SANLAKAS Vs.

Executive Secretary

421 SCRA 656 G.R. No. 159085

February 3, 2004

Facts: During the wee hours of July 27, 2003, some three-hundred junior officers and enlisted men of the AFP,
acting upon instigation, command and direction of known and unknown leaders have seized the Oakwood Building
in Makati. Publicly, they complained of the corruption in the AFP and declared their withdrawal of support for the
government, demanding the resignation of the President, Secretary of Defense and the PNP Chief. These acts
constitute a violation of Article 134 of the Revised Penal Code, and by virtue of Proclamation No. 427 and General
Order No. 4, the Philippines was declared under the State of Rebellion. Negotiations took place and the officers
went back to their barracks in the evening of the same day. On August 1, 2003, both the Proclamation and General
Orders were lifted, and Proclamation No. 435, declaring the Cessation of the State of Rebellion was issued.

In the interim, however, the following petitions were filed: (1) SANLAKAS AND PARTIDO NG MANGGAGAWA VS.
EXECUTIVE SECRETARY, petitioners contending that Sec. 18 Article VII of the Constitution does not require the
declaration of a state of rebellion to call out the AFP, and that there is no factual basis for such proclamation. (2)SJS
Officers/Members v. Hon. Executive Secretary, et al, petitioners contending that the proclamation is a circumvention
of the report requirement under the same Section 18, Article VII, commanding the President to submit a report to
Congress within 48 hours from the proclamation of martial law. Finally, they contend that the presidential issuances
cannot be construed as an exercise of emergency powers as Congress has not delegated any such power to the
President. (3) Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo, petitioners
contending that there was usurpation of the power of Congress granted by Section 23 (2), Article VI of the
Constitution. (4) Pimentel v. Romulo, et al, petitioner fears that the declaration of a state of rebellion "opens the
door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion.

Issue:

Whether or Not Proclamation No. 427 and General Order No. 4 are constitutional?

Whether or Not the petitioners have a legal standing or locus standi to bring suit?

Held: The Court rendered that the both the Proclamation No. 427 and General Order No. 4 are constitutional.
Section 18, Article VII does not expressly prohibit declaring state or rebellion. The President in addition to its
Commander-in-Chief Powers is conferred by the Constitution executive powers. It is not disputed that the President
has full discretionary power to call out the armed forces and to determine the necessity for the exercise of such
power. While the Court may examine whether the power was exercised within constitutional limits or in a manner
constituting grave abuse of discretion, none of the petitioners here have, by way of proof, supported their assertion
that the President acted without factual basis. The issue of the circumvention of the report is of no merit as there
was no indication that military tribunals have replaced civil courts or that military authorities have taken over the
functions of Civil Courts. The issue of usurpation of the legislative power of the Congress is of no moment since
the President, in declaring a state of rebellion and in calling out the armed forces, was merely exercising a wedding
of her Chief Executive and Commander-in-Chief powers. These are purely executive powers, vested on the
President by Sections 1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by Section
23 (2), Article VI. The fear on warrantless arrest is unreasonable, since any person may be subject to this whether
there is rebellion or not as this is a crime punishable under the Revised Penal Code, and as long as a valid
warrantless arrest is present.

