Republic of the Philippines the government. On August 28, 1987, Col.
Gregorio Honasan, one of the
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO
DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While
ostensibly only legal issues are involved, the Court's decision in this case
would undeniably have a profound effect on the political, economic and
other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television
station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to
surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the
country. The ratification of the 1987 Constitution enshrined the victory of
"people power" and also clearly reinforced the constitutional moorings of
Mrs. Aquino's presidency. This did not, however, stop bloody challenges to
major players in the February Revolution, led a failed coup that left scores of
people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was
the same — a split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas
they effectively control while the separatist are virtually free to move about in
armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also
to through the use of propaganda have they been successful in dreating
chaos and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign
debt and the plunder of the nation attributed to Mr. Marcos and his cronies
left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in
alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to
the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise
and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
1. Does the President have the power to bar the return of
former President Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former
President Marcos and his family from returning to the
Philippines, in the interest of "national security, public safety
or public health
a. Has the President made a finding that the return of former
President Marcos and his family to the Philippines is a clear
and present danger to national security, public safety or
public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process
been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be
dispensed with, has the President's decision,
including the grounds upon which it was
based, been made known to petitioners so
that they may controvert the same?
c. Is the President's determination that the return of former
President Marcos and his family to the Philippines is a clear
and present danger to national security, public safety, or
public health a political question?
d. Assuming that the Court may inquire as to whether the
return of former President Marcos and his family is a clear
and present danger to national security, public safety, or
public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the
President's decision to bar the return of former President
Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively
bar the return of former President Marcos and his family to
the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo,
pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same
within the limits prescribed by law shall not be impaired
except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided
by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of
movement and residence within the borders of each state.
 (2) Everyone has the right to leave any country, including his
own, and to return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall,
within that territory, have the right to liberty of movement and
freedom to choose his residence.
2) Everyone shall be free to leave any country, including his
own.
3) The above-mentioned rights shall not be subject to any
restrictions except those which are provided by law, are
necessary to protect national security, public order (order
public), public health or morals or the rights and freedoms of
others, and are consistent with the other rights recognized in
the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his
own country.
On the other hand, the respondents' principal argument is that the issue in
this case involves a political question which is non-justiciable. According to
the Solicitor General:
As petitioners couch it, the question involved is simply
whether or not petitioners Ferdinand E. Marcos and his
family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without
reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue
is whether or not petitioners Ferdinand E. Marcos and family
have the right to return to the Philippines and reside here at
this time in the face of the determination by the President
that such return and residence will endanger national
security and public safety.
It may be conceded that as formulated by petitioners, the
question is not a political question as it involves merely a
determination of what the law provides on the matter and
application thereof to petitioners Ferdinand E. Marcos and
family. But when the question is whether the two rights
claimed by petitioners Ferdinand E. Marcos and family
impinge on or collide with the more primordial and
transcendental right of the State to security and safety of its
nationals, the question becomes political and this Honorable
Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right
to return to the Philippines and reestablish their residence
here? This is clearly a justiciable question which this
Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their
right to return to the Philippines and reestablish their
residence here even if their return and residence here will
endanger national security and public safety? this is still a
justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if
petitioners Ferdinand E. Marcos and family shall return to the
Philippines and establish their residence here? This is now a
political question which this Honorable Court can not decide
for it falls within the exclusive authority and competence of
the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of the
Constitution, to wit:
Section 4. The prime duty of the Government is to serve and
protect the people. The Government may call upon the
people to defend the State and, in the fulfillment thereof, all
citizens may be required, under conditions provided by law,
to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the
protection of life, liberty, and property, and the promotion of
the general welfare are essential for the enjoyment by all the
people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family
from returning to the Philippines for reasons of national security and public
safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez
Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs
Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp.
26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues,
we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L
Ed. 2d 640) which affirmed the right to travel and recognized exceptions to
the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(l)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the
other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be free to
leave any country, including his own." [Art. 12(2)] which rights may be
restricted by such laws as "are necessary to protect national security, public
order, public health or morals or enter qqqs own country" of which one
cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore be
inappropriate to construe the limitations to the right to return to one's country
in the same context as those pertaining to the liberty of abode and the right
to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of
the Constitution.] However, it is distinct and separate from the right to travel
and enjoys a different protection under the International Covenant of Civil
and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12
(4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in
Philippine, and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether
or not there can be limitations on the right to travel in the absence of
legislation to that effect is rendered unnecessary. An appropriate case for its
resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice Laurel
in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution
has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government."
[At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative
power shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law" [Art. VIII, Sec.
1.] These provisions not only establish a separation of powers by actual
division [Angara v. Electoral Commission, supra] but also confer plenary
legislative, executive and judicial powers subject only to limitations provided
in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15
Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant
of all legislative power; and a grant of the judicial power means a grant of all
the judicial power which may be exercised under the government." [At 631-
632.1 If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it
does not define what is meant by executive power" although in the same
article it touches on the exercise of certain powers by the President, i.e., the
power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the
power to contract or guarantee foreign loans, the power to enter into treaties
or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated
powers the breadth and scope of "executive power"? Petitioners advance
the view that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The President has
enumerated powers, and what is not enumerated is impliedly denied to
her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4-
Rollo p. 233.1 This argument brings to mind the institution of the U.S.
Presidency after which ours is legally patterned.**
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the
Constitution. To those who think that a constitution ought to
settle everything beforehand it should be a nightmare; by the
same token, to those who think that constitution makers
ought to leave considerable leeway for the future play of
political forces, it should be a vision realized.
We encounter this characteristic of Article 11 in its opening
words: "The executive power shall be vested in a President
of the United States of America." . . .. [The President: Office
and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900's,
and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal
institution. it remained of course, an agency of government
subject to unvarying demands and duties no remained, of
cas President. But, more than most agencies of government,
it changed shape, intensity and ethos according to the man
in charge. Each President's distinctive temperament and
character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast
the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon,
taking its color from the character and personality of the
President. The thrust of the office, its impact on the
constitutional order, therefore altered from President to
President. Above all, the way each President understood it
as his personal obligation to inform and involve the
Congress, to earn and hold the confidence of the electorate
and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a
complete understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In
other words, executive power is more than the sum of specific powers so
enumerated,
It has been advanced that whatever power inherent in the government that
is neither legislative nor judicial has to be executive. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the
Government to elect directors in the National Coal Company and the
Philippine National Bank, the U.S. Supreme Court, in upholding the power of
the Governor-General to do so, said:
...Here the members of the legislature who constitute a
majority of the "board" and "committee" respectively, are not
charged with the performance of any legislative functions or
with the doing of anything which is in aid of performance of
any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon
these members are vested by the Organic Act in the
Governor-General, it is clear that they are not legislative in
character, and still more clear that they are not judicial. The
fact that they do not fall within the authority of either of these
two constitutes logical ground for concluding that they do fall
within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and
divide fields of black and white. Even the more specific of
them are found to terminate in a penumbra shading gradually
from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we
may disguise it by veiling words we do not and cannot carry
out the distinction between legislative and executive action
with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution
requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty
of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace
and order, the protection of life, liberty and property, and the promotion of
the general welfare are essentially ideals to guide governmental action. But
such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest.
It must be borne in mind that the Constitution, aside from being an allocation
of power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers
of the Government exercising the powers delegated by the people forget
and the servants of the people become rulers, the Constitution reminds
everyone that "[s]overeignty resides in the people and all government
authority emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who
seek to return to the country are the deposed dictator and his family at
whose door the travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be recovered. The
constitutional guarantees they invoke are neither absolute nor inflexible. For
the exercise of even the preferred freedoms of speech and ofexpression,
although couched in absolute terms, admits of limits and must be adjusted to
the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and
the common good against the exercise of rights of certain individuals. The
power involved is the President's residual power to protect the general
welfare of the people. It is founded on the duty of the President, as steward
of the people. To paraphrase Theodore Roosevelt, it is not only the power of
the President but also his duty to do anything not forbidden by the
Constitution or the laws that the needs of the nation demand [See
Corwin, supra, at 153]. It is a power borne by the President's duty to
preserve and defend the Constitution. It also may be viewed as a power
implicit in the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author advances
the view that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
More particularly, this case calls for the exercise of the President's powers
as protector of the peace. Rossiter The American Presidency].The power of
the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration
of powers that follow cannot be said to exclude the President's exercising as
Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial
law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the
Marcose's from returning has been recognized by memembers of the
Legislature, and is manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging the President to
allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture
for true national reconciliation and as irrevocable proof of our collective
adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The
Resolution does not question the President's power to bar the Marcoses
from returning to the Philippines, rather, it appeals to the President's sense
of compassion to allow a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses
to be allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and the
right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the
Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts
of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned. If grave abuse is not established, the Court will not substitute its
judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide. In this light, it would appear
clear that the second paragraph of Article VIII, Section 1 of the Constitution,
defining "judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion on the
part of any branch or instrumentality of the government, incorporates in the
fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive
the power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the principle
of separation of powers underlying our system of
government, the Executive is supreme within his own
sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere
alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn,
constitutionally supreme. In the exercise of such authority,
the function of the Court is merely to check — not to supplant
the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the wisdom
of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily
or that she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers by the
Chief of Staff of the Armed Forces of the Philippines and the National
Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies to
grab power, urban terrorism, the murder with impunity of military men, police
officers and civilian officials, to mention only a few. The documented history
of the efforts of the Marcose's and their followers to destabilize the country,
as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President
cannot be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers
granted her by the Constitution to suppress or stamp out such violence. The
State, acting through the Government, is not precluded from taking pre-
emptive action against threats to its existence if, though still nascent they
are perceived as apt to become serious and direct. Protection of the people
is the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning
to recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of
the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily
within the ambit of judicial notice.
The President has determined that the destabilization caused by the return
of the Marcoses would wipe away the gains achieved during the past few
years and lead to total economic collapse. Given what is within our individual
and common knowledge of the state of the economy, we cannot argue with
that determination.
WHEREFORE, and it being our well-considered opinion that the President
did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY
ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO
DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary
of National Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a vote of eight (8) to
seven (7), dismissed the petition, after finding that the President did not act
arbitrarily or with grave abuse of discretion in determining that the return of
former President Marcos and his family at the present time and under
present circumstances pose a threat to national interest and welfare and in
prohibiting their return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a statement, President Aquino
said:
In the interest of the safety of those who will take the death
of Mr. Marcos in widely and passionately conflicting ways,
and for the tranquility of the state and order of society, the
remains of Ferdinand E. Marcos will not be allowed to be
brought to our country until such time as the government, be
it under this administration or the succeeding one, shall
otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p,
443.]
On October 2, 1989, a Motion for Reconsideration was filed by petitioners,
raising the following major arguments:
1. to bar former President Marcos and his family from returning to the
Philippines is to deny them not only the inherent right of citizens to return to
their country of birth but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his own country; if she
has, she had exercised it arbitrarily; and
3. there is no basis for barring the return of the family of former President
Marcos. Thus, petitioners prayed that the Court reconsider its decision,
order respondents to issue the necessary travel documents to enable Mrs.
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M.
Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines,
and enjoin respondents from implementing President Aquino's decision to
bar the return of the remains of Mr. Marcos, and the other petitioners, to the
Philippines.
Commenting on the motion for reconsideration, the Solicitor General argued
that the motion for reconsideration is moot and academic as to the deceased
Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by
the Marcoses under the label 'right to return', including the label 'return of
Marcos' remains, is in reality or substance a 'right' to destabilize the country,
a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at
destabilization." [Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for reconsideration, the
burden is upon the movants, petitioner herein, to show that there are
compelling reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in the motion for
reconsideration, the Court is of the view that no compelling reasons have
been established by petitioners to warrant a reconsideration of the Court's
decision.
The death of Mr. Marcos, although it may be viewed as a supervening event,
has not changed the factual scenario under which the Court's decision was
rendered. The threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect, have not been
shown to have ceased. On the contrary, instead of erasing fears as to the
destabilization that will be caused by the return of the Marcoses, Mrs.
Marcos reinforced the basis for the decision to bar their return when she
called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs.
Aquino, who is the "legal" President of the Philippines, and declared that the
matter "should be brought to all the courts of the world." [Comment, p.
1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that the President, upon
whom executive power is vested, has unstated residual powers which are
implied from the grant of executive power and which are necessary for her to
comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution. This is
so, notwithstanding the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as a reaction to the
abuses under the regime of Mr. Marcos, for the result was a limitation of
specific power of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant of
executive power.
That the President has powers other than those expressly stated in the
Constitution is nothing new. This is recognized under the U.S. Constitution
from which we have patterned the distribution of governmental powers
among three (3) separate branches.
Article II, [section] 1, provides that "The Executive Power
shall be vested in a President of the United States of
America." In Alexander Hamilton's widely accepted view, this
statement cannot be read as mere shorthand for the specific
executive authorizations that follow it in [sections] 2 and 3.
Hamilton stressed the difference between the sweeping
language of article II, section 1, and the conditional language
of article I, [section] 1: "All legislative Powers herein
granted shall be vested in a Congress of the United States . .
." Hamilton submitted that "[t]he [article III enumeration [in
sections 2 and 31 ought therefore to be considered, as
intended merely to specify the principal articles implied in the
definition of execution power; leaving the rest to flow from
the general grant of that power, interpreted in confomity with
other parts of the Constitution...
In Myers v. United States, the Supreme Court — accepted
Hamilton's proposition, concluding that the federal executive,
unlike the Congress, could exercise power from sources not
enumerated, so long as not forbidden by the constitutional
text: the executive power was given in general terms,
 strengthened by specific terms where emphasis was
regarded as appropriate, and was limited by direct
expressions where limitation was needed. . ." The language
of Chief Justice Taft in Myers makes clear that the
constitutional concept of inherent power is not a synonym for
power without limit; rather, the concept suggests only that
not all powers granted in the Constitution are themselves
exhausted by internal enumeration, so that, within a sphere
properly regarded as one of "executive' power, authority is
implied unless there or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW 158-159 (1978).]
And neither can we subscribe to the view that a recognition of the
President's implied or residual powers is tantamount to setting the stage for
another dictatorship. Despite petitioners' strained analogy, the residual
powers of the President under the Constitution should not be confused with
the power of the President under the 1973 Constitution to legislate pursuant
to Amendment No. 6 which provides:
Whenever in the judgment of the President (Prime Minister),
there exists a grave emergency or a threat or imminence
thereof, or whenever the interim Batasang Pambansa or the
regular National Assembly fails or is unable to act adequately
on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency,
issue the necessary decrees, orders, or letters of instruction,
which shall form part of the law of the land,
There is no similarity between the residual powers of the President under
the 1987 Constitution and the power of the President under the 1973
Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6
refers to an express grant of power. It is not implied. Then, Amendment No.
6 refers to a grant to the President of the specific power of legislation.
4. Among the duties of the President under the Constitution, in compliance
with his (or her) oath of office, is to protect and promote the interest and
welfare of the people. Her decision to bar the return of the Marcoses and
subsequently, the remains of Mr. Marcos at the present time and under
present circumstances is in compliance with this bounden duty. In the
absence of a clear showing that she had acted with arbitrariness or with
grave abuse of discretion in arriving at this decision, the Court will not enjoin
the implementation of this decision.
ACCORDINGLY, the Court resolved to DENY the Motion for
Reconsideration for lack of merit."
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6157 July 30, 19101
W. CAMERON FORBES, J. E. HARDING, and C. R.
TROWBRIDGE, plaintiffs,
vs.
CHUOCO TIACO (alias CHOA TEA) and A. S. CROSSFIELD, defendants.
W. A. Kincaid, for plaintiffs.
O'Brien and DeWitt and Hartford Beaumont, for defendant Chuoco Tiaco.
JOHNSON, J.:
An original action commenced in this court to secure a writ of prohibition
against the Hon. A. S. Crossfield, as one of the judges of the Court of First
Instance of the city of Manila, to prohibit him from taking or continuing
jurisdiction in a certain case commenced and pending before him, in which
Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W.
Cameron Forbes, J. E. Harding, and C. R. Trowbridge (petitioners herein)
are defendants.
Upon the filing of the petition in this court, Mr. Justice Trent granted a
preliminary injunction restraining the said lower court from proceeding in
said cause until the question could be heard and passed upon by the
Supreme court.
The questions presented by this action are so important and the result of the
conclusions may be so far reaching that we deem it advisable to make a full
statement of all of the facts presented here for consideration. These facts
may be more accurately gathered from the pleadings. They are as follows:
FACTS.
SECOND AMENDED COMPLAINT.
The plaintiffs set forth:
I. That all the parties in this case reside in the city of Manila,
Philippine Islands.
II. That the plaintiff W. Cameron Forbes is the Governor-General of
the Philippine Islands and that the plaintiff J. E. Harding and C. R.
Trowbridge are, respectively, chief of police and chief of the secret
service of the city of Manila.
III. That the defendant A. S. Crossfield is one of the judges of the
Court of First Instance of the city of Manila.
IV. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner
of Chinese nationality and a subject of the Chinese Empire.
V. That on the 1st of April, 1910, the defendant Chuoco Tiaco
(alias Choa Tea) filed a suit in the Court of First Instance of the city
of Manila against the plaintiffs in which substantially the following
allegations and petition were made, alleging that on the 19th of
August, 1909, under the orders of the said W. Cameron Forbes,
Governor-General of the Philippine Islands, he was deported
therefrom and sent to Amoy, China, by the aforesaid J. E. Harding
and C. R. Trowbridge, chiefs, as above stated, of the police and of
the secret service, respectively, of the city of Manila, and that having
been able to return to these Islands he feared, as it was threatened,
that he should be again deported by the said defendants, concluding
with a petition that a preliminary injunction should be issued against
the plaintiffs in this case prohibiting them from deporting the
defendant, Chuoco Tiaco (alias Choa Tea), and that they be
sentenced to pay him P20,000 as an indemnity.
VI. It is true that the said defendant Chuoco Tiaco (alias Choa Tea),
was, with eleven others or his nationality, expelled from these
Islands and returned to China by the plaintiffs J. E. Harding and C.
R. Trowbridge, under the orders of the plaintiff W. Cameron Forbes,
on the date mentioned in Paragraph V of this complaint, but the said
expulsion was carried out in the public interest of the Government
and at the request of the proper representative of the Chinese
Government in these Islands, to wit, the consul-general of said
country, the said W. Cameron Forbes acting in his official capacity
as such Governor-General, the act performed by this plaintiff being
one of the Government itself and which the said plaintiff immediately
reported to the Secretary of War.
VII. The said complaint having been filed with the defendant A. S.
Crossfield, he, granting the petition, issued against the plaintiffs the
injunction requested, prohibiting them from deporting the defendant
Chuoco Tiaco (alias Choa Tea).
VIII. The plaintiffs having been summoned in the matter of the said
complaint, filed a demurrer against the same and presented a
motion asking that the injunction be dissolved, the grounds of the
demurrer being that the facts set out in the complaint did not
constitute a motive of action, and that the latter was one in which the
court lacked jurisdiction to issue such an injunction against the
plaintiffs for the reasons set out in the complaint; notwithstanding
which, the defendant A. S. Crossfield overruled the demurrer and
disallowed the motion, leaving the complaint and the injunction
standing, in proof of which the plaintiffs attach a certified copy by the
clerk of the Court of First Instance of the city of Manila of all the
proceedings in said case, except the summons and notifications,
marking said copy "Exhibit A" of this complaint. (See below.)
IX. The Court of First Instance, according to the facts related in the
complaint, lacks jurisdiction in the matter, since the power to deport
foreign subjects of the Chinese Empire is a private one of the
Governor-General of these Islands, and the defendant A. S.
Crossfield exceeded these authority by trying the case and issuing
the injunction and refusing to allow the demurrer and motion for the
dismissal of the complaint and the dissolution of the injunction.
Therefore the plaintiffs pray the court:
(a) That an injunction immediately issue against the defendant A. S.
Crossfield ordering him to discontinue the trial of said cause until
further orders from this court;
(b) That the defendants being the summoned in accordance with
law, a prohibitive order issue against the said defendant A. S.
