacate his post by 30 June 1989." This was "APPROVED by authority of the President" on June 13, 1989 by Executive Secretary Macaraig. On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the proposition that the termination of his services by Foreign Affairs Secretary Manglapus after he had been absolved of the charges against him, was unwarranted and illegal, and that the authority to so terminate his services was "vested exclusively on the President herself . . . ." Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking invalidation of the re-assignment or transfer of Ambassador Juan V. Saez from Amman, Jordan to the Philippine Embassy at Moscow. Against this factual background, the petitioners submit the following common contentions: 1) that the removals from the service were not made by the President personally and directly; 2) that the removals did not state a cause explicitly prescribed by the Foreign Service Act or the Civil Service Law; 3) that the removals were affected without due process; 4) the petitioners were appointed right after the so-called "EDSA Revolution," and when Vice-President Laurel was Minister of Foreign Affairs; and 5) all were appointed Chief of Mission Class I (except Astraquillo, who was named Class II Chief) and came into Foreign Service "through lateral entry." The Civil Service Law, Presidential Decree No. 807, classifies employment in Government into "career" and "non-career service." It identifies the peculiar characteristics of each category, and enumerates the positions falling under each class.

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Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by: (1) entrance based on merit and fitness, to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure. Section 5 then enumerates the particular positions falling under the Career Service, including, as will be noted, those in the Foreign Service. They are the following: (1) Open Career positions for appointment to which prior qualifications in an appropriate examination is required; (2) Closed Career positions which are scientific or highly technical in nature; these includes the faculty and academic staff of state colleges and universities and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service, namely: Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Ministry of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who do not fall under the non-career service; and

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(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled. (8) The "Non-Career Service," on the other hand, according to Section 6 of the same PD 807, shall be characterized by: (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasures, or which is limited to the duration of a particular project for which purposes employment was made. And the officials and employees listed under the Non-Career Service include: (1) Elective officials and their personal or confidential staff; (2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of directions and supervision from the hiring agency; and (5) Emergency and seasonal personnel. By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J. Astraquillo, Alunan C. Glang, and Alejandro Melchor, Jr., pertained to the Non-Career Service. Their appointments to the Foreign Service were made on "bases other than those of the usual test of merit

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and fitness utilized for the career service;" their entrance was not 'based on merit and fitness . . . determined . . . by competitive examinations, or based on highly technical qualifications." This being so, their "tenure . . . (was) coterminous with that of the appointing authority orsubject to his pleasures, . . . ." It is worthy of note that among the officers categorized in the Career Service by the Civil Service Law, PD No. 807, are "Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Ministry of Foreign Affairs." Implicit in this reference to "career officers" in the Ministry (now Department) of Foreign Affairs is the acknowledgement of non-career officers in that ministry (department). The same distinction between career and non-career officers may be derived by implication from the provisions of the Foreign Service Act of 1952, R.A. No. 708, as amended. Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . . composed of Foreign Service Officers appointed by the President upon the recommendation of the Secretary," and declares that "(n)o person shall be eligible for appointment (in such corps) unless he has passed such competitive examinations as the Board of Foreign Service examination may prescribe to determine his fitness and aptitude for the work of the service and has demonstrated his loyalty to the Government of the Republic of the Philippines and his attachment to the principles of the Constitution." Those who thus qualify are "certified by the Secretary of Foreign Affairs as eligible for appointment as Foreign Service Officer(s)," and it is exclusively from these officers so certified that the President "shall appoint Foreign Service Officers . . . ." Now, there are those, like the petitioners, who are appointed to the Foreign Service, without having qualified in the manner just indicated and consequently without having been certified by the Foreign Affairs Secretary as eligible for appointment as Foreign Service Officers. In view of the provisions of law just cited, they certainly do not and cannot be deemed embraced in the Career Service Corps. They can only be regarded then as "non-career officers" or "political appointees" who, as already pointed out, have a "tenure . . . coterminous with that of the appointing authority or subject to his pleasures, . . . ."

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Melchor discusses at length what he feels to be the distinction between an ambassador and a chief of mission, and argues that whatever might be said about his serving at the pleasure of the President as ambassador, his appointment as chief of mission had undoubtedly given him security of tenure as regards this latter position. He opines that the term, "chief of mission," has two meanings in the Foreign Service Act. He states that Section 3(i), Title I of the Act defines the term as "a principal officer appointed by the President of the Philippines, with the consent of the Commission on Appointments, to be in charge of the embassy and legation and other diplomatic mission of the Philippines or any other person assigned under the terms of this act to be minister resident, charge d'affaires, commissioner or diplomatic agent." On the other hand, he says that in other parts of the law ("Title II, Part B, Section I, Part C, Section 1 , and Title I, Part B, Section 1") "the use of the term Chief of Mission is in a different context for it refers to the rank and class of the Foreign Service Officer in the enumeration of categories of officers and employees of the foreign service as well as the salary scale. The discussion fails to demonstrate that, with regard to the petitioners, a chief of mission is indeed significantly different from an ambassador. Petitioners Astraquillo, Glang and Melchor were appointed as ambassadors, respectively, in the United Arab Emirates (UAE), Kuwait, and Moscow. Their appointments as chief of missions in their respective posts simply meant that, as ambassadors extraordinary and plenipotentiary they were being placed in charge of the embassy or legation therein. Indeed, it seems evident that even without being named chief of mission, the fact that they were the highest ranking official in their respective embassies would operate to place them in charge thereof as a matter of course. Obviously, however, this aspect of their appointments has no effect on the essential character of their positions as pertaining to the non-career service. Consequently the termination of their connection with the Foreign Service was not dependent on proof of some legally recognized cause therefor, after due notice and hearing as in the case of career officers and employees but lay entirely within the will of the President, in the exercise of her discretion, and her determination of the wisdom, necessity or convenience of such a step in the national interest, actually a political decision. In making this determination, the President may take account of the recommendation of the Secretary of Foreign Affairs who, as the

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President's alter ego, heads and controls the Department of Foreign Affairs and supervises and directs all officials and employees assigned abroad. The petitioners' other argument that their separation from the service is illegal because not effected by the President of the Philippines who alone has the power to do so, is specious. The fact is that it was in truth the President who ordered their removal. The record shows that the President approved the recommendation of the Secretary of Foreign Affairs for the termination of their services. This is shown by the pertinent documents in which the Executive Secretary officially certified that the recommendation for their separation from the service had been "APPROVED by Authority of the President." Finally, since none of the petitioners has shown any right to be returned to the office from which they had been separated by authority of the President, none of them is entitled to the writ of quo warranto to oust the officials who have since replaced them in their respective posts. WHEREFORE, the petitions in the cases embraced in this opinion, i.e., G.R. Nos. 88183, 88781, 88467, 88672, 888916, are all DENIED, with costs against petitioners.

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[G.R. Nos. 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, ARROYO, respondent.

vs. GLORIA

MACAPAGAL-

DECISION
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities are important enough but more transcendental are the constitutional issues embedded on the parties dispute. While the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine style. First, we take a view of the panorama of events that precipitated the crisis in the office of the President. In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million Filipinos voted for the petitioner believing he would rescue them from lifes 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 Governos, 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. 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

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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. 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. Two days later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner. Four days later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the supreme self-sacrifice of resignation. 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 Services and later asked for petitioners resignation. 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. On November 2, Secretary Mar Roxas II also resigned from the Department of Trade and Industry. 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. The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar transmitted the Articles of Impeachment 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 Fuentabella. 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. The political temperature rose despite the cold December. On December 7, the impeachment trial started. 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 Flamiano, 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

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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 aP500 million investment agreement with their bank on February 4, 2000. 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 petitioners 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. Then came the fateful day of January 16, when by a vote of 11-10 the senator-judges ruled against the opening of the second envelop 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. 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. 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. January 18 saw the high velocity intensification of the call for petitioners 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 peoples solidarity in demanding petitioners 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. 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. 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. A little later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning announcement. Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts. 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

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controversial second envelop. 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 Malacaangs 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. 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. At 2:30 p.m., petitioner and his family hurriedly left Malacaang Palace. He issued the following press statement:

20 January 2001 STATEMENT FROM PRESIDENT JOSEPH EJERCITO ESTRADA At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society. It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for the opportunities given to me for service to our people. I will not shirk from any future challenges that may come ahead in the same service of our country. I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity. May the Almighty bless our country and beloved people. MABUHAY! (Sgd.) JOSEPH EJERCITO ESTRADA

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It also appears that on the same day, January 20, 2001, he signed the following letter:

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. Another copy was transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m. On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers and 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 MacapagalArroyo 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 Resolved 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 to 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 maybe filed by a proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys. Recognition of respondent Arroyos 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. US President George W. Bush gave the respondent a telephone call from the White House conveying US recognition of her government. On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives. 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. It also approved Resolution No. 176 expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-

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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 nations goals under the Constitution. On January 26, the respondent signed into law the Solid Waste Management Act. A few days later, she also signed into law the Political Advertising Ban and Fair Election Practices Act. On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. the next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr. Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmea voted yes with reservations, citing as reason therefore the pending challenge on the legitimacy of respondent Arroyos presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent. The House of Representatives also approved Senator Guingonas nomination in Resolution No. 178. Senator Guingona took his oath as Vice President two (2) days later. On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. 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. Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.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, and 54% among the Es or very poor class.
After his fall from the pedestal of power, the petitioners legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

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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 Consti tution. 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., and Associate Justice Artemio Panganiban recused themselves on motion of petitioners 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

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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.
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

Private respondents 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 stres s that respondent Arroyo ascended the presidency through people power; that she has already taken her oath as the 14 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

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minds. Developed by the courts in the 20 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 constitutional law. 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 of Baker v. Carr, viz:

x x x Prominent on the surface on 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 nonjudicial discretions; or the impossibility of a courts 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 questions 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.Our leading case is Tanada v. Cuenco, 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.Heretofore, the judiciary has focused on the thou shalt nots of the Constitution directed against the exercise of its jurisdiction.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. and related casesto support their thesis that since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they

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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 Constitution 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. It 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.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. In fine, the legal distinction between EDSA People Power I and EDSA People Power II is clear. EDSA I involves the exercise of the people power of revolutionwhich 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 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.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. Thence on, the guaranty was set in stone in our 1935 Constitution, and the 1973 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.

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The indispensability of the peoples 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 decisionmaking 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.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. In Hague v. Committee for Industrial Organization, this function of free speech and assembly

was echoed in the amicus curiae brief 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. In the relatively recent case of Subayco v. Sandiganbayan,this Court similarly 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, and section 8of Article VII, and the allocation of governmental powers under section 11 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, 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, respondents invocation of the doctrine of political is but a foray in the dark.
II

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 of 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 acts as President until President or Vice President shall have been elected and qualified.

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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 14President of the Republic. 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. The validity of a resignation is not governed 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 shows 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 acts 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 petitioners 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, petitioners 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 peoples 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. The Angara Diary reveals that in morning of January 19, petitioners loyal advisers were worried about the swelling of the crowd at EDSA, hence, they decided to crate 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.) 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

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p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced the AFPs 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. Petitioner did nor disagree but listened intently. 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 allowed to go abroad with enough funds to support him and his family. Significantly, the petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never leave the country. 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. 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 (lets cooperate to ensure a) peaceful and orderly transfer of power. 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 limitedto three (3) points: (1) the transition period of five days after the petitioners 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. 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 dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go.

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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:

Oppositions deal 7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals 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 today, 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 effective immediately. 4. The Armed Forces 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:

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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 guaranteed 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 siting 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 under 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. 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 sideand 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:

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x x x 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.
xxx

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.

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Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait? What about the agreement)? I asked. Reyes answered: Wala na, sir (Its over, sir). I asked him: Di yung transition period, moot and academic na? And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that 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 provision 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 Presidents personal staff is rushing to pack as many of the Estrada familys personal possessions as they can.

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During lunch, Ronie Puno mentions that the President needs to release a final statement before leaving Malacaang. The statement reads: At twelve oclock 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 shrik 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 the 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 of inability and that he was going to reassume 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. Petitioners 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 petitioners valedictory, his final act of farewell. His presidency is now in the past tense. It is, however, urged that the petitioner did not resign but only took a temporary leave of absence due to his inability to govern. In support of this thesis, the letter 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:

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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. The pleadings filed by the petitioner in the cases at bar did not discuss, nay 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 being. 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 showing his resignation from the presidency, then the resignation must prevail as a later act. If, however, it was prepared after the press release, still, it commands scant legal significance. Petitioners 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 repudiation by the people. There is another reason why this Court cannot give any legal significance to petitioners 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, criminal 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 from 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.During the period of amendments, the following provision was inserted as section 15:

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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 from office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency.
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 Presidents immunity should extend even after his tenure. Senate Bill No. 571, which was substantially similar to 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.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 petitioners 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

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postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he resigned.
III

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.This contention is the centerpiece of petitioners 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 transmit 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 Vice-President shall immediately assume the powers and duties of the office as Acting President. Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

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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 twothirds 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 Representative passed on January 24, 2001 House Resolution No. 175; On the same date, the House of the Representatives passed House Resolution No. 176which 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 NATIONS GOALS UNDER THE CONSTITUTION WHEREAS, as a consequence of the peoples 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;

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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 surrendering 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 Nations 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. 178 which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL -ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

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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 petitioners letter claiming inability, some twelve (12) members of the Senate signed the following:

RESOLUTION

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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 resolute 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 our duties to attain desired changes and overcome the nations challenges.
On February 7, the Senate also passed Senate Resolution No. 82 which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL -ARROYOS NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is it 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 Phillippines; 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 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 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.

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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. 83 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 of 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

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(5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a 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) 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 petitioners 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,we hold that this Court cannot exercise its judicial power for this is an issue in regard to which full discretionary authority has been delegated to the Legislative x x x branch of the government. Or to use the language inBaker vs. Carr,there is 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. Clearly, the Court cannot pass upon petitioners claim of inability to discharge the powers 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

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.

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Before resolving petitioners contentions, a revisit of our legal history on 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 Crossfield, 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 no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of 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 matter 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 that it can a member of the Philippine Commission or 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 exercise 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 judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection 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,

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reasonably qualified for that position, might honestly differ; but he is 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, he 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: x x x. 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 a distrust as to the integrity of government itself. 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 Kings Men: The Law Of Privilege As A Defense To Actions For Damages, petitioners learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin, brightlined 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 from 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 then 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. The effort failed.

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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, viz:

Mr. Suarez. Thank you. The last question is with reference to the committees 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 this 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 litigations, as the President-in-exile in Hawaii is now facing litigations 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 thank the Commissioner for the clarification.
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. 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:

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x x x Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for example, and the President resigns before judgment 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 In re: Saturnino Bermudezthat 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 in the case of Lecaroz vs. Sandiganbayan and related casesare inapropos for they have a different factual milieu. We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the allege mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. 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 other trespasser. Indeed, a 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, 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 Nixons associates were facing charges of conspiracy to obstruct justice and other offenses which were committed in a burglary of the Democratic National Headquarters in Washingtons Watergate Hotel during the 1972 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, 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

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occasion to reiterate this doctrine in the case of Clinton v. Jones where it held that the US Presidents 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. It declared as a state policy that (t)he State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption." It ordained that (p)ublic 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. It set the rule that (t)he 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, laches or estoppel.It maintained the Sandiganbayan as an anti-graft court.It created the office of the Ombudsman and endowed it with enormous powers, among which is to "(i)nvestigate 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. The Office of the Ombudsman was also given fiscal autonomy. These constitutional policies will be devalued if we sustain petitioners claim that a non-sitting president enjoys immunity from suit for criminal acts committed during his incumbency.
V

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 to file the criminal cases in 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. 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. 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. In People vs. Teehankee, Jr., later reiterated in the case of Larranaga vs. Court of Appeals, et al., we laid down the doctrine that:

We cannot sustain appellants 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

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and now, we now rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field x x x. 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 their impartiality. x x x xxx x x x. Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a 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 bar, the records do not show that the trial judge developed actual bias against appellant 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 if 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. 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

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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. Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely held:
x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that the time this Nations 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 societys 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 Nations 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 freedoms 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

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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 it was deliberately linked by the draftsmen. 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 by 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 could 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, inMartelino, 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

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Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of proof. 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 petitioners 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.News reports have also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the petitionerand 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 investigating prosecutors the independence to make their own findings and recommendations albeit they are reviewable by their superiors.They can be reversed but they can not be compelled to change their recommendations nor can they be compelled to prosecute 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 finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court.
VI.