Legal standing or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The gist
of the question of standing is whether a party alleges "such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of Issue upon which the court depends for
illumination of difficult constitutional questions. Based on the foregoing, petitioners Sanlakas and PM, and SJS
Officers/Members have no legal standing to sue. Only petitioners Rep. Suplico et al. and Sen. Pimentel, as
Members of Congress, have standing to challenge the subject issuances. It sustained its decision in Philippine
Constitution Association v. Enriquez, that the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the powers of that institution.
REVIEW CENTER ASSOCIATION OF PHILIPPINES v. EXECUTIVE SECRETARY EDUARDO ERMITA, GR
No. 180046, 2009-04-02
Facts:
On 11 and 12 June 2006, the Professional Regulation Commission (PRC) conducted the Nursing Board
Examinations nationwide. In June 2006, licensure applicants wrote the PRC to report that handwritten copies of
two sets of examinations were circulated during the examination period... among the examinees reviewing at the
R.A. Gapuz Review Center and Inress Review Center.
George Cordero, Inress Review Center's President, was then the incumbent President of the Philippine Nurses
Association.
On 18 August 2006, the Court of Appeals restrained the PRC from proceeding with the oath-taking of the
successful examinees set on 22 August 2006.
Consequently, President Gloria Macapagal-Arroyo (President Arroyo) replaced all the members of the PRC's
Board of Nursing. President Arroyo also ordered the examinees to re-take the Nursing Board Examinations.
On 8 September 2006, President Arroyo issued EO 566 which authorized the CHED to supervise the
establishment and operation of all review centers and similar entities in the Philippines.
the Review Center Association of the Philippines (petitioner), an organization of independent review centers,
asked the CHED to "amend, if not withdraw" the IRR arguing, among other things, that giving permits to... operate
a review center to Higher Education Institutions (HEIs) or consortia of HEIs and professional organizations will
effectively abolish independent review centers.
EO 566- authorized ched to supervise the establishment and operation of all review centers
In a letter dated 3 January 2007,[6] Chairman Puno wrote petitioner, through its President Jose Antonio Fudolig
(Fudolig), that to suspend the implementation of the IRR would be inconsistent with the mandate of EO 566.
On 7 May 2007, the CHED approved the RIRR. On 22 August 2007, petitioner filed before the CHED a Petition to
Clarify/Amend Revised Implementing Rules and Regulations[8] praying for a ruling:
Amending the RIRR by excluding independent review centers from the coverage of the CHED;
Clarifying the meaning of the requirement for existing review centers to tie-up or be integrated with HEIs,
consortium or HEIs and PRC-recognized professional associations with recognized programs, or in the
alternative, to convert into schools; and
Revising the rules to make it conform with Republic Act No. 7722 (RA 7722)[9] limiting the CHED's coverage to
public and private institutions of higher education as well as degree-granting programs in post-secondary
educational institutions.
CHED was given the authority to regulate and establish review centers uner EO 566
While it may be true that regulation of review centers is not one of the mandates of CHED under Republic Act
7722, however, on September 8, 2006, Her Excellency, President Gloria Macapagal-Arroyo, issued Executive
Order No. 566 directing the Commission on Higher
Education to regulate the establishment and operation of review centers and similar entities in the entire country.
With the issuance of the aforesaid Executive Order, the CHED now is the agency that is mandated to regulate the
establishment and operation of all review centers as provided for under Section 4 of the Executive Order which
provides that "No review center or similar... entities shall be established and/or operate review classes without the
favorable expressed indorsement of the CHED and without the issuance of the necessary permits or
authorizations to conduct review classes. x x x"
pertinent provision of the IRR
Section 1. Authority to Establish and Operate - Only CHED recognized, accredited and reputable HEIs may be
authorized to establish and operate review center/course by the CHED upon full compliance with the conditions
and requirements provided herein and in other pertinent laws,... rules and regulations. In addition, a consortium or
consortia of qualified schools and/or entities may establish and operate review centers or conduct review classes
upon compliance with the provisions of these Rules.
Issues:
The issues raised in this case are the following:
Whether EO 566 is an unconstitutional exercise by the Executive of legislative power as it expands the CHED's
jurisdiction; and
Whether the RIRR is an invalid exercise of the Executive's rule-making power.
Ruling:
The petition has merit.
The propensity of litigants and lawyers to disregard the hierarchy of courts in our judicial system by seeking relief
directly from this Court must be put to a halt for two reasons: (1) it would be an imposition upon the precious time
of this Court; and (2) it would... cause an inevitable and resultant delay, intended or otherwise, in the adjudication
of cases, which in some instances had to be remanded or referred to the lower court as the proper forum under
the rules of procedure, or as better equipped to resolve the issues because this
Court is not a trier of facts.
The rule, however, is not absolute, as when exceptional and compelling circumstances justify the exercise of this
Court of its primary jurisdiction
The alleged violation of the Constitution by the Executive Department when it issued EO 566 justifies the exercise