Crossfield, restraining him from assuming jurisdiction in said case
and ordering him to dismiss the same and cease from the trial
thereof;
(c) Finally, that the plaintiffs be granted such other and further relief
to which they may be entitled according to the facts, and that they
may be allowed the costs of the trial.
Manila, July 9, 1910.
IGNACIO VILLAMOR,
Attorney-General.
W. A. KINCAID,
THOMAS L. HARTIGAN, First. That the plaintiff is and has been for the last thirty-five years a
resident of the city of Manila, Philippine Islands.
By W. A, KINCAID,
Second. That the defendant W. Cameron Forbes is the Governor-
Attorneys for the plaintiffs. General of the Philippine islands and resides in the municipality of
Baguio, Province of Benguet, Philippine Islands; that the defendant
UNITED STATES OF AMERICA, Charles R. Trowbridge is chief of the secret service of the city of
Manila, and that the defendant J. E. Harding is chief of police of the
city of Manila, and that both of said defendants reside in the said city
Philippine Islands, city of Manila, ss:
of Manila, Philippine Islands.
W. A. Kincaid, being first duly sworn, states that he is one of the
Third. That the said plaintiff is a Chinese person and is lawfully a
attorneys for the plaintiffs in the preceding second amended
resident of the Philippine Islands, his right to be and remain therein
complaint, and that all the facts alleged therein are true, to the best
having been duly established in accordance with law by the Insular
of his knowledge and belief.
customs and immigration authorities.
(Signed) W. A. KINCAID.
Fourth. That on or about the 19th day of August, 1909, the
defendants herein, Charles R. Trowbridge and J. E. Harding,
Subscribed and sworn to before me this 9th day of July, 1910. unlawfully and fraudulently conspiring and conniving with the other
Cedula No. F. 1904, issued in Manila on January 3, 1910. defendant herein, the said W. Cameron Forbes, and acting under
the direction of the said defendant, W. Charles Forbes, did
(Signed) IGNACIO DE ICAZA, Notary Public. (My unlawfully seize and carry on board the steamer Yuensang the said
appointment ends Dec. 31, 1910.) plaintiff herein against his will, with the intent by said force to
unlawfully deport and expel the said plaintiff herein from the
We have received a copy of the above. Philippine Islands against the will of the said plaintiff herein.

(Signed) O'BRIEN AND DEWITT, Fifth. That the said defendants herein and each of them, after
forcibly placing the said plaintiff herein upon the said
HARTFORD BEAUMONT, streamer Yuensang, as hereinbefore alleged, did cause the said
steamer Yuensang to take and carry away the plaintiff herein from
Attorneys for defendants. the Philippine Islands to the port of Amoy, in the Empire of China.

EXHIBIT A.
[United States of America, Philippine Islands. In the Court of First
Instance of the city of Manila. No. 7740. Chuoco Tiaco (alias Choa
Tea), plaintiff, vs. W. Cameron Forbes, Charles R. Trowbridge, and
J. E. Harding, defendants.]
Sixth. That the said defendants herein, unlawfully conspiring and
conniving together, the said Charles R. Trowbridge and the said J.
E. Harding, acting under the direction of the said defendant, W.
Cameron Forbes, did forcibly prevent the plaintiff herein from
returning to these Philippine Islands until the 29th day of March,
1910.

COMPLAINT. Seventh. That the defendants herein, by their unlawful acts

hereinbefore alleged, have damaged the plaintiff herein in the sum of
twenty thousand pesos (P20,000) Philippine currency.
Comes now the plaintiff, by his undersigned attorneys, and for the
cause of action alleges:
SECOND CAUSE OF ACTION.
As a second cause of action the plaintiff alleges:
First. He repeats and reiterates each and every allegation contained
in the first (1st) and second (2nd) paragraphs of the first cause of
action, and hereby makes the said paragraphs a part of this cause of
action.
Second. That the said plaintiff herein is a Chinese person who is and
has been a resident of the Philippine Islands for the last twenty-nine
years, he having duly established his right to be and remain in the
Philippine Islands since the American occupation thereof in
accordance with law.
Third. That the said plaintiff herein, during his residence in these
Islands, has acquired and is actually the owner, or part owner, of
property and business interests and enterprises of great value within
the Philippine Islands, and that said property and business interests
and enterprises require the personal presence of the plaintiff herein
in the Philippine Islands for the proper management and supervision
and preservation thereof.
Fourth. That the plaintiff has a family in the Philippine Islands and
that said family is dependent upon the said plaintiff for support and
that it is impossible for the said plaintiff to give the said family that
support unless he, the said plaintiff, is actually present within the
Philippine Islands.
Fifth. That on or about the 19th day of August, 1909, the defendants
herein, Charles R. Trowbridge and J. E. Harding, unlawfully and
fraudulently conspiring and conniving with the other defendant
herein, the said W. Cameron Forbes, and acting under the direction
of the said defendant, W. Cameron Forbes, did unlawfully seize and
carry on board the steamer Yuensang the said plaintiff herein with
the intent by said force to unlawfully deport and expel the said
plaintiff herein from the Philippine Islands against the will of the said
plaintiff herein.
Sixth. That, notwithstanding the efforts of the said defendants herein
to forcibly and unlawfully prevent the said plaintiff herein from
returning to the Philippine Islands, the said plaintiff here in returned
to the said city of Manila, Philippine Islands, on the 29th day of
March, 1910, and was duly landed by the customs and immigration
authorities in accordance with law, after having duly established his
right to be and to remain herein.
Seventh. That since the arrival of the said plaintiff herein in the
Philippine Islands on the 29th day of March, 1910, as hereinbefore
alleged, the said defendants herein unlawfully and fraudulently
conniving and conspiring together, the said J. E. harding and
Charles R. Trowbridge, acting under the orders and directions of the
said defendant, W. Cameron Forbes, have threatened, unlawfully,
forcibly, and against the will of the plaintiff herein, to expel and
deport plaintiff herein from the Philippine Islands, and that the
defendants herein, and each and every one of them are doing all
that is in their power to procure the unlawful, forcible, and involuntary
expulsion of the plaintiff herein from the Philippine Islands in
violation of the right of the said plaintiff herein to be and to remain in
the Philippine Islands as established by law.
Eight. That the plaintiff herein has no adequate remedy other than
that herein prayed for.
Wherefore, the plaintiff prays that a temporary writ of injunction issue
out of this court enjoining the said defendants and each of them and
their and each of their agents, servants, employees, attorneys,
successors in office, subordinate officers, and every person in any
way in privity with them, from expelling or deporting or threatening to
expel or deport or procure in any way the expulsion or deportation in
any way of the plaintiff herein during the continuance of this action.
And upon the final hearing of the cause of the said temporary writ of
injunction be made perpetual, and that the defendants and each of
them be condemned to pay to the plaintiff herein the sum of twenty
thousand pesos (P20,000) damages and the costs of this action.
Manila, P. I., April 1, 1910.
(Signed) O'BRIEN AND DEWITT,
H. BEAUMONT,
Attorneys for plaintiff.
CITY OF MANILA, Philippine Islands, ss:
C. W. O'Brien, holding cedula No. 1095, dated at Manila, P. I.,
January 4, 1910, being duly sworn, upon oath deposes and says
that he is one of the attorneys for the plaintiff and has read the
above-entitled complaint and knows that the facts therein stated are
 true and correct, except such as are stated upon information and Judge, Court of First Instance, city of Manila, P. I.
belief, and as to those he believes them to be true.
DEMURRER.
(Signed) C. W. O'BRIEN.
Comes the defendant, W. Cameron Forbes, Governor-General of
Subscribed and sworn to before me this 1st day of April, 1910, at the Philippine Islands, and —
Manila, P.I.
I. Demurs to the first count or cause of action in the complaint
(Signed) J. McMICKING. because the same does not state fact sufficient to constitute a cause
of action against the defendant.
The Hon. A. S. Crossfield issued the following order:
II. He demurs to the second count or cause of action in the complaint
ORDER. because the same does not state facts sufficient to constitute a
cause of action against this defendant.
To the defendants, W. Cameron Forbes, Charles R.
Trowbridge, J. E. Harding, and all their attorneys, agents, Wherefore he prays the judgment of the court upon the sufficiency of
subordinates, servants, employees, successors in office, and each of the pretended causes of action set forth in the complaint.
all persons in any way in privity with them, greeting:
(Signed) W. A. KINCAID,
The plaintiff having presented a complaint before this Court of First
Instance of the city of Manila, in the cause above entitled, against THOMAS L. HARTIGAN.
the defendants W. Cameron Forbes, Charles R. Trowbridge, and J.
E. Harding, above named, and having prayed likewise that a By W. A. KINCAID,
temporary injunction issue against the said defendants restraining
them from doing and continuing to do certain acts mentioned in the Attorneys for defendant W. Cameron Forbes.
said complaint and which are more particularly set forth hereinafter
in this order; in view of the said complaint and the verification thereof
Comes the defendant, W. Cameron Forbes, and moves the court to
by this attorney, and it appearing satisfactorily to me because of the
dissolve the temporary injunction issued against him in this cause,
facts alleged in said complaint that the case is one in which a
without notice to this defendant, for the following reasons:
preliminary injunction ought to issue, and the required bond having
been executed in the sum of P2,000.
I. The complaint is insufficient to justify the issuance of the
injunction.
It is hereby ordered by the undersigned, judge of this Court of First
Instance of the city of Manila, that the said defendants, W. Cameron
Forbes, Charles R. Trowbridge, and J. E. Harding, and all of their II. The court is without jurisdiction to issue said injunction.
attorneys, agents, subordinates, servants, employees, successors in
office, and all persons in any way in privity with them, are, each of (Signed) W. A. KINCAID and THOMAS HARTIGAN,
them is, hereby restrained and enjoined from spelling or deporting or
threatening to expel or deport, or procuring in any way the expulsion By W. A. KINCAID,
or deportation in any way of the plaintiff herein during the
continuance of this action. Attorneys for defendant W. Cameron Forbes.

Manila, P.I. , April 9, 1910. (Signed) IGNACIO VILLAMOR, Attorney-General.

(signed) A. S. CROSSFIELD,
DEMURRER.
Come the defendants, C. R. Trowbridge and J. E. Harding, and —
I. Demur to the first count or cause of action in the complaint
because the same does not state facts sufficient to constitute a
cause of action against these defendants.
II. They demur to the second count or cause of action in the
complaint because the same does not state facts sufficient to
constitute a cause of action against these defendants.
(Signed) W. A. KINCAID,
THOMAS HARTIGAN,
By W. A. KINCAID,
Attorneys for defendants C. R. Trowbridge and J. E. Harding.
(Signed) IGNACIO VILLAMOR, Attorney-General.
ORDER.
This case is now before the court for hearing the demurrer presented
by the defendants to plaintiff's complaint and defendants' motion to
dissolve the injunction issued against the defendants upon plaintiff's
complaint.
Messrs. O'Brien and DeWitt appeared for the plaintiff; W. A. Kincaid,
esq., for the defendants.
The demurrer is based upon the ground that the complaint does not
state the facts sufficient to constitute a cause of action. The motion
to dissolve the injunction is grounded upon an insufficiency of the
complaint and lack of jurisdiction in the court.
Counsel for both parties made exhaustive arguments, both
apparently considering the primal issue to be whether the defendant,
W. Cameron Forbes, had authority at law, as Governor-General of
the Philippine Islands, to deport plaintiff, as alleged in the complaint,
and whether the court had jurisdiction to restrain him from making
such deportation.
No question was raised as to the sufficiency of the complaint if all
question as to the Governor-General's authority was eliminated.
A reading of the complaint discloses that the Governor-General of
the Philippine Islands, as such, is not a party to the action.
The allegations of the second paragraph of the complaint, to the
effect that W. Cameron Forbes is the Governor-General of the
Philippine Islands, that Charles R. Trowbridge is chief of the secret
service of Manila, are descriptive only, and there is no allegation in
the complaint that any of the defendants performed the acts
complained of in his official capacity.
The court can not determine the authority or liability of an executive
officer of the Government until the pleadings disclose that his actions
as such officer are brought in issue.
The complaint upon its faces a cause of action.
The complaint, stating a cause of action and alleging that the plaintiff
is threatened with an injury by the defendants, they may be properly
restrained from committing the alleged injury until issues raised have
been tried and determined and the courts has jurisdiction to issue an
injunction.
The demurrer is, therefore, overruled. The motion to dissolve the
preliminary injunction is denied.
Manila, P. I., this 17th day of May, 1910.
(Signed) A. S. CROSSFIELD,
Judge.
Upon filing of the original complaint and after a due consideration of the
facts stated therein, the Hon. Grant Trent, acting as vacation justice, on the
24th day of May, 1910, issued the following order or injunction:
PRELIMINARY INJUNCTION.
Whereas, from the facts alleged in the complaint filed in the above-
entitled case, it is found that the plaintiffs are entitled to the
preliminary injunction prayed for by them;
 Therefore, the bond of P500 mentioned in the order of the 24th of We have this day, June 2, 1910, received a copy of the above.
May, 1910, having been filed, the Hon. A. s. Crossfield, judge of the
Court of First Instance of the city of Manila, is hereby notified that, (Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,
until he shall have received further orders from this court, he is
prohibited from proceeding with the trial of the case filed by the Attorneys for plaintiffs.
defendant Chuoco Tiaco, alias Choa Tea, in the Court of First
Instance of this city, against the within plaintiffs for indemnity as
On the 2nd day of June, 1910, the defendants made a motion to dissolve the
damages for the alleged deportation of the said Chuoco alias Choa
said injunction, which motion was in the following language:
Tea.
And now come the defendants in the above-entitled case and pray
Given in Manila this 24th day of May, 1910.
the court to dissolve the preliminary injunction issued in the above-
entitled case, on the 24th day of May, 1910, on the grounds:
(Signed) GRANT TRENT,
(1) That the facts alleged in the complaint are not sufficient to justify
Associate Justice, Supreme Court, acting in vacation. the issuance of the said preliminary investigation;

On the 2nd of June, 1910, the defendants presented the following demurrer (2) That the facts alleged in the complaint do not constitute a right of
to the original complaint: action.

And now come the defendants in the above-entitled cause, by their Manila, P.I., June 2, 1910.
undersigned attorneys, and hereby file their demurrer to the
complaint upon the grounds that the facts alleged in the complaint
(Signed) O'BRIEN & DEWITT, and HARTFORD
do not constitute a right of action.
BEAUMONT, Attorneys for defendants.
Therefore the court is petitioned to dismiss the complaint, with the
To the plaintiffs and to their attorneys:
costs against the plaintiff.
You are hereby notified that on Monday, the 13th inst., at nine
Manila, June 2, 1910.
o'clock a.m. we shall ask for a hearing on the preceding motion.
(Signed) O'BRIEN & DEWITT, and HARTFORD
Manila, June 2, 1910.
BEAUMONT, Attorneys for defendants.
(Signed) O'BRIEN & DEWITT, and HARTFORD
To the plaintiffs or their attorneys;
BEAUMONT, Attorneys for defendants.
You are hereby notified that on Monday, the 15th inst., at nine
We have this day received a copy of the foregoing.
o'clock in the morning, we shall ask the court to hear and decide the
preceding demurrer.
(Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA,
Manila, June 2, 1910.
Attorneys for plaintiffs.
(Signed) O'BRIEN & DEWITT, and HARTFORD
BEAUMONT, Later the plaintiffs obtained permission to file the second amended
complaint above quoted. By a stipulation between the parties "the demurrer"
and "motion to dissolve" were to be considered as relating to the said
Attorney for plaintiffs.
second amended complaint.
By said "demurrer" and "motion to dissolve" the question is presented
whether or not the facts stated in "the second amended complaint" are
sufficient upon which to issue the writ of prohibition prayed for. If it should be
determined that they are not, then, of course, the writ should be denied and
the injunction should be dissolved. If, on the other hand, it should be
determined that the facts stated are sufficient to justify the issuance of said
writ, then it should be granted and the injunction should not be dissolved, but
should not be made perpetual.
From the allegations of the complaint (second amended complaint),
including Exhibit A (which constituted the pleadings in the court below), we
find the following facts are admitted to be true:
First. That the plaintiff W. Cameron Forbes is the Governor-General of the
Philippine Islands;
Second. That the plaintiff J. E. Harding is the chief of police of the city of
Manila;
Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of
the city of Manila;
Fourth. That the defendant, A. S. Crossfield, is one of the judges of the
Court of First Instance of the city of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of
Chinese nationality and a subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as
Governor-General of the Philippine Islands, in the public interest of the
Philippine Government and at the request of the proper representative of the
Imperial Government of China, to wit: the consul-general of the said Imperial
Government, did, on or about the 19th day of August, 1909, order the said
defendant, together with eleven others of Chinese nationality, to be deported
from the Philippine Islands;
Seventh. That whatever the said plaintiffs J. E. Harding and C. R.
Trowbridge did in connection with said deportation was done by each of
them, acting under the orders of the said Governor-General, as the chief of
police of the city of Manila and as the chief of the secret service of the city of
Manila;
Eight. That later, and on the 29th day of March, 1910, the said defendant
Chouco Tiaco returned to the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of
police and the said chief of the secret service, was threatening to again
deport the said Chuoco Tiaco from the Philippine Islands;
Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco
commenced an action against the plaintiff herein (the said W. Cameron
Forbes, Governor-General) in the Court of said court over which the said A.
S. Crossfield was presiding as one of the judges of said court, for the
purpose of —
(a) Recovering a judgment against said defendants (plaintiffs herein) for
P20,000 damages for said alleged wrongful deportation; and
(b) To procure an injunction against said defendants (plaintiffs herein) to
prevent them from again deporting said plaintiff (defendant herein) from the
Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said
action in the Court of First Instance and on the 9th day of April, 1910, the
said A. S. Crossfield issued a preliminary injunction against the defendants,
W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge, and all their
attorneys, agents, subordinates, servants, employees, successors in office,
and all persons in any way in privity with them, forbidding them from
expelling or deporting or threatening to expel or deport or procuring in any
way the expulsion or deportation of the plaintiff (chuoco Tiaco) during the
continuance of the action;
Twelfth. Later, and on the .......... day of ........., 1910, the plaintiffs herein
(defendants below) each presented —
(1) A demurrer to the causes of action described in the petition filed; and
(2) A motion to dissolve the said preliminary injunction upon the general
grounds —
(a) That the facts alleged were not sufficient to constitute a cause of action
or for the issuance of the injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the
arguments of the respective parties, found —
(1) That the fact alleged in the petition did constitute a cause of action; and
(2 That the Court of First Instance did have jurisdiction to try the questions
presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their
attorney, W. A. Kincaid, presented a petition in the Supreme Court asking
that —
(a) An injunction be issued against the said A. S. Crossfield, restraining him
from proceeding in said action until further orders from this court; and
(b) That the writ of prohibition be granted against the said judge, forbidding
him from taking jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate
Justice, acting in vacation, issued the preliminary injunction prayed for.
On the 2nd day of June, 1910, the attorneys for the defendants (herein),
Messrs. O'Brien and DeWitt, and Hartforf Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general
ground that the facts alleged in the petition were insufficient to constitute a
cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing
before the Supreme Court on the 11th day of July, 1910, and the questions
presented were argued at length by the attorneys for the respective parties.
One of the questions which is presented by the pleadings and by the
arguments presented in the cause is whether or not the action pending in
the lower court is an action against the Governor-General, as such, as well
as against the other defendant in their official capacity. If it should be
decided that the action is one against the defendants in their official
capacity, then the question will be presented for decision whether or not the
courts have jurisdiction over the Governor-General, for the purpose of
reviewing his action in any case and with especial reference to the facts
presented.
The pleadings presented in this court affirmatively allege that the action in
the lower court was against the defendants (plaintiffs herein) in their official
capacity. The pleadings here also allege positively that the acts complained
of in the lower court were done by the defendants in their official capacity;
that the expulsion of the defendant (plaintiff below) was in the public interest
of the Government, at the request of the consul-general of the Imperial
Government of China; that the said plaintiffs J. E. Harding and C. R.