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.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

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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 mans progress from the cave to civilization. Let us not throw away that key just to pander to some peoples prejudice. IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED. SO ORDERED.

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[G.R. No. 118883. January 16, 1998]

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR NENITO AQUINO and MAYOR LYDIA T. ROMANO, petitioner, vs. COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents. DECISION
PANGANIBAN, J.: Although a resignation is not complete without an acceptance thereof by the proper authority, an office may still be deemed relinquished through voluntary abandonment which needs no acceptance.

Statement of the Case Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the Decision of the Court of Appeals promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated February 18, 1994 of the Regional Trial Court of Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654. The dispositive portion of the assailed Decision of the appellate court reads:

WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4 thereof are deleted. Paragraph 3 is AFFIRMED. No pronouncement as to costs.
Antecedent Facts Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres, Catanduanes in March 1989. He was later elected president of the Association of Barangay Councils (ABC) for the Municipality of San Andres, Catanduanes. In that capacity and pursuant to the Local Government Code of 1983, he was appointed by the President as member of the Sangguniang Bayan of the Municipality of San Andres. Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG) declared the election for the president of the Federation of the Association of Barangay Councils (FABC) of the same province, in which private respondent was a voting member, void for want of a quorum. Hence, a reorganization of the provincial council became necessary. Conformably, the DILG secretary

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designated private respondent as a temporary member of the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15, 1990. In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He tendered his resignation dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the provincial governor, the DILG and the municipal treasurer. Pursuant to Section 50 of the 1983 Local Government Code (B.P. Blg. 337), Nenito F. Aquino, then vice-president of the ABC, was subsequently appointed by the provincial governor as member of the Sangguniang Bayan in place of private respondent. Aquino assumed office on July 18, 1990 after taking his oath. Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was reversed by the Supreme Court in Taule vs. Santos. In the same case, the appointment of Private Respondent Antonio as sectoral representative to the Sangguniang Panlalawigan was declared void, because he did not possess the basic qualification that he should be president of the federation of barangay councils. This ruling of the Court became final and executory on December 9, 1991. On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres advising them of his re-assumption of his original position, duties and responsibilities as sectoral representative therein. In response thereto, the Sanggunian issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume office as a member of the Sangguniang Bayan. On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to resume his office as member of the Sangguniang Bayan. Director Jacob F. Montesa, department legal counsel of the DILG, clarified Antonios status in this wise:

Having been elected President of the ABC in accordance with the Departments Memorandum Circular No. 89-09, you became an ex-officio member in the sanggunian. Such position has not been vacated inasmuch as you did not resign nor abandon said office when you were designated as temporary representative of the Federation to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990. The Supreme Court in Triste vs. Leyte State College Board of Trustees (192 SCRA 327), declared that: designation implies temporariness. Thus, to designate a public officer to another position may mean to vest him with additional duties while he performs the functions of his permanent office. In some cases, a public officer may be designated to a position in an acting capacity as when an undersecretary is designated to discharge the functions of the Secretary pending the appointment of a permanent Secretary. Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations Implementing the 1991 Local Government Code to continue to

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act as president of the association and to serve as ex-officio members of the sangguniang bayan, to wit: Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No. 7160, provides that: The incumbent presidents of the municipal, city and provincial chapters of the liga shall continue to serve as ex-officio members of the sanggunian concerned until the expiration of their term of office, unless sooner removed for cause. (f) x x x Pending election of the presidents of the municipal, city, provincial and metropolitan chapters of the liga, the incumbent presidents of the association of barangay councils in the municipality, city, province and Metropolitan Manila, shall continue to act as president of the corresponding liga chapters under this Rule. In view of the foregoing, considering that the annuled designation is only an additional duty to your primary function, which is the ABC President, we find no legal obstacle if you re-assume your representation in the sanggunian bayan as ex-officio member.
Despite this clarification, the resolution reiterating its previous stand. local legislative body issued another

In response to private respondents request, Director Montesa opined that Antonio did not relinquish or abandon his office; and that since he was the duly elected ABC president, he could re-assume his position in the Sanggunian. A copy of said reply was sent to the members of the local legislative body. Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume office as sectoral representative. On December 10, 1992, private respondent filed a petition for certiorari and mandamus with preliminary mandatory injunction and/or restraining order before the RTC. On February 18, 1994, the trial court rendered its decision holding that Augusto T. Antonios resignation from the Sangguniang Bayan was ineffective and inoperative, since there was no acceptance thereof by the proper authorities. The decretal portion of the decision reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and against the respondents and ordering the latter: (1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorneys fees and the cost of the suit;

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(2)

to allow petitioner to assume his position as sectoral representative of the Sangguniang Bayan of San Andres, Catanduanes; to pay the petitioner jointly and severally his uncollected salaries similar to those received by the other members of the Sangguniang Bayan of San Andres, Catanduanes as certified to by the Municipal Budget Officer and Municipal Treasurer of the same municipality from April 8, 1992 up to the date of this judgment; and
declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect.

(3)

(4)

Petitioners appealed this judgment to the Court of Appeals. Appellate Courts Ruling Respondent Court of Appeals affirmed the trial courts ruling but deleted the first, second and fourth paragraphs of its dispositive portion. It held that private respondents resignation was not accepted by the proper authority, who is the President of the Philippines. While the old Local Government Code is silent as to who should accept and act on the resignation of any member of the Sanggunian, the law vests in the President the power to appoint members of the local legislative unit. Thus, resignations must be addressed to and accepted by him. It added that, though the secretary of the DILG is the alter ego of the President and notice to him may be considered notice to the President, the records are bereft of any evidence showing that the DILG secretary received and accepted the resignation letter of Antonio. Moreover, granting that there was complete and effective resignation, private respondent was still the president of the ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio capacity by virtue of Section 494 of R.A. 7160 and Memorandum Circular No. 92-38. In view, however, of the May 1994 elections in which a new set of barangay officials was elected, Antonios reassumption of office as barangay representative to the Sangguniang Bayan was no longer legally feasible. The appellate court added that private respondent could not be considered to have abandoned his office. His designation as member of the Sangguniang Panlalawigan was merely temporary and not incompatible with his position as president of the ABC of San Andres, Catanduanes. Finally, Respondent Court deleted the award of attorneys fees for being without basis, and held that Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the powers of said local body. It thus modified the trial

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courts judgment by affirming paragraph 3 and deleting the other items. Unsatisfied, petitioners brought the present recourse.

Issues The petitioner, in its memorandum, submits before this Court the following issues:

I. Whether or not respondents resignation as ex-officio member of Petitioner Sangguniang Bayan ng San Andres, Catanduanes is deemed complete so as to terminate his official relation thereto; II. Whether or not respondent had totally abandoned his ex-officio membership in Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by other members of Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the Regional Trial Court of Virac, Catanduanes. In sum, was there a complete and effective resignation? If not, was there an abandonment of office? This Courts Ruling The petition is meritorious. Although the terms of office of barangay captains, including private respondent, elected in March 1989 have expired, the Court deemed it necessary to resolve this case, as the Court of Appeals had ordered the payment of the uncollected salaries allegedly due prior to the expiration of Respondent Antonios term.

First Issue: Validity of Resignation The petitioner submits that the resignation of private respondent was valid and effective despite the absence of an express acceptance by the President of the Philippines. The letter of resignation was submitted to the secretary of the DILG, an alter ego of the President, the appointing authority. The acceptance of respondents resignation may be inferred from the fact that the DILG secretary himself appointed him a member of the Sangguniang Panlalawigan of Catanduanes. In Ortiz vs. COMELEC, we defined resignation as the act of giving up or the act of an officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of the intention to surrender, renounce, and relinquish the office and the acceptance by competent and

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lawful authority. To constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. The last one is required by reason of Article 238 of the Revised Penal Code. The records are bereft of any evidence that private respondents resignation was accepted by the proper authority. From the time that he was elected as punong barangay up to the time he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or the Local Government Code of 1983. While said law was silent as to who specifically should accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the [r]esignation of sanggunian members shall be acted upon by the sanggunian concerned, and a copy of the action taken shall be furnished the official responsible for appointing a replacement and the Ministry of Local Government. The position shall be deemed vacated only upon acceptance of the resignation. It is not disputed that private respondents resignation letter was addressed only to the municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies were furnished the provincial governor, the municipal treasurer and the DILG. Neither the mayor nor the officers who had been furnished copies of said letter expressly acted on it. On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan for proper action. In any event, there is no evidence that the resignation was accepted by any government functionary or office. Parenthetically, Section 146 of B.P. Blg. 337 states:

Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of the municipality and shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight members elected at large, and the members appointed by the President consisting of the president of the katipunang bayan and the president of the kabataang barangay municipal federation. x x x. (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be submitted, should be tendered to the appointing person or body. Private respondent, therefore, should have submitted his letter of resignation to the President or to his alter ego, the DILG secretary. Although he supposedly furnished the latter a copy of his letter, there is no showing that it was duly received, much less, that it was acted upon. The third requisite being absent, there was therefore no valid and complete resignation.

Second Issue: Abandonment of Office

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While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his voluntary abandonment of said post. Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the intention of terminating his possession and control thereof. Indeed, abandonment of office is a species of resignation; while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through nonuser. Nonuser refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law Dictionary, 6t h ed.). Abandonment springs from and is accompanied by deliberation and freedom of choice. Its concomitant effect is that the former holder of an office can no longer legally repossess it even by forcible reoccupancy. Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or inferred from his own conduct. Thus, the failure to perform the duties pertaining to the office must be with the officers actual or imputed intention to abandon and relinquish the office.Abandonment of an office is not wholly a matter of intention; it results from a complete abandonment of duties of such a continuance that the law will infer a relinquishment. Therefore, there are two essential elements of abandonment: first, an intention to abandon and, second, an overt or external act by which the intention is carried into effect. Petitioner argues that the following clearly demonstrate private respondents abandonment of his post in the Sangguniang Bayan:

Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes was worded temporary, but his acts more than clearly established his intention to totally abandon his office, indicating an absolute relinquishment thereof. It bears to emphasize that respondent actuallytendered his resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of Catanduanes. He performed his duties and functions of said office for almost two (2) years, and was completely aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of petitioner Sangguniang Bayan representing the ABC.
xxx xxx xxx

Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondents former position for twenty (20) months, without him questioning the term of office of the former if indeed respondents designation

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as ex-officio member of the Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to remain silent, and in fact failed to seasonably act for the purpose of reassuming his former position. Evidently, respondent had clearly abandoned his former position by voluntary relinquishment of his office through nonuser. [Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to abandon his position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2) his failure to collect the corresponding remuneration for the position, (3) his failure to object to the appointment of Aquino as his replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan. On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of resignation from the Sangguniang Bayan;(2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post. It must be stressed that when an officer is designated to another post, he is usually called upon to discharge duties in addition to his regular responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere, as it were, to his original position. A Supreme Court justice, for instance, may be designated member of the House of Representatives Electoral Tribunal. In some cases, a public officer may be designated to a position in an acting capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a temporary period. In all cases, however, the law does not require the public servant to resign from his original post. Rather, the law allows him to concurrently discharge the functions of both offices. Private respondent, however, did not simultaneously discharge the duties and obligations of both positions. Neither did he, at that time, express an intention to resume his office as member of the Sangguniang Bayan. His overt acts, silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had abandoned the contested office. His immediate and natural reaction upon Aquinos appointment should have been to objec t or, failing to do that, to file appropriate legal action or proceeding. But he did neither. It is significant that he expressed his intention to resume office only on March 31, 1992, after Aquino had been deemed resigned on March 23, 1992, and months after this Court had nullified his designation on August 12, 1991. From his passivity, he is deemed to have recognized the validity of Aquinos appointment and the latters discharge of his duties as a member of the Sangguniang Bayan.

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In all, private respondents failure to promptly assert his alleged right implies his loss of interest in the position. His overt acts plainly show that he really meant his resignation and understood its effects. As pointed out by the eminent American commentator, Mechem:

Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform was wilful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly supposed he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-executory, for the law itself requires another positive act -- an appointment by the President or the secretary of local government per E.O. 342. What private respondent could have done in order to be able to reassume his post after Aquinos resignation was to seek a reappointment from the President or the secretary of local government. By and large, private respondent cannot claim an absolute right to the office which, by his own actuations, he is deemed to have relinquished. We reiterate our ruling in Aparri vs. Court of Appeals:

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public x x x. The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all, only because and by virtue of some law expressly or impliedly creating and conferring it x x x. There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary x x x.
Third Issue: Salary

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Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is the no work, no pay rule. A public officer is entitled to receive compensation for services actually rendered for as long as he has the right to the office being claimed. When the act or conduct of a public servant constitutes a relinquishment of his office, he has no right to receive any salary incident to the office he had abandoned. WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET ASIDE. No costs. SO ORDERED.

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G.R. No. 71908 February 4, 1986 ALBERTO G. ROMULO, JOSE B. LAUREL, MARCELO B. FERNAN, CECILIA MUOZ PALMA, EDMUNDO B. CEA, ANTONIO CUENCO, HOMOBONO ADAZA, CIRIACO ALFELOR, ROLANDO ANDAYA, HONORATO AQUINO, JOSE ATIENZA, JR., NATALIO BELTRAN, JR., CESAR V. BOLANOS, DOUGLAS R. CAGAS, FERRER MIN A. CARAM, NENITA C. DALUZ, ARTHUR D. DEFENSOR, EMILIO N. DELA PAZ, HILARIO DE PEDRO, DEMETRIO G. DEMETRIA, MANUEL C. DOMINGO, CARLOS C. FERNANDEZ, JOLLY T. FERNANDEZ, JAIME N. FERRER, WILSON P. GAMBOA, ROGELIO GARCIA, ROLLEO L. IGNACIO, EVA ESTRADA KALAW, RAFAEL L. LAZATIN, EMIGDIO L. LINGAD, GEMILIANO C. LOPEZ, JR., PEDRO M. MARCELLANA, JR., ROLANDO C. MARCIAL, BIENVENIDO MARQUEZ, ANTONIO C. MARTINEZ, ORLANDO S. MERCADO, ROGACIANO M. MERCADO, RAMON V. MITRA, JR., JUANITA L. NEPOMUCENO, ROY B. PADILLA, HERNANDO B. PEREZ, GONZALO G. PUYAT, II, HIALMAR P. QUINTANA, ISIDRO E. REAL, JR., ZAFIRO L. RESPICIO, VIRGILIO P. ROBLES, AUGUSTO S. SANCHEZ, OSCAR F. SANTOS, FRANCISCO S. SUMULONG, EMIGDIO S. TANJUATCO, LUIS R. VILLAFUERTE and VICTOR ZIGA, petitioners, vs. HON. NICANOR E. YIGUEZ, MANUEL M. GARCIA, GUARDSON R. LOOD, RENATO L. CAYETANO, ANTONIO M. DIAZ, DAMIAN V. ALDABA, JUAN PONCE ENRILE, ADELINO B. SITOY, LEONARDO PEREZ, ALEJANDRO ALMENDRAS, SALACNIB F. BATERINA, LUIS S. ETCUBAEZ, CONCORDIO C. DIEL, REGALADO E. MAAMBONG, TEODULO C. NATIVIDAD, MACACUNA DIMAPORO, SALVADOR B. BRITANICO and COMMITTEE ON JUSTICE, HUMAN RIGHTS AND GOOD GOVERNMENT, respondents. Napoleon J. Poblador for respondent R. Cayetano.