by the Court of its primary jurisdiction over the case. The Court is not precluded from brushing aside technicalities
and taking cognizance of an... action due to its importance to the public and in keeping with its duty to determine
whether the other branches of the Government have kept themselves within the limits of the Constitution.
EO 566 Expands the Coverage of RA 7722
The OSG justifies its stand by claiming that the term "programs x x x of higher learning" is broad enough to
include programs offered by review centers.
We do not agree.
Section 3 of RA 7722 provides:
Sec. 3. Creation of Commission on Higher Education. - In pursuance of the abovementioned policies, the
Commission on Higher Education is hereby created, hereinafter referred to as the Commission.
The Commission shall be independent and separate from the Department of Education, Culture and Sports
(DECS), and attached to the Office of the President for administrative purposes only. Its coverage shall be both
public and private institutions of higher education as well... as degree-granting programs in all post-secondary
educational institutions, public and private. (Emphasis supplied)
Neither RA 7722 nor CHED Order No. 3, series of 1994 (Implementing Rules of RA 7722)[24] defines an
institution of higher learning or a program of higher learning.
Further, Articles 6 and 7 of the Implementing Rules provide:
Article 6. Scope of Application. - The coverage of the Commission shall be both public and private institutions of
higher education as well as degree granting programs in all post-secondary educational institutions, public and
private.
These Rules shall apply to all public and private educational institutions offering tertiary degree programs.
The establishment, conversion, or elevation of degree-granting institutions shall be within the responsibility of the
Commission.
Clearly, HEIs refer to degree-granting institutions, or those offering tertiary degree or post-secondary programs. In
fact, Republic Act No. 8292 or the Higher Education Modernization Act of 1997 covers chartered state universities
and colleges. State universities and colleges... primarily offer degree courses and programs.
The scopes of EO 566 and the RIRR clearly expand the CHED's coverage under RA 7722. The CHED's
coverage under RA 7722 is limited to public and private institutions of higher education and degree-granting
programs in all public and private post-secondary educational... institutions. EO 566 directed the CHED to
formulate a framework for the regulation of review centers and similar entities
Usurpation of Legislative Power
The President has no inherent or delegated legislative power to amend the functions of the CHED under RA
7722. Legislative power is the authority to make laws and to alter or repeal them,[32] and this power is vested
with the Congress under Section 1,... Article VI of the 1987 Constitution which states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.
The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under
the Constitution, to make laws, and to alter and repeal them."
The Constitution, as the will of the people in their original, sovereign and... unlimited capacity, has vested this
power in the Congress of the Philippines.
Main issue relating to Art. VII
As head of the Executive Department, the President is the Chief Executive. He represents the government as a
whole and sees to it that all laws are enforced by the officials and employees of his department. He has control
over the executive department, bureaus and offices. This... means that he has the authority to assume directly the
functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to
the power of control, the President also has the duty of supervising the enforcement of laws for the...
maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties effectively.
Administrative power is concerned with the work of applying policies and enforcing orders as determined by
proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and
check the official conduct of his agents. To this end, he... can issue administrative orders, rules and regulations.
"Sec. 3. Administrative Orders. - Acts of the President which relate to particular aspects of governmental
operation in pursuance of his duties as administrative head shall be promulgated in administrative orders."
An administrative order is an ordinance issued by the President which relates to specific aspects in the
administrative operation of government. It must be in harmony with the law and should be for the sole purpose of
implementing the law and carrying out the legislative... policy. x x x.
Since EO 566 is an invalid exercise of legislative power, the RIRR is also an invalid exercise of the CHED's
quasi-legislative power.
Administrative agencies exercise their quasi-legislative or rule-making power through the promulgation of rules
and regulations.[36] The CHED may only exercise its rule-making power within the confines of its jurisdiction
under RA 7722. The RIRR covers... review centers and similar entities which are neither institutions of higher
education nor institutions offering degree-granting programs.
Exercise of Police Power
Police power primarily rests with the legislature although it may be exercised by the President and administrative
boards by virtue of a valid delegation
Here, no delegation of police power exists under RA 7722 authorizing the President... to regulate the operations
of non-degree granting review centers.
Republic Act No. 8981 is Not the Appropriate Law
There is no doubt that a principal mandate of the PRC is to preserve the integrity of licensure examinations. The
PRC has the power to adopt measures to preserve the integrity and inviolability of licensure examinations.
However, this power should properly be interpreted to... refer to the conduct of the examinations
These powers of the PRC have nothing to do at all with the regulation of review centers.