Trowbridge acted under the orders of the plaintiff W. Cameron Forbes; that
W. Cameron Forbes acted in his official capacity as Governor-General, the
act being an act of the Government itself, which action was immediately
reported to the Secretary of War.
The pleadings in the lower court simply described the defendants (plaintiffs
herein) as W. Cameron Forbes, the Governor-General; J. E. Harding, chief
of police of the city of Manila, and C. R. Trowbridge, chief of the secret
service of the city of Manila. The lower court held that:
The allegations of the second paragraph of the complaint, to the
effect that W. Cameron Forbes is the Governor-General of the
Philippine Islands, that Charles R. Trowbridge is the chief of the
secret service of Manila, and that J. E. Harding is the chief of police
of Manila, are descriptive only, and there is no allegation in the
complaint that any of the defendants (plaintiffs herein) performed the
acts complained of in his official capacity.
The theory of the lower court evidently was that the defendants should have
been described, for example, "W. Cameron Forbes, as Governor-General,"
etc. In this theory the lower court has much authority in its support. However,
this failure of correct and technical description of the parties is an objection
which the parties themselves should present, but when all the parties treat
the action as one based upon a particular theory, that theory should be
accepted. Upon this question the lower court, in his order, said:
Counsel for both parties made exhaustive arguments, both
apparently considering the primal issue to be whether the defendant,
W. Cameron Forbes, had authority at law, as Governor-General of
the Philippine Islands, to deport plaintiff, as alleged in the complaint
and whether the court had jurisdiction to restrain him from making
such deportation.
It will be noted also that the prayer of the complaint in the lower court asked
for relief against "his successors in office." The injunction also ran against
"his successors in office." Thus clearly it appears that the action was against
the defendants in their official capacity.
In this court there was no pretension by the attorney for the defendant
(plaintiff below) that the action was not against the Governor-General as
Governor-General, and the others as well, in their official capacity. In fact,
when an inquiry was made of the attorney for the defense concerning his
theory, his reply was simply that the acts of the Governor-General, being
illegal, were not performed in his official capacity.
The argument of the attorney for the defendant was directed to the
proposition that the Governor-General, in deporting or expelling the said
Chinamen, did not act in accordance with that provision of the Philippine Bill
(sec. 5, Act of Congress, July 1, 1902), which provides that:
No law shall be enacted in said Islands which shall deprive any
person of life, liberty, or property, without dueprocess of law; or deny
to any person therein equal protection of the laws.
The attorney for the plaintiffs, in answering this argument, maintained:
First. That the act of the Governor-General was the act of the Philippine
Government and that he had a right, inherent in him as the representative of
the Government and acting for the Government, to deport or expel the
defendant; and
Second. In the absence of express rules and regulations for carrying such
power into operation, he (the Governor-General) had a right to use his own
official judgment and discretion in the exercise of such power.
In order to arrive at a correct solution of the questions presented by the
foregoing facts, we shall discuss the following propositions:
I.
WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT
TO DEPORT OR EXPEL OBJECTIONABLE ALIENS?
The Government of the United States in the Philippine Islands is a
government with such delegated, implied, inherent, and necessary military,
civil, political, and police powers as are necessary to maintain itself,
subjected to such restrictions and limitations as the people of the United
States, acting through Congress and the President, may deem advisable,
from time to time, to interpose. (Instructions of the President McKinley to the
Taft Commission; executive order of President McKinley dated June 21,
1910, appointing Mr. Taft Civil Governor of the Philippine Islands; that part of
the Act of Congress of March 2, 1901, known as the Spooner Amendment;
Barcelon vs. Baker, 5 Phil. Rep., 87; U. S. vs. Bull, 15 Phil. Rep., 7, 8 Off.
Gaz., 271.)
The Spooner Amendment provided that —
All military, civil, and judicial powers necessary to govern the
Philippine Islands . . . shall, until otherwise provided by Congress, be
vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the
establishment of civil governments and for maintaining and
protecting the inhabitants of said Islands in the free enjoyment of
their liberty, property, and religion.
By this Act of Congress a system of government was established in the
Philippine Islands which carried with it the right and duty on the part of such
government to perform all acts that might be necessary or expedient for the
security, safety, and welfare of the people of the Islands.
In the case of United States vs. Bull, this court, speaking through Mr. Justice
Elliot, said:
Within the limits of its authority the Government of the Philippine
Islands is a complete governmental organisms, with executive,
legislative, and judicial departments exercising the functions
commonly assigned to such departments. The separation of powers
is as complete as in most governments.
Having reached the conclusion that the Government of the United States in
the Philippine Islands is a government with all the necessary powers of a
government, subject to certain control in the exercise thereof, we are of the
opinion and so hold, that it has impliedly or inherently itself in conformity with
the will of the Congress of the United States and the President thereof, and
to this end it may prevent the entrance into or eliminate from its borders all
such aliens whose presence is found to be detrimental or injurious to its
public interest, peace, and domestic tranquility. Every government having
the dignity of a government possesses this power. Every author who has
written upon the subject of international law and who has discussed this
question has reached the same conclusion. Among these authors may be
mentioned such noted men and statemen as Vattel, Ortolan, Blackstone,
Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro, Bello,
Heffer, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim,
Westlake, Holland, Scott, Haycroft, Craies, Pollock, Campbell, and others.
Not only have all noted authors upon this question of international law
reached this conclusion, but all the courts before which this particular
question has been involved have also held that every government has the
inherent power to expel from its borders aliens whose presence has been
found detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson
(i Phil. Rep., 93), said:
 Unquestionably every State has a fundamental right to its existence
and development, and also to the integrity of its territory and the
exclusive and peaceable possession of its dominions, which it may
guard and defend by all possible means against any attack. . . . We
believe it is a doctrine generally professed by virtue of that
fundamental right to which we have referred that under no aspect of
the case does this right of intercourse give rise to any obligation on
the part of the State to admit foreigners under all circumstances into
its territory. The international community, as Martens says, leaves
States at liberty to fix the conditions under which foreigners should
be allowed to enter their territory. These conditions may be more or
less convenient to foreigners, but they are a legitimate manifestation
of territorial power and not contrary to law. In the same way a State
may possess the right to expel from its territory any foreigner who
does not conform to the provisions of the local law. (Marten's
Treatise on International Law, vol. 1, p. 381.) Superior to the law
which protest personal liberty, and the agreements which exist for
their own interests and for the benefit of their respective subjects, is
the supreme and fundamental right of each State to self-preservation
and the integrity of its dominion and its sovereignty. Therefore it is
not strange that this right should be exercised in a sovereign manner
by the executive power, to which is especially entrusted, in the very
nature of things, the preservation of so essential a right, without
interference on the part of the judicial power. If it can not be denied
that under normal circumstances when foreigners are present in the
country the sovereign power has the right to take all necessary
precautions to prevent such foreigners from imperiling the public
safety and to apply repressive measures in case they should abuse
the hospitality extended to them, neither can we shut our eyes to the
fact that there may be danger to personal liberty and international
liberty if to the executive branch of the government there should be
conceded absolutely the power to order the expulsion of foreigners
by means of summary and discretional proceedings; nevertheless,
the greater part of modern laws, notwithstanding these objections,
have sanctioned the maxim that the expulsion of foreigners is a
political measure and that the executive power may expel, without
appeal, any person whose presence tends to disturb the public
peace.
The Supreme Court of the United States, speaking through Mr. Justice Field,
in the case of Chao Chan Ping vs. United States (130 U. S., 581) (A. D.
1888) said:
These laborers are not citizens of the United States; they are aliens.
That the Government of the United States, through the action of the
legislative department, can exclude aliens from its territory is a
proposition which we do not think open to controversy. Jurisdiction
over its own territory to that extent is an incident of every
independent nation. It is a part of its independence, subject to the
control of another power. The United States in their relation to
foreign countries and their subjects or citizens are one nation
invested with powers which belong to independent nations, the
exercise of which can be invoked for the maintenance of its absolute
independence and security throughout its entire territory. . . .
. . . The power of exclusion of foreigners being an incident of
sovereignty, belonging to the Government of the United States as a
part of those sovereign powers delegated by the Constitution, the
right to its exercise at nay time when, in the judgment of the
Governments, the interests of the country require it, can not be
granted away or restrained on behalf of anyone. The powers of the
Government are delegated in trust to the United States and are
incapable of transfer to any other parties. They (the incidents of
sovereignty),can not be abandoned or surrendered nor can their
exercise be hampered when needed for the public, by any
consideration of private interests.
In the case of Ekiu vs. United States (142 U. S., 651, 659) (A. D. 1891) the
Supreme Court of the United States, speaking through Mr. Justice Gray,
said:
It is an accepted maxim of international law that every sovereign
nation has the power, as inherent in sovereignty, and essential to
self-preservation, to forbid the entrance of foreigners within its
dominions or to admit them only in such cases and upon such
conditions as it may see fit to prescribe. In the United States this
power is vested in the National Government, to which the
Constitution has committed the entire control of international
relations, in peace as well as in war. It belongs to the political
department of the Government and may be exercised either through
treaties made by the President and Senate or through statutes
enacted by Congress.
Later, The Supreme Court of the United States, in the case of Fong Yue
Ting vs. United States (149 U. S., 698) (A. D. 1892), speaking through Mr.
Justice Gray, again said:
The right of a nation to expel or deport foreigners who have not been
naturalized or taken any steps toward becoming citizens of the
country, rests upon the same grounds and is as absolute and
unqualified as the right to prohibit and prevent their entrance into the
country.
The power to exclude or expel aliens being a power affecting international
relations is vested in the political department of the Government. The power
to exclude aliens and the power to expel them rest upon one foundation, are
derived from one source, are supported by the same reasons, and are, in
truth, but the exercise of one and the same power.
In a very recent case — The Attorney-General of Canada vs. Cain (House of
Lords Reports, Appeal Cases, 1906), Lord Atkinson, speaking for the court
said (p. 545):
In 1763 Canada and all its dependencies, with the sovereignty,
property, and possession, and all other rights which had at ant time
been held or acquired by the Crown of France, were ceded to Great
Britain (St. Catherine's Milling and Lumber Company vs. Reg., 145
Appeal cases, 46, 53). Upon that event the Crown of England
became possessed of all legislative and executive powers within the
country so ceded to it and save so far as it has since parted with
these powers by legislation, royal proclamation, or voluntary grant, it
is still possessed of them.
One of the rights possessed by the supreme power in every State is
the right to refuse to permit an alien to enter that State, to annex
what conditions it pleases to the permission to enter it, and to expel
or deport from the State, at pleasure, even a friendly alien, especially
if it considers his presence in the State opposed to its peace, order,
and good government, or to its social or material interests. (Citing
Vattel's Law of Nations in support of his proposition.)
In the case of Hodge vs. Reg. (9 Appeal Cases, 117) it was decided that a
colonial legislature, under the British Government, has, within the limits
prescribed by the statute which created it, an authority as plenary and as
ample as the imperial parliament in the plenitude of its power possessed and
could bestow.
See also In re Adams, 1 Moore's Privy Council, 460, 472-476 (A. D.
1837); Donegani vs. Donegani, 3 Knapp, 63, 68 (A. D. 1835); Cameron vs.
Kyte, 3 Knapp, 332, 343 (A. D. 1835); Mustgrave vs. Pulido, Law Reports, 5
Appeal Cases, 102 (A. D. 1879); Nudtgrave vs. Chun Teong Toy, Law
Reports, Appeal cases, 272 (a. D. 1891); Hill vs. Bigge, 3 Moore's Privy
Council, 465; The Nabob of Carnatic vs. The East Indian Company, 1 Vese,
Jr., 388; Fabrigas vs. Mostyn, 1 Cowpoer, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of
nation or government to prevent foreigners from entering its territory or to
expel them, said:
Every nation has the right to refuse to admit a foreigner into the country
when he can not enter without putting the nation in evident danger or doing it
manifest injury. What it (the nation) owes to itself, the care of its own safety,
gives to it this right; and in virtue of its national liberty, it belongs to the
nation to judge whether its circumstances will or will not justify the admission
of the foreigner. Thus, also, it has a right to send them elsewhere it if has
just cause to fear that they will corrupt the manners of the citizens; that they
will create religious disturbances or occasion any other disorder contrary to
the public safety. In a word, it has a right, and is even obliged in this respect,
to follow the rules which prudence dictates." (Vattel's Law of Nations, book
1, Chapter 19, secs. 230, 231.)
Mr. Ortolan said:
The Government of each State has always the right to compel
foreigners who are found within its territory to go away, by having
them taken to the frontier, not making a part of the nation, his
individual reception into the territory is a matter of pure permission
and simple tolerance and creates no obligation. The exercise of this
right may be subject, doubtless, to certain forms prescribed by the
domestic laws of each country; but the right exists, none the less,
universally recognized and put in force. In France, no special form is
now prescribed in this matter; the exercise of this right of expulsion is
wholly left to the executive power. (Ortolan, Diplomatie de la Mer,
book 2, chapter 14, edition, p. 297.)
Mr. Phillimore said:
It is a received maxim of international law that the government of the
State may prohibit the entrance of strangers into the country and
may, therefore, regulate the conditions under which they shall be
allowed to remain in it or may require or compel their deportation
from it. (1 Phillimore's International Law, 3d edition, chapter 10, sec.
220.)
Mr. Taylor said:
Every independent State possesses the right to grant or refuse
hospitality. Undoubtedly such a State possesses the power to close
the door to all foreigners who, for social, political or economical
reasons, it deems expedient to exclude; and for like reasons it may
subject a resident foreigner or a group of them to expulsion, subject,
of course, to such retaliatory measures as an abuse of the excluding
or expelling power may provoke. (Tayloy, International Public Law,
p. 231.)
Mr. Oppenheim said:
Just as a State is competent to refuse admission to foreigners, so it
is in conformity with its territorial supremacy competent to expel at
any moment a foreigner who has been admitted into its territory. And
it matter not whether the respective individual is only on a temporary
visit or has settled down professional or business purposes on that
territory, having taken his domicile thereon.
It has also been held that a State may expel a foreigner who has
been residing within its territory for some length of time and has
established a business there, and that his only remedy is to have his
home State, by virtue of the right of protection of a State over its
citizens abroad, to make diplomatic representations to the expelling
State and ask for the reasons for such expulsion; but the right being
inherent in the sovereignty or State, it can expel or deport even
domiciled foreigners without so much as giving the reasons therefor.
The expulsion of aliens from a State may be an unfriendly act to the
State of the individual expelled, but that does not constitute the
expulsion an illegal act, the law nations permitting such expulsions.
(Oppenheim, International Law, sec. 323.)
Mr. Marthens said:
The Government of each State has always a right to compel
foreigners who live within its territory to go away, having them
conveyed to the frontier. This right has its cause in the fact that as a
stranger does not form a part of a nation, his individual admission
into the country is merely discretional, a mere act of tolerance, in no
way obligatory. The practice of this right might be subject to certain
forms prescribed by the international laws of each country, but the
right is always universally acknowledged and put into practice.
(Marten's Droit des Gens, book 3, p. 91.)
This implied or inherent right in the Government to prevent aliens from
entering its territory or to deport or expel them after entrance, has not only
been recognized by the courts and eminent writers of international law, but
has also been recognized many times by the executive and legislative
branches of the Government. Acts of the Congress of the United States, of
the Parliament of Great Britain, as well as the British colonial parliaments,
and royal decrees might be cited in support of this doctrine.
One of the very early Acts of Congress of the United States (A. D. 1798)
authorized the President of the United States to order all such aliens as he
should judge to be dangerous to the peace and safety of the country, or that
he should have reasonable grounds to suspect of being concerned in any
treasonable machinations against the Government, to deport out of the
territory of the United States within such time as he should express in his
order. And it was further provided that if any such aliens, so sent out, should
return without the permission of the President, they should be imprisoned so
long as, in the opinion of the President, the public safety might require.
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
This Government (United States) can not contest the right of foreign
governments to exclude, on policy or other grounds, American
citizens from their shores.
Mr. Gresham, Secretary of State of the United States, in speaking of the
right of Hayti to expel from its borders American citizens from their shores.
This government does not propose to controvert the principle of
international law which authorizes every independent State to expel
objectionable foreigners or class of foreigners from its territory. The
right of expulsion or exclusion of foreigners is one which the United
States, as well as many other countries, has, upon occasions,
exercised when deemed necessary in the interest of the
Government or its citizens. . . .
Every State is authorized, for reasons of public order, to expel
foreigners who are temporarily residing in its territory, but when a
Government expels foreigners without cause and in an injurious
manner, the State of which the foreigner is a citizen has a right to
prefer a claim for this violation of international law and to demand
satisfaction, if there is occasion for it.
Many other cases might be cited showing the arbitrary manner in which
aliens have, from time to time, been deported.
Expulsion is a police measure, having for its object the purging of the State
of obnoxious foreigners. It is a preventive, not a penal process, and it can
not be substituted for criminal prosecution and punishment by judicial
procedure.
The right of deportation or expulsion is generally exercised by the executive
head of the Government, sometimes with and sometimes without express
legislation. Sometimes it is delegated in particular instances to the heads of
some departments of the Government. (Act No. 265, U. S. Philippine
Commission.)
In Canada the right was given by statute to the attorney-general of Canada.
(Dominion Act, 60th and 61st Victoria, chap. 11, sec. 6, as amended by 1st
Edward 7th, Chap. 13.)
It having been established that every government has the implied or inherent
right to deport or expel from its territory objectionable aliens, whenever it is
deemed necessary for the public good, we deem it pertinent to inquire:
II
IN WHAT DEPARTMENT OR DEPARTMENTS OF THE
INDEPENDENT DEPARTMENTS OF A GOVERNMENT DOES
THIS INHERENT POWER EXISTS?
The rule of law permitting nations to deport or expel objectionable aliens,
while international in its character is yet, nevertheless, in its application,
executed by the ]particular nation desiring to rid itself of such aliens and
must, therefore, be carried into operation by that departments of the
government charged with the execution of the nation's laws. Its enforcement
belongs peculiarly to the political department of the government. The right is
inherent in the government and, as Mr. Justice Field said, "can not be
granted away or restrained on behalf of anyone." It being inherent in the
political department of the government, it need not be defined by express
legislation, although in some States the legislative department of the
government has prescribed the condition and the method under which and
by which it shall be carried into operation. The mere absence of legislation
regulating this inherent right to deport or expel aliens is not sufficient to
prevent the chief executive head of the government, acting in his own
sphere and in accordance with his official duty, to deport or expel
objectionable aliens, when he deems such] action necessary for the peace
and domestic tranquility of the nation. One of the principal duties of the chief
executive of a nation is to preserve peace and order within the territory. To
do this he is possessed of certain powers. It is believed and asserted to be
sound doctrine of political law that if in a particular case he finds that there
are aliens within its territory whose continued presence is injurious to the
public interest, he may, even in the absence of express law, deport them.
The legislative department of the government is not always in session. It
may require days and even months for that department to assemble.
Sudden and unexpected conditions may arise, growing out of the presence
of obnoxious and untrustworthy foreigners, which demand immediate action.
Their continued presence in the country may jeopardize even the very life of
the government. To hold that, in view of the inherent power of the
government, the chief executive authority was without power to expel such
foreigners, would be to hold that at times, at least, the very existence and life
of the government might be subjected to the will of designing and obnoxious
foreigners, who were entirely out of sympathy with the existing government,
and whose continued presence in the territory might be for the purpose of
destroying such government.
Suppose for example, that some of the inhabitants of the thickly populated
countries situated near the Philippine Archipelago, should suddenly decide
to enter the Philippine Islands and should, without warning appear in one of
the remote harbors and at once land, for the purpose of stirring up the
inhabitants and inciting dissensions against the present Government. And
suppose, for example, that the Legislature was not in session; could it be
denied that the Governor-General, under his general political powers to
protect the very existence of the Government, has the power to take such
steps as he may deem wise and necessary for the purpose of ridding the
country of such obnoxious and dangerous foreigners? To admit such a
doctrine would be to admit that every government was without the power to
protect its own life, and at times might be subjected to the control of people
who were out of sympathy with the spirit of the Government and who owe no
allegiance whatever to it, and are under no obligation to assist in its
perpetuity.