PATAJO, J.: Petition for prohibition to restrain respondents from enforcing Sections 4, 5, 6 and 8 of the Batasan Rules of Procedure in Impeachment Proceedings and mandamus to compel the Batasan Committee on Justice, Human

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Rights and Good Government to recall from the archives and report out the resolution together with the verified complaint for the impeachment of the President of the Philippines. Petitioners, representing more than one-fifth of all members of the Batasan, filed with the Batasan on August 13, 1985 Resolution No. 644 calling for the impeachment of President Marcos together with a verified complaint for impeachment. Said resolution and complaint were referred by the Speaker to the Committee on Justice, Human Rights and Good Government. The Committee found the complaint not sufficient in form and substance to warrant its further consideration and disapproved Resolution No. 644 and dismissed all the charges contained in the complaint attached thereto on August 14, 1985. It then submitted its report which was duly noted by the Batasan and sent to the archives. On August 14, 1985, MP Ramon V. Mitra filed with the Batasan a motion praying for the recall from the archives of Resolution No. 644 and the verified complaint attached thereto. Said motion was disapproved by the Batasan. On September 7, 1985, the present petition was filed with this Court. In said petition, petitioners pray that after hearing this Court declare Sections 4, 5, 6 and 8 of the Batasan Rules on Impeachment which was approved by the Batasan on August 16, 1984 by a vote of 114 in favor and 58 against, unconstitutional, and Committee Report No. 154 of the Batasan Committee on Justice, Human Rights and Good Government dismissing Resolution No. 644 and the complaint for impeachment attached thereto, null and void. They also pray that this Court issue a writ of preliminary injunction restraining respondents from enforcing and questioned provisions of the aforementioned Rules and a Writ of preliminary mandatory injunction commanding the Batasan Committee on Justice, Human Rights and Good Government to recall from the archives and report out the resolution and complaint for impeachment in order that the impeachment trial can be conducted forthwith by the Batasan as a body. In G.R. No. L-71688 filed on August 17, 1985, Arturo M. de Castro and Perfecto L. Cagampang, claiming to be members of good standing of the Integrated Bar of the Philippines and taxpayers, filed a petition with this Court for certiorari to annul the resolution of the Committee on Justice, Human Rights and Good Government, the very same resolution subject of

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the present petition, dismissing the complaint for the impeachment of the President of the Philippines signed by the petitioners in the present case, and mandamus to compel said Committee on Justice and the Batasan, represented by its Speaker, to give due course to said complaint for impeachment. In denying due course to said petition and dismissing outright the same, We held: 1. The l973 Constitution has vested in the Batasan Pambansa the exclusive power to initiate, try and decide all cases of impeachment. The action of the Committee on Justice of the Batasan to whom the complaint for the impeachment of the President had been referred dismissing said petition for being insufficient in form and substance involves a political question not cognizable by the Courts. The dismissal of said petition is within the ambit of the powers vested exclusively in the Batasan by express provision of Sec. 2, Article XIII of the Constitution and it is not within the competence of this Court to inquire whether in the exercise of said power the Batasan acted wisely. There is no allegation in the petition for certiorari that in the exercise of its powers the Batasan had violated any provision of the Constitution. The fact that the Committee on Justice dismissed the petition on the same day it was filed after deliberating on it for several hours as reported in the newspapers, radio and television (which must have been the basis of petitioners' claim that the Committee had acted with undue haste in unceremoniously dismissing the complaint for impeachment) does not provide basis for concluding that there had been a violation of any provision of the Constitution which would justify the Court's intervention to ensure proper observance of constitutional norms and conduct. Beyond saying that the Batasan may initiate impeachment by a vote of at least one-fifth of all its Members and that no official shall be convicted without the concurrence of at least two-thirds of all the members thereof, the Constitution says no more. It does not lay down the procedure to be followed in impeachment proceedings. It is up to the Batasan to enact its own rules of procedure in said impeachment proceedings, which it had already done, The interpretation and application of said rules are beyond the powers of the Court to review. The powers of the Batasan to dismiss a petition for impeachment which in its judgment it finds not meritorious or defective in form and substance are discretionary in nature and, therefore, not subject to judicial compulsion.
2. The doctrine of separation of powers still exists under the 1973 Constitution though in a modified form made necessary because of the adoption of certain aspects of the parliamentary system in the amended 1973 Constitution. The major powers of the Government have been distributed by the Constitution to the

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President, who is the head of the State and chief executive of the Republic, the Batasan Pambansa and the Judiciary. Under the doctrine of separation of Powers as interpreted by the decisions of the Court, mandamus will not he from one branch of the government to a coordinate branch to compel performance of duties within the latter's sphere of responsibility. More specifically, this Court cannot issue a writ of mandamus against the Batasan to compel it to give due course to the complaint for impeachment.

We did not dismiss outright the present petition as We did G.R. No. L71688 but required respondents to comment thereto in view of the claim of petitioners that the provisions of the Rules of Procedure in Impeachment Proceedings, more specifically Sections 4, 5, 6 and 8 pursuant to which the Batasan Committee on Justice, Human Rights and Good Government had dismissed Resolution No. 644 and the complaint for the impeachment attached thereto are unconstitutional, implying thereby that the Batasan or the Committee thereof had, in the exercise of powers vested upon it by the Constitution, transgressed or violated the Constitution, certainly a justiciable question. The provisions of the Rules of Procedure for Impeachment claimed by petitioners to be violative of the Constitution are the following: SEC. 4. Notice to Complainant and Respondent. Upon due referral, the Committee on Justice, Human Rights and Good Government shall determine whether the complaint is sufficient in form and substance. if it finds that the complaint is not sufficient in form and substance, it shall dismiss the complaint and shall submit its report as provided hereunder. If it finds the complaint sufficient in form and substance, it shall furnish the respondent with copy of the resolution and verified complaint with advise that he may answer the complaint within fifteen (15) days from notice. The answer may include affirmative defenses. With leave of the Committee, the complainant may file a reply and the respondent, a rejoinder. SEC. 5. Submission of Evidence and Memoranda. After receipt of pleadings provided for in Section 4, or the expiration of the time within which they maybe filed, the Committee shall determine whether sufficient grounds for impeachment exist. If it finds that sufficient grounds for impeachment do not exist, the Committee shall dismiss the complaint and submit the report requited hereunder. If the Committee finds that sufficient grounds for impeachment exist, the Committee shall require the parties to support their respective allegations by the submission of affidavits and counter- affidavits, including duly authenticated documents as may appear relevant. The Committee may, however, require that instead of affidavits

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and counter-affidavits, oral testimony shall be given. It may at all events examine and allow cross- examination of the parties and their witnesses. After the submission of evidence, the Committee may require the submission of memoranda, after which the matter shall be submitted for resolution. SEC. 6. Report and Recommendations. The Committee on Justice, Human Rights and Good Government shall submit it a report of the Batasan containing its findings and recommendations within thirty (30) session days from submission of the case for resolution. If the Committee finds by a vote of majority of all its members that probable cause has been established it shall submit with its report a resolution setting forth the Articles of Impeachment on the basis of the evidence adduced before the Committee. If the Committee finds that probable cause has not been established, the complaint shall be dismissed subject to Section 9 of these Rules. SEC. 8. Vote Required for Trial.A majority vote of all the members of the Batasan is necessary for the approval of the resolution setting forth the Articles of Impeachment. If the resolution is approved by the required vote, it shall then be set for trial on the merits by the Batasan. On the other hand, should the resolution fail to secure approval by the required vote, the same shall result in the dismissal of the complaint for impeachment. It is petitioners' contention that said provisions are unconstitutional because they amend Sec. 3 of Article XI I I of the 1973 Constitution, without complying with the mandatory amendatory process provided for under Article XVI of the Constitution, by empowering a smaller body to supplant and overrule the complaint to impeach endorsed by the requisitive 1/5 of all the members of the Batasan Pambansa and that said questioned provisions derail the impeachment proceedings at various stages by vesting the Committee on Justice, etc. the power to impeach or not to impeach, when such prerogative belongs solely to Batasan Pambansa as a collegiate body. Petitioners further contend that Section 8 of the Rules is unconstitutional because it imposes an unconstitutional and illegal condition precedent in

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order that the complaint for impeachment can proceed to trial before the Batasan. By requiring a majority vote of all the members of the Batasan for the approval of the resolution setting forth the Articles of Impeachment, the Rules impose a condition not required by the Constitution for all that Section 3, Article XIII requires is the endorsement of at least one-fifth of all The members of the Batasan for the initiation of impeachment proceedings or for the impeachment trial to proceed. It is the contention of the respondents Speaker Nicanor Yniguez and the Members of the Committee on Justice of the Batasan Pambansa that the petition should be dismissed because (1) it is a suit against the Batasan itself over which this Court has no jurisdiction; (2) it raises questions which are political in nature; (3) the Impeachment Rules are strictly in consonance with the Constitution and even supposing without admitting that the Rules are invalid, their invalidity would not nullify the dismissal of the complaint for impeachment for the Batasan as a body sovereign within its own sphere has the power to dismiss the impeachment complaint even without the benefit of said Rules; and (4) the Court cannot by mandamus compel the Batasan to give due course to the impeachment complaint. Respondent Renato L. Cayetano on the other hand contends that (1) the question involved is purely political; (2) the petitioners are not proper parties; (3) the petition is in reality a request for an advisory opinion made in the absence of an actual case or controversy; (4) prohibition and mandamus are not proper remedies, and (5) preliminary mandatory injunction is not proper; while respondent Salacnib P. Baterina contends that the petitioners lack standing to sue and impeachment is a power lodged exclusively in the Batasan. A closer look at the substance than the form of the petition would reveal that resolution of the constitutionality of the questioned provisions of the Rules is not even necessary, What petitioners are really seeking is for this Court to compel the Batasan to proceed with the hearing on the impeachment of the President since more than one-fifth of all the members of the Batasan had filed a resolution for the impeachment of the President and the Batasan as a body is bound under the Constitution to conduct said trial and render judgment only after said trial and that the Committee on Justice has no authority to dismiss the complaint for impeachment on the ground that it is not sufficient in form and substance. Petitioners, therefore, ask that this Court order the Committee on Justice, Human Rights and

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Good Government to recall from the Archives the Resolution No. 644 and the complaint for impeachment "in order that the impeachment trial can be conducted forthwith by the Batasan as a body. (Prayer of the Petition, subpar, (ii) of Par, 2). The question squarely presented before this Court is therefore: Has this Court jurisdiction to order the Committee on Justice, Human Rights and Good Government to recall from the Archives and report out the resolution and complaint for impeachment? Can this court, assuming said resolution and complaint for impeachment are recalled from the Archives, order the Batasan to conduct a trial on the charges contained in said resolution and complaint for impeachment? What is important to note is that when the Batasan denied the motion of MP Ramon Mitra for the recall from the Archives of Resolution No. 644 and the complaint for impeachment, it had in effect confirmed the action of the Committee on Justice, Human Rights and Good Government dismissing said resolution and complaint on impeachment. That the Batasan by even a majority vote can dismiss a complaint for impeachment cannot be seriously disputed. Since the Constitution expressly provides that "no official shall be convicted without the concurrence of at least two-thirds of all its members," a majority vote of all the members of the Batasan confirming the action of the Committee on Justice, Human Rights and Good Government disapproving the resolution calling for the impeachment of the President and dismissing all the charges contained in the complaint attached thereto, makes mathematically impossible the required at least two-thirds vote of all members of the Batasan to support a judgment of conviction. What purpose would be served by proceeding further when it is already obvious that the required two-thirds vote for conviction cannot be obtained? Dismissal of the impeachment proceedings would then be in order. A dismissal by the Batasan itself as a body of the resolution and complaint for impeachment (which is what the denial by the Batasan of MP Mitra's motion to recall from the Archives said resolution and complaint for impeachment is tantamount to) makes irrelevant under what authority the Committee on Justice, Human Rights and Good Government had acted. The dismissal by the majority of the members of the Batasan of the impeachment proceedings is an act of the Batasan as a body in the exercise of powers that have been vested upon it by the Constitution

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beyond the power of this Court to review. This Court cannot compel the Batasan to conduct the impeachment trial prayed for by petitioners. The fact that petitioners are asking that it is the Committee on Justice, Human Rights and Good Government, not the Batasan itself, which shall be commanded by this Court to recall from the Archives and report out the resolution and complaint for impeachment is of no moment. Aside from the fact that said Committee cannot recall from the Archives said resolution and complaint for impeachment without revoking or rescinding the action of the Batasan denying MP Mitra's motion for recall (which of course it had no authority to do and, therefore, said Committee is in no position to comply with any murder from this Court for said recall) such an order addressed to the Committee would actually be a direct order to the Batasan itself. Such in effect was the ruling in Alejandrino vs. Quezon 46 Phil. 83, where this Court said: It is intimated rather faintly that, conceding all that is said with reference to the right of the Supreme Court to issue mandamus directed to the Philippine Senate, yet we would be justified in having our mandate run not against the Philippine Senate or against the President of the Philippine Senate and his fellow Senators but against the secretary, the sergeant-atarms, the disbursing officer of the Senate. But this begs the question. If we have no authority to control the Philippine Senate, we have no authority to control the actions of subordinate employees acting under the direction of the Senate. The secretary, sergeant-at-arms, and disbursing officer of the Senate are mere agents of the Senate who cannot act independently of the will of that body. Should the Court do as requested, we might have the spectacle presented of the court ordering the secretary, the sergeant-atarms, and the disbursing officer of the Philippine Senate to do one thing, and the Philippine Senate ordering them to do another thing. The writ of mandamus should not be granted unless it clearly appears that the person to whom it is directed has the absolute power to execute it. (Turnbull vs. Giddings [1893], 95 Mich. 314; Abueva vs. Wood,supra.) (On page 94). See also Abueva vs. Wood, 45 Phil. 612, 636, where the Court said: . . . While it has been decided in many cases that the courts will not interfere with the legislative department of the government in the performance of its duties, does that rule apply to the committees duly appointed by the legislative department of the government and its officers?