However, this power has nothing to do with the regulation of review centers. The PRC has the power to bar PRB
members from conducting review classes in review centers. However, to... interpret this power to extend to the
power to regulate review centers is clearly an unwarranted interpretation of RA 8981.
Section 7(y) of RA 8981 giving the PRC the power to perform "such other functions and duties as may be
necessary to carry out the provisions" of RA 8981 does not extend to the regulation of review centers. There is
absolutely nothing in RA 8981 that mentions regulation by the
PRC of review centers.
Similarly, the PRC has no mandate to regulate similar entities whose reviewees will not even... take any licensure
examination given by the PRC.
WHEREFORE, we GRANT the petition and the petition-in-intervention. We DECLARE Executive Order No. 566
and Commission on Higher Education Memorandum Order No. 30, series of 2007 VOID for being
unconstitutional.
SO ORDERED.
DENNIS A. B. FUNA v. EXECUTIVE SECRETARY EDUARDO R. ERMITA, GR No. 184740, 2010-02-11
Facts:
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista)
as Undersecretary of the Department of Transportation and Communications (DOTC)
Bautista was designated as Undersecretary for Maritime
Transport of the department under Special Order No. 2006-171 dated October 23, 2006
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista
was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC
Undersecretary
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the
instant petition challenging the constitutionality of Bautista's appointment/designation, which is proscribed by the
prohibition on the President, Vice-President, the
Members of the Cabinet, and their deputies and assistants to hold any other office or employment
Issues:
Petitioner argues that Bautista's concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of
Section 13, Article VII of the 1987 Constitution
He points out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those...
positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC
Undersecretary
The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she does not
occupy it in an ex-officio capacity since an ex-officio position does not require any "further warrant or appoint.
Petitioner further contends that even if Bautista's appointment or designation as OIC of MARINA was intended to
be merely temporary, still, such designation must not violate a standing constitutional prohibition
Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA
Administrator... respondents submit that the petition should still be dismissed for being unmeritorious considering
that Bautista's concurrent designation as MARINA OIC and DOTC Undersecretary was... constitutional. There
was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely
designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed
MARINA Administrator.
The sole issue to be resolved is whether or not the designation of respondent Bautista as OIC of MARINA,
concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed,
violated the constitutional proscription against dual or multiple... offices for Cabinet Members and their deputies
and assistants.
Ruling:
These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions
are not similarly imposed on other public officials or employees such as the Members of Congress, members of
the civil service in general and members of... the armed forces, are proof of the intent of the 1987 Constitution to
treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and... assistants may do so only when expressly authorized by the
Constitution itself.
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during... their tenure, the exception to this prohibition must be read with
equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding multiple... government offices or
employment.
Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter
prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7,
paragraph 2, Article IX-B where holding another... office is allowed by law or the primary functions of the position.
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-
Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as
DOTC Undersecretary for Maritime Transport, is... hereby declared UNCONSTITUTIONAL for being violative of
Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.
Principles:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall
not, during said tenure,... directly or indirectly practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the Government or
any subdivision, agency, or instrumentality thereof, including... government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
Sec. 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or... their subsidiaries.
Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to
exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in
security of tenure for the... person chosen unless he is replaceable at pleasure because of the nature of his office.
Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent
official, as where, in the case before us, the Secretary of Tourism is designated
Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three
Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or
the House of Representatives. It is said that... appointment is essentially executive while designation is legislative
in nature.
Designation may also be loosely defined as an appointment because it likewise involves the naming of a
particular person to a specified public office. That is the common understanding of the term. However, where the
person is merely designated and not appointed, the... implication is that he shall hold the office only in a
temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is
considered only an acting or temporary appointment, which does not confer security of tenure on the... person
named.
Senate of the Phils. v Executive Secretary
G.R. No. 169777 April 20, 2006