It has never been denied, in a government of separate and independent
departments, executive, legislative, and judicial, that the legislature may
prescribe the methods or conditions for the exercise of his power, but the
mere absence of such rules neither proves that the power does not exist nor
that the executive head of the government may not adopt himself such
methods as he may deem advisable for the public good and the public
safety. He can only be controlled in the conditions and methods as to when
and have the powers shall be exercised. The right itself can not be
destroyed or bartered away. When the power is once created and no rules
are adopted for its enforcement, the person or authority who has to exercise
such power has the right to adopt such sane methods for carrying the power
into operation as prudence, good judgment and the exigencies of the case
may demand; and whatever rules and regulations may be adopted by the
person or department possessing this power for carrying into operation this
inherent power of the government, whether they are prescribed or not, will
constitute due process of law. (See speech delivered by John Marshall in
the House of Representatives of the United States, Annals of the Sixth
Congress, 595; United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed.
Cas., 825; Moyer vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land and
Improvement Co., 18 How., 272; U. s., vs. Ju Toy, 198 U. S., 253, 263.)
We have said that the power to deport or expel foreigners pertains to the
political department of the government. Even in those jurisdictions where the
conditions under which persons may be deported are left to the courts to
decide, even then the actual deportations must be carried into operation by
the executive department of the government. The courts have no machinery
for carrying into operation their orders except through the executive
department.
In the present case the fact is charged and admitted that the defendant was
deported by W. Cameron Forbes as Governor-General of the Philippine
Islands, acting for the Government. Mr. Forbes is "the chief executive
authority in all civil affairs of the Government of the Philippine Islands" as
such it is his duty to enforce the laws. It is out opinion and we so hold that as
such "executive authority" he had full power, being responsible to his
superiors only, to deport the defendant by whatever methods his conscience
and good judgment might dictate. But even though we are wrong in our
conclusions that he is the possessor of the inherent right to deport aliens,
and it is true that the power belongs to the legislative department to
prescribe rules and regulations for such deportation, yet, in the present
case, the legislative department expressly recognized his authority and
approved his acts by a resolution adopted by it on the 19th of April, 1910.
This power of the legislature to expressly ratify acts alleged to be illegal by
the executive department, has been expressly recognized by the Supreme
court of the United States in the case of United States vs. Heinszen & Co.,
(206 U. S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed.
Rep., 859). An act done by an agent of the Government, though in excess of
his authority, being ratified and adopted by the Government, is held to be
equivalent to previous authority. (142 Federal Reporter, supra;
Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of
State vs. Kamachee Baye Sahaba, 13 Moore's Privy Council, 22; O'Reilly de
Camara vs. Brooke, Major-General, 209 U. S., 54.)
It is also admitted that the act of the Governor-General in deporting the
defendant was in compliance with a request made by the official
representative of the Imperial Government of China. It would seem,
therefore, that said request, in the absence of any other power, would be
sufficient justification of his act. The mere fact that a citizen or subject is out
of the territory of his country does not relieve him from that allegiance which
he owes to his government, and his government may, under certain
conditions, properly and legally request his return. This power is expressly
recognized by the Congress of the United States. (See Act of Congress of
January 30, 1799, 1 Statutes at large, 613; sec. 5533, Revised Statutes of
United States; sec. 5, United States Penal Code, adopted March 4, 1909.)
It was strenuously argued at the hearings of this cause that the defendant
was deported without due process of law, in fact, that was the burden of the
argument of attorney for the defendant.
Due process of law, in any particular case, means such an exercise
of the powers of the government as the settled maxims of law permit
and sanction and under such safeguards for the protection of
individual rights as those maxims prescribe for the class of cases to
which the one in questions belongs. (U. S. vs. Ling Su Fan, 10 Phil.
Rep., 104, 111; Moyer vs. Peabody, 212 U. S., 78;
Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U.
S. vs. Ju Toy, 198 U. S., 253, 263.)
An examination of the methods by which the defendant was deported, as
stated by the attorney for the defendant, as compared with the numerous
cases of deportation by the various governments of the world, shows that
the method adopted in the present case was in accordance with the
methods adopted by governments generally and the method sanctioned by
international law. (See Moore's International Law Digest, vol. 4.)
It has been repeatedly decided when a government is dealing with the
political rights of aliens that it is not governed by that "due process of law"
which governs in dealing with the civil rights of aliens. For instance, the
courts of the United States have decided that in the deportation of an alien
he is not entitled to right of trial by jury, the right of trial by jury being one of
the steps in the "due process of law" in dealing with civil rights. (Fong Yue
Ting vs. U. S., 149 U. S. 698; U. S. vs. Wong Dep Ken, 57 Fed. Rep., 206;
U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep.,
914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S. , 78),
Mr. Justice Holmes, speaking for the court upon the question of what is "due
process of law," said:
But it is familiar that what is due process of law depends on
circumstances. It varies with the subject-matter and the necessities
of the situation. Thus, summary proceedings suffice for taxes
and executive decisions for exclusion from the country.
Neither will the fact that an alien residing in the territory holds a certificate of
admission justify his right to remain within such territory as against an act of
the executive department of the Government which attempts to deport him.
(Chae Chan Ping vs. U. S. 581, 36 Fed. Rep., 431.) The certificate is a mere
license and may be revoked at any time. An alien's right to remain in the
territory of a foreign government is purely a political one and may be
terminated at the will of such government. No cases have been found, and it
is confidently asserted that there are none, which establish a contrary
doctrine.
Having established, as we believe:
(a) That a government has the inherent right to deport aliens whenever the
government believes it necessary for the public good; and
(b) That the power belongs to the political department of the government
and in the Philippine Islands to the Governor-General, who is "the chief
executive authority in all civil affairs" in the Government of the Philippine
Islands:
We deem it pertinent to inquire:
III.
WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN
ANY CASE RELATING TO THE EXERCISE OF THIS INHERENT
POWER IN THE DEPORTATION OF ALIENS, FOR THE PURPOSE
OF CONTROLLING THIS POWER VESTED IN THE POLITICAL
DEPARTMENT OF THE GOVERNMENT.
The question whether or not the courts will ever intervene or take jurisdiction
in any case against the chief executive head of the government is one which
has been discussed by many eminent courts and learned authors. They
have been unable to agree. They have not been able to agree even as to
what is the weight of authority, but they all agree, when the intervention of
the courts is prayed for, for the purpose of controlling or attempting to control
the chief executive head of the government in any matter pertaining to either
his political or discretionary duties, that the courts will never take jurisdiction
of such case. The jurisdiction is denied by the courts themselves on the
broad ground that the executive department of the government is separate
and independent department, with its duties and obligations, the
responsibility for the compliance with which is wholly upon that department.
In the exercise of those duties the chief executive is alone accountable to his
country in his political character and to his own conscience. For the judiciary
to interfere for the purpose of questioning the manner of exercising the legal,
political, inherent duties of the chief executive head of the government
would, in effect, destroy the independence of the departments of the
government and would make all the departments subject to the judicial.
Such a conclusion or condition was never contemplated by the organizers of
the government. Each department should be sovereign and supreme in the
performance of his duties within its own sphere, and should be left without
interference in the full and free exercise of all such powers, rights, and
duties which rightfully, under the genius of the government belong to it. Each
department should be left to interpret and apply, without interference, the
rules and regulations governing it in the performance of what may be termed
its political duties. Then for one department to assume to interpret or to
apply or to attempt to indicate how such political duties shall be performed
would be an unwarranted, gross, and palpable violation of the duties shall be
performed would be an unwarranted, gross, and palpable violation of the
duties which were intended by the creation of the separate and distinct
departments of the government.
It is no answer to this conclusion to say that the chief executive authority
may violate his duties and the constitutional guaranties of the people, or that
injustice may be done, or that great and irreparable damage may be
occasioned without a remedy. The judicial is not the only department of the
government which can do justice or perpetually conserve the rights of the
people. The executive department of the government is daily applying laws
and deciding questions which have to do with the most vital interest of the
people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of
Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570
(33 Am. Dec., 346); Sutherland vs. The Governor, 29 Mich., 320;
People vs. Bissell, 19 Ill., 229 (68 Am. Dec., 591); State vs. Warmoth, 22 La.
An., 1.)
In the case of State vs. Warmoth (22 La. An., 10 Mr. Justice Taliaferro said
(pp. 3,4):
He [the governor] must be presumed to have this discretion, and the
right of deciding what acts his duties require him to perform;
otherwise his functions would be trammeled, and the executive
branch of the government made subservient, in an important feature,
to the judiciary.
When the official acts to be performed by the executive branch of the
government are divided into ministerial and political, and courts
assume the right to enforce the performance of the former, it opens
a wide margin for the exercise of judicial power. The judge may say
what acts are ministerial an what political. Circumstances may arise
and conditions may exist which would require the Governor of a
State, in the proper exercise of his duty, and with regard to the
interests of the State, not to perform a ministerial act. Is the judge to
determine his duty in such case, and compel him to perform it? The
reasons of the executive for the nonperformance of an act, the judge
may never know, or, if brought to his knowledge, he may review and
overrule them, and, in doing, assume political functions. He would
determine, in such a case, the policy of doing the act. The legislator
himself, who prescribed the act might hold the executive harmless
while the judge condemned him.
We believe that there are certain inherent powers vested in the chief
executive authority of the State which are universally denominated political,
which are not defined either by the constitution or by the laws. We believe
that those inherent powers would continue to exist for the preservation of the
life and integrity of the State and the peace and quietude of its people, even
though the constitution were destroyed and every letter of the statutes were
repealed. This must necessarily be true, or, otherwise, the hands of the chief
executive authority of the government might, at times, be paralyzed in his
efforts to maintain the existence of the government. The United States
Government never intended to create in the Philippine Islands a government
without giving it adequate power to preserve itself and to protect the highest
interests of the people of the Archipelago.
These inherent, inalienable, and uncontrollable powers which must
necessarily exists in the absence of express law in the chief executive
authority of a nation have been clearly demonstrated by the action of the
President of the United States, notably in putting down what is known as the
"Whisky Rebellion" in the State of Pennsylvania, in the case of the protection
of a judge of the United States (In re Neagle, 135 U. S., 1, 64), as well as in
the case of the uprising of labor organizations in the city of Chicago under
the direction and control of Mr. Debbs (In re Debbs, 158 U. S., 568).
These powers and the right to exercise them according to his own good
judgment and the conscience and his acts in pursuance of them are purely
political and are not subject to control by any other department of the
government. It is believed that even the Legislature can not deprive him of
the right to exercise them.
Upon the question of the right of the courts to interfere with the executive,
this court has already pronounced, in the case of In re Patterson (1 Phil.
Rep., 93) that:
Superior to the law which protects personal liberty and the
agreements which exist between nations for their own interests and
the benefit of their respective subjects is the supreme and
fundamental right of each state to self-preservation and the integrity
of its dominion and its sovereignty. Therefore it is not strange that
this right should be exercised in a sovereign manner by the
executive power to which is entrusted, in the very nature of things,
the preservation of so essential a right, without interference on the
part of the judicial power.
This court has also announced the doctrine, in the case of Barcelon vs.
Baker et al (5 Phil. Rep., 87) that:
Under the form of the government established in the Philippine
Islands one department of the Government has no power or
authority to interfere in the acts of another, which acts are performed
within the discretion of the other department.
In the case of Martin vs. Mott it was decided by the Supreme Court of the
United States, whenever the performance of a political duty developed upon
the chief executive authority of a nation and when he had decided as to the
method of performing that duty, that no court could question his decision.
We are of the opinion and so hold, whenever the authority to decide a
political question devolves upon any separate and distinct department of the
Government, which authority impose upon that department the right to
decide whether the exigencies for its exercise have arisen, and when that
department had decided, that decision is conclusive upon all other persons
or departments.
This doctrine has been further recognized by this court in the case
of Merchant vs. Del Rosario (4 Phil. Rep., 316) as well as in the case
of Debrunner vs. Jaramillo (12 Phil. Rep., 316).
Under the system of government established in the Philippine Islands the
Governor-General is "the chief executive authority," one of the coordinate
branches of the Government, each of which, within the sphere of its
governmental powers, is independent of the others. Within these limits the
legislative branch can not control the judicial nor the judicial the legislative
branch, nor either the executive department. In the exercise of his political
duties the Governor-General is, by the laws in force in the Philippine Islands,
invested with certain important governmental and political powers and duties
belonging to the executive branch of the Government, the due performance
of which is entrusted to his official honesty, judgment, and discretion. So far
as these governmental or political or discretionary powers and duties which
adhere and belong to the Chief Executive, as such, are concerned, it is
universally agreed that the courts possess no power to supervise or control
him in the manner or mode of their discharge or exercise. (Hawkins vs. The
Governor, supra; People vs. The Governor, supra;
Marbury vs. Madison, supra; Meecham on Public Officers, sec. 954; In re
Patterson, supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover
damages against the Governor and the others mentioned in the cause, for
the illegal acts performed by them, and not an action for the purpose of in
any way controlling or restraining or interfering with their political or
discretionary duties. No one can be held legally responsible in damages or
otherwise for doing in a legal manner what he had authority, under the law,
to do. Therefore, if the Governor-General had authority, under the law, to
deport or expel the defendants, and the circumstances justifying the
deportation and the method of carrying it out are left to him, then he can not
be held liable for damages for the exercise of this power. Moreover, if the
courts are without authority to interfere in any manner, for the purpose of
controlling or interfering with the exercise of the political powers vested in
the chief executive authority of the Government, then it must follow that the
courts can not intervene for the purpose of declaring that he is liable in
damages for the exercise of this authority. Happily we are not without
authority upon this question. This precise question has come before the
English courts on several different occasions.
In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy
vs. Earl of Westmoreland (27 State Trials, 1246), and Luby vs. Lord
Wodehouse (17 Iredell, Common Law Reports, 618) the courts held that the
acts complained of were political acts dine by the lord-Lieutenant in his
official capacity and were assumed to be within the limits of the authority
delegated to him by the Crown. the courts if England held that, under the
circumstances, no action would lie against the lord-lieutenant, in Ireland or
elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases
1891, p. 272) the plaintiff, a Chinese subject, brought an action for damages
against the defendant as collector of customs of the State of Victoria in
Australia, basing his action upon the refusal of the Victorian government to
permit him to enter that State. Upon a full consideration the Privy Council
said:
Their Lordships can not assent to the proposition that an alien
refused permission to enter British territory can, in an action against
the British Crown, compel the decision of such matters as these,
involving delicate and difficult constitutional questions affecting the
respective rights of the Crown and Parliament and the relation of this
country to her self-governing colonies. When once it is admitted that
there is no absolute and unqualified right of action on the behalf of
an alien refused permission to enter British territory, their Lordships
are of opinion that it would be impossible, upon the facts which the
demurrer admits, for an alien to maintain an action.
If it be true that the Government of the Philippine Islands is a government
invested with "all the military,. civil, and judicial powers necessary to govern
the Philippine Islands until otherwise provided by Congress" and that the
Governor-General is invested with certain important political duties and
powers, in the exercise of which he may use his own discretion, and is
accountable only to his superiors in his political character and to his own
conscience, and without authority to interfere in the control of such powers,
for any purpose, then it must follow that the courts can not take jurisdiction in
any case against him which has for its purpose the declaration that such
acts are illegal and that he is, in consequence, liable for damages. To allow
such an action would, in the lost effective way possible, subject the
executive and political departments of the Government to the absolute
control of the judiciary. Of course, it will be observed that we are here
treating only with the political and purely executive duties in dealing with the
political rights of aliens. The conclusions herein reached should not be
extended to cases where vested rights are involved. That question must be
left for future consideration.
From all the foregoing facts and authorities, we reach the following
conclusions:
First. That the Government of the United States in the Philippine Islands is a
government possessed with "all the military, civil, and judicial powers
necessary to govern the Philippine Islands" and as such has the power and
duty, through its political department, to deport aliens whose presence in the
territory is found to be injurious to the public good and domestic tranquility of
the people.
Second. That the Governor-General, acting in his political and executive
capacity, is invested with plenary power to deport obnoxious aliens, whose
continued presence in the territory is found by him to be injurious presence
to the public interest, and in the method of deporting or expelling them, he
may use such method as his official judgment and good conscience may
dictate.
Third. That this power to deport or expel obnoxious aliens being invested in
the political department of the Government, the judicial department will not,
in the absence of express legislative authority, intervene for the purpose of
controlling such power, nor the purpose of inquiring whether or not he is
liable in damages for the exercise thereof.
Therefore the lower court was without jurisdiction to consider the particular
questions presented in the cause, and it is hereby ordered and decreed that
the writ of prohibition shall be issued, directed to the defendant, the Hon. A.
S. Crossfield, perpetually prohibiting him from proceeding in the cause in
which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes,
Charles R. Trowbridge, and J.E. Harding are defendants, and to dismiss
said action, as well as to enter an order dissolving the injunction granted by
him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer
presented in this cause, and ordering that said action be dismissed, as well
as a decree making perpetual the injunction heretofore granted by Mr.
Justice Trent.
It is so ordered, without any finding as to costs.
Arellano, C.J., and Torres, J., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI,
and GODOFREDO L. MANZANAS, petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional
Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE
BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY
FISCAL OF MANILA and PRESIDENT CORAZON C.
AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the
Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL
OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF
THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF
MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF
JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE
SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F.
GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No.
82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for
petitioner in G.R. Nos. 82827 and 83979.
RESOLUTION
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether
or not petitioners were denied due process when informations for libel were
filed against them although the finding of the existence of a prima faciecase
was still under review by the Secretary of Justice and, subsequently, by the
President; (2) whether or not the constitutional rights of Beltran were violated
when respondent RTC judge issued a warrant for his arrest without
personally examining the complainant and the witnesses, if any, to
determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against
the petitioners through the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On
March 30, 1988, the Secretary of Justice denied petitioners' motion for
reconsideration and upheld the resolution of the Undersecretary of Justice
sustaining the City Fiscal's finding of a prima facie case against petitioners.
A second motion for reconsideration filed by petitioner Beltran was denied
by the Secretary of Justice on April 7, 1988. On appeal, the President,
through the Executive Secretary, affirmed the resolution of the Secretary of
Justice on May 2, 1988. The motion for reconsideration was denied by the
Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available
under the law has lost factual support.
It may also be added that with respect to petitioner Beltran, the allegation of
denial of due process of law in the preliminary investigation is negated by
the fact that instead of submitting his counter- affidavits, he filed a "Motion to
Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require
that the respondent in a criminal case actually file his counter-affidavits
before the preliminary investigation is deemed completed. All that is required
is that the respondent be given the opportunity to submit counter-affidavits if
he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of
the constitutional provision on the issuance of warrants of arrest. The
pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their
persons, houses, papers and effects against unreasonable
searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant
of arrest shall issue except upon probable cause to be
 determined personally by the judge after examination nder
oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the
deletion of the grant of authority by the 1973 Constitution to issue warrants
to "other responsible officers as may be authorized by law," has apparently
convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination
of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal
complaints instead of concentrating on hearing and deciding cases filed
before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No.
12, setting down guidelines for the issuance of warrants of arrest. The
procedure therein provided is reiterated and clarified in this resolution.
It has not been shown that respondent judge has deviated from the
prescribed procedure. Thus, with regard to the issuance of the warrants of
arrest, a finding of grave abuse of discretion amounting to lack or excess of
jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to
file suit." He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to be
a witness for the prosecution, bringing her under the trial court's jurisdiction.
This, continues Beltran, would in an indirect way defeat her privilege of
immunity from suit, as by testifying on the witness stand, she would be
exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from
suit is to assure the exercise of Presidential duties and functions free from
any hindrance or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of the office holder's
time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of
the office and may be invoked only by the holder of the office; not by any
other person in the President's behalf. Thus, an accused in a criminal case
in which the President is complainant cannot raise the presidential privilege
as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the
protection afforded by the privilege and submit to the court's jurisdiction. The
choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and
imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held
liable for libel because of the privileged character or the publication, the
Court reiterates that it is not a trier of facts and that such a defense is best
left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.