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The powers and duties conferred upon said committee by the Legislature granting the legality of the object and purpose of said committee, and granting that the Legislature itself had the power to do and to perform the duties imposed upon said committee, then an interference by the courts with the performance of those duties by it would be tantamount to interfering with the workings and operations of the legislative branch of the government itself. An interference by the judicial department of the government with the workings and operations of the committee of the legislative department would be tantamount to an interference with the workings and operations of the legislative department itself. And, again, we are called upon to say, that one branch of the government cannot encroach upon the domain of another without danger. The safety of our institutions depends in no small degree, on a strict observance of this salutary rule. (Sinking Fund Cases, 99 U.S., 700, 718; Clough vs. Curtis, 134 U.S., 361, 37 1; Wise vs. Bigger, 79 Va., 269). Moreover, while in their petition petitioners merely asked for a writ of preliminary mandatory injunction "commanding the Batasan Committee on Justice, Human Rights and Good Government to recall from the Archives and report out subject resolution and verified complaint for the impeachment of President Ferdinand E. Marcos," their ultimate objective is to have the Batasan as a body proceed with the impeachment trial. Recall of the resolution and complaint for impeachment would be meaningless unless the Batasan can also be compelled to conduct the impeachment trial. For this Court to issue a writ of mandamus to the Committee on Justice, Human Rights and Good Government, would be but an empty and meaningless gesture unless it would also order the Batasan to proceed to try the impeachment proceedings. This, of course, the Court cannot do. Quoting Judge Cooley in Sutherland us. Governor of Michigan 29 Mich. 320: . . . in a case where jurisdiction is involved, no doubt it is not consistent with the dignity of the court to pronounce judgments which may be disregarded with impunity. . . The admonition of Alejandrino vs. Quezon, supra is of much relevance:

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. . . But certainly mandamus should never issue from this court where it will not prove to be effectual and beneficial. It should not be awarded where it will create discord and confusion. It should not be awarded where mischievous consequences are likely to follow. Judgment should not be pronounced which might possibly lead to unseemly conflicts or which might be disregarded with impunity. This court should offer no means by a decision for any possible collision between it as the highest court in the Philippines and the Philippine Senate as a branch of a coordinate department, or between the Court and the Chief Executive or the Chief Executive and the Legislature. (On page 95). In any event, We find no basis for the contention of petitioners that Sections 4, 5, 6 and 8 of the Rules of Procedure in Impeachment are violative of the provisions of the Constitution on Impeachment. As We said in Arturo de Castro vs. Committee on Justice, et at (G.R. No. L-71688), "beyond saying that the Batasan may initiate impeachment by a vote of at least one-fifth of all its members and that no official shall be convicted without the concurrence of at least two-thirds of all the members thereof, the Constitution says no more." The Batasan pursuant to its power to adopt rules of its proceedings (Article VIII, Sec. 8[31, may adopt, as it did adopt, necessary rules of procedure to govern impeachment proceedings. The rules it adopted providing for dismissal of a complaint for impeachment which is not sufficient in form or substance, or when sufficient grounds for impeachment do not exist, or probable cause has not been established, or requiring a majority vote of all members of the Batasan for the approval of the resolution setting forth the Articles of Impeachment, are not inconsistent with the provision of Section 3 of Article XIII of the 1973 Constitution. More specifically, the provision requiring concurrence of at least two-thirds votes of all members of the Batasan for conviction is not violated by any provision of the Rules which authorizes dismissal of a petition by a majority vote of the Batasan since with such number of votes it is obvious that the two-thirds vote of all members necessary for conviction can no longer be obtained. Such being the case, the Batasan can specify in its rules how and when the impeachment proceedings can be terminated or dismissed for Section 3, Article XIII merely provides for how a judgment of conviction can be sustained but is respondent on how a complaint for impeachment

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can be dismissed when it becomes apparent that a judgment of conviction by the required number of votes is not possible. Neither is the Constitutional provision to the effect that impeachment may be initiated by a vote of at least one-fifth of the members violated by the provision of the Rules authorizing the Committee on Justice, Human Rights and Good Government to dismiss the complaint for impeachment which it finds not sufficient in form and substance (Sec. 4), does not have sufficient grounds for impeachment (Sec. 5), or where probable cause has not been established (Sec. 6). All of said actions of the Committee refer to the disposition of a complaint for impeachment initiated by at least one-fifth of all the members of the Batasan. Their purpose is to determine whether or not a complaint for impeachment initiated by the required number of members of the Batasan warrants being referred to the Batasan for trial. They are not properly part of the "initiation phase" of the impeachment proceeding but of the "trial phase", or more accurately the "preparatory to trial" phase. Such actions are liken to actions taken by this Court in determining whether a petition duly filed should be given due course or should be dismissed outright. While the Batasan has assigned to the Committee on Justice, Human Rights and Good Government the task of determining whether the petition is sufficient in form or substance, or that sufficient ground for impeachment exist or that probable cause has been established, said Committee is required to submit its report to the Batasan which has the ultimate decision whether to approve or disapprove said report. If the Batasan approves the Committee report dismissing the complaint, said report is noted by the Batasan and sent to the Archives. That the Rules on Impeachment of the Interim Batasan in the judgment of petitioners is better is no argument against the validity or constitutionality of the Rules on Impeachment approved by the Batasan. More importantly, said Rules are always within the power of the Batasan to modify, change or replace any time. They do not have the force of law but are merely in the nature of by-laws prescribed for the orderly and convenient conduct of proceedings before the Batasan. They are merely procedural and not substantive (43 C.J. 527). They may be waived or disregarded by the Batasan and with their observance the Courts have no concern. (South Georgia Power Co. vs. Baumann 169 Ga. 649; 151 SE 513). As the Court said in State vs. Alt, 26 Mo. A. 673, quoted in 46 C.J. 1383 Note 31:

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The rules of public deliberative bodies, whether codified in the form of a 'manual and formally adopted by the body, or whether consisting of a body of unwritten customs or usages, preserved in memory and by tradition are matters of which the judicial courts, as a general rule, take no cognizance. It is a principle of the common law of England that the judicial courts have no conusance of what is termed the lex et consuetudo parliamentary And, although this doctrine is not acceded to, in this country, to the extent to which it has gone in England, where the judicial courts have held that they possess no jurisdiction to judge of the powers of the House of Parliament, yet no authority is cited to us, and we do not believe that respectable judicial authority exists, for the proposition that the judicial courts have power to compel legislative, or quasi-legislative bodies to proceed in the conduct of their deliberations, or in the exercise of their powers, in accordance with their own rules If the Congress of the United States disregards the constitution of the United States, or, if the legislature of one of the states disregards the constitution of the state, or of the United States, the power resides in the judicial courts to declare its enactments void. If an inferior quasi-legislative body, such as the council of a municipal corporation, disregards its own organic law, that is, the charter of the corporation, the judicial courts, for equal if not for stronger reasons, the same power of annulling its ordinances. But we are not aware of any judicial authority, or of any legal principle, which will authorize the judicial courts to annul an act of the legislature, or an ordinance of a municipal council merely because the one or the other was enacted in disregard of the rules which the legislature, or the municipal council or either house thereof, had prescribed for its own government. To the same effect is 67 Corpus Juris Secundun 870, where it was said: Rules of parliamentary practice are merely procedural and not substantive. The rules of procedure adopted by deliberative bodies have not the force of a public law, but they are merely in the nature of by-laws, prescribed for the orderly and convenient conduct of their own proceedings. The rules adopted by deliberative bodies are subject to revocation, modification, or waiver at the pleasure of the body adopting them. Where a deliberative body adopts rules of order for its parliamentary governance, the fact that it violates one of the rules so adopted may not invalidate a measure passed in compliance with statute. The rules of procedure passed by one legislative body are not binding on a subsequent legislative body operating within the same jurisdiction, and, where a body resolves that the rules of a

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prior body be adopted until a committee reports rules, the prior rules cease to be in force on the report of the committee. It may be of assistance, in determining the effect of parliamentary law, to consider the nature of the particular deliberative body. Finally, in 'The present case, injunction to restrain the enforcement of the particular provisions of the Rules will not lie (aside from the fact that the question involved is political) because the acts of the Committee sought to be restrained have already been consummated. They are fait accomplish. Prohibition or injunction would not issue to restrain acts already performed or consummated. Remonte us. Banto, 16 SCRA 257; Aragones us. Subido, 25 SCRA 95. IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the petition for lack of merit, without pronouncement as to costs. SO ORDERED.

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G.R. No. 193459

February 15, 2011

MA. MERCEDITAS N. GUTIERREZ Petitioner, vs. THE HOUSE OF REPRESENTATIVES COMMITTEE ON JUSTICE, RISA HONTIVEROS-BARAQUEL, DANILO D. LIM, FELIPE PESTAO, EVELYN PESTAO, RENATO M. REYES, JR., SECRETARY GENERAL OF BAGONG ALYANSANG MAKABAYAN (BAYAN); MOTHER MARY JOHN MANANZAN, CO-CHAIRPERSON OF PAGBABAGO; DANILO RAMOS, SECRETARY-GENERAL OF KILUSANG MAGBUBUKID NG PILIPINAS (KMP); ATTY. EDRE OLALIA, ACTING SECRETARY GENERAL OF THE NATIONAL UNION OF PEOPLE'S LAWYERS (NUPL); FERDINAND R. GAITE, CHAIRPERSON, CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE); and JAMES TERRY RIDON OF THE LEAGUE OF FILIPINO STUDENTS (LFS), Respondents. FELICIANO BELMONTE, JR., Respondent-Intervenor. DECISION CARPIO MORALES, J.: The Ombudsman, Ma. Merceditas Gutierrez (petitioner), challenges via petition for certiorari and prohibition the Resolutions of September 1 and 7, 2010 of the House of Representatives Committee on Justice (public respondent). Before the 15th Congress opened its first session on July 26, 2010 (the fourth Monday of July, in accordance with Section 15, Article VI of the Constitution) or on July 22, 2010, private respondents Risa HontiverosBaraquel, Danilo Lim, and spouses Felipe and Evelyn Pestao (Baraquel group) filed an impeachment complaint against petitioner, upon the endorsement of Party-List Representatives Arlene Bag-ao and Walden Bello. A day after the opening of the 15th Congress or on July 27, 2010, Atty. Marilyn Barua-Yap, Secretary General of the House of Representatives, transmitted the impeachment complaint to House Speaker Feliciano Belmonte, Jr.who, by Memorandum of August 2, 2010, directed the Committee on Rules to include it in the Order of Business.

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On August 3, 2010, private respondents Renato Reyes, Jr., Mother Mary John Mananzan, Danilo Ramos, Edre Olalia, Ferdinand Gaite and James Terry Ridon (Reyes group) filed another impeachment complaint against petitioner with a resolution of endorsement by Party-List Representatives Neri Javier Colmenares, Teodoro Casio, Rafael Mariano, Luzviminda Ilagan, Antonio Tinio and Emerenciana de Jesus. On even date, the House of Representatives provisionally adopted the Rules of Procedure in Impeachment Proceedings of the 14th Congress. By letter still of even date, the Secretary General transmitted the Reyes groups complaint to Speaker Belmonte who, by Memorandum of August 9, 2010, also directed the Committee on Rules to include it in the Order of Business. On August 10, 2010, House Majority Leader Neptali Gonzales II, as chairperson of the Committee on Rules,instructed Atty. Artemio Adasa, Jr., Deputy Secretary General for Operations, through Atty. Cesar Pareja, Executive Director of the Plenary Affairs Department, to include the two complaints in the Order of Business,which was complied with by their inclusion in the Order of Business for the following day, August 11, 2010. On August 11, 2010 at 4:47 p.m., during its plenary session, the House of Representatives simultaneouslyreferred both complaints to public respondent. After hearing, public respondent, by Resolution of September 1, 2010, found both complaints sufficient in form, which complaints it considered to have been referred to it at exactly the same time. Meanwhile, the Rules of Procedure in Impeachment Proceedings of the 15th Congress was published on September 2, 2010. On September 6, 2010, petitioner tried to file a motion to reconsider the September 1, 2010 Resolution of public respondent. Public respondent refused to accept the motion, however, for prematurity; instead, it advised petitioner to await the notice for her to file an answer to the complaints, drawing petitioner to furnish copies of her motion to each of the 55 members of public respondent. After hearing, public respondent, by Resolution of September 7, 2010, found the two complaints, which both allege culpable violation of the Constitution and betrayal of public trust, sufficient in substance. The determination of the sufficiency of substance of the complaints by public

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respondent, which assumed hypothetically the truth of their allegations, hinged on the issue of whether valid judgment to impeach could be rendered thereon. Petitioner was served also on September 7, 2010 a notice directing her to file an answer to the complaints within 10 days. Six days following her receipt of the notice to file answer or on September 13, 2010, petitioner filed with this Court the present petition with application for injunctive reliefs. The following day or on September 14, 2010, the Court En Banc RESOLVED to direct the issuance of a status quo ante order and to require respondents to comment on the petition in 10 days. The Court subsequently, by Resolution of September 21, 2010, directed the Office of the Solicitor General (OSG) to file in 10 days its Comment on the petition The Baraquel group which filed the first complaint, the Reyes group which filed the second complaint, and public respondent (through the OSG and private counsel) filed their respective Comments on September 27, 29 and 30, 2010. Speaker Belmonte filed a Motion for Leave to Intervene dated October 4, 2010 which the Court granted by Resolution of October 5, 2010. Under an Advisory issued by the Court, oral arguments were conducted on October 5 and 12, 2010, followed by petitioners filing of a Consolidated Reply of October 15, 2010 and the filing by the parties of Memoranda within the given 15-day period. The petition is harangued by procedural objections which the Court shall first resolve. Respondents raise the impropriety of the remedies of certiorari and prohibition. They argue that public respondent was not exercising any judicial, quasi-judicial or ministerial function in taking cognizance of the two impeachment complaints as it was exercising a political act that is discretionary in nature, and that its function is inquisitorial that is akin to a preliminary investigation. These same arguments were raised in Francisco, Jr. v. House of Representatives. The argument that impeachment proceedings are beyond the reach of judicial review was debunked in this wise:

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The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definition to include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. There are also glaring distinctions between the U.S. Constitution and the Philippine Constitution with respect to the power of the House of Representatives over impeachment proceedings. While the U.S. Constitution bestows sole power of impeachment to the House of Representatives without limitation, our Constitution, though vesting in the House of Representatives the exclusive power to initiate impeachment cases, provides for several limitations to the exercise of such power as embodied in Section 3(2), (3), (4) and (5), Article XI thereof. These limitations include the manner of filing, required vote to impeach, and the one year bar on the impeachment of one and the same official. Respondents are also of the view that judicial review of impeachments undermines their finality and may also lead to conflicts between Congress and the judiciary. Thus, they call upon this Court to exercise judicial statesmanship on the principle that "whenever possible, the Court should defer to the judgment of the people expressed legislatively, recognizing full well the perils of judicial willfulness and pride." But did not the people also express their will when they instituted the above-mentioned safeguards in the Constitution? This shows that the Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for certain well-defined limits, or in the language of Baker v. Carr,"judicially discoverable standards" for determining the validity of the exercise of such discretion, through the power of judicial review. xxxx There is indeed a plethora of cases in which this Court exercised the power of judicial review over congressional action. Thus, in Santiago v. Guingona, Jr., this Court ruled that it is well within the power and jurisdiction of the

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Court to inquire whether the Senate or its officials committed a violation of the Constitution or grave abuse of discretion in the exercise of their functions and prerogatives. In Taada v. Angara, in seeking to nullify an act of the Philippine Senate on the ground that it contravened the Constitution, it held that the petition raises a justiciable controversy and that when 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. In Bondoc v. Pineda, this Court declared null and void a resolution of the House of Representatives withdrawing the nomination, and rescinding the election, of a congressman as a member of the House Electoral Tribunal for being violative of Section 17, Article VI of the Constitution. In Coseteng v. Mitra, it held that the resolution of whether the House representation in the Commission on Appointments was based on proportional representation of the political parties as provided in Section 18, Article VI of the Constitution is subject to judicial review. In Daza v. Singson, it held that the act of the House of Representatives in removing the petitioner from the Commission on Appointments is subject to judicial review. In Taada v. Cuenco, it held that although under the Constitution, the legislative power is vested exclusively in Congress, this does not detract from the power of the courts to pass upon the constitutionality of acts of Congress. In Angara v. Electoral Commission, it ruled that confirmation by the National Assembly of the election of any member, irrespective of whether his election is contested, is not essential before such member-elect may discharge the duties and enjoy the privileges of a member of the National Assembly. Finally, there exists no constitutional basis for the contention that the exercise of judicial review over impeachment proceedings would upset the system of checks and balances. Verily, the Constitution is to be interpreted as a whole and "one section is not to be allowed to defeat another." Both are integral components of the calibrated system of independence and interdependence that insures that no branch of government act beyond the powers assigned to it by the Constitution. (citations omitted; italics in the original; underscoring supplied) Francisco characterizes the power of judicial review as a duty which, as the expanded certiorari jurisdiction of this Court reflects, includes the power 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."