Facts:

 Assailed in this petition was the constitutionality of Executive Order 464 issued by the President.
Petitioners contend that the President abused its power and prayed that said law be declared null and
void. EO 464 requires that heads of departments obtain the consent of the President before they can
validly appear before investigations including the one conducted in the Senate. It also grants executive
privilege on all classified or confidential information between the President and the public officers covered
by the EO.
 The Senate conducted an investigation and issued invitations to various officials of the Executive
department as resource speakers in a public hearing on the North Rail project. Said public hearing was
sparked by a privilege speech of Sen. Enrile urging the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the said project. The Senate Committee on National
Defense and Security likewise issued invitations to officials of the AFP.
 Executive Ermita sent a letter to the Senate requesting postponement of the hearing. On the same day
(Sept 28, 2005) the President issued EO 464. Despite this development, the investigation pushed
through, with only Col. Balutan and Brig. Gen. Gudani among all the AFP officials invited attending. Both
were subsequently relieved for defying the President’s order.
 Hence, three petitions (Bayan Muna, Sen. Chavez, Alt.. Law Group), for certiorari and prohibition and
TRO, were filed before the Supreme Court challenging the constitutionality of E.O. 464.

ISSUE 1: Whether or not E.O. 464 contravenes the power of inquiry vested in Congress

YES. EO 464 bars the appearance of executive officials before the Congress, hence it deprives it of the
information in possession of these officials.

 The Congress power of inquiry is expressly recognized in Sec. 21 Article VI of the Constitution. This
power is incidental to the legislative function. The power of inquiry – with process to enforce it -- is an
essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting conditions which the legislation is intended to affect or
change; and when it does not possess the required information, recourse must be had on others who
possess it. This power is broad enough to cover officials of the executive branch. The operation of the
government is a proper subject for investigation, as held in Arnault case.
 Although the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry,
which fall under the rubric of ‘executive privilege’. It is defined by Schwartz as “the power of the
government to withhold information from the public, the courts and the Congress.” (e.g. state secret
privilege, informer’s privilege, generic privilege)
 The power of Congress to compel the appearance of executive officials under Section 21 and the lack of it
under Section 22 find their basis in the principle of separation of powers. While the executive branch is a
co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to
comply with its demands for information. The oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with
the intent discerned from the deliberations of the Constitutional Commission.
 Congress undoubtedly, has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so
assert it and state the reason therefor and why it must be respected.
 The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests
for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By
the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of
legislation is frustrated. That is impermissible.
 Executive privilege, whether asserted against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character. While executive privilege is a constitutional
concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty
 to disclose information by the mere fact of being executive officials. Indeed, the extraordinary character of
the exemptions indicates that the presumption inclines heavily against executive secrecy and in favor of
disclosure.

Sec. 21 (Inquiry in Aid of Legislation) vs Sec. 22 (Question Hour)

 A distinction was made between inquiries in aid of legislation and the question hour. While attendance
was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation.
These are two distinct functions of the legislature. Sec. 21 and 22 while closely related does not pertain to
the same power of the Congress. One specifically relates to the power to conduct inquiries in aid of
legislation with the aim of eliciting information that may be used in legislation while the other pertains to
the power to conduct a question hour, the objective of which is to obtain information in pursuit of
Congress’ oversight function. Hence, the oversight function of Congress may only be facilitated by
compulsory process only to the extent that it is performed in pursuit of legislation.
 When Congress exercises its power of inquiry, the only way for the department heads to exempt
themselves therefrom is by a valid claim of privilege, and not by the mere fact that they are department
heads. Only one executive official may be exempted from this power – the president on whom the
executive power is vested, hence beyond the reach of the Congress except by the power of impeachment.
Members of SC are likewise exempt from this power of inquiry. This is on the basis of separation of
powers and fiscal autonomy, as well as the constitutional independence of the judiciary.