The petitions fail to establish that public respondents, through their separate
acts, gravely abused their discretion as to amount to lack of jurisdiction.
Hence, the writs of certiorari and prohibition prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or
lack of jurisdiction on the part of the public respondents, the Court Resolved
to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order
to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26,
1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado,
JJ., concur.
EN BANC
[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, vs. GLORIA MACAPAGAL-
ARROYO, respondent.
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.[1]
The expos immediately ignited reactions of rage. The next day, October 5,
2000, Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the
floor and delivered a fiery privilege speech entitled I Accuse. He accused the
petitioner of receiving some P220 million in jueteng money from Governor
Singson from November 1998 to August 2000. He also charged that the petitioner
took from Governor Singson P70 million on excise tax on cigarettes intended for
Ilocos Sur. The privilege speech was referred by then Senate President Franklin
Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino
Pimentel) and the Committee on Justice (then headed by Senator Renato
Cayetano) for joint investigation.[2]
The House of Representatives did no less. The House Committee on Public
Order and Security, then headed by Representative Roilo Golez, decided to
investigate the expos of Governor Singson. On the other hand, Representatives
Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move
to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11,
Archbishop Jaime Cardinal Sin issued a pastoral statement in behalf of the
Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down
from the presidency as he had lost the moral authority to govern.[3] Two days later
or on October 13, the Catholic Bishops Conference of the Philippines joined the
cry for the resignation of the petitioner.[4] Four days later, or on October 17, former
President Corazon C. Aquino also demanded that the petitioner take the supreme
self-sacrifice of resignation.[5] Former President Fidel Ramos also joined the
chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of
the Department of Social Welfare and Services[6] and later asked for petitioners
resignation.[7]However, petitioner strenuously held on to his office and refused to
resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They were Jaime
Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator
Vicente Paterno and Washington Sycip.[8] On November 2, Secretary Mar Roxas
II also resigned from the Department of Trade and Industry.[9] On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together
with some 47 representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.[10]
The month of November ended with a big bang. In a tumultuous session on
November 13, House Speaker Villar transmitted the Articles of
Impeachment[11] signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator
Pimentel as Senate President.Speaker Villar was unseated by Representative
Fuentabella.[12] On November 20, the Senate formally opened the impeachment
trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13]
The political temperature rose despite the cold December. On December 7,
the impeachment trial started.[14] the battle royale was fought by some of the
marquee names in the legal profession. Standing as prosecutors were then House
Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo,
Wigberto Taada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Nachura. They were assisted by a battery of private prosecutors led by now
Secretary of Justice Hernando Perez and now Solicitor General Simeon
Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito P. Mendoza, former
City Fiscal of Manila Jose 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 low points were the constant conversational piece of the
chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She
testified that she was one foot away from petitioner Estrada when he affixed the
signature Jose Velarde on documents involving a P500 million investment
agreement with their bank on February 4, 2000.[15]
After the testimony of Ocampo, the impeachment trial was adjourned in the
spirit of Christmas. When it resumed on January 2, 2001, more bombshells were
exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who served
as 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.[16] Then came the fateful day of January 16, when
by a vote of 11-10[17] 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.[18] The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By
midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed their
Manifestation of Withdrawal of Appearance with the impeachment
tribunal.[19] Senator Raul Roco quickly moved for the indefinite postponement of
the impeachment proceedings until the House of Representatives shall have
resolved the issue of resignation of the public prosecutors. Chief Justice Davide
granted the motion.[20]
January 18 saw the high velocity intensification of the call for 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.[21]
On January 19, the fall from power of the petitioner appeared inevitable. At
1:20 p.m., the petitioner informed Executive Secretary Edgardo Angara that
General Angelo Reyes, Chief of Staff of the Armed Forces of the Philippines, had
defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for
President where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and General
Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.[22] In the presence of former Presidents Aquino and Ramos and hundreds
of thousands of cheering demonstrators, General Reyes declared that on behalf of
your Armed Forces, the 130,000 strong members of the Armed Forces, we wish
to announce that we are withdrawing our support to this government.[23] A little
later, PNP Chief, Director General Panfilo Lacson and the major service
commanders gave a similar stunning announcement.[24] Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from
their posts.[25] Rallies for the resignation of the petitioner exploded in various parts
of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second
envelop.[26] There was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round
of negotiations for the peaceful and orderly transfer of power started at
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.[27] Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-
throwing and caused minor injuries. The negotiations consumed all morning until
the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.[28] At 2:30 p.m., petitioner and
his family hurriedly left Malacaang Palace.[29] He issued the following press
statement:[30]
20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve 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
It also appears that on the same day, January 20, 2001, he signed the
following letter:[31]
Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution,
I am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on
January 20.[32] Another copy was transmitted to Senate President Pimentel on the
same day although it was received only at 9:00 p.m.[33]
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers 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 Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice and confirmed
by a letter to the Court, dated January 20, 2001, which request was treated
as an administrative matter, the court 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.[34] 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.[35] US President George W.
Bush gave the respondent a telephone call from the White House conveying US
recognition of her government.[36]
On January 24, Representative Feliciano Belmonte was elected new Speaker
of the House of Representatives.[37] The House then passed Resolution No. 175
expressing the full support of the House of Representatives to the administration
of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines.[38] It
also approved Resolution No. 176 expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in
the attainment of the nations goals under the Constitution.[39]
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
[40]
and Fair Election Practices Act.[41]
On February 6, respondent Arroyo nominated Senator Teofisto Guingona,
Jr., as her Vice President.[42] the next day, February 7, the Senate adopted
Resolution No. 82 confirming the nomination of Senator Guingona, Jr.[43] Senators
Miriam 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.[44] The House of Representatives
also approved Senator Guingonas nomination in Resolution No. 178.[45] Senator
Guingona took his oath as Vice President two (2) days later.[46]
On February 7, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio and has been terminated.[47] Senator Miriam
Defensor-Santiago stated for the record that she voted against the closure of the
impeachment court on the grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the question of whether
Estrada was still qualified to run for another elective post.[48]
Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public
acceptance rating jacked up from 16% on January 20, 2001 to 38% on January
26, 2001.[49] In another survey conducted by the ABS-CBN/SWS from February
2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President
Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance
of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased
to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass,
and 54% among the Es or very poor class.[50]
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.
A special panel of investigators was forthwith created by the respondent
Ombudsman to investigate the charges against the petitioner. It is chaired by
Overall Deputy Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose
de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the affidavits of his
witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed
with this Court GR No. 146710-15, a petition for prohibition with a prayer for a
writ of preliminary injunction. It sought to enjoin the respondent Ombudsman
from conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754,
1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed
in his office, until after the term of petitioner as President is over and only if
legally warranted. Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment confirming petitioner to be
the lawful and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office, and declaring respondent to have taken
her oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution. Acting on GR Nos. 146710-15, the
Court, on the same day, February 6, required the respondents to comment thereon
within a non-extendible period expiring on 12 February 2001. On February 13,
the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738
and the filing of the respondents comments on or before 8:00 a.m. of February 15.
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice
Artemio Panganiban[52] 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 appearing from news reports that the
respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on
February 15, 2001, which action will make the cases at bar moot and
academic.[53]
The parties filed their replies on February 24. On this date, the cases at bar
were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I law.[55] In the United States, the most authoritative guidelines to determine
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 those questions which, under the Constitution, are to be decided by the people in
Whether or not the cases at bar involve a political question
Private respondents[54] raise the threshold issue that the cases at bar pose a
political question, and hence, are beyond the jurisdiction of this Court to
decide. They contend that shorn of its embroideries, the cases at bar assail the
legitimacy of the Arroyo administration. They stress that respondent Arroyo
ascended the presidency through people power; that she has already taken her oath
as the 14th President of the Republic; that she has exercised the powers of the
presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket which the
Court cannot enter.
We reject private respondents submission. To be sure, courts here and
abroad, have tried to lift the shroud on political question but its exact latitude still
splits the best of legal minds. Developed by the courts in the 20th century, the
political question doctrine which rests on the principle of separation of powers
and on prudential considerations, continue to be refined in the mills constitutional
whether a question is political were spelled out by Mr. Justice Brennan in the 1962
case of Baker v. Carr,[56] 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.[57] Our leading case is Tanada v. Cuenco,[58] where this Court, through
former Chief Justice Roberto Concepcion, held that political questions refer to
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, notlegality of a particular
measure. To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of
this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government.[59] Heretofore, the judiciary
has focused on the thou shalt nots of the Constitution directed against the exercise
of its jurisdiction.[60]With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant
the Court power of doing nothing. In sync and symmetry with this intent are
other provisions of the 1987 Constitution trimming the so called political
thicket. Prominent of these provisions is section 18 of Article VII which
empowers this Court in limpid language to x x x review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of
habeas corpus) or the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines
and/or Oliver A. Lozano v. President Corazon C. Aquino, et al.[61] and related
cases[62] to support their thesis that since the cases at bar involve the legitimacy of
the government of respondent Arroyo, ergo, they present a political question. A
more cerebral reading of the cited cases will show that they are inapplicable. In
the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No
less than the Freedom Constitution[63] 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.[64] In her oath, she categorically
swore to preserve and defend the 1987 Constitution. Indeed, she has stressed
that she is discharging the powers of the presidency under the authority of the
1987 Constitution.
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
revolution which overthrew the whole government. EDSA II is an exercise
of people power of freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the office of the
President. EDSA I is extra constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of judicial review,
but EDSA II is intra constitutional and the resignation of the sitting President
that it caused and the succession of the Vice President as President are subject to
judicial review. EDSA I presented political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are
the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our 1898 revolution
against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among the
reforms sine quibus non.[65] The Malolos Constitution, which is the work of the
revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos shall
not be deprived (1) of the right to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar means; (2) of the right of
association for purposes of human life and which are not contrary to public means;
and (3) of the right to send petitions to the authorities, individually or
collectively. These fundamental rights were preserved when the United
States acquired jurisdiction over the Philippines. In the instruction to the
Second Philippine Commission of April 7, 1900 issued by President McKinley, it
is specifically provided that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for redress of grievances. The guaranty was carried over
in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the
Act of Congress of August 29, 1966.[66]
Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and
the 1973[68] Constitution. These rights are now safely ensconced in section 4, Article
III of the 1987 Constitution, viz:
Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
The indispensability of the 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 decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a
more stable community of maintaining the precarious balance between healthy
cleavage and necessary consensus.[69] In this sense, freedom of speech and of assembly
provides a framework in which the conflict necessary to the progress of a society can take
place without destroying the society.[70] In Hague v. Committee for Industrial
 this function of free speech and assembly was echoed in the amicus
Organization,[71]
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.[72] In the relatively recent case
of Subayco v. Sandiganbayan,[73] 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,[74] and section
8[75]of Article VII, and the allocation of governmental powers under section
11[76] of Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803 case
of Marbury v. Madison,[77] the doctrine has been laid down that it is
emphatically the province and duty of the judicial department to say what
the law is . . . Thus, respondents invocation of the doctrine of political is but a
foray in the dark.
II
Whether or not the petitioner resigned as President
We now slide to the second issue. None of the parties considered this issue
as posing a political question. Indeed, it involves a legal question whose factual
ingredient is determinable from the records of the case and by resort to judicial
notice. Petitioner denies he resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as president.
The issue brings under the microscope 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.
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
14th President 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.[78] 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.[79] 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.)[80] An hour later or at 2:30, p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal
for a snap election for president in May where he would not be a candidate
is an indicium that petitioner had intended to give up the presidency even at
that time.At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically announced the 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.[81] Petitioner
did nor disagree but listened intently.[82] The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency
of making a graceful and dignified exit. He gave the proposal a sweetener by
saying that petitioner would allowed to go abroad with enough funds to support
him and his family.[83] Significantly, the petitioner expressed no objection to
the suggestion for a graceful and dignified exit but said he would never leave
the country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace.[85] This is
proof that petitioner had reconciled himself to the reality that he had to
resign. His mind was already concerned with the five-day grace period he
could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos
called up Secretary Angara and requested, Ed, magtulungan tayo para magkaroon
tayo ng (lets cooperate to ensure a) peaceful and orderly transfer of
power.[86] There was no defiance to the request. Secretary Angara readily
agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was
implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the 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.[87]Again, we note that the resignation of
petitioner was not a disputed point. The petitioner cannot feign ignorance of
this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner
on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:
xxx
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.[88]
Again, this is high grade evidence that the petitioner has resigned. The intent
to resign is clear when he said x x x Ayoko na masyado nang
masakit. Ayoko na are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to the
Angara Diary, the following happened:
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:
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.[89]
The second round of negotiation cements the reading that the petitioner
has resigned. It will be noted that during this second round of negotiation,
the resignation of the petitioner was again treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.
According to Secretary Angara, the draft agreement which was premised
on the resignation of the petitioner was further refined. It was then signed by
their side and he was ready to fax it to General Reyes and Senator Pimentel to
await the signature of the United Opposition. However, the signing by the party
of the respondent Arroyo was aborted by her oath-taking. The Angara Diary
narrates the fateful events, viz:[90]
xxx
11:00 a.m. Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can hear
the general clearing all these points with a group he is with. I hear
voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January
2001, which resignation shall be effective on 24 January 2001, on which
day the Vice President will assume the presidency of the Republic of the
Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration
shall commence on 20 January 2001, wherein persons designated by the
Vice President to various government positions shall start orientation
activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall
guarantee the safety and security of the President and his families
throughout their natural lifetimes as approved by the national military and
police authority Vice President.
4. The AFP and the Philippine National Police (PNP) shall function under
the Vice President as national military and police authorities.
5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be offered
as proof that the subject savings account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor
provided for in Annex B heretofore attached to this agreement.
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.
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.
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
re-assume the presidency as soon as the disability disappears; (3) he
expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as
President; (4) he assured that he will not shirk from any future challenge that
may come ahead in the same service of our country. 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:
Sir
By virtue of the provisions of Section II, Article VII of the Constitution, I
am hereby transmitting this declaration that I am unable to exercise the
powers and duties of my office. By operation of law and the Constitution,
the Vice President shall be the Acting President.
(Sgd.) Joseph Ejercito Estrada
To say the least, the above letter is wrapped in mystery.[91] The pleadings
filed by the petitioner in the cases at bar did not discuss, 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.[92] During the period of amendments, the following provision was inserted
as section 15:
Sec. 15. Termination of office No public official shall be allowed to
resign or retire pending an investigation, criminal or administrative, or
pending a prosecution against him, for any offense under the Act or under
the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official from office shall not be a
bar to his prosecution under this Act for an offense committed during his
incumbency.[93]
The bill was vetoed by then President Carlos P. Garcia who questioned the
legality of the second paragraph of the provision and insisted that the 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.[94] A public official has the right not to serve if he really
wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public
official is facing administrative or criminal investigation or prosecution, such
resignation or retirement will not cause the dismissal of the criminal or
administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.
There is another reason why 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 postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.
III
Whether or not the petitioner is only temporarily unable to act as President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the presidency, and hence
is a President on leave. As aforestated, the inability claim is contained in the
January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power
to adjudge the inability of the petitioner to discharge the powers and duties of the
presidency. His significant submittal is that Congress has the ultimate authority
under the Constitution to determine whether the President is incapable of
performing his functions in the manner provided for in section 11 of Article
VII.[95] This contention is the centerpiece of 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 Vice-President 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.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session within twelve days after it is required to
assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties
of his office, the Vice-President shall act as President; otherwise, the
President shall continue exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to
the Senate President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as
President on January 20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed on
January 24, 2001 House Resolution No. 175;[96]
On the same date, the House of the Representatives passed House
Resolution No. 176[97]which states:
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE
OF REPRESENTATIVES TO THE ASSUMPTION INTO
OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE 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;
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[98] which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA,
JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to
the assumption to the Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice President
from among the members of the Senate and the House of Representatives
who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the
position of Vice President of the Republic of the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant
endowed with integrity, competence and courage; who has served the
Filipino people with dedicated responsibility and patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in various
capacities, among others, as Delegate to the Constitutional Convention,
Chairman of the Commission on Audit, Executive Secretary, Secretary of
Justice, Senator of the Philippines - qualities which merit his nomination
to the position of Vice President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That
the House of Representatives confirms the nomination of Senator
Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
(4) Also, despite receipt of petitioners letter claiming inability,
some twelve (12) members of the Senate signed the following:
 RESOLUTION
WHEREAS, the recent transition in government offers the nation
an opportunity for meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges
the nation needs unity of purpose and 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.[99]
On February 7, the Senate also passed Senate Resolution No. 82[100] 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.
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[101] 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
(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
(13th) 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,[102] we hold that this Court cannot
exercise its judicial power for this is an issue in regard to which full discretionary
authorityhas been delegated to the Legislative x x x branch of the government. Or
to use the language in Baker vs. Carr,[103] 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
Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him
before the respondent Ombudsman should be prohibited because he has not been
convicted in the impeachment proceedings against him; and second, he
enjoys immunity from all kinds of suit, whether criminal or civil.
Before resolving 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,[104] the respondent Tiaco, a Chinese citizen,
sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands,
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service
of the City of Manila, respectively, for damages for allegedly conspiring to deport
him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:
The principle of nonliability, as herein enunciated, does not mean that the
judiciary has no authority to touch the acts of the Governor-General; that
he may, under cover of his office, do what he will, unimpeded and
unrestrained. Such a construction would mean that tyranny, under the
guise of the execution of the law, could walk defiantly abroad, destroying
rights of person and of property, wholly free from interference of courts
or legislatures. This does not mean, either, that a person injured by the
executive authority by an act unjustifiable under the law has 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,
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.[105]
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the martial law years
under the late President Ferdinand E. Marcos and the 1973 Constitution was
born. In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:
The President shall be immune from suit during his tenure. Thereafter, no
suit whatsoever shall lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent President
referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential
Immunity And All The Kings Men: The Law Of Privilege As A Defense To
Actions For Damages,[106] 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.[107] The
effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted
from office by the People Power revolution in 1986. When the 1987
Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas, viz:[108]
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.[109] Since the Impeachment Court is now functus officio, it is
untenable for petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has nothing to commend itself for
it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal
prosecution. To be sure, the debates in the Constitutional Commission make it
clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be
filed against him, viz:[110]
xxx
Mr. Aquino. On another point, if an impeachment proceeding has
been filed against the President, for example, and the President
resigns before 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 Bermudez[111]that
incumbent Presidents are immune from suit or from being brought to court during
the period of their incumbency and tenure but not beyond. Considering the
peculiar circumstance that the impeachment process against the petitioner has
been aborted and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings. His reliance
in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are inapropos
for they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as
a 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.[114] 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,[115] US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President 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,[116] the US Supreme Court further held that
the immunity of the President from civil damages covers only official
acts. Recently, the US Supreme Court had the occasion to reiterate this doctrine
in the case of Clinton v. Jones[117] where it held that the US 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.[118] 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."[119] 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.[120] 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.[121] It maintained the Sandiganbayan
as an anti-graft court.[122] It created the office of the Ombudsman and endowed it
with enormous powers, among which is to "(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.[123] The Office of the Ombudsman was also given fiscal
autonomy.[124] 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 permeated the mind of the trial judge and impaired his impartiality. For
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be stopped
from conducting the investigation of the cases filed against him due to the barrage
of prejudicial publicity on his guilt. He submits that the respondent Ombudsman
has developed bias and is all set 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.[125] The British approach the problem with
the presumption that publicity will prejudice a jury. Thus, English courts readily
stay and stop criminal trials when the right of an accused to fair trial suffers a
threat.[126] The American approach is different. US courts assume
a skeptical approach about the potential effect of pervasive publicity on the right
of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial probability of irreparable harm, strong
likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised in this
Court to stop the trials or annul convictions in high profile criminal
cases.[127] In People vs. Teehankee, Jr.,[128] later reiterated in the case
of Larranaga vs. Court of Appeals, et al.,[129] we laid down the doctrine that:
We cannot sustain 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 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
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 x x x 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.[130] and its companion cases. viz.:
Again, petitioners raise the effect of prejudicial publicity on their right to
due process while undergoing preliminary investigation. We find no
procedural impediment to its early invocation considering the substantial
risk to their liberty while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of trials of sensational cases
cannot be avoided and oftentimes, its excessiveness has been aggravated
by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that
attended the preliminary investigation of the case at bar. Our daily diet of
facts and fiction about the case continues unabated even
today. Commentators still bombard the public with views not too many of
which are sober and sublime. Indeed, even the principal actors in the case
the NBI, the respondents, their lawyers and their sympathizers have
participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and public. Inn the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was wisely held:
xxx
(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
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, in Martelino, et al. vs. Alejandro, et al.,we held
that to warrant a finding of prejudicial publicity there must be allegation
and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content of the
publicity that attended the investigation of petitioners fatally infected the
fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To be
sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor
and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can
easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification
of any member of the DOJ Panel on the ground of bias resulting from
their bombardment of prejudicial publicity. (emphasis supplied)
Applying the above ruling, we hold that there is not enough
evidence to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof.[131] He needs to show more
weighty social science evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the cases against the petitioner
are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been
made by the petitioner that the minds of the members of this special panel have
already been infected by bias because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable
to the petitioner.