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In the present case, petitioner invokes the Courts expanded certiorari jurisdiction, using the special civil actions of certiorari and prohibition as procedural vehicles. The Court finds it well-within its power to determine whether public respondent committed a violation of the Constitution or gravely abused its discretion in the exercise of its functions and prerogatives that could translate as lack or excess of jurisdiction, which would require corrective measures from the Court. Indubitably, the Court is not asserting its ascendancy over the Legislature in this instance, but simply upholding the supremacy of the Constitution as the repository of the sovereign will. Respondents do not seriously contest all the essential requisites for the exercise of judicial review, as they only assert that the petition is premature and not yet ripe for adjudication since petitioner has at her disposal a plain, speedy and adequate remedy in the course of the proceedings before public respondent. Public respondent argues that when petitioner filed the present petition on September 13, 2010, it had not gone beyond the determination of the sufficiency of form and substance of the two complaints. An aspect of the "case-or-controversy" requirement is the requisite of ripeness. The question of ripeness is especially relevant in light of the direct, adverse effect on an individual by the challenged conduct. In the present petition, there is no doubt that questions on, inter alia, the validity of the simultaneous referral of the two complaints and on the need to publish as a mode of promulgating the Rules of Procedure in Impeachment Proceedings of the House (Impeachment Rules) present constitutional vagaries which call for immediate interpretation. The unusual act of simultaneously referring to public respondent two impeachment complaints presents a novel situation to invoke judicial power. Petitioner cannot thus be considered to have acted prematurely when she took the cue from the constitutional limitation that only one impeachment proceeding should be initiated against an impeachable officer within a period of one year. And so the Court proceeds to resolve the substantive issue whether public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its two assailed Resolutions. Petitioner

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basically anchors her claim on alleged violation of the due process clause (Art. III, Sec. 1) and of the one-year bar provision (Art. XI, Sec 3, par. 5) of the Constitution. Due process of law Petitioner alleges that public respondents chairperson, Representative Niel Tupas, Jr. (Rep. Tupas), is the subject of an investigation she is conducting, while his father, former Iloilo Governor Niel Tupas, Sr., had been charged by her with violation of the Anti-Graft and Corrupt Practices Act before the Sandiganbayan. To petitioner, the actions taken by her office against Rep. Tupas and his father influenced the proceedings taken by public respondent in such a way that bias and vindictiveness played a big part in arriving at the finding of sufficiency of form and substance of the complaints against her. The Court finds petitioners allegations of bias and vindictiveness bereft of merit, there being hardly any indication thereof. Mere suspicion of partiality does not suffice. The act of the head of a collegial body cannot be considered as that of the entire body itself. So GMCR, Inc. v. Bell Telecommunications Phils. teaches: First. We hereby declare that the NTC is a collegial body requiring a majority vote out of the three members of the commission in order to validly decide a case or any incident therein. Corollarily, the vote alone of the chairman of the commission, as in this case, the vote of Commissioner Kintanar, absent the required concurring vote coming from the rest of the membership of the commission to at least arrive at a majority decision, is not sufficient to legally render an NTC order, resolution or decision. Simply put, Commissioner Kintanar is not the National Telecommunications Commission. He alone does not speak and in behalf of the NTC. The NTC acts through a three-man body x x x. In the present case, Rep. Tupas, public respondent informs, did not, in fact, vote and merely presided over the proceedings when it decided on the sufficiency of form and substance of the complaints.

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Even petitioners counsel conceded during the oral arguments that there are no grounds to compel the inhibition of Rep. Tupas. JUSTICE CUEVAS: Well, the Committee is headed by a gentleman who happened to be a respondent in the charges that the Ombudsman filed. In addition to that[,] his father was likewise a respondent in another case. How can he be expected to act with impartiality, in fairness and in accordance with law under that matter, he is only human we grant him that benefit. JUSTICE MORALES: Is he a one-man committee? JUSTICE CUEVAS: He is not a one-man committee, Your Honor, but he decides. JUSTICE MORALES: Do we presume good faith or we presume bad faith? JUSTICE CUEVAS: We presume that he is acting in good faith, Your Honor, but then (interrupted) JUSTICE MORALES: So, that he was found liable for violation of the Anti Graft and Corrupt Practices Act, does that mean that your client will be deprived of due process of law? JUSTICE CUEVAS: No, what we are stating, Your Honor, is that expectation of a client goes with the Ombudsman, which goes with the element of due process is the lack of impartiality that may be expected of him. JUSTICE MORALES:

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But as you admitted the Committee is not a one-man committee? JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: So, why do you say then that there is a lack of impartiality? JUSTICE CUEVAS: Because if anything before anything goes (sic) he is the presiding officer of the committee as in this case there were objections relative to the existence of the implementing rules not heard, there was objection made by Congressman Golez to the effect that this may give rise to a constitutional crisis. JUSTICE MORALES: That called for a voluntary inhibition. Is there any law or rule you can cite which makes it mandatory for the chair of the committee to inhibit given that he had previously been found liable for violation of a law[?] JUSTICE CUEVAS: There is nothing, Your Honor. In our jurisprudence which deals with the situation whereby with that background as the material or pertinent antecedent that there could be no violation of the right of the petitioner to due process. What is the effect of notice, hearing if the judgment cannot come from an impartial adjudicator. (emphasis and underscoring supplied) Petitioner contends that the "indecent and precipitate haste" of public respondent in finding the two complaints sufficient in form and substance is a clear indication of bias, she pointing out that it only took public respondent five minutes to arrive thereat.
lawphi1

An abbreviated pace in the conduct of proceedings is not per se an indication of bias, however. So Santos-Concio v. Department of Justice holds:

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Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For ones prompt dispatch may be anothers undue haste. The orderly administration of justice remains as the paramount and constant consideration, with particular regard of the circumstances peculiar to each case. The presumption of regularity includes the public officers official actuations in all phases of work. Consistent with such presumption, it was incumbent upon petitioners to present contradictory evidence other than a mere tallying of days or numerical calculation. This, petitioners failed to discharge. The swift completion of the Investigating Panels initial task cannot be relegated as shoddy or shady without discounting the presumably regular performance of not just one but five state prosecutors. (italics in the original; emphasis and underscoring supplied) Petitioner goes on to contend that her participation in the determination of sufficiency of form and substance was indispensable. As mandated by the Impeachment Rules, however, and as, in fact, conceded by petitioners counsel, the participation of the impeachable officer starts with the filing of an answer. JUSTICE MORALES: Is it not that the Committee should first determine that there is sufficiency in form and substance before she is asked to file her answer (interrupted) JUSTICE CUEVAS: That is correct, Your Honor. JUSTICE MORALES: During which she can raise any defenses she can assail the regularity of the proceedings and related irregularities? JUSTICE CUEVAS: Yes. We are in total conformity and in full accord with that statement, Your Honor, because it is only after a determination that the complaint is sufficient in form and substance that a complaint may be filed, Your Honor,

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without that but it may be asked, how is not your action premature, Your Honor, our answer is- no, because of the other violations involved and that is (interrupted). (emphasis and underscoring supplied) Rule III(A) of the Impeachment Rules of the 15th Congress reflects the impeachment procedure at the Committee-level, particularly Section 5 which denotes that petitioners initial participation in the impeachment proceedings the opportunity to file an Answer starts after the Committee on Justice finds the complaint sufficient in form and substance. That the Committee refused to accept petitioners motion for reconsideration from its finding of sufficiency of form of the impeachment complaints is apposite, conformably with the Impeachment Rules. Petitioner further claims that public respondent failed to ascertain the sufficiency of form and substance of the complaints on the basis of the standards set by the Constitution and its own Impeachment Rules. The claim fails. The determination of sufficiency of form and substance of an impeachment complaint is an exponent of the express constitutional grant of rule-making powers of the House of Representatives which committed such determinative function to public respondent. In the discharge of that power and in the exercise of its discretion, the House has formulated determinable standards as to the form and substance of an impeachment complaint. Prudential considerations behoove the Court to respect the compliance by the House of its duty to effectively carry out the constitutional purpose, absent any contravention of the minimum constitutional guidelines. Contrary to petitioners position that the Impeachment Rules do not provide for comprehensible standards in determining the sufficiency of form and substance, the Impeachment Rules are clear in echoing the constitutional requirements and providing that there must be a "verified complaint or resolution," and that the substance requirement is met if there is "a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee." Notatu dignum is the fact that it is only in the Impeachment Rules where a determination of sufficiency of form and substance of an impeachment complaint is made necessary. This requirement is not explicitly found in the organic law, as Section 3(2), Article XI of the Constitution basically merely

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requires a "hearing." In the discharge of its constitutional duty, the House deemed that a finding of sufficiency of form and substance in an impeachment complaint is vital "to effectively carry out" the impeachment process, hence, such additional requirement in the Impeachment Rules. Petitioner urges the Court to look into the narration of facts constitutive of the offenses vis--vis her submissions disclaiming the allegations in the complaints. This the Court cannot do. Francisco instructs that this issue would "require the Court to make a determination of what constitutes an impeachable offense. Such a determination is a purely political question which the Constitution has left to the sound discretion of the legislature. Such an intent is clear from the deliberations of the Constitutional Commission. x x x x Clearly, the issue calls upon this court to decide a non-justiciable political question which is beyond the scope of its judicial power[.]" Worse, petitioner urges the Court to make a preliminary assessment of certain grounds raised, upon a hypothetical admission of the facts alleged in the complaints, which involve matters of defense. In another vein, petitioner, pursuing her claim of denial of due process, questions the lack of or, more accurately, delay in the publication of the Impeachment Rules. To recall, days after the 15th Congress opened on July 26, 2010 or on August 3, 2010, public respondent provisionally adopted the Impeachment Rules of the 14th Congress and thereafter published on September 2, 2010 its Impeachment Rules, admittedly substantially identical with that of the 14th Congress, in two newspapers of general circulation. Citing Taada v. Tuvera, petitioner contends that she was deprived of due process since the Impeachment Rules was published only on September 2, 2010 a day after public respondent ruled on the sufficiency of form of the complaints. She likewise tacks her contention on Section 3(8), Article XI of the Constitution which directs that "Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section."

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Public respondent counters that "promulgation" in this case refers to "the publication of rules in any medium of information, not necessarily in the Official Gazette or newspaper of general circulation." Differentiating Neri v. Senate Committee on Accountability of Public Officers and Investigations which held that the Constitution categorically requires publication of the rules of procedure in legislative inquiries, public respondent explains that the Impeachment Rules is intended to merely enable Congress to effectively carry outthe purpose of Section 3(8), Art. XI of Constitution. Blacks Law Dictionary broadly defines promulgate as To publish; to announce officially; to make public as important or obligatory. The formal act of announcing a statute or rule of court. An administrative order that is given to cause an agency law or regulation to become known or obligatory. (emphasis supplied) While "promulgation" would seem synonymous to "publication," there is a statutory difference in their usage. The Constitution notably uses the word "promulgate" 12 times. A number of those instances involves the promulgation of various rules, reports and issuances emanating from Congress, this Court, the Office of the Ombudsman as well as other constitutional offices. To appreciate the statutory difference in the usage of the terms "promulgate" and "publish," the case of the Judiciary is in point. In promulgating rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts, the Court has invariably required the publication of these rules for their effectivity. As far as promulgation of judgments is concerned, however, promulgation means "the delivery of the decision to the clerk of court for filing and publication." Section 4, Article VII of the Constitution contains a similar provision directing Congress to "promulgate its rules for the canvassing of the certificates" in the presidential and vice presidential elections. Notably, when Congress approved its canvassing rules for the May 14, 2010 national elections on May 25, 2010, it did not require the publication thereof

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for its effectivity. Rather, Congress made the canvassing rules effective upon its adoption. In the case of administrative agencies, "promulgation" and "publication" likewise take on different meanings as they are part of a multi-stage procedure in quasi-legislation. As detailed in one case, the publication of implementing rules occurs after their promulgation or adoption. Promulgation must thus be used in the context in which it is generally understoodthat is, to make known. Generalia verba sunt generaliter inteligencia. What is generally spoken shall be generally understood. Between the restricted sense and the general meaning of a word, the general must prevail unless it was clearly intended that the restricted sense was to be used. Since the Constitutional Commission did not restrict "promulgation" to "publication," the former should be understood to have been used in its general sense. It is within the discretion of Congress to determine on how to promulgate its Impeachment Rules, in much the same way that the Judiciary is permitted to determine that to promulgate a decision means to deliver the decision to the clerk of court for filing and publication. It is not for this Court to tell a co-equal branch of government how to promulgate when the Constitution itself has not prescribed a specific method of promulgation. The Court is in no position to dictate a mode of promulgation beyond the dictates of the Constitution. Publication in the Official Gazette or a newspaper of general circulation is but one avenue for Congress to make known its rules. Jurisprudence emphatically teaches that x x x in the absence of constitutional or statutory guidelines or specific rules, this Court is devoid of any basis upon which to determine the legality of the acts of the Senate relative thereto. On grounds of respect for the basic concept of separation of powers, courts may not intervene in the internal affairs of the legislature; it is not within the province of courts to direct Congress how to do its work. In the words of Justice Florentino P. Feliciano, this Court is of the opinion that where no specific, operable norms and standards are shown to exist, then the legislature must be given a real and effective opportunity to fashion and promulgate as well as to

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implement them, before the courts may intervene. (italics in the original; emphasis and underscoring supplied; citations omitted) Had the Constitution intended to have the Impeachment Rules published, it could have stated so as categorically as it did in the case of the rules of procedure in legislative inquiries, per Neri. Other than "promulgate," there is no other single formal term in the English language to appropriately refer to an issuance without need of it being published. IN FINE, petitioner cannot take refuge in Neri since inquiries in aid of legislation under Section 21, Article VI of the Constitution is the sole instance in the Constitution where there is a categorical directive to duly publish a set of rules of procedure. Significantly notable in Neri is that with respect to the issue of publication, the Court anchored its ruling on the 1987 Constitutions directive, without any reliance on or reference to the 1986 case of Taada v. Tuvera. Taada naturally could neither have interpreted a forthcoming 1987 Constitution nor had kept a tight rein on the Constitutions intentions as expressed through the allowance of either a categorical term or a general sense of making known the issuances. From the deliberations of the Constitutional Commission, then Commissioner, now retired Associate Justice Florenz Regalado intended Section 3(8), Article XI to be the vehicle for the House to fill the gaps in the impeachment process. MR. REGALADO. Mr. Presiding Officer, I have decided to put in an additional section because, for instance, under Section 3 (2), there is mention of indorsing a verified complaint for impeachment by any citizen alleging ultimate facts constituting a ground or grounds for impeachment. In other words, it is just like a provision in the rules of court. Instead, I propose that this procedural requirement, like indorsement of a complaint by a citizen to avoid harassment or crank complaints, could very well be taken up in a new section 4 which shall read as follows: THE CONGRESS SHALL PROMULGATE ITS RULES ON IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSES THEREOF. I think all these other procedural requirements could be taken care of by the Rules of Congress. (emphasis and underscoring supplied)

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The discussion clearly rejects the notion that the impeachment provisions are not self-executing. Section 3(8) does not, in any circumstance, operate to suspend the entire impeachment mechanism which the Constitutional Commission took pains in designing even its details. As against constitutions of the past, modern constitutions have been generally drafted upon a different principle and have often become in effect extensive codes of laws intended to operate directly upon the people in a manner similar to that of statutory enactments, and the function of constitutional conventions has evolved into one more like that of a legislative body. Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that all provisions of the constitution are selfexecuting. If the constitutional provisions are treated as requiring legislation instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always been, that . . . in case of doubt, the Constitution should be considered selfexecuting rather than non-self-executing . . . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. (emphasis and underscoring supplied) Even assuming arguendo that publication is required, lack of it does not nullify the proceedings taken prior to the effectivity of the Impeachment Rules which faithfully comply with the relevant self-executing provisions of the Constitution. Otherwise, in cases where impeachment complaints are filed at the start of each Congress, the mandated periods under Section 3, Article XI of the Constitution would already run or even lapse while awaiting the expiration of the 15-day period of publication prior to the effectivity of the Impeachment Rules. In effect, the House would already violate the Constitution for its inaction on the impeachment complaints pending the completion of the publication requirement.