On the constitutionality of EO 464

 Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of
any reference to inquiries in aid of legislation, must be construed as limited in its application to
appearances of department heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that issuances must be interpreted, as
much as possible, in a way that will render it constitutional. Section 1 cannot, however, be applied to
appearances of department heads in inquiries in aid of legislation. Congress is not bound in such
instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the President herself or by the Executive Secretary.
 Section 3 and Section 2(b) of E.O. 464 must be invalidated. Section 3 of E.O. 464, therefore, cannot be
dismissed outright as invalid by the mere fact that it sanctions claims of executive privilege. This Court
must look further and assess the claim of privilege authorized by the Order to determine whether it is valid.
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of information is justified under the
circumstances of each case. It severely frustrates the power of inquiry of Congress.
 The impairment of the right of the people to information as a consequence of E.O. 464 is, just as direct as
its violation of the legislature’s power of inquiry.
 Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such information on the ground that it is privileged, it must so
assert it and state the reason therefor and why it must be respected. The infirm provisions of E.O. 464,
however, allow the executive branch to evade congressional requests for information without need of
clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking
said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is
impermissible. Resort to any means then by which officials of the executive branch could refuse to divulge
information cannot be presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall have given up something of much
greater value – our right as a people to take part in government.

HELD:

PETITIONS ARE PARTLY GRANTED, Sec(s) 2(b) &3 of E.O. 464 ARE DECLARED VOID. Sec(s) 1&2(a) ARE
HOWEVER, VALID
 OFFICE OF THE OMBUDSMAN v. CIVIL SERVICE COMMISSION 451 SCRA 570 (2005)

Melchor Carandang, Paul Elmer Clemente and Jose Tereso De Jesus, Jr., were appointed Graft Investigation
Officers III of the Office of the Ombudsman. The Civil Service Commission (CSC) approved the appointments on
the condition that for the appointees to acquire security of tenure, they must first obtain a Career Executive Service
(CES). The Ombudsman requested to the CSC for the change of status from temporary to permanent, of the
appointments of Carandang, Clemente and De Jesus, emphasizing that since the Office of the Ombudsman is not
governed by the Career Executive Service Board, security of tenure can be granted despite the absence of CES
eligibility. CSC changed the status of Carandang‘s and Clemente‘s appointments to permanent but not with respect
to De Jesus on the ground that he “has not met the eligibility requirements. Hence, this petition for ceritiorari filed
by the Office of the Ombudsman seeking to nullify the CSC Resolution.

ISSUE:

Whether or not the general power of the Civil Service Commission to administer civil service cannot validly curtail
the specific discretionary power of appointment including the grant of security of tenure by the Office of the
Ombudsman

HELD:

Book V, Title I, Subtitle A of the Administrative Code of 1987 provides persons occupying positions in the CES are
presidential appointees. A person occupying the position of Graft Investigation Officer III is not,
however, appointed by the President but by the Ombudsman as provided in Article IX of the Constitution.
To classify the position of Graft Investigation Officer III as belonging to the CES and require an appointee thereto
to acquire CES or CSE eligibility before acquiring security of tenure would be absurd as it would result either in 1)
vesting the appointing power for said position in the President, in violation of the Constitution; or 2) including in the
CES a position not occupied by a presidential appointee, contrary to the Administrative Code. It bears emphasis
that that under P.D. No 807, Sec. 9(h) which authorizes the CSC to approve appointments to positions in the civil
service, except those specified therein, its authority is limited “only to [determine] whether or not the appointees
possess the legal qualifications and the appropriate eligibility, nothing else.”11 It is not disputed that, except for his
lack of CES or CSE eligibility, De Jesus possesses the basic qualifications of a Graft Investigation Officer III, as
provided in the earlier quoted Qualification Standards. Such being the case, the CSC has the ministerial duty to
grant the request of the Ombudsman that appointment be made permanent effective December 18, 2002. To refuse
to heed the request is a clear encroachment on the discretion vested solely on the Ombudsman as appointing
authority. It goes without saying that the status of the appointments of Carandang and Clemente, who were
conferred CSE eligibility pursuant to CSC Resolution No. 03-0665 dated June 6, 2003, should be changed to
permanent effective December 18, 2002 too.
 AKBAYAN vs. Aquino

G.R. No. 170516, July 16, 2008

o JPEPA
o Diplomatic Negotiations are Privileged
o Executive Privilege, an Exception to Congress' Power of Inquiry
o Treaty-making Power
o Executive Privilege vs. People's Right to Information

FACTS:

This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan, concerning
trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, etc.

Prior to President’s signing of JPEPA in Sept. 2006, petitioners – non-government organizations,

Congresspersons, citizens and taxpayers – sought via petition for mandamus and prohibition to obtain from
respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto. Particularly, Congress through the House
Committee are calling for an inquiry into the JPEPA, but at the same time, the Executive is refusing to give them
the said copies until the negotiation is completed.