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote 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.[132] News
reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner[133]and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their
superior.
Again, we hold that the evidence proffered by the petitioner
is insubstantial. The accuracy of the news reports referred to by the petitioner
cannot be the subject of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to
which he is entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to his
subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigating prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.[134] They can be
reversed but they can not be compelled 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.
Epilogue
A word of caution to the hooting throng. The cases against the petitioner will
now acquire a different dimension and then move to a new stage - - - the Office
of the Ombudsman. Predictably, the call from the majority for instant justice will
hit a higher decibel while the gnashing of teeth of the minority will be more

threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the most fundamental of all
freedoms.[135] To be sure, the duty of a prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint
against what Lord Bryce calls the impatient vehemence of the majority. Rights in
a democracy are not decided by the mob whose judgment is dictated by rage and
not by reason. Nor are rights necessarily resolved by the power of number for in
a democracy, the dogmatism of the majority is not and should never be the
definition of the rule of law. If democracy has proved to be the best form of
government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however
offensive they may be, is the key to 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.
Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr.,
JJ., concur.
Davide, Jr., C.J., no part in view of expression given in the open court and
in the extended explanation.
Vitug, J., see concurring opinion.
Kapunan, J., concur in the result and reserve the right to write a separate
opinion.
Mendoza, J., see concurring opinion.
Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000 mention
in footnote 51 of ponencia.
Pardo, J., in the result; believes that petitioner was constrained to resign and
reserve his vote in immunity from suit
Buena, J., in the result.
Ynares-Santiago, J., concur in the result and reserve the filing of a separate
opinion.
Sandoval-Gutierrez, J., concur in the result and reserve the right to write a
separate opinion.
[11] Thecomplaint for impeachement was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Cnstitution.
[17] Those
who voted yes to open the envelop were: Senators Pimentel, Guingona, Drilon, Cayetano,
Roco, Legarda, Magsaysay, Flavier, Biazon, Osmea III. Those who vote no were Senators Ople,
Defensor-Santiago, John Osmea, Aquino-Oreta, Coseteng, Enrile, Honasan,
[64] It
states:
I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend
its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of
the nation.
So help me God.
(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15 Vol. II, p. 332)
[66] The
guaranty was taken from Amendment I of the US Constitution which provides: Congress
shall make no law respecting an establishment of religion or prohibiting the free exercise thereof of
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievance.
[67] See section 8, Article IV.
[68] See section 9, Article IV.
[69] Emerson,
The System of Freedom of Expression, 1970 ed., p. 6, et seq.
[70] Ibid.,
See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-
76) where he said ... the greatest menace to freedom is an inert people...
[71] 307 US 496 (1939).
[74]
Section 1, Article II of the 1987 Constitution reads:
The Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them.
[91]In the Angara Diary which appeared in the PDI issue of February 5, 2001, Secretary Angara
stated that the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser
Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner would not sign
the letter.
[92] Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.
[93] Id., May 9, 1959, p. 1988.
[94]
Section 18 (2), Article III of the 1987 Constitution provides: No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly convicted.
[95] Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.
[96] House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES
WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the
14th President of the Philippines;
WHEREAS, her ascension to the highest office of the land under the dictum, the voice of the people
is the voice of God establishes the basis of her mandate on integrity and morality in government;
WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in follow.[Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public policy, it was
fully supporting the Presidents strong determination to succeed; recognized that the gains from discouraging official excesses might be more than offset by the losses
from diminished zeal [Agabin, op. cit., at 121.]. Without immunity, the president would de
WHEREAS, the House of representative is likewise one with the people in supporting President disinclined to exercise decision-making functions in a manner that might detrimentally affect an
Gloria Macapagal-Arroyos call to start the healing and cleansing process for a divided nation in individual or group of individuals. [See H. Schnechter, Immunity of Presidential Aides from
order to build an edifice of peace, progress and economic stability for the country: Now, therefore, Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].1
be it Resolved by the House of Representatives, To express its full support to the administration of
[106]
Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines. 62 Phil. L.J. 113 (1987).
[107]
Adopted, See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.
[108]
(Sgd.) FELICIANO BELMONTE JR. Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.
[109]
Speaker Supra at 47.
[110]
This Resolution was adopted by House of Representatives on January 24, 2001. Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.
[113]
(Sgd.) Roberto P. Nazareno In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 29 (1988); and Jarque v.
Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).
Secretary General
[114]
[97]
Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).
11th Congress, 3rd Session (2001).
[115]
[98]
418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).
11th Congress, 3rd Session (2001).
[118]
[99] Annex
See section 1, Art. XI of the 1987 Constitution.
2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II,
[119]
p. 231. See section 27, Art. II of the 1987 Constitution.
[100] [120]
11th Congress, 3rd Session (2001). See section 1, Art. XI of the 1987 Constitution.
[101] 11th [121]
Congress, 3rd Session (2001). See section 15, Art. XI of the 1987 Constitution.
[102] [122] See section 4, Art. XI of the 1987 Constitution.
103 Phil 1051, 1067 (1957).
[103] Baker [123]
vs. Carr, supra at 686 headnote 29. See section 13 (1), Art. XI of the 1987 Constitution.
[104] [124]
16 Phil 534 (1910). See section 14, Art. XI of the 1987 Constitution.
[105] [125]
The logical basis for executive immunity from suit was originally founded upon the idea that See Brandwood, Notes: You Say Fair Trial and I say Free Press: British and American
the King can do no wrong. [R.J. Gray, Private Wrongs of Public Servants, 47 CAL. L. REV.. 303 Approaches to Protecting Defendants Rights in High Profile Trials, NYU Law Rev., Vol. 75, No. 5,
(1959)]. The concept thrived at the time of absolute monarchies in medieval England when it was pp. 1412-1451 (November 2000).
generally accepted that the seat of sovereignty and governmental power resides in the throne. During [126] Id.,
that historical juncture, it was believed that allowing the King to be sued in his court was a p. 1417.
contradiction to the sovereignty of the King. [127]
See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106 (1970); People v. Teehankee, 249
With the development of democratic thoughts and institutions, this kind of rationalization eventually SCRA 54 (1995).
lost its moral force. In the United States, for example, the common law maxim regarding the Kings [128] 249 SCRA 54 (1995).
infallibility had limited reception among the framers of the Constitution. [J. Long, How to Sue the
President: A Proposal for Legislation Establishing the Extent of Presidential Immunity, 30 VAL. [129] 287 SCRA 581 at pp. 596-597 (1988).
U.L. REV. 283 (1995)]. Still, the doctrine of presidential immunity found its way of surviving in
[130]
modern political times, retaining both its relevance and vitality. The privilege, however, is now 247 SCRA 652 (1995).
justified for different reasons. First, the doctrine is rooted in the constitutional tradition of separation [131]
Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
of powers and supported by history. [Nixon v. Fitzgerald, 451 U.S. 731 (1982)]. The separation of
Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.
powers principle is viewed as demanding the executives independence from the judiciary, so that
the President should not be subject to the judiciarys whim. Second, by reason of public convenience, [132] Memorandum, p. 25; Rollo, GR Nos. 146710-15, Vol. III, p. 647.
the grant is to assure the exercise of presidential duties and functions free from any hindrance or
[133]
distraction, considering that the Chief Executive is a job that, aside from requiring all of the office- Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.
holders time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393 [134] See section 4, Rule 112.
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will soon
[135] Estes v. Texas, 381 US 532, 540 (1965).
[G.R. No. 146738. April 3, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-
ARROYO, respondent.
RESOLUTION
PUNO, J.:
For resolution are petitioners Motion for Reconsideration in G.R. Nos.
146710-15 and Omnibus Motion in G.R. No. 146738 of the Courts Decision of
March 2, 2001.
In G.R. Nos. 146710-15, petitioner raises the following grounds:
I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF
ART. XI, SECTION 3 (7) OF THE CONSTITUTION AND THE
SETTLED JURISPRUDENCE THEREON.
II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR
THIS RULING WOULD VIOLATE THE DOUBLE JEOPARDY
CLAUSE OF THE CONSTITUTION, CONSIDERING THAT
PETITIONER WAS ACQUITTED IN THE IMPEACHMENT
PROCEEDINGS.
III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO
ABSOLUTE IMMUNITY FROM SUIT.
IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR
TRIAL HAVE NOT BEEN PREJUDICED BY PRE-TRIAL PUBLICITY.
V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT
THE COURT TO ENJOIN THE PRELIMINARY INVESTIGATION OF
THE INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED
TO PROVE THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO
RENDER A BIASED FREE DECISION.
In G.R. No. 146738, petitioner raises and argues the following issues:
1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED
RESIGNED AS OF JANUARY 20, 2001;
2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING
VIOLATIVE OF THE FOLLOWING RULES ON EVIDENCE:
HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS
AND RES INTER ALIOS ACTA;
3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE
OF THE HEARSAY RULE;
4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS
INABILITY TO GOVERN CONSIDERING SECTION 11, ARTICLE VII
OF THE CONSTITUTION; and
5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED
PETITIONERS RIGHT TO FAIR TRIAL.
We find the contentions of petitioner bereft of merit.
I
Prejudicial Publicity on the Court
Petitioner insists he is the victim of prejudicial publicity. Among others, he
assails the Decision for adverting to newspaper accounts of the events and
occurrences to reach the conclusion that he has resigned. In our Decision, we used
the totality test to arrive at the conclusion that petitioner has resigned. We referred
to and analyzed events that were prior, contemporaneous and posterior to the oath-
taking of respondent Arroyo as president. All these events are facts which are
well-established and cannot be refuted. Thus, we adverted to prior events that
built up the irresistible pressure for the petitioner to resign. These are: (1) the
expose of Governor Luis Chavit Singson on October 4, 2000; (2) the I accuse
speech of then Senator Teofisto Guingona in the Senate; (3) the joint investigation
of the speech of Senator Guingona by the Blue Ribbon Committee and the
Committee on Justice; (4) the investigation of the Singson expose by the House
Committee on Public Order and Security; (5) the move to impeach the petitioner
in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime
Cardinal Sin demanding petitioners resignation; (7) a similar demand by the
Catholic Bishops conference; (8) the similar demands for petitioners resignation
by former Presidents Corazon C. Aquino and Fidel V. Ramos; (9) the resignation
of respondent Arroyo as Secretary of the DSWD and her call for petitioner to
resign; (10) the resignation of the members of petitioners Council of Senior
Economic Advisers and of Secretary Mar Roxas III from the Department of Trade
and Industry; (11) the defection of then Senate President Franklin Drilon and then
Speaker of the House of Representatives Manuel Villar and forty seven (47)
representatives from petitioners Lapiang Masang Pilipino; (12) the transmission
of the Articles of Impeachment by Speaker Villar to the Senate; (13) the unseating
of Senator Drilon as Senate President and of Representative Villar as Speaker of
the House; (14) the impeachment trial of the petitioner; (15) the testimonies of
Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the
impeachment trial; (16) the 11-10 vote of the senator-judges denying the
prosecutors motion to open the 2nd envelope which allegedly contained evidence
showing that petitioner held a P3.3 billion deposit in a secret bank account under
the name of Jose Velarde; (17) the prosecutors walkout and resignation; (18) the
indefinite postponement of the impeachment proceedings to give a chance to the
House of Representatives to resolve the issue of resignation of their prosecutors;
(19) the rally in the EDSA Shrine and its intensification in various parts of the
country; (20) the withdrawal of support of then Secretary of National Defense
Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together
with the chiefs of all the armed services; (21) the same withdrawal of support
made by the then Director General of the PNP, General Panfilo Lacson, and the
major service commanders; (22) the stream of resignations by Cabinet secretaries,
undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners
agreement to hold a snap election and opening of the controversial second
envelope. All these prior events are facts which are within judicial notice by
this Court. There was no need to cite their news accounts. The reference by
the Court to certain newspapers reporting them as they happened does not
make them inadmissible evidence for being hearsay. The news account only
buttressed these facts as facts. For all his loud protestations, petitioner has
not singled out any of these facts as false.
We now come to some events of January 20, 2001 contemporaneous to the
oath taking of respondent Arroyo. We used the Angara Diary to decipher the
intent to resign on the part of the petitioner. Let it be emphasized that it is not
unusual for courts to distill a persons subjective intent from the evidence before
them. Everyday, courts ascertain intent in criminal cases, in civil law cases
involving last wills and testaments, in commercial cases involving contracts and
in other similar cases. As will be discussed below, the use of the Angara Diary is
not prohibited by the hearsay rule. Petitioner may disagree with some of the
inferences arrived at by the Court from the facts narrated in the Diary but that does
not make the Diary inadmissible as evidence.
We did not stop with the contemporaneous events but proceeded to examine
some events posterior to the oath-taking of respondent Arroyo. Specifically, we
analyzed the all important press release of the petitioner containing his final
statement which was issued after the oath-taking of respondent Arroyo as
president. After analyzing its content, we ruled that petitioners issuance of the
press release and his abandonemnt of Malacaang Palace confirmed his
resignation.[1] These are overt acts which leave no doubt to the Court that the
petitioner has resigned.
In light of this finding that petitioner has resigned before 12 oclock noon
of Janaury 20, 2001, the claim that the office of the President was not vacant
when respondent Arroyo took her oath of office at half past noon of the same
day has no leg to stand on.
We also reject the contention that petitioners resignation was due
to duress and an involuntary resignation is no resignation at all.
x x x [I]t has been said that, in determining whether a given resignation is
voluntarily tendered, the element of voluntariness is vitiated only when
the resignation is submitted under duress brought on by government
action. The three-part test for such duress has been stated as involving
the following elements: (1) whether one side involuntarily accepted the
others terms; (2) whether circumstances permitted no other alternative;
and (3) whether such circumstances were the result of coercive acts of the
opposite side. The view has also been expressed that a resignation may be
found involuntary if on the totality of the circumstances it appears that
the employers conduct in requesting resignation effectively deprived the
employer of free choice in the matter. Factors to be considered, under
this test, are: (1) whether the employee was given some alternative to
resignation; (2) whether the employee understood the nature of the choice
he or she was given; (3) whether the employewe was given a reasonable
time in which to choose; and (4) whether he or she was permitted to
select the effective date of resignation. In applying this totality of the
circumstances test, the assessment whether real alternatives were offered
must be gauged by an objective standard rather than by the employees
purely subjective evaluation; that the employee may perceive his or her
only option to be resignation for example, because of concerns about
his or her reputation is irrelevant. Similarly, the mere fact that the
choice is between comparably unpleasant alternatives for example,

resignation or facing disciplinary charges does not of itself establish
that a resignation was induced by duress or coercion, and was
therefore involuntary. This is so even where the only alternative to
resignation is facing possible termination for cause, unless the employer
actually lacked good cause to believe that grounds for termination
existed. In this regard it has also been said that a resignation resulting
from a choice between resigning or facing proceedings for dismissal is
not tantamount to discharge by coercion without procedural view if the
employee is given sufficient time and opportunity for deliberation of the
choice posed. Futhermore, a resignation by an officer charged with
misconduct is not given under duress, though the appropriate authority
has already determined that the officers alternative is termination, where
such authority has the legal authority to terminate the officers
employment under the particular circumstances, since it is not duress to
threaten to do what one has the legal right to do, or to threaten to take any
measure authorized by law and the circumstances of the case.[2]
In the cases at bar, petitioner had several options available to him other
than resignation. He proposed to the holding of snap elections. He transmitted to
the Congress a written declaration of temporary inability. He could not claim he
was forced to resign because immediately before he left Malacaang, he asked
Secretary Angara: Ed, aalis na ba ako? which implies that he still had a choice of
whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign. But it is
difficult to believe that the pressure completely vitiated the voluntariness of
the petitioners resignation. The Malacaang ground was then fully protected by
the Presidential Security Guard armed with tanks and high-powered
weapons. The then Chief of Staff, General Angelo Reyes, and other military
officers were in Malacaang to assure that no harm would befall the petitioner as
he left the Palace. Indeed, no harm, not even a scratch, was suffered by the
petitioner, the members of his family and his Cabinet who stuck it out with him
in his last hours. Petitioners entourage was even able to detour safely to the
Municipal Hall of San Juan and bade goodbye to his followers before finally going
to his residence in Polk Street, Greenhills. The only incident before the petitioner
left the Palace was the stone throwing between a small group of pro and anti Erap
rallyists which resulted in minor injuries to a few of them. Certainly, there were
no tanks that rumbled through the Palace, no attack planes that flew over the
presidential residence, no shooting, no large scale violence, except verbal
violence, to justify the conclusion that petitioner was coerced to resign.
II
Evidentiary Issues
Petitioner devotes a large part of his arguments on the alleged improper use
by this Court of the Angara Diary. It is urged that the use of the Angara Diary to
determine the state of mind of the petitioner on the issue of his resignation violates
the rule against the admission of hearsay evidence.
We are unpersuaded. To begin with, the Angara diary is not an out of
court statement. The Angara Diary is part of the pleadings in the cases at
bar. Petitioner cannot complain he was not furnished a copy of the Angara
Diary. Nor can he feign surprise on its use. To be sure, the said Diary was
frequently referred to by the parties in their pleadings.[3] The three parts of the
Diary published in the PDI from February 4-6, 2001 were attached as Annexes A-
C, respectively, of the Memorandum of private respondents Romeo T. Capulong,
et al., dated February 20, 2001. The second and third parts of the Diary were
earlier also attached as Annexes 12 and 13 of the Comment of private respondents
Capulong, et al., dated February 12, 2001. In fact, petitioner even cited in his
Second Supplemental Reply Memorandum both the second part of the diary,
published on February 5, 2001,[4] and the third part, published on February 6,
2001.[5] It was also extensively used by Secretary of Justice Hernando Perez in his
oral arguments. Thus, petitioner had all the opportunity to contest the use of the
Diary but unfortunately failed to do so.
Even assuming arguendo that the Angara Diary was an out of court
statement, still its use is not covered bythe hearsay rule.[6] Evidence is called
hearsay when its probative force depends, in whole or in part, on the competency
and credibility of some persons other than the witness by whom it is sought to
produce it.[7] There are three reasons for excluding hearsay evidence: (1) absence
of cross examination; (2) absence of demeanor evidence, and (3) absence of the
oath.[8] Not at all hearsay evidence, however, is inadmissible as evidence. Over
the years, a huge body of hearsay evidence has been admitted by courts due to
their relevance, trustworthiness and necessity.[9] The emergence of these
exceptions and their wide spread acceptance is well-explained by Weinstein,
Mansfield, Abrams and Berger as follows:
xxx
On the other hand, we all make decisions in our everyday lives on the
basis of other persons accounts of what happened, and verdicts are
usually sustained and affirmed even if they are based on hearsay
erroneously admitted, or admitted because no objection was made. See
Shepp v. Uehlinger, 775 F 2d 452, 454-455 (1st Cir. 1985) (hearsay
evidence alone can support a verdict). Although volumes have been
written suggesting ways to revise the hearsay rule, no one advocates a
rule that would bar all hearsay evidence. Indeed, the decided historical
trend has been to exclude categories of highly probative statements
from the definition of hearsay (sections 2 and 3, infra), and to develop
more class exceptions to the hearsay rule (sections 4-11,
infra). Furthermore, many states have added to their rules the
residual, or catch-all, exceptions first pioneered by the Federal Rules
which authorize the admission of hearsay that does not satisfy a class
exception, provided it is adequately trustworthy and
probative (section 12, infra).