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Given that the Constitution itself states that any promulgation of the rules on impeachment is aimed at "effectively carry[ing] out the purpose" of impeachment proceedings, the Court finds no grave abuse of discretion when the House deemed it proper to provisionally adopt the Rules on Impeachment of the 14th Congress, to meet the exigency in such situation of early filing and in keeping with the "effective" implementation of the "purpose" of the impeachment provisions. In other words, the provisional adoption of the previous Congress Impeachment Rules is within the power of the House to promulgate its rules on impeachment to effectively carry out the avowed purpose. Moreover, the rules on impeachment, as contemplated by the framers of the Constitution, merely aid or supplement the procedural aspects of impeachment. Being procedural in nature, they may be given retroactive application to pending actions. "It is axiomatic that the retroactive application of procedural laws does not violate any right of a person who may feel that he is adversely affected, nor is it constitutionally objectionable. The reason for this is that, as a general rule, no vested right may attach to, nor arise from, procedural laws." In the present case, petitioner fails to allege any impairment of vested rights. It bears stressing that, unlike the process of inquiry in aid of legislation where the rights of witnesses are involved, impeachment is primarily for the protection of the people as a body politic, and not for the punishment of the offender. Even Neri concedes that the unpublished rules of legislative inquiries were not considered null and void in its entirety. Rather, x x x [o]nly those that result in violation of the rights of witnesses should be considered null and void, considering that the rationale for the publication is to protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such violation, orders and proceedings are considered valid and effective. (emphasis and underscoring supplied) Petitioner in fact does not deny that she was fully apprised of the proper procedure. She even availed of and invoked certain provisions of the Impeachment Rules when she, on September 7, 2010, filed the motion for reconsideration and later filed the present petition. The Court thus finds no violation of the due process clause.

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The one-year bar rule Article XI, Section 3, paragraph (5) of the Constitution reads: "No impeachment proceedings shall be initiatedagainst the same official more than once within a period of one year." Petitioner reckons the start of the one-year bar from the filing of the first impeachment complaint against her on July 22, 2010 or four days before the opening on July 26, 2010 of the 15th Congress. She posits that within one year from July 22, 2010, no second impeachment complaint may be accepted and referred to public respondent. On the other hand, public respondent, respondent Reyes group and respondent-intervenor submit that the initiation starts with the filing of the impeachment complaint and ends with the referral to the Committee, followingFrancisco, but venture to alternatively proffer that the initiation ends somewhere between the conclusion of the Committee Report and the transmittal of the Articles of Impeachment to the Senate. Respondent Baraquel group, meanwhile, essentially maintains that under either the prevailing doctrine or the parties interpretation, its impeachment complaint could withstand constitutional scrutiny. Contrary to petitioners asseveration, Francisco states that the term "initiate" means to file the complaint andtake initial action on it. The initiation starts with the filing of the complaint which must be accompanied with an action to set the complaint moving. It refers to the filing of the impeachment complaint coupled with Congress taking initial action of said complaint. The initial action taken by the House on the complaint is the referral of the complaint to the Committee on Justice. Petitioner misreads the remark of Commissioner Joaquin Bernas, S.J. that "no second verified impeachment may be accepted and referred to the Committee on Justice for action" which contemplates a situation where a first impeachment complaint had already been referred. Bernas and Regalado, who both acted as amici curiae inFrancisco, affirmed that the act of initiating includes the act of taking initial action on the complaint. From the records of the Constitutional Commission, to the amicus curiae briefs of two former Constitutional Commissioners, it is without a doubt that the term "to initiate" refers to the filing of the impeachment complaint coupled with Congress' taking initial action of said complaint.

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Having concluded that the initiation takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by the filing by at least one-third of the members of the House of Representatives with the Secretary General of the House, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated, another impeachment complaint may not be filed against the same official within a one year period. (emphasis and underscoring supplied) The Court, in Francisco, thus found that the assailed provisions of the 12th Congress Rules of Procedure in Impeachment Proceedings Sections 16 and 17 of Rule V thereof "clearly contravene Section 3(5) of Article XI since they g[a]ve the term initiate a meaning different from filing and referral." Petitioner highlights certain portions of Francisco which delve on the relevant records of the Constitutional Commission, particularly Commissioner Maambongs statements that the initiation starts with the filing of the complaint. Petitioner fails to consider the verb "starts" as the operative word. Commissioner Maambong was all too keen to stress that the filing of the complaint indeed starts the initiation and that the Houses action on the committee report/resolution is not part of that initiation phase. Commissioner Maambong saw the need "to be very technical about this," for certain exchanges in the Constitutional Commission deliberations loosely used the term, as shown in the following exchanges. MR. DAVIDE. That is for conviction, but not for initiation. Initiation of impeachment proceedings still requires a vote of one-fifth of the membership of the House under the 1935 Constitution. MR. MONSOD. A two-thirds vote of the membership of the House is required to initiate proceedings. MR. DAVIDE. No. for initiation of impeachment proceedings, only onefifth vote of the membership of the House is required; for conviction, a two-thirds vote of the membership is required. xxxx

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MR. DAVIDE. However, if we allow one-fifth of the membership of the legislature to overturn a report of the committee, we have here Section 3 (4) which reads: No impeachment proceedings shall be initiated against the same official more than once within a period of one year. So, necessarily, under this particular subsection, we will, in effect, disallow one-fifth of the members of the National Assembly to revive an impeachment move by an individual or an ordinary Member. MR. ROMULO. Yes. May I say that Section 3 (4) is there to look towards the possibility of a very liberal impeachment proceeding. Second, we were ourselves struggling with that problem where we are faced with just a verified complaint rather than the signatures of one-fifth, or whatever it is we decide, of the Members of the House. So whether to put a period for the Committee to report, whether we should not allow the Committee to overrule a mere verified complaint, are some of the questions we would like to be discussed. MR. DAVIDE. We can probably overrule a rejection by the Committee by providing that it can be overturned by, say, one-half or a majority, or onefifth of the members of the legislature, and that such overturning will not amount to a refiling which is prohibited under Section 3 (4). Another point, Madam President. x x x (emphasis and underscoring supplied) An apparent effort to clarify the term "initiate" was made by Commissioner Teodulo Natividad: MR. NATIVIDAD. How many votes are needed to initiate? MR. BENGZON. One-third. MR. NATIVIDAD. To initiate is different from to impeach; to impeach is different from to convict. To impeach means to file the case before the Senate. MR. REGALADO. When we speak of "initiative," we refer here to the Articles of Impeachment.

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MR. NATIVIDAD. So, that is the impeachment itself, because when we impeach, we are charging him with the Articles of Impeachment. That is my understanding. (emphasis and underscoring supplied) Capping these above-quoted discussions was the explanation of Commissioner Maambong delivered on at least two occasions: [I] MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a reconsideration of the approval of the amendment submitted by Commissioner Regalado, but I will just make of record my thinking that we do not really initiate the filing of the Articles of Impeachment on the floor. The procedure, as I have pointed out earlier, was that the initiation starts with the filing of the complaint. And what is actually done on the floor is that the committee resolution containing the Articles of Impeachment is the one approved by the body. As the phraseology now runs, which may be corrected by the Committee on Style, it appears that the initiation starts on the floor. If we only have time, I could cite examples in the case of the impeachment proceedings of President Richard Nixon wherein the Committee on the Judiciary submitted the recommendation, the resolution, and the Articles of Impeachment to the body, and it was the body who approved the resolution. It is not the body which initiates it. It only approves or disapproves the resolution. So, on that score, probably the Committee on Style could help in rearranging the words because we have to be very technical about this. I have been bringing with me The Rules of the House of Representatives of the U.S. Congress. The Senate Rules are with me. The proceedings on the case of Richard Nixon are with me. I have submitted my proposal, but the Committee has already decided. Nevertheless, I just want to indicate this on record. Thank you, Mr. Presiding Officer. (italics in the original; emphasis and underscoring supplied) [II] MR. MAAMBONG. I would just like to move for a reconsideration of the approval of Section 3 (3). My reconsideration will not at all affect the substance, but it is only with keeping with the exact formulation of the

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Rules of the House of Representatives of the United States regarding impeachment. I am proposing, Madam President, without doing damage to any of its provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the words which read: "to initiate impeachment proceedings" and the comma (,) and insert on line 19 after the word "resolution" the phrase WITH THE ARTICLES, and then capitalize the letter "i" in "impeachment" and replace the word "by" with OF, so that the whole section will now read: "A vote of at least one-third of all the Members of the House shall be necessary either to affirm a resolution WITH THE ARTICLES of impeachment OF the committee or to override its contrary resolution. The vote of each Member shall be recorded." I already mentioned earlier yesterday that the initiation, as far as the House of Representatives of the United States is concerned, really starts from the filing of the verified complaint and every resolution to impeach always carries with it the Articles of Impeachment. As a matter of fact, the words "Articles of Impeachment" are mentioned on line 25 in the case of the direct filing of a verified complaint of one-third of all the Members of the House. I will mention again, Madam President, that my amendment will not vary the substance in any way. It is only in keeping with the uniform procedure of the House of Representatives of the United States Congress. Thank you, Madam President. (emphasis and underscoring supplied) To the next logical question of what ends or completes the initiation, Commissioners Bernas and Regalado lucidly explained that the filing of the complaint must be accompanied by the referral to the Committee on Justice, which is the action that sets the complaint moving. Francisco cannot be any clearer in pointing out the material dates. Having concluded that the initiation takes place by the act of filing of the impeachment complaint and referral to the House Committee on Justice, the initial action taken thereon, the meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment complaint has been initiated in the foregoing manner, another may not be filed against the same official within a one year period following Article XI, Section 3(5) of the Constitution. In fine, considering that the first impeachment complaint was filed by former President Estrada against Chief Justice Hilario G. Davide, Jr., along with

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seven associate justices of this Court, on June 2, 2003 and referred to the House Committee on Justice on August 5, 2003, the second impeachment complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the Chief Justice on October 23, 2003 violates the constitutional prohibition against the initiation of impeachment proceedings against the same impeachable officer within a one-year period. (emphasis, italics and underscoring supplied) These clear pronouncements notwithstanding, petitioner posits that the date of referral was considered irrelevant in Francisco. She submits that referral could not be the reckoning point of initiation because "something prior to that had already been done," apparently citing Bernas discussion. The Court cannot countenance any attempt at obscurantism. What the cited discussion was rejecting was the view that the Houses action on the committee report initiates the impeachment proceedings. It did not state that to determine the initiating step, absolutely nothing prior to it must be done. Following petitioners line of reasoning, the verification of the complaint or the endorsement by a member of the House steps done prior to the filing would already initiate the impeachment proceedings. Contrary to petitioners emphasis on impeachment complaint, what the Constitution mentions is impeachment "proceedings." Her reliance on the singular tense of the word "complaint" to denote the limit prescribed by the Constitution goes against the basic rule of statutory construction that a word covers its enlarged and plural sense. The Court, of course, does not downplay the importance of an impeachment complaint, for it is the matchstick that kindles the candle of impeachment proceedings. The filing of an impeachment complaint is like the lighting of a matchstick. Lighting the matchstick alone, however, cannot light up the candle, unless the lighted matchstick reaches or torches the candle wick. Referring the complaint to the proper committee ignites the impeachment proceeding. With a simultaneous referral of multiple complaints filed, more than one lighted matchsticks light the candle at the same time. What is important is that there should only be ONE CANDLE that is kindled in a year, such that once the candle starts burning, subsequent matchsticks can no longer rekindle the candle.

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A restrictive interpretation renders the impeachment mechanism both illusive and illusory. For one, it puts premium on senseless haste. Petitioners stance suggests that whoever files the first impeachment complaint exclusively gets the attention of Congress which sets in motion an exceptional once-a-year mechanism wherein government resources are devoted. A prospective complainant, regardless of ill motives or best intentions, can wittingly or unwittingly desecrate the entire process by the expediency of submitting a haphazard complaint out of sheer hope to be the first in line. It also puts to naught the effort of other prospective complainants who, after diligently gathering evidence first to buttress the case, would be barred days or even hours later from filing an impeachment complaint. Placing an exceedingly narrow gateway to the avenue of impeachment proceedings turns its laudable purpose into a laughable matter. One needs only to be an early bird even without seriously intending to catch the worm, when the process is precisely intended to effectively weed out "worms" in high offices which could otherwise be ably caught by other prompt birds within the ultra-limited season. Moreover, the first-to-file scheme places undue strain on the part of the actual complainants, injured party or principal witnesses who, by mere happenstance of an almost always unforeseeable filing of a first impeachment complaint, would be brushed aside and restricted from directly participating in the impeachment process. Further, prospective complainants, along with their counsel and members of the House of Representatives who sign, endorse and file subsequent impeachment complaints against the same impeachable officer run the risk of violating the Constitution since they would have already initiated a second impeachment proceeding within the same year. Virtually anybody can initiate a second or third impeachment proceeding by the mere filing of endorsed impeachment complaints. Without any public notice that could charge them with knowledge, even members of the House of Representatives could not readily ascertain whether no other impeachment complaint has been filed at the time of committing their endorsement. The question as to who should administer or pronounce that an impeachment proceeding has been initiated rests also on the body that

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administers the proceedings prior to the impeachment trial. As gathered from Commissioner Bernas disquisition in Francisco, a proceeding which "takes place not in the Senate but in the House"precedes the bringing of an impeachment case to the Senate. In fact, petitioner concedes that the initiation of impeachment proceedings is within the sole and absolute control of the House of Representatives. Conscious of the legal import of each step, the House, in taking charge of its own proceedings, must deliberately decide to initiate an impeachment proceeding, subject to the time frame and other limitations imposed by the Constitution. This chamber of Congress alone, not its officers or members or any private individual, should own up to its processes. The Constitution did not place the power of the "final say" on the lips of the House Secretary General who would otherwise be calling the shots in forwarding or freezing any impeachment complaint. Referral of the complaint to the proper committee is not done by the House Speaker alone either, which explains why there is a need to include it in the Order of Business of the House. It is the House of Representatives, in public plenary session, which has the power to set its own chamber into special operation by referring the complaint or to otherwise guard against the initiation of a second impeachment proceeding by rejecting a patently unconstitutional complaint. Under the Rules of the House, a motion to refer is not among those motions that shall be decided without debate, but any debate thereon is only made subject to the five-minute rule. Moreover, it is common parliamentary practice that a motion to refer a matter or question to a committee may be debated upon, not as to the merits thereof, but only as to the propriety of the referral. With respect to complaints for impeachment, the House has the discretion not to refer a subsequent impeachment complaint to the Committee on Justice where official records and further debate show that an impeachment complaint filed against the same impeachable officer has already been referred to the said committee and the one year period has not yet expired, lest it becomes instrumental in perpetrating a constitutionally prohibited second impeachment proceeding. Far from being mechanical, before the referral stage, a period of deliberation is afforded the House, as the Constitution, in fact, grants a maximum of three session days within which to make the proper referral.