ISSUES:

o Whether or not petitioners have legal standing

o Whether or not the Philippine and Japanese offers during the negotiation process are privileged
o Whether or not the President can validly exclude Congress, exercising its power of inquiry and power to concur in
treaties, from the negotiation process

RULING:

Standing

In a petition anchored upon the right of the people to information on matters of public concern, which is a public
right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. As the
present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of Representatives who additionally are suing
in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence.

JPEPA, A Matter of Public Concern

To be covered by the right to information, the information sought must meet the threshold requirement that it be a
matter of public concern xxx

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do
not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public disclosure.

Privileged Character of Diplomatic Negotiations Recognized

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that “information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest.”

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not
be kept perpetually confidential – since there should be “ample opportunity for discussion before [a treaty] is
approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the
JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the
understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability
of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it
appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more
favorable terms in an area of greater national interest.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v.
Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in
all instances. Only after a consideration of the context in which the claim is made may it be determined if there is
a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally
privileged status.

Does the exception apply even though JPEPA is primarily economic and does not involve national security?

While there are certainly privileges grounded on the necessity of safeguarding national security such as those
involving military secrets, not all are founded thereon. One example is the “informer’s privilege,” or the privilege of
the Government not to disclose the identity of a person or persons who furnish information of violations of law to
officers charged with the enforcement of that law. The suspect involved need not be so notorious as to be a threat
to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable
in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It
would also be highly prejudicial to law enforcement efforts in general.

Also illustrative is the privileged accorded to presidential communications, which are presumed privileged without
distinguishing between those which involve matters of national security and those which do not, the rationale for
the privilege being that a frank exchange of exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power.

In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated
upon, so presidential communications are privileged whether they involve matters of national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one
significant qualification being that “the Executive cannot, any more than the other branches of government, invoke
a general confidentiality privilege to shield its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing.” This qualification applies whether the privilege is
being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.

Closely related to the “presidential communications” privilege is the deliberative process privilege recognized in
the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative
process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are formulated. Notably, the privileged status of such
documents rests, not on the need to protect national security but, on the “obvious realization that officials will not
communicate candidly among themselves if each remark is a potential item of discovery and front page news,”
the objective of the privilege being to enhance the quality of agency decisions.

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to
encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations
from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege
seeks, through the same means, to protect the independence in decision-making of the President, particularly in
its capacity as “the sole organ of the nation in its external relations, and its sole representative with foreign
nations.” And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises,
not on account of the content of the information per se, but because the information is part of a process of
deliberation which, in pursuit of the public interest, must be presumed confidential.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process.

Does diplomatic privilege only apply to certain stages of the negotiation process?

In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose “definite
propositions of the government,” such duty does not include recognized exceptions like privileged information,
military and diplomatic secrets and similar matters affecting national security and public order.

Treaty-making power of the President

xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations since
whatever power and authority the President has to negotiate international trade agreements is derived only by
delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international
agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII – the article on the
Executive Department.

xxx

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the
President only be delegation of that body, it has long been recognized that the power to enter into treaties is
vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade
agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power
already inherent in its office. It may not be used as basis to hold the President or its representatives accountable
to Congress for the conduct of treaty negotiations.

This is not to say, of course, that the President’s power to enter into treaties is unlimited but for the requirement of
Senate concurrence, since the President must still enure that all treaties will substantively conform to all the
relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in
the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only
to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a while that has been given the authority to concur as a means of checking
the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of
Representatives fail to present a “sufficient showing of need” that the information sought is critical to the
performance of the functions of Congress, functions that do not include treaty-negotiation.

Did the respondent’s alleged failure to timely claim executive privilege constitute waiver of such privilege?

That respondent invoked the privilege for the first time only in their Comment to the present petition does not
mean that the claim of privilege should not be credited. Petitioner’s position presupposes that an assertion of the
privilege should have been made during the House Committee investigations, failing which respondents are
deemed to have waived it.

xxx (but) Respondent’s failure to claim the privilege during the House Committee hearings may not, however, be
construed as a waiver thereof by the Executive branch. xxx what respondents received from the House
Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the
House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account
of then Speaker Jose de Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the
same in abeyance.