Moreover, some commentators believe that the hearsay rule should be
abolished altogether instead of being loosened. See, e.g., Note, The
Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev. 1786,
1804-1805, 1815 (1980) (footnotes omitted):
The Federal Rules of Evidence provide that [a]lthough relevant, evidence
may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. Under this structure, exclusion is justified by
fears of how the jury will be influenced by the evidence. However, it is
not traditional to think of hearsay as merely a subdivision of this
structure, and the Federal Rules do not conceive of hearsay in that
manner. Prejudice refers to the jurys use of evidence for inferences other
than those for which the evidence is legally relevant; by contrast, the rule
against hearsay questions the jurys ability to evaluate the strength of
a legitimate inference to be drawn from the evidence. For example, were
a judge to exclude testimony because a witness was particularly smooth
or convincing, there would be no doubt as to the usurpation of the jurys
function. Thus, unlike prejudices recognized by the evidence rules, such
as those stemming from racial or religious biases or from the introduction
of photographs of a victims final state, the exclusion of hearsay on the
basis of misperception strikes at the root of the jurys function by usurping
its power to process quite ordinary evidence, the type of information
routinely encountered by jurors in their everyday lives.
Since virtually all criteria seeking to distinguish between good and bad
hearsay are either incoherent, inconsistent, or indeterminate, the only
altenative to a general rule of admission would be an absolute rule of
exclusion, which is surely inferior. More important, the assumptions
necessary to justify a rule against hearsay seem insupportable and, in any
event, are inconsistent with accepted notions of the function of the
jury. Therefore, the hearsay rules should be abolished.
Some support for this view can be found in the limited empirical research
now available which is, however, derived from simulations that suggests
that admitting hearsay has little effect on trial outcomes because
jurors discount the value of hearsay evidence. See Rakos & Landsman,
Researching the Hearsay Rule: Emerging Findings, General Issues, and
Future Directions, 76 Minn.L.Rev. 655 (1992); Miene, Park, & Borgidas,
Jury Decision Making and the Evaluation of Hearsay Evidence, 76
Minn.L.Rev. 683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of
Eyewitness and Hearsay Evidence, 76 Minn.L.Rev. 703 (1992);
Landsman & Rakos, Research Essay: A Preliminary Empirical Enquiry
Concerning the prohibition of Hearsay Evidence in American Courts, 15
Law & Psychol. Rev. 65 (1991).
Others, even if they concede that restrictions on hearsay have some
utility, question whether the benefits outweigh the cost:
The cost of maintaining the rule is not just a function of its contribution
to justice. It also includes the time spent on litigating the rule. And of
course this is not just a cost voluntarily borne by the parties, for in our
system virtually all the cost of the court salaries, administrative costs, and
capital costs are borne by the public. As expensive as litigation is for the
parties, it is supported by an enormous public subsidy. Each time a
hearsay question is litigated, the public pays. The rule imposes other
costs as well. Enormous time is spent teaching and writing about the
hearsay rule, which are both costly enterprises. In some law schools,
students spend over half their time in evidence classes learning the
intricacies of the hearsay rule, and enormous academic resources are
expended on the rule.
Allen, Commentary on Professor Friendmans Article: The Evolution of
the Hearsay Rule to a Rule of Admission, 76 Minn.L.Rev. 797, 800
[1992] (but would abolish rule only in civil cases). See also Friedman,
Toward a Partial Economic, Game-Theoretic Analysis of Hearsay, 76
Minn. L. Rev. 723 (1992).[10]
A complete analysis of any hearsay problem requires that we further
determine whether the hearsay evidence is one exempted from the rules of
exclusion. A more circumspect examination of our rules of exclusion will
show that they do not cover admissions of a party and the Angara Diary
belongs to this class. Section 26 of Rule 130 provides that the act, declaration or
omission of a party as to a relevant fact may be given in evidence against him.[11] It
 Retired
has long been settled that these admissions are admissible even if they are hearsay.
Justice Oscar Herrera of the Court of Appeals cites the various authorities who
explain why admissions are not covered by the hearsay rule:[12]
Wigmore, after pointing out that the partys declaration has generally
the probative value of any other persons asssertion, argued that it had
a special value when offered against the party. In that circumstance,
the admission discredits the partys statement with the present claim
asserted in pleadings and testimony, much like a witness impeached by
contradictory statements. Moreover, he continued, admissions pass the
gauntlet of the hearsay rule, which requires that extrajudicial assertions
be excluded if there was no opportunity for the opponent to cross-
examine because it is the opponents own declaration, and he does not
need to cross examine himself. Wigmore then added that the Hearsay
Rule is satisfied since the party now as opponent has the full opportunity
to put himself on the stand and explain his former assertion. (Wigmore
on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited in Sec. 154,
McCormick)
According to Morgan: The admissibility of an admission made by the
party himself rests not upon any notion that the circumstances in which it
was made furnish the trier means of evaluating it fairly, but upon the
adversary theory of litigation. A party can hardly object that he had no
opportunity to cross-examine himself or that he is unworthy of
credence save when speaking under sanction of an oath.
A mans acts, conduct, and declaration, wherever made, if voluntary, are
admissible against him, for the reason that it is fair to presume that they
correspond with the truth, and it is his fault if they do not. (U.S. vs. Ching
Po, 23 Phil. 578, 583).
The Angara Diary contains direct statements of petitioner which can be
categorized as admissions of a party: his proposal for a snap presidential election
where he would not be a candidate; his statement that he only wanted the five-day
period promised by Chief of Staff Angelo Reyes; his statements that he would
leave by Monday if the second envelope would be opened by Monday and 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. We noted that days before, petitioner had repeatedly
declared that he would not resign despite the growing clamor for his
resignation. The reason for the meltdown is obvious - - - his will not to resign has
wilted.
It is, however, argued that the Angara Diary is not the diary of the
petitioner, hence, non-binding on him. The argument overlooks the doctrine
of adoptive admission. An adoptive admission is a partys reaction to a statement
or action by another person when it is reasonable to treat the partys reaction as an
admission of something stated or implied by the other person.[13] Jones
explains that the basis for admissibility of admissions made vicariously is that arising
from the ratification or adoption by the party of the statements which the other
person had made.[14] To use the blunt language of Mueller and Kirkpatrick, this
process of attribution is not mumbo jumbo but common sense.[15] In the Angara Diary, the
options of the petitioner started to dwindle when the armed forces withdrew its
support from him as President and commander-in-chief. Thus, Executive
Secretary Angara had to ask Senate President Pimentel to advise petitioner to
consider the option of dignified exit or resignation. Petitioner did not object to the
suggested option but simply said he could never leave the country. Petitioners
silence on this and other related suggestions can be taken as an admission by
him.[16]
Petitioner further contends that the use of the Angara diary against him
violated the rule on res inter alios acta. The rule is expressed in section 28 of
Rule 130 of the Rules of Court, viz: The rights of a party cannot be prejudiced by
an act, declaration, or omission of another, except as hereinafter provided.
Again, petitioner errs in his contention. The res inter alios acta rule
has several exceptions. One of them is provided in section 29 of Rule 130 with
respect to admissions by a co-partner or agent.
Executive Secretary Angara as such was an alter ego of the petitioner. He
was the Little President. Indeed, he was authorized by the petitioner to act for
him in the critical hours and days before he abandoned Malacaang
Palace. Thus, according to the Angara Diary, the petitioner told Secretary
Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan
ko. At hanggang sa huli, ikaw pa rin. (Since the start of the campaign, Ed, you
have been the only one Ive listened to. And now at the end, you still are.)[17] This
statement of full trust was made by the petitioner after Secretary Angara briefed him about
the progress of the first negotiation. True to this trust, the petitioner had to ask
Secretary Angara if he would already leave Malacaang after taking their final
lunch on January 20, 2001 at about 1:00 p.m. The Angara Diary quotes the
petitioner as saying to Secretary Angara: ed, kailangan ko na bang umalis? (Do I
have to leave now?)[18] Secretary Angara told him to go and he did. Petitioner
cannot deny that Secretary Angara headed his team of negotiators that met with
the team of the respondent Arroyo to discuss the peaceful and orderly transfer of
power after his relinquishment of the powers of the presidency.The Diary shows
that petitioner was always briefed by Secretary Angara on the progress of their
negotiations. Secretary Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as
President. Consequently, petitioner is bound by the acts and declarations of
Secretary Angara.
Under our rules of evidence, admissions of an agent (Secretary Angara)
are binding on the principal (petitioner).[19] Jones very well explains the reasons
for the rule, viz: What is done, by agent, is done by the principal through him, as
through a mere instrument. So, whatever is said by an agent, either in making a
contract for his principal, or at the time and accompanying the performance of any
act within the scope of his authority, having relation to, and connected with, and
in the course of the particular contract or transaction in which he is then engaged,
or in the language of the old writers, dum fervet opus is, in legal effect, said by his
principal and admissible in evidence against such principal.[20]
Moreover, the ban on hearsay evidence does not cover independently
relevant statements. These are statements which are relevant independently of
whether they are true or not. They belong to two (2) classes: (1) those
statements which are the very facts in issue, and (2) those statements which
are circumstantial evidence of the facts in issue. The second class includes the
following:[21]
a. Statement of a person showing his state of mind, that is, his mental
condition, knowledge, belief, intention, ill will and other emotions;
b. Statements of a person which show his physical condition, as illness and the
like;
c. Statements of a person from which an inference may be made as to
the state of mind of another, that is, the knowledge, belief, motive, good
or bad faith, etc. of the latter;
d. Statements which may identify the date, place and person in question; and
e. Statements showing the lack of credibility of a witness.
Again, Jones tells us why these independently relevant statements are
not covered by the prohibition against hearsay evidence:[22]
1088. Mental State or Condition Proof of Knowledge.- There are a
number of comon issues, forming a general class, in proof of which
hearsay is so obviously necessary that it is not customary to refer to its
admissibility as by virtue of any exception to the general exclusionary
rule. Admissibility, in such cases, is as of course. For example, where
any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the
particular person is to be taken as conclusive of his state of mind, the only
method of proof available is testimony of others to the acts or
statements of such person. Where his acts or statements are against his
interest, they are plainly admissible within the rules hereinabove
announced as to admissions against interest. And even where not against
interest, if they are so closely connected with the event or transaction in
issue as to constitute one of the very facts in controversy, they become
admissible of necessity.
As aforediscussed, The Angara Diary contains statements of the petitioner which
reflect his state of mind and are circumstantial evidence of his intent to resign. It
also contains statements of Secretary Angara from which we can reasonably
deduce petitioners intent to resign. They are admissible and they are not covered
by the rule on hearsay. This has long been a quiet area of our law on evidence and
petitioners attempt to foment a belated tempest cannot receive our imprimatur.
Petitioner also contends that the rules on authentication of private
writings and best evidence were violated in our Decision, viz:
The use of the Angara diary palpably breached several hornbook rules of
evidence, such as the rule on authentication of private writings
xxx
A. Rule on Proof of Private Writings Violated
The rule governing private documents as evidence was violated. The law
provides that before any private writing offered as authentic is received in
evidence, its due execution and authenticity must be proved either: a) by
anyone who saw the document executed or written, or b) by evidence of
the genuineness of the signature or handwriting of the maker.
xxx
B. Best Evidence Rule Infringed
Clearly, the newspaper reproduction is not the best evidence of the
Angara diary. It is secondary evidence, of dubious authenticity. It was
however used by this Honorable Court without proof of the unavailability
of the original or duplicate original of the diary. The Best Evidence Rule
should have been applied since the contents of the diary are the subject of
inquiry.
The rule is that, except in four (4) specific instances, [w]hen the subject
of inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself.[23]
Petitioners contention is without merit. In regard to the Best Evidence rule,
the Rules of Court provides in sections 2 to 4 of Rule 130, as follows:
Sec. 2. Documentary evidence. Documents as evidence consist of
writings or any material containing letters, words, numbers, figures or
other modes of written expressions offered as proof of their contents.
Sec. 3. Original document must be produced; exceptions. When the
subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following
cases:
(a) When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it
after reasonable notice;
(c) When the original consists of numerous accounts or other documents
which cannot be examined in court without great loss of time and the fact
sought to be established from them is only the general result of the whole;
and
(d) When the original is a public record in the custody of a public officer
or is recorded in a public office.
Sec. 4. Original of document. (a) The original of a document is one the
contents of which are the subject of inquiry.
(b) When a document is in two or more copies executed at or about the
same time, with identical contents, all such copies are equally regarded as
originals.
(c) When an entry is repeated in the regular course of business, one being
copied from another at or near the time of the transaction, all the entries
are likewise equally regarded as originals.
It is true that the Court relied not upon the original but only copy of
the Angara Diary as published in the Philippine Daily Inquirer on February 4-6,
2001. In doing so, the Court, did not, however, violate the best evidence rule.
Wigmore, in his book on evidence, states that:
Production of the original may be dispensed with, in the trial courts
discretion, whenever in the case in hand the opponent does not bona
fide dispute the contents of the document and no other useful purpose
will be served by requiring production.[24]
xxx
In several Canadian provinces, the principle of unavailability has been
abandoned, for certain documents in which ordinarily no real dispute
arised. This measure is a sensible and progressive one and deserves
universal adoption (post, sec. 1233). Its essential feature is that a copy
may be used unconditionally, if the opponent has been given an
opportunity to inspect it. (empahsis supplied)
Franciscos opinion is of the same tenor, viz:
Generally speaking, an objection by the party against whom secondary
evidence is sought to be introduced is essential to bring the best evidence
rule into application; and frequently, where secondary evidence has been
admitted, the rule of exclusion might have successfully been invoked if
proper and timely objection had been taken. No general rule as to the
form or mode of objecting to the admission of secondary evidence is set
forth. Suffice it to say here that the objection should be made in proper
season that is, whenever it appears that there is better evidence than
that which is offered and before the secondary evidence has been
admitted. The objection itself should be sufficiently definite to present a
tangible question for the courts consideration.[25]
He adds:
Secondary evidence of the content of the writing will be received in
evidence if no objection is made to its reception.[26]
In regard to the authentication of private writings, the Rules of Court provides
in section 20 of Rule 132, viz:

Sec. 20. Proof of private document. Before any private document offered
as authentic is received in evidence, its due execution and authenticity
must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the
maker.
Any other private document need only be identified as that which it is
claimed to be.
On the rule of authentication of private writings, Francisco states that:
A proper foundation must be laid for the admission of documentary
evidence; that is, the identity and authenticity of the document must be
reasonably established as a pre-requisite to its admission. (Rouw v. Arts,
174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others) However, a
party who does not deny the genuineness of a proffered instrument
may not object that it was not properly identified before it was
admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W.
266, 103 A.L.R. 835).[27]
Petitioner cites the case of State prosecutors v. Muro,[28] which frowned on
reliance by courts on newspaper accounts. In that case, Judge Muro was dismissed
from the service for relying on a newspaper account in dismissing eleven (11)
cases against Mrs. Imelda Romualdez Marcos. There is a significant difference,
however, between the Muro case and the cases at bar. In the Muro case, Judge
Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper
account without affording the prosecution the basic opportunity to be heard on the
matter by way of a written comment or on oral argument. . .(this is) not only a
blatant denial of elementary due process to the Government but is palpably
indicative of bad faith and partiality. In the instant cases, however, the petitioner
had an opportunity to object to the admissibility of the Angara Diary when he filed his
Memorandum dated February 20, 2001, Reply Memorandum dated February 22,
2001, Supplemental Memorandum dated February 23, 2001, and Second
Supplemental memorandum dated February 24, 2001. He was therefore not
denied due process. In the words of Wigmore, supra, petitioner had been given an
opportunity to inspect the Angara Diary but did not object to its admissibility. It is
already too late in the day to raise his objections in an Omnibus Motion, after the Angara
Diary has been used as evidence and a decision rendered partly on the basis thereof.
III
Temporary Inability
Petitioner argues that the Court misinterpreted the meaning of section 11,
Article VII, of the Constitution in that congress can only decide the issue of
inability when there is a variance of opinion between a majority of the Cabinet
and the President. The situation presents itself when majority of the Cabinet
determines that the President is unable to govern; later, the President informs
Congress that his inability has ceased but is contradicted by a majority of the
members of the Cabinet. It is also urged that the presidents judgment that he is
unable to govern temporarily which is thereafter communicated to the Speaker of
the House and the President of the Senate is the political question which this Court
cannot review.
We cannot sustain the petitioner. Lest petitioner forgets, he himself made
the submission in G.R. No. 146738 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.[29] We sustained this submission and held that by its many acts, Congress
has already determined and dismissed the claim of alleged temporary inability to
govern proffered by petitioner. If petitioner now feels aggrieved by
the manner Congress exercised its power, it is incumbent upon him to seek
redress from Congress itself. The power is conceded by the petitioner to be
with Congress and its alleged erroneous exercise cannot be corrected by this
Court. The recognition of respondent Arroyo as our de jure president made by
Congress is unquestionably a political judgment. It is significant that House
Resolution No. 176 cited as the bases of its judgment such factors as the peoples
loss of confidence on the ability of former President Joseph Ejercito Estrada to
effectively govern and the members of the international community had
extended their recognition of Her Excellency, Gloria Macapagal-Arroyo as
President of the Republic of the Philippines and it has a constitutional duty of
fealty to the supreme will of the people x x x. This political judgment may be
right or wrong but Congress is answerable only to the people for its
judgment. Its wisdom is fit to be debated before the tribunal of the people and
not before a court of justice. Needles to state, the doctrine of separation of
power constitutes an inseparable bar against this courts interposition of its
power of judicial review to review the judgment of Congress rejecting petitioners
claim that he is still the President, albeit on leave and that respondent Arroyo is
merely an acting President.
Petitioner attempts to extricate himself from his submission that Congress
has the ultimate authority to determine his inability to govern, and whose
determination is a political question by now arguing that whether one is a de
jure or de facto President is a judicial question. Petitioners change of theory, ill
disguised as it is, does not at all impress. The cases at bar do not present
the general issue of whether the respondent Arroyo is the de jure or a de
facto President. Specific issues were raised to the Court for resolution and we
ruled on an issue by issue basis. On the issue of resignation under section 8,
Article VII of the Constitution, we held that the issue is legal and ruled that
petitioner has resigned from office before respondent Arroyo took her oath as
President. On the issue of inability to govern under section 11, Article VII of the
Constitution, we held that the Congress has the ultimate authority to determine
the question as opined by the petitioner himself and that the determination of
Congress is a political judgment which this Court cannot review. Petitioner
cannot blur these specific rulings by the generalization that whether one is a
de jure or de facto President is a judicial question.
Petitioner now appears to fault Congress for its various acts expressed
thru resolutions which brushed off his temporary inability to govern and
President-on-leave argument. He asserts that these acts of Congress should not
be accorded any legal significance because: (1) they are post facto and (2) a
declaration of presidential incapacity cannot be implied.