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As mentioned, one limitation imposed on the House in initiating an impeachment proceeding deals with deadlines. The Constitution states that "[a] verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter." In the present case, petitioner failed to establish grave abuse of discretion on the allegedly "belated" referral of the first impeachment complaint filed by the Baraquel group. For while the said complaint was filed on July 22, 2010, there was yet then no session in Congress. It was only four days later or on July 26, 2010 that the 15th Congress opened from which date the 10-day session period started to run. When, by Memorandum of August 2, 2010, Speaker Belmonte directed the Committee on Rules to include the complaint in its Order of Business, it was well within the said 10-day session period. There is no evident point in rushing at closing the door the moment an impeachment complaint is filed. Depriving the people (recall that impeachment is primarily for the protection of the people as a body politic) of reasonable access to the limited political vent simply prolongs the agony and frustrates the collective rage of an entire citizenry whose trust has been betrayed by an impeachable officer. It shortchanges the promise of reasonable opportunity to remove an impeachable officer through the mechanism enshrined in the Constitution. But neither does the Court find merit in respondents alternative contention that the initiation of the impeachment proceedings, which sets into motion the one-year bar, should include or await, at the earliest, the Committee on Justice report. To public respondent, the reckoning point of initiation should refer to the disposition of the complaint by the vote of at least one-third (1/3) of all the members of the House. To the Reyes group, initiation means the act of transmitting the Articles of Impeachment to the Senate. To respondent-intervenor, it should last until the Committee on Justices recommendation to the House plenary. The Court, in Francisco, rejected a parallel thesis in which a related proposition was inputed in the therein assailed provisions of the Impeachment Rules of the 12th Congress. The present case involving an

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impeachment proceeding against the Ombudsman offers no cogent reason for the Court to deviate from what was settled inFrancisco that dealt with the impeachment proceeding against the then Chief Justice. To change the reckoning point of initiation on no other basis but to accommodate the socio-political considerations of respondents does not sit well in a court of law. x x x We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really "adherence to precedents," mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process: It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the evenhanded administration of justice in the courts. As pointed out in Francisco, the impeachment proceeding is not initiated "when the House deliberates on the resolution passed on to it by the Committee, because something prior to that has already been done. The action of the House is already a further step in the proceeding, not its initiation or beginning. Rather, the proceeding is initiated or begins, when a verified complaint is filed and referred to the Committee on Justice for action. This is theinitiating step which triggers the series of steps that follow." Allowing an expansive construction of the term "initiate" beyond the act of referral allows the unmitigated influx of successive complaints, each having their own respective 60-session-day period of disposition from referral. Worse, the Committee shall conduct overlapping hearings until and unless the disposition of one of the complaints ends with the affirmance of a

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resolution for impeachment or the overriding of a contrary resolution (as espoused by public respondent), or the House transmits the Articles of Impeachment (as advocated by the Reyes group),or the Committee on Justice concludes its first report to the House plenary regardless of the recommendation (as posited by respondent-intervenor). Each of these scenarios runs roughshod the very purpose behind the constitutionally imposed one-year bar. Opening the floodgates too loosely would disrupt the series of steps operating in unison under one proceeding. The Court does not lose sight of the salutary reason of confining only one impeachment proceeding in a year. Petitioner concededly cites Justice Adolfo Azcunas separate opinion that concurred with the Francisco ruling.Justice Azcuna stated that the purpose of the one-year bar is two-fold: "to prevent undue or too frequentharassment; and 2) to allow the legislature to do its principal task [of] legislation," with main reference to the records of the Constitutional Commission, that reads: MR. ROMULO. Yes, the intention here really is to limit. This is not only to protect public officials who, in this case, are of the highest category from harassment but also to allow the legislative body to do its work which is lawmaking. Impeachment proceedings take a lot of time. And if we allow multiple impeachment charges on the same individual to take place, the legislature will do nothing else but that. (underscoring supplied) It becomes clear that the consideration behind the intended limitation refers to the element of time, and not the number of complaints. The impeachable officer should defend himself in only one impeachment proceeding, so that he will not be precluded from performing his official functions and duties. Similarly, Congress should run only one impeachment proceeding so as not to leave it with little time to attend to its main work of law-making. The doctrine laid down in Francisco that initiation means filing and referral remains congruent to the rationale of the constitutional provision. Petitioner complains that an impeachable officer may be subjected to harassment by the filing of multiple impeachment complaints during the intervening period of a maximum of 13 session days between the date of the filing of the first impeachment complaint to the date of referral. As pointed out during the oral arguments by the counsel for respondentintervenor, the framework of privilege and layers of protection for an

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impeachable officer abound. The requirements or restrictions of a one-year bar, a single proceeding, verification of complaint, endorsement by a House member, and a finding of sufficiency of form and substance all these must be met before bothering a respondent to answer already weigh heavily in favor of an impeachable officer. Aside from the probability of an early referral and the improbability of inclusion in the agenda of a complaint filed on the 11th hour (owing to preagenda standard operating procedure), the number of complaints may still be filtered or reduced to nil after the Committee decides once and for all on the sufficiency of form and substance. Besides, if only to douse petitioners fear, a complaint will not last the primary stage if it does not have the stated preliminary requisites. To petitioner, disturbance of her performance of official duties and the deleterious effects of bad publicity are enough oppression. Petitioners claim is based on the premise that the exertion of time, energy and other resources runs directly proportional to the number of complaints filed. This is non sequitur. What the Constitution assures an impeachable officer is not freedom from arduous effort to defend oneself, which depends on the qualitative assessment of the charges and evidence and not on the quantitative aspect of complaints or offenses. In considering the side of the impeachable officers, the Constitution does not promise an absolutely smooth ride for them, especially if the charges entail genuine and grave issues. The framers of the Constitution did not concern themselves with the media tolerance level or internal disposition of an impeachable officer when they deliberated on the impairment of performance of official functions. The measure of protection afforded by the Constitution is that if the impeachable officer is made to undergo such ride, he or she should be made to traverse it just once. Similarly, if Congress is called upon to operate itself as a vehicle, it should do so just once. There is no repeat ride for one full year. This is the whole import of the constitutional safeguard of one-year bar rule. Applicability of the Rules on Criminal Procedure On another plane, petitioner posits that public respondent gravely abused its discretion when it disregarded its own Impeachment Rules, the same rules she earlier chastised.

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In the exercise of the power to promulgate rules "to effectively carry out" the provisions of Section 3, Article XI of the Constitution, the House promulgated the Impeachment Rules, Section 16 of which provides that "the Rules ofCriminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House." Finding that the Constitution, by express grant, permits the application of additional adjective rules that Congress may consider in effectively carrying out its mandate, petitioner either asserts or rejects two procedural devices. First is on the "one offense, one complaint" rule. By way of reference to Section 16 of the Impeachment Rules, petitioner invokes the application of Section 13, Rule 110 of the Rules on Criminal Procedure which states that "[a] complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses." To petitioner, the two impeachment complaints are insufficient in form and substance since each charges her with both culpable violation of the Constitution and betrayal of public trust. She concludes that public respondent gravely abused its discretion when it disregarded its own rules. Petitioner adds that heaping two or more charges in one complaint will confuse her in preparing her defense; expose her to the grave dangers of the highly political nature of the impeachment process; constitute a whimsical disregard of certain rules; impair her performance of official functions as well as that of the House; and prevent public respondent from completing its report within the deadline. Public respondent counters that there is no requirement in the Constitution that an impeachment complaint must charge only one offense, and the nature of impeachable offenses precludes the application of the above-said Rule on Criminal Procedure since the broad terms cannot be defined with the same precision required in defining crimes. It adds that the determination of the grounds for impeachment is an exercise of political judgment, which issue respondent-intervenor also considers as nonjusticiable, and to which the Baraquel group adds that impeachment is a political process and not a criminal prosecution, during which criminal prosecution stage the complaint or information referred thereto and cited by petitioner, unlike an impeachment complaint, must already be in the name of the People of the Philippines.

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The Baraquel group deems that there are provisions outside the Rules on Criminal Procedure that are more relevant to the issue. Both the Baraquel and Reyes groups point out that even if Sec. 13 of Rule 110 is made to apply, petitioners case falls under the exception since impeachment prescribes a single punishment removal from office and disqualification to hold any public office even for various offenses. Both groups also observe that petitioner concededly and admittedly was not keen on pursuing this issue during the oral arguments. Petitioners claim deserves scant consideration. Without going into the effectiveness of the suppletory application of the Rules on Criminal Procedure in carrying out the relevant constitutional provisions, which prerogative the Constitution vests on Congress, and without delving into the practicability of the application of the one offense per complaint rule, the initial determination of which must be made by the House which has yet to pass upon the question, the Court finds that petitioners invocation of that particular rule of Criminal Procedure does not lie. Suffice it to state that the Constitution allows the indictment for multiple impeachment offenses, with each charge representing an article of impeachment, assembled in one set known as the "Articles of Impeachment." It, therefore, follows that an impeachment complaint need not allege only one impeachable offense. The second procedural matter deals with the rule on consolidation. In rejecting a consolidation, petitioner maintains that the Constitution allows only one impeachment complaint against her within one year. Records show that public respondent disavowed any immediate need to consolidate. Its chairperson Rep. Tupas stated that "[c]onsolidation depends on the Committee whether to consolidate[; c]onsolidation may come today or may come later on after determination of the sufficiency in form and substance," and that "for purposes of consolidation, the Committee will decide when is the time to consolidate[, a]nd if, indeed, we need to consolidate." Petitioners petition, in fact, initially describes the consolidation as merely "contemplated." Since public respondent, whether motu proprio or upon motion, did not yet order a consolidation, the Court will not venture to make a determination on this matter, as it would be premature, conjectural or anticipatory.

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Even if the Court assumes petitioners change of stance that the two impeachment complaints were deemedconsolidated, her claim that consolidation is a legal anomaly fails. Petitioners theory obviously springs from her "proceeding = complaint" equation which the Court already brushed aside. WHEREFORE, the petition is DISMISSED. The assailed Resolutions of September 1, 2010 and September 7, 2010 of public respondent, the House of Representatives Committee on Justice, are NOT UNCONSTITUTIONAL. The Status Quo Ante Order issued by the Court on September 14, 2010 is LIFTED. SO ORDERED.

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G.R. No. 103121 September 10, 1993 REMEDIOS T. BLAQUERA, HERMINIO GUTIERREZ, AUGUSTO R. ORAA, VIRGINIA MALLILLIN, NENA T. AQUINO, RIZALYN DELA CRUZ, SATURNINO Y. CANMANGONAN, ALICIA S. UMEREZ, PRESENTACION C. DIEZ, VICTORIO M. VILLAGRACIA, FELISA C. GALARAGA, NELIA D. CANUELA, EDITHA P. FRIGILLANA, GLORIA T. DACANAY, BERNARD M. DE LARA, NORMA G. SORIANO, ADELAIDA CALOOY, VIRGINIA B. MILLANO, ADONIS S. JAVIER, SYLVIA C. ABUNGAN, BENJAMIN S. CADAWAN, NOEL V. FERRER, JOSUE PEREZ, RAMON QUEBRAL, ALFONSO DELA CRUZ, JOEL ALMOSARA, IMELDA CLARION, ANTONIO P. GUANSING, JR., WILFREDO VILLANUEVA, WENCESLAO MAGO, ANTONIO DEQUINA, ANGELO A. JAVIER, JOSE DE GUZMAN, REYNALDO VECINO, JOSEFA CAABAY, EXPEDITO SORIA, LAMBERTO MELAD, REBE LOZANO, DANILO C. ADINA, JOSE P. ARZADON, EDWIN L. DE VERA, BERNARDO M. MENDOZA, TITA H. MACARAEG, FELIFE B. SANTOS, LUCIO R. SUYAT, SANTIAGO R. FRAGANTE, FRANCISCA D. CANUEL, EVELYN B. LORQUE, LUIS MENDOZA, JAIME GATAN, PROTACIO ARAGON, JR., ARTURO T. SANTOS, R0GELIO S. GALANG, JOSEFA B. PELIAS, EDWARD P. FRANCO, DOMINADOR ABAD, MAXIMIANO ISADA, JR., MAMAO C. MACAPODI, JUAN CANLAS, SALVADOR PATA, ROLANDO LACANDASO, ALFONSO DE LEON, RODOLFO VELASCO, JR., DALMACIO H. NADAL, RENE CILINDRO, ELENA CASIS, ISABEL AMISCARAY, ELIZABETH VIDAL, MANUEL D. DE GUZMAN, ESTRELLA S. PABAIRA, VIOLETA S. TUVERA, LILIA T. TABENA, EDNA L. DOLLAGA, RODOLFO E. SIBAYAN, ALEXANDER R. PAYUMO, VIRGILIO R. ABAYA, TEMPOLOK G. AMIR, VICTOR B. BALDE, LULLA V. BERNANDO, ANGEL CADIZ, LUZ F. CADIZ, GUADALUPE P. CORLONCITO, FLORDELIZA P. FEDERIS, BERNANDO P. IBE, SALAMBAI A. KADATUAN, ZENAIDA A. LEANDER, TEDDY B. MARASIGAN, PASTOLERO A. NOEMI, ROBERTO C. DELA PAZ, AUGUSTO J. SANTOS, SAGUNDINA A. SARONA, IRISH S. TINO, CRISENTE C. MANIO, PUREZA T. SAYON, PETRONIO TADIOSA, HERMINIGILDO S. ALLASCO, ELVIRA C. SABANDO, SERGIO ABUAN, MITCHELL A. LACHICA, CELEDONIO C. BERNABE, MA. THERESA G. AQUINO, ALEJANDRO R. SIBUCAO, JR., EVELYN V. MENDEZ, DIGNICITA G. SERRANO, LILIA, J. RADA, NICASIO F. ROMERO, ANGELINA B. FERNANDEZ, INOCENCIA M. SANTOS, WILFREDO H. ZAPANTA,

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SATURNINA V. VITE, GUADENCIA V. FLORES, PEDRO VICTORIA, CATALINO ALCONIZ, MARIA REBECCA B. BURGOS, MA. MAGDALENA ESPEJO-MORENO, ROLANDO I. ETEROSA, ROMEO L. MANOSO, SATOR H. ALTAREJOS, NENITA N. AQUINO, FAUSTO S. BERNARDO, ROSARION MERLINDA B. BELLEDO, MANUEL V. DELA CRUZ, EMMIE L. IGNACIO, ANABELL C. LABORTE, ALBERT A. MAGALANG, JAIME P. MALLARE, CONCEPCION C. OCAMPO, FLORENTINO C. PALO, REGULO S. QUEJADA, LUIS FIDEL B. RONQUILLO, NELIA M. SANTOS, MALANE DELOS SANTOS, REBECCA E. SARACHO, LIZ Y. VELARDE, ANITA R. ABIERA, ARMANDO V. ACOSTA, ADVINCULA B. ADVINCULA, FELIMON J. ALANO, ASUNCION T. AMIN, LORELIE N. ANDRES, RAUEL A. BALAJADIA, ROSARIO B. BATOON, DOLORES B. BETRAN, PRIMA M. CABRAL, ROSARIO H. CAPILI, BRIGIDA N. DE CASTRO, TEODORO A. DE CASTRO, DUNN HERMANN C. DALIRE, JOCOBO G. FESALBON, FE G. GAMBA, MARIA JAY A. GENCIANA, ROSARIO G. GUIRON, CONSTANTINO C. GODOY, FRANCISCO F. GODOY, JOVITA C. GOMEZ, TEODORA R. KUIZON, JOSEPHINE G. L. LAUCHENGCO, PUBLIO P. MALLINLLIN, JULIE C. MANALO, ROSALINDA P. MEMPIN, HERNANI G. DEL MUNDO, EDERLINA C. MUSNGI, FE V. NOCHE, PERCIDA G. NORTON, EVA A. NUGUIM, EMELITA S. DEL PRADO, EMERICO B. PUMARADA, BENJAMINA QUINACUAN, ISABEL C. RIVERA, RAQUEL P. DEL ROSARIO, OLYMPIA M. DE SAGUN, JAIME F. SANTOS, MARIO L. SANTOS, VIRGILIO M. SARMIENTO, LILIBETH M. SOAN, LOIDA S. VALENCIA, ANGELINA A. VELASQUEZ, ADELINA B. VICTORIA, MA. ROSARIO MANZANO, ROSALINDA C. BALANCIO, GLORIA KABIGTING, MARIO N. TOLENTINO, VICTORIA C. TIONGSON, EMILIO S. MEDINA, SYLVIA H. CASTRO ABUNGAN, DEMCIA T. BRAGANZA, MARINO K. SANTOS, TERESITA B. TOMAS, PEDRILLO B. ALFAREJOS, JANETTE L. GARCIA, DON E. ABARRIENTOS, REYNALDO M. CENTENO, CRISTETA A. CASTRO, WILFREDO B. BONILLA, DELIA C. SERRANO, CONCESA IMPOSALDAY, RESTITUTO P. PARDIAS, EVANGELINE T. CORCUERA, ANICETO D. ORDEN, ESTELITA S.I. FLORES, PATRIA ABUNALES, SELFA C. FERNANDEZ, VIOLETA A. BUAGAS, LYDIA VILLARIN, LULU CORRALES, ZENAIDA MALLATE, RAQUEL FUENTES, EMELINA GAMBA, JEAN MIN LADIA, CHONA ZAMORA, ALICIA CIMATU, REYNALDO P. ALCANCES, MARINELA CECILIA T. PASCUA and DOLORES T. TOLENTINO, petitioners, CONRADO SALVADOR and MIGUEL CAISIP, Intervenors,

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vs. THE CIVIL SERVICE COMMISSION, HON. FULGENCIO S. FACTORAN, JR., as the Secretary of the Department of Environment and Natural Resources, HON. GUILLERMO N. CARAGUE, as the Secretary of the Department of Budget and Management, respondents. Padilla, Jimenez, Kintanar & Asuncion Law Office for petitioners. The Solicitor General for respondents.