The privilege is an exemption to Congress’ power of inquiry. So long as Congress itself finds no cause to enforce
such power, there is no strict necessity to assert the privilege. In this light, respondent’s failure to invoke the
privilege during the House Committee investigations did not amount to waiver thereof.

“Showing of Need” Test

In executive privilege controversies, the requirement that parties present a “sufficient showing of need” only
means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to
overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of interests. Such a
balancing of interests is certainly not new in constitutional adjudication involving fundamental rights.

xxx However, when the Executive has – as in this case – invoked the privilege, and it has been established that
the subject information is indeed covered by the privilege being claimed, can a party overcome the same by
merely asserting that the information being demanded is a matter of public concern, without any further showing
required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever
as a limitation on the right to information, because then the sole test in such controversies would be whether an
information is a matter of public concern.

Right to information vis-a-vis Executive Privilege

xxx the Court holds that, in determining whether an information is covered by the right to information, a specific
“showing of need” for such information is not a relevant consideration, but only whether the same is a matter of
public concern. When, however, the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must
show that that information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and
reasonably participate in social, political, and economic decision-making.
AQUILINO Q. PIMENTEL v. EXEC. SECRETARY EDUARDO R. ERMITA, GR NO. 164978, 2005-10-13
Facts:
The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July 2004.
The Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August
2004.
Meanwhile, President Arroyo issued appointments[2] to respondents as acting secretaries of their respective
departments.
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF
(appropriate department) vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo
Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim
appointments[3] to respondents as secretaries of the departments to which they were previously appointed in an
acting capacity. The appointment papers... are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM],
DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issues:
The petition questions the constitutionality of President Arroyo's appointment of respondents as acting secretaries
without the consent of the Commission on Appointments while Congress is in session.
Ruling:
The petition has no merit.
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately after the recess of Congress.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of
this executive power except in those instances when the Constitution expressly allows it to interfere.[6] Limitations
on the executive power... to appoint are construed strictly against the legislature.[7] The scope of the legislature's
interference in the executive's power to appoint is limited to the power to prescribe the qualifications to an
appointive office. Congress cannot appoint a person... to an office in the guise of prescribing qualifications to that
office. Neither may Congress impose on the President the duty to appoint any particular person to an office.[8]
On Petitioners' Standing
Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators
Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have standing in the present petition. This is in contrast to
Senators Pimentel, Estrada, Lim, and Madrigal, who, though... vigilant in protecting their perceived prerogatives
as members of Congress, possess no standing in the present petition.
The Constitutionality of President Arroyo's Issuance... of Appointments to Respondents as Acting Secretaries
The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to
fill an office for a limited time until the appointment of a permanent occupant to the office.[16] In case of vacancy
in an office occupied by... an alter ego of the President, such as the office of a department secretary, the
President must necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee
of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of
great trust and confidence. Congress, in the guise of... prescribing qualifications to an office, cannot impose on
the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is in session. Since a department
secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President's
confidence. Thus, by the very nature of the office... of a department secretary, the President must appoint in an
acting capacity a person of her choice even while Congress is in session. That person may or may not be the
permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the...
permanent appointee.
The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III
of EO 292 states that "[t]he President may temporarily designate an officer already in the government service or
any other competent person to perform the... functions of an office in the executive branch." Thus, the President
may even appoint in an acting capacity a person not yet in the government service, as long as the President
deems that person competent.
Petitioners forget that Congress is not the only source of law. "Law" refers to the
Constitution, statutes or acts of Congress, municipal ordinances, implementing rules issued pursuant to law, and
judicial decisions.[17]
Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse.
Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section
17(3), Chapter 5, Title I, Book III of EO 292. The law has... incorporated this safeguard to prevent abuses, like the
use of acting appointments as a way to circumvent confirmation by the Commission on Appointments.
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.
Principles:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are
effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas
acting appointments may be extended any time there is... a vacancy. Moreover ad-interim appointments are
submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not
submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important
offices but, if... abused, they can also be a way of circumventing the need for confirmation by the Commission on
Appointments.[18]