GRIO-AQUINO, J.: The petitioners and intervenors who are permanent employees in the Department of Environment and Natural Resources (DENR) filed this petition for prohibition and mandamus with a prayer for the issuance of a writ of preliminary injunction and/or restraining order, to stop the respondents from removing them from their positions in the DENR pursuant to the 1987 reorganization of that department under Executive Order No. 192 dated June 10, 1987. To carry out said reorganization, and pursuant to Executive Order No. 165 of May 5, 1987 which abolished the Commission of Government Reorganization and transferred its remaining functions to the Department of Budget and Management (DBM for brevity), DENR Secretary Fulgencio S. Factoran, Jr. submitted to the DBM a staffing pattern consisting of 28,106 positions. The DBM approved only 22,956 positions and the petitioners' positions were among those trimmed off the new plantilla. As the lean plantilla did not meet the manpower requirements of the DENR, Secretary Factoran submitted a staffing pattern consisting of 24,614 positions. On July 4, 1988, the DBM released a revised staffing pattern containing 23,612 positions only which was 1,002 positions less than what the DENR Secretary requested and which still did not include the positions of the petitioners. On July 29, 1988, the DENR requested the DBM to restore 839 positions which DBM had disapproved earlier. The request was approved on September 14, 1988 after long negotiations between the DENR and DBM,

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subject to the condition that these positions shall be coterminous with the appointees but not to exceed three (3) years. The implications of this are: 1. If the appointee desires to retire, resign, transfer to other office or leave his employment for any reason whatsoever, the position is automatically abolished, even if the three-year period has not lapsed. 2. By the end of the 3rd year, the employee holding a coterminous position is automatically separated. (p. 7, Rollo.) Meanwhile, on June 10, 1988, Republic Act No. 6656 "An Act to Protect the Security of Tenure of Civil Service Officers and Employees In the Implementation of Government Reorganization," was passed. Section 11 thereof orders all departments and agencies to complete the 1987 reorganization of the executive branch within ninety (90) days from the approval of the law, or on or before September 8, 1988. The directors of the affected bureaus (the Environmental Management Bureau, Forestry Management Bureau, Parks and Wildlife Bureau, Mines and Geosciences Bureau) requested the DENR and DBM Secretaries to convert the coterminous positions to permanent. The DENR Secretary favorably endorsed their request citing changes in the functions of the DENR as justification for the request (Annex B). The request was reiterated by the DENR Assistant Secretary for Services Management but it was denied on December 19, 1990 by DBM Secretary Guillermo Carague. The DENR Secretary's motion for reconsideration was not acted upon by Secretary Carague. Meanwhile, the General Appropriations Act of FY 1991 (R.A. No. 7078) provided for the salaries of the coterminous employees in the DENR until December 31 ,1991. On August 6, 1991, DENR Secretary Factoran submitted a memorandum to President Aquino, through Executive Secretary Franklin Drilon, requesting that the 597 coterminous positions of the DENR (which would expire on September 15, 1991) be extended up to December 31, 1991, without prejudice to DBM's action on his (Secretary Factoran's) motion for reconsideration. The Office of the President granted the request.

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But as Secretary Factoran's request for reconsideration of Secretary Carague's order remained unacted upon, the petitioners filed in this Court on December 19, 1991, the present petition for prohibition and mandamus with a prayer for the issuance of a restraining order/preliminary injunction. The grounds relied upon by the petitioners are: 1. That the impending mass dismissal of petitioners from employment on December 31, 1991 would violate their right to security of tenure and the provisions of Republic Act. No. 6656; 2. That the appointment of the petitioners to the so-called coterminous positions deprived them of the right to due process; 3. The creation of positions "coterminous with the incumbent but not exceeding three years" is not in accordance with civil service laws, rules and regulations; and 4. Respondent DBM Secretary has no discretion but to grant respondent DENR Secretary's request for regularization of the coterminous positions. Upon receipt of the petition, the Court issued a temporary restraining order directing the DENR Secretary to "cease and desist from terminating the services of the petitioners effective December 31, 1991 and from preventing them from performing their duties and functions as officials and employees of the DENR corresponding to their respective positions" (p. 51, Rollo). On January 23, 1992, petitioners filed an "Urgent Motion to Cite Respondents for Contempt" for failure to pay their salaries, allowances and such other benefits due them while they continue to perform their respective duties and responsibilities in the DENR. On March 2, 1992, petitioners filed a Supplemental Motion for Contempt on the ground that besides not paying their salaries respondents made them sign new appointments making them "coterminous with the incumbent." These acts of the respondents allegedly violate the Restraining Order issued by this Court on December 27, 1991.

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In its Comment, the Office of the Solicitor General denied that public respondents have violated the temporary restraining order. Respondent DENR Secretary complied with the TRO by not terminating the services of the petitioners. Non-payment of the petitioners' salaries was due to the lack of an appropriation of funds for their salaries. Besides, the TRO did not require the DBM to appropriate funds for their salaries. The DBM did not violate the TRO when it required petitioners to sign new appointments making their positions coterminous with the incumbent for it (DBM) was not directed by the TRO to desist from committing any act. On January 23, 1992, Reynaldo Alcances, Marinela Cecilia T. Pascua and Dolores T. Tolentino, through the petitioners counsel, asked to be included as petitioners because their names had been inadvertently omitted from the list of petitioners. Their motion may be granted for they are similarly situated as the original petitioners who have continued to work in the DENR beyond December 31, 1991. On February 24, 1992, a Motion for Leave to Intervene was filed by Conrado Salvador and Miguel Caisip which was not opposed by the petitioners. Before the Court could grant them leave to intervene, they filed a complaint in Intervention on July 20, 1993. On March 6, 1992, Alfredo S. Marchadesch, Jr. and Carolina S. Cavan withdrew as petitioners because they had accepted new appointments in the DENR. On April 13, 1992, the public respondents, through the Solicitor General, filed their Comment on the petition. The petitioners argue that their dismissal on December 31, 1991, would violate their right to security of tenure safeguarded by paragraph (3), Section 2 of Article IX-B of the Constitution, and the 2nd paragraph, Section 3 of Article XIII thereof. They also invoke Sections 1 and 11 of Republic Act No. 6656, which provide that "departments and agencies of the government have only ninety (90) days from the approval of the Act to undertake the complete implementation of their respective reorganization plan, hence, the DENR had only up to September 8, 1988, to reorganize. Their dismissal on December 31, 1991, goes beyond the period allowed by law for the reorganization of the DENR. We find merit in the petition.

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It may be recalled that upon her assumption of office as President of the Philippines after the EDSA Revolution, President Corazon Aquino invested herself under Sections 1 and 2, Article III of the Freedom Constitution (Proclamation No. 3, March 25, 1986) with power and authority to reorganize the Government "by proclamation or executive order or by designation or appointment and qualification of the successor of any elective and appointive officials under the 1973 Constitution." The reorganization was to be completed within one year from February 25, 1986, or by February 25, 1987. Sec. 1. In the reorganization of the government, priority shall be given to measures to promote economy, efficiency, and the eradication of graft and corruption. Sec. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such is made within a period of one year from February 25, 1986. (Emphasis ours.) However, "in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees, particularly in the Career Civil Service" arising from the reorganization of the government, the President issued E. O. No. 17 on May 28, 1986 providing guidelines for the implementation of the reorganization "to protect career civil servants whose qualifications and performance meet the standards of service demanded by the new Government, and to ensure that only those found corrupt, inefficient and undeserving are separated from the government service." The head of each Ministry (now Department) was tasked to "see to it that the separation and replacement of officers and employees is made only for justifiable reasons" which are: Sec. 3. The following shall be the grounds for separation/ replacement of personnel: 1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;

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2. Existence of a probable cause for violation of the Anti-Graft and Corrupt Practice Act as determined by the Ministry Head concerned; 3. Gross incompetence or inefficiency in the discharge of functions; 4. Misuse of public office for partisan political purposes; 5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his separation/replacement is in the interest of the service. (E.O. No. 17.) Excluded from the protection of E.O. No. 17 are: Sec. 11. This Executive Order shall not apply to elective officials or those designated to replace them, presidential appointees, casual and contractual employees, or officials and employees removed pursuant to disciplinary proceedings under the Civil Service Law and Rules, and to those laid off as a result of the reorganization undertaken pursuant to Executive Order No. 5. (Emphasis supplied.) As a result of the ratification of the 1987 Constitution by the nation, the reorganization deadline in Proclamation No. 3 (February 25, 1987) was advanced to February 2, 1987. Although the security of tenure of government employees is protected by Section 2, subpar. (3), Title B, Article IX of the 1987 Constitution, thus: Sec. 2. (3) No officer or employee of the civil service shall be removed or suspended except for cause provided by law. Section 16 of Article XVIII (Transitory Provisions) of the Constitution still allows the separation of employees "not for cause but as a result of the reorganization pursuant to Proclamation No. 3 . . . and the reorganization following the ratification of this Constitution." Section 16 is quoted hereunder: Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization

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pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this Constitution shall be entitled to appropriate separation pay and to retirement and other benefits accruing to them under the laws of general application in force at the time of their separation. In lieu thereof, at the option of the employees, they may be considered for employment in the Government or in any of its subdivision, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries. This provision also applies to career officers whose resignation, tendered in line with the existing policy, had been accepted. (Emphasis ours.) E. O. No. 192 dated June 10, 1987 "PROVIDING FOR THE REORGANIZATION OF THE DEPARTMENT OF ENVIRONMENT, ENERGY AND NATURAL RESOURCES, RENAMING IT THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, AND FOR OTHER PURPOSES" is a "reorganization following the ratification of this Constitution." Although impliedly sanctioned under Section 16 of the Transitory Provisions of the 1987 Constitution, it must nevertheless pass the test of good faith to be valid. Good faith, we ruled in Dario vs. Misonis a basic ingredient for the validity of any government reorganization. It is the golden thread that holds together the fabric of the reorganization. Without it, the cloth would disintegrate. Reorganization is a recognized valid ground for separation of civil service employees, subject only to the condition that it be done in good faith. No less than the Constitution itself in Section 16 of the Transitory Provisions, together with Sections 33 and 34 of Executive Order No. 6656, support this conclusion with the declaration that all those not so appointed in the implementation of said reorganization shall be deemed separated from the service with the concomitant recognition of their entitlement to appropriate separation benefits and/or retirement plans of the reorganized government agency. (Domingo vs. Development Bank of the Phils., 207 SCRA 766.) A reorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency in its operation. It is not a mere tool of the spoils system to change the face of the

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bureaucracy and destroy the livelihood of hordes of career employees in the civil service so that the new-powers-that-be may put their own people in control of the machinery of government. Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. (Dario vs. Mison, 176 SCRA 84, 92-93.) There is no dispute over the power to reorganize whether traditional, progressive, or whatever adjective is appended to it. However, the essence of constitutional government is adherence to basic rules. The rule of law requires that no government official should feel free to do as he pleases using only his avowedly sincere intentions and conscience to guide him. The fundamental standards of fairness embodied in the bona fide rule cannot be disregarded. More particularly, the auto-limitations imposed by the President when she proclaimed the Provisional Constitution and issued executive orders as sole law maker and the standards and restrictions prescribed by the present Constitution and the Congress established under it, must be obeyed. Absent this compliance, we cannot say that a reorganization is bona fide. (Mendoza vs. Quisumbing, 186 SCRA 108.) In fact, the right of the state to reorganize the Government resulting in the separation of career civil service employees under the 1987 Constitution is beyond dispute, but as emphasized in the Mison case (G.R. Nos. 81954, 81967 and

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82023, August 8, 1989) and in the cases of Bondoc vs. Sec. of Science and Technology (G.R. No. 83025), Quisumbing vs. Tupas (G.R. No. 87401) and Hamed vs.Civil service Commission (G.R. No. 89069), all of which having been promulgated on July 19, 1990,said reorganization, ouster, and appointments of successors must be made in GOOD FAITH. (Emphasis supplied; Siete vs. Santos, 190 SCRA 50, 51-52.) There appears to be no sufficient justification for the reorganization of the DENR, as revised by the DBM. The fact that Section 25 of E.O. No. 192 changed the status of all the officers and employees of the DENR from permanent or regular to mere "hold-overs," flagrantly violating the employees' right to due process, taints the reorganization process. Section 25 provides: Sec. 25. New Structure and Pattern. Upon approval of this executive Order, the officers and employees of the Department shall in a hold-over capacity, continue to perform their respective duties and responsibilities and receive the corresponding salaries and benefits unless in the meantime they are separated from government service. . . . Those incumbents whose positions are not included therein, or, who are not reappointed, shall be deemed separated from the service. . . . In Domingo vs. DBP, 207 SCRA 766, the Court emphasized that a reorganization "does not justify a detraction from the mandatory requirement of notice and hearing" (emphasis ours) to the affected officials and employees. Section 2 of Republic Act No. 6656 provides that "no officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing." Thus, there is no question that while dismissal due to a bona fide reorganization is recognized as a valid cause, this does not justify a detraction from the mandatory requirement of notice and hearing. . . . (Emphasis supplied; Domingo vs. Development Bank of the Philippines, 207 SCRA 766.)

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In Mendoza vs. Quisumbing, 186 SCRA 108, the Court noted the pernicious effect of the "hold-over" provision (Sec. 24) in Executive Order No. 117 reorganizing the Department of Education and Culture which uprooted thousands of school teachers and employees, thus: . . . Pursuant to the above provision [Sec. 24, E. O. No. 117], around 400,000 school teachers, janitors, clerks, principals, supervisors, administrators, and higher officials were placed on "hold-over status." When a public officer is placed on hold-over status, it means that his term has expired or his services terminated but he should continue holding his office until his successor is appointed or chosen and has qualified. (See Topacio Nueno vs. Angeles, 76 Phil. 12 [1946]). (Mendoza vs. Quisumbing, 186 SCRA 108, 110-111.) That the reorganization of the DENR was not intended to achieve economy and efficiency, is revealed by the admission in page 16 of the public respondents' Comment that the new staffing pattern of the department contains "991 positions more than the total number of permanent positions in the DENR before the reorganization." In fact, DENR Secretary Fulgencio Factoran (who is presumed to know better than anyone else the needs of his department) had urged the DBM to restore the positions of the petitioners because they are "vital to the functions, mandates and objectives of the DENR" (p. 30, Comment). Since the abolition of their positions will not conduce to either "efficiency" or "economy" in the Service, which are the principal justifications for any government overhaul, then, obviously, the reorganization of the DENR is not justified. The conversion of the petitioners from permanent to "coterminous" employees is a wholesale demotion of personnel which is tantamount to removal without cause and without due process. (Floreza vs. Ongpin, 182 SCRA 692, 693.) It is therefore null and void. WHEREFORE, the petition for certiorari in GRANTED. The removal of the petitioners and intervenors from office is declared null and void. The respondent Secretary of the Department of Environment and Natural Resources (DENR), or his successor in office, is ordered to reinstate the petitioners to their former or equivalent positions in the DENR without loss of seniority and other benefits, and to issue regular and permanent appointments to them for the positions in the new organization and staffing

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pattern corresponding to their positions in the 1986 plantilla. The respondent Secretary of the Department of Budget and Management, or his successor in office, is ordered to reinstate the appropriation for the salaries of the petitioners and intervenors. The temporary restraining order which the Court issued in this case is made permanent. The petitioners' motion to cite the public respondents for contempt of court is DENIED for having become moot after the latter's resignation from office upon the change of administration on June 30, 1992. No costs. SO ORDERED.