We disagree. There is nothing in section 11 of Article VII of the Constitution
which states that the declaration by Congress of the Presidents inability must
always be a priori or before the Vice-President assumes the presidency. In the
cases at bar, special consideration should be given to the fact that the events which
led to the resignation of the petitioner happened at express speed and culminated
on a Saturday. Congress was then not in session and had no reasonable
opportunity to act a priori on petitioners letter claiming inability to govern. To
be sure, however, the petitioner cannot strictly maintain that the President of the
Senate, the Honorable Aquilino Pimentel, Jr. and the then Speaker of the House
of Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent
Arroyo as the constitutional successor to the presidency post facto. Petitioner
himself states that his letter alleging his inability to govern was received by the
Office of the Speaker on January 20, 2001 at 8:30 A.M. and the Office of the
Senate at 9 P.M. of the same day.[30] Respondent took her oath of office a few
minutes past 12 oclock in the afternoon of January 20. Before the oath-taking,
Senate President Pimentel, Jr. and Speaker Fuentebella had prepared a Joint
Statement which states:[31]
Joint Statement of Support
and Recognition from the
Senate President and the Speaker
Of the House of Representatives
We, the elected leaders of the Senate and the House of Representatives,
are called upon to address the constitutional crisis affecting the authority
of the President to effectively govern our distressed nation. We
understand that the Supreme Court at that time is issuing an en banc
resolution recognizing this political reality. While we may differ on the
means to effect a change of leadership, we however, cannot be indifferent
and must act resolutely. Thus, in line with our sworn duty to represent
our people and in pursuit of our goals for peace and prosperity to all,
we, the Senate President and the Speaker of the House of
Representatives, hereby declare our support and recognition to the
constitutional successor to the Presidency. We similarly call on all
sectors to close ranks despite our political differences. May God bless our
nation in this period of new beginnings.
Mabuhay and Pilipinas at ang mamamayang Pilipino.
(Sgd.) AQUILINO PIMENTEL, JR.
Senate President
(Sgd.) ARNULFO P. FUENTEBELLA
Speaker of the House of Representatives
This a priori recognition by the President of the Senate and the Speaker of the
House of Representatives of respondent Arroyo as the constitutional successor to
the presidency was followed post facto by various resolutions of the Senate and
the House, in effect, confirming this recognition. Thus, Resolution No. 176
expressed x x x 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 goal
under the Constitution.[32] Resolution No. 82 of the Senate and Resolution No. 178
of the House of Representatives both confirmed the nomination of then Senator
Teofisto Guingona, Jr., as Vice-President.[33] It also passed Resolution No. 83
declaring the impeachment court functus officio.[34] Both Houses sent bills to
respondent Arroyo to be signed by her into law as President of the
Philippines.[35] These acts of Congress, a priori and post facto, cannot be
dismissed as merely implied recognitions of respondent Arroyo, as the
President of the Republic. Petitioners insistence that respondent Arroyo is just
a de facto President because said acts of Congress x x x are mere circumstances
of acquiescence calculated to induce people to submit to respondents exercise of
the powers of the presidency[36] is a guesswork far divorced from reality to deserve
further discussion.
Similarly way off the mark is petitioners point that while the Constitution
has made Congress the national board of canvassers for presidential and vice-
presidential elections, this Honorable Court nonetheless remains the sole judge in
presidential and vice presidential contests.[37] He thus postulates that such
constitutional provision[38] is indicative of the desire of the sovereign people to
keep out of the hands of Congress questions as to the legality of a persons claim
to the presidential office.[39] Suffice to state that the inference is
illogical. Indeed, there is no room to resort to inference. The Constitution clearly
sets out the structure on how vacancies and election contest in the office of the
President shall be decided. Thus, section 7 of Article VII covers the instance
when (a) the President-elect fails to qualify, (b) if a President shall not have been
chosen and (c) if at the beginning of the term of the President, the President-elect
shall have died or shall have become permanently disabled. Section 8 of Article
VII covers the situation of the death, permanent disability, removal from office
or resignation of the President. Section 11 of Article VII covers the case where
the President transmits to the President of the Senate and the Speaker of the House
of Representatives his written declaration that he is unable to discharge the powers
and duties of his office. In each case, the Constitution specifies the body that
will resolve the issues that may arise from the contingency. In case of election
contest, section 4, Article VII provides that the contests shall be resolved by this
Court sitting en banc. In case of resignation of the President, it is not disputed that
this Court has jurisdiction to decide the issue. In case of inability to govern,
section 11 of Article VII gives the Congress the power to adjudge the issue and
petitioner himself submitted this thesis which was shared by this Court. In light
of these clear provisions of the Constitution, it is inappropriate, to say the least,
for petitioner to make inferences that simply distort their meanings.
IV
Impeachment and Absolute Immunity
Petitioner contends that this Court disregarded section 3 (7) of Article XI of
the Constitution which provides:
(7) Judgment in cases of impeachment shall not extend further than
removal from office and disqualification to hold any office under the
Republic of the Philippines, but the party convicted should nevertheless
be liable and subject to prosecution, trial and punishment according to
law.
Petitioner reiterates the argument that he must be first convicted in the
impeachment proceedings before he could be criminally prosecuted. A plain
reading of the provision will not yield this conclusion. The provision conveys two
uncomplicated ideas: first, it tells us that judgment in impeachment cases has
a limited reach. . .i.e., it cannot extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines,
and second, it tells us the consequence of the limited reach of a judgment in
impeachment proceedings considering its nature, i.e., that the party convicted
shall still be liable and subject to prosecution, trial and punishment according to
law. No amount of manipulation will justify petitioners non sequitur submission
that the provision requires that his conviction in the impeachment proceedings is
a condition sine qua non to his prosecution, trial and punishment for the offenses
he is now facing before the respondent Ombudsman.
Petitioner contends that the private and public prosecutors walk out from the
impeachment proceedings should be considered failure to prosecute on the part
of the public and private prosecutors, and the termination of the case by the Senate
is equivalent to acquittal.[40] He explains failure to prosecute as the failure of the
prosecution to prove the case, hence dismissal on such grounds is a dismissal on
the merits.[41] He then concludes that dismissal of a case for failure to
prosecute amounts to an acquittal for purposes of applying the rule against
double jeopardy.[42]
Without ruling on the nature of impeachment proceedings, we reject
petitioners submission.
The records will show that the prosecutors walked out in the January
16, 2001 hearing of the impeachment cases when by a vote of 11-10, the Senator-
judges refused to open the second envelope allegedly containing the P3.3 billion
deposit of the petitioner in a secret bank account under the name Jose Velarde.
The next day, January 17, the public prosecutors submitted a letter to the Speaker
of the House tendering their resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment tribunal. Senator Raul Roco
immediately moved for the indefinite suspension of the impeachment
proceedings until the House of Representatives shall have resolved the
resignation of the public prosecutors. The Roco motion was then granted by
Chief Justice Davide, Jr. Beforethe House could resolve the issue of resignation
of its prosecutors or on January 20, 2001, petitioner relinquished the presidency
and respondent Arroyo took her oath as President of the Republic. Thus,
on February 7, 2001, the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio.
Prescinding from these facts, petitioner cannot invoke double
jeopardy. Double jeopardy attaches only: (1) upon a valid complaint; (2) before
a competent court; (3) after arraignment; (4) when a valid plea has been entered;
and (5) when the defendant was acquitted or convicted or the case was dismissed
or otherwise terminated without the express consent of the
accused.[43] Assuming arguendo that the first four requisites of double jeopardy
were complied with, petitioner failed to satisfy the fifth requisite for he was not
acquitted nor was the impeachment proceeding dismissed without his
express consent. Petitioners claim of double jeopardy cannot be predicated on
prior conviction for he was not convicted by the impeachment court. At best, his
claim of previous acquittal may be scrutinized in light of a violation of his right
to speedy trial, which amounts to a failure to prosecute. As Bernas points out, a
failure to prosecute, which is what happens when the accused is not given a speedy
trial, means failure of the prosecution to prove the case. Hence, dismissal on such
grounds is a dismissal on the merits.[44]
This Court held in Esmea v. Pogoy[45], viz:
If the defendant wants to exercise his constitutional right to a speedy trial,
he should ask, not for the dismissal, but for the trial of the case. After the
prosecutions motion for postponement of the trial is denied and upon
order of the court the fiscal does not or cannot produce his evidence and,
consequently fails to prove the defendants guilt, the court upon
defendants motion shall dismiss the case, such dismissall amounting to an
acquittal of the defendant.
In a more recent case, this Court held:
It is true that in an unbroken line of cases, we have held that the dismissal
of cases on the ground of failure to prosecute is equivalent to an acquittal
that would bar further prosecution of the accused for the same offense. It
must be stressed, however, that these dismissals were predicated on
the clear right of the accused to speedy trial. These cases are not
applicable to the petition at bench considering that the right of the private
respondents to speedy trial has not been violated by the State. For this
reason, private respondents cannot invoke their right against double
jeopardy.[46]
Petitioner did not move for the dismissal of the impeachment case
against him. Even assuming arguendo that there was a move for its dismissal,
not every invocation of an accuseds right to speedy trial is meritorious. While the
Court accords due importance to an accuseds right to a speedy trial and adheres
to a policy of speedy administration of justice, this right cannot be invoked
loosely. Unjustified postponements which prolong the trial for an unreasonable
length of time are what offend the right of the accused to speedy trial.[47] The
following provisions of the Revised Rules of Criminal Procedure are apropos:
Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal
prosecutions, the accused shall be entitled to the following rights:
(h) To have speedy, impartial and public trial.
Rule 119, Section 2. Continuous trial until terminated; postponements.--
Trial once commenced shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable length
of time for good cause.
The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trial on a weekly or other short-term
trial calendar at the earliest possible time so as to ensure speedy trial. In
no case shall the entire trial period exceed one hundred eighty (180) days
from the first day of trial, except as otherwise authorized by the Supreme
Court.
Petitioner therefore failed to show that the postponement of the
impeachment proceedings was unjustified, much less that it was for an
unreasonable length of time. Recalling the facts, on January 17, 2001, the
impeachment proceeding was suspended until the House of Representatives shall
have resolved the issue on the resignation of the public prosecutors. This was
justified and understandable for an impeachment proceeding without a panel of
prosecutors is a mockery of the impeachment process. However, three (3) days
from the suspension or January 20, 2001, petitioners resignation
supervened. With the sudden turn of events, the impeachment
court became functus officio and the proceedings were therefore terminated. By
no stretch of the imagination can the four-day period from the time the
impeachment proceeding was suspended to the day petitioner resigned, constitute
an unreasonable period of delay violative of the right of the accused to speedy
trial.
Nor can the claim of double jeopardy be grounded on the dismissal or
termination of the case without the express consent of the accused. We
reiterate that the impeachment proceeding was closed only after the petitioner had
resigned from the presidency, thereby rendering the impeachment court functus
officio. By resigning from the presidency, petitioner more than consented to the
termination of the impeachmment case against him, for he brought about the
termination of the impeachment proceedings. We have consistently ruled that
when the dismissal or termination of the case is made at the instance of the
accused, there is no double jeopardy.[48]
Petitioner stubbornly clings to the contention that he is entitled to absolute
immunity from suit. His arguments are merely recycled and we need not prolong
the longevity of the debate on the subject. In our Decision, we exhaustively traced
the origin of executive immunity in our jurisdiction and its bends and turns up to
the present time. We held that given the intent of the 1987 Constitution to breathe
life to the policy that a public office is a public trust, the petitioner, as a non-
sitting President, cannot claim executive immunity for his alleged criminal
acts committed while a sitting President. Petitioners rehashed arguments
including their thinly disguised new spins are based on the rejected contention
that he is still President, albeit, a President on leave. His stance that his immunity
covers his entire term of office or until June 30, 2004 disregards the reality that
he has relinquished the presidency and there is now a new de jure President.
Petitioner goes a step further and avers that even a non-sitting President
enjoys immunity from suit during his term of office. He buttresses his position
with the deliberations of the Constitutional Commission, 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 the understanding, I will not press for any more query, madam
President.
I thank the Commissioner for the clarification.[49]
Petitioner, however, fails to distinguish between term and
tenure. The term means the time during which the officer may claim to hold the
office as of right, and fixes the interval after which the several incumbents shall
succeed one another. The tenure represents the term during which the incumbent
actually holds office. The tenure may be shorter than the term for reasons within
or beyond the power of the incumbent.[50] From the deliberations, the intent of
the framers is clear that the immunity of the president from suit is concurrent
only with his tenure and not his term.
Indeed, petitioners stubborn stance cannot but bolster the belief that the cases
at bar were filed not really for petitioner to reclaim the presidency but just to take
advantage of the immunity attached to the presidency and thus, derail the
investigation of the criminal cases pending against him in the Office of the
Ombudsman.
V
Prejudicial Publicity on the Ombudsman
Petitioner hangs tough on his submission that his due process rights to a fair
trial have been prejudiced by pre-trial publicity. In our Decision, we held that
there is not enough evidence to sustain petitioners claim of prejudicial
publicity. Unconvinced, petitioner alleges that the vivid narration of events in our
Decision itself proves the pervasiveness of the prejudicial publicity. He then
posits the thesis that doubtless, the national fixation with the probable guilt of
petitioner fueled by the hate campaign launched by some high circulation
newspaper and by the bully pulpit of priests and bishops left indelible impression
on all sectors of the citizenry and all regions, so harsh and so pervasive that the
prosecution and the judiciary can no longer assure petitioner a sporting
chance.[51] To be sure, petitioner engages in exageration when he alleges
that all sectors of the citizenry and all regions have been irrevocably influenced
by this barrage of prejudicial publicity. This exaggeration collides with
petitioners claim that he still enjoys the support of the majority of our people,
especially the masses.
Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or
the transaction speaks for itself) to support his argument. Under the res ipsa
loquitur rule in its broad sense, the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case, and present a question of
fact for defendant to meet with an explanation.[52] It is not a rule of substantive law
but more a procedural rule. Its mere invocation does not exempt the plaintiff with
the requirement of proof to prove negligence. It merely allows the plaintiff to
present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of
negligence and to thereby place on the defendant the burden of going forward
with the proof.[53]
We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule
usually applied only in tort cases, to the cases at bar. Indeed, there is no court in
the whole world that has applied the res ipsa loquitur rule to resolve the issue
of prejudicial publicity. We again stress that the issue before us is whether the
alleged pervasive publicity of the cases against the petitioner has prejudiced the
minds of the members of the panel of investigators. We reiterate the test we laid
down in People v. Teehankee,[54] to resolve this issue, viz:
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 and now, we rule that the right
of an accused to a fair trial is not incompatible to a free press. To be
sure, responsible reporting enhances 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 hey 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 lost their
impartiality. x x x x x x 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 of
change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.
Petitioner keeps on pounding on the adverse publicity against him but
fails to prove how the impartiality of the panel of investigators from the
Office of the Ombudsman has been infected by it. As we held before and we
hold it again, petitioner has completely failed to adduce any proof of actual
prejudice developed by the members of the Panel of Investigators. This fact must
be established by clear and convincing evidence and cannot be left to loose
surmises and conjectures. In fact, petitioner did not even identify the members of
the Panel of Investigators. We cannot replace this test of actual prejudice with
the rule of res ipsa loquitur as suggested by the petitioner. The latter rule assumes
that an injury (i.e., prejudicial publicity) has been suffered and then shifts the
burden to the panel of investigators to prove that the impartiality of its members
has been affected by said publicity. Such a rule will overturn our case law that
pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The cases are not wanting where an accused has been acquitted despite
pervasive publicity.[55] For this reason, we continue to hold that it is not enough for
petitioner to conjure possibility of prejudicebut must prove actual prejudice on the part
of his investigators for the Court to sustain his plea. It is plain that petitioner has
failed to do so.
Petitioner agains suggests that the Court should order a 2-month cooling
off period to allow passions to subside and hopefully the alleged prejudicial
publicity against him would die down. We regret not to acquiesce to the
proposal. There is no assurance that the so called 2-month cooling off period will
achieve its purpose. The investigation of the petitioner is a natural media event. It
is the first time in our history that a President will be investigated by the Office of
the Ombudsman for alleged commission of heinous crimes while a sitting
President. His investigation will even be monitored by the foreign press all over
the world in view of its legal and historic significance. In other words, petitioner
cannot avoid the kleiglight of publicity. But what is important for the petitioner
is that his constitutional rights are not violated in the process of
investigation. For this reason, we have warned the respondent Ombudsman in
our Decision to conduct petitioners preliminary investigation in a circus-free
atmosphere.Petitioner is represented by brilliant legal minds who can protect his
right as an accused.
 VI
Recusation
Finally, petitioner prays that the members of this Honorable Court who went
to EDSA put on record who they were and consider recusing or inhibiting
themselves, particularly those who had ex-parte contacts with those exerting
pressure on this Honorable Court, as mentioned in our Motion of March 9, 2001,
given the need for the cold neutrality of impartial judges.[56]
We hold that the prayer lacks merit. There is no ground to inhibit the
twelve (12) members of the Court who merely accepted the invitation of the
respondent Arroyo to attend her oath taking. As mere spectators of a historic
event, said members of the Court did not prejudge the legal basis of the claim of
respondent Arroyo to the presidency at the time she took her oath. Indeed, the
Court in its en banc resolution on January 22, 2001, the first working day after
respondent Arroyo took her oath as President, held in Administrative Matter No.
01-1-05 SC, to wit:
A.M. No. 01-1-05-SC In re: Request for Vice President Gloria
Macapagal-Arroyo to Take Her Oath of Office as President of the
Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief
Justice and confirmed by a letter to the Court, dated January 20, 2001,
which request was treated as an administrative matter, the court 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 may be filed by a proper party.
The above resolution was unanimously passed by the 15 members of the
Court. It should be clear from the resolution that the Court did not treat the letter
of respondent Arroyo to be administered the oath by Chief Justice Davide, Jr., as
a case but as an administrative matter. If it were considered as a case, then
petitioner has reason to fear that the Court has predetermined the legitimacy
of the claim of respondent Arroyo to the presidency. To dispel the erroneous
notion, the Court precisely treated the letter as an administrative matter and
emphasized that it was without prejudice to the disposition of any justiciable
case that may be filed by a proper party. In further clarification, the Court on
February 20, 2001 issued another resolution to inform the parties and the public
that it xxx 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. Thus, there is no reason for petitioner to
request for the said twelve (12) justices to recuse themselves. To be sure, a
motion to inhibit filed by a party after losing his case is suspect and is
regarded with general disfavor.
Moreover, to disqualify any of the members of the Court, particularly a
majority of them, is nothing short of pro tanto depriving the Court itself of its
jurisdiction as established by the fundamental law.Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one designated by the
Constitution to exercise the jurisdiction of his court, as is the case with the Justices
of this Court, the deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects the very heart of
judicial independence.[57] The proposed mass disqualification, if sanctioned and
ordered, would leave the Court no alternative but to abandon a duty which it
cannot lawfully discharge if shorn of the participation of its entire membership of
Justices.[58]
IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R.
Nos. 146710-15 and his Omnibus Motion in G.R. No. 146738 are DENIED for
lack of merit.
SO ORDERED.
Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon,
Jr., JJ., concur.
Davide, Jr., C.J., no part for reason given in open court and in the extended
explanation.
Vitug, J., see separate concurring opinion.
Mendoza, J., see concurring opinion.
Kapunan, J., concurs on the result but strongly reiterate my separate opinion
in the case.
Ynares-Santiago, J., concurs in the result but maintains separate opinion in
the main Decision.
Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in
the main Decision.
Panganiban, J., no part see Extended Explanation of Inhibition prom. on
March 8, 2001.
1
Decision, p. 35.
[2] 63C [16] Section
Am Jur 2d Public Officers and Employees, section 158. 32, Rule 130 provides: An act or declaration made in the presence and within the hearing
[3] See
or observation of a party who does or says nothing when the act or declaration is such as naturally
e.g., Comment of respondents de Vera, Funa and Capulong, p. 26; Rollo, Vol II. p. to call for action or comment if not true, and when proper and possible for him to do so, may be
204: Memorandum of respondent Capulong Rollo, Vol. III, pp. 661, et seq. given in evidence against him.
[4] See paragraph 6.1 on p. 5 of petitioners Second Supplemental Reply Memorandum. [17] Phil. Daily Inquirer, February 5, 2001, p. A6.
[5] Id., see paragraph 7 on pp. 7-8. [18] Id., February 6, 2001, p. 1; Rollo, Vol. II, p. 250.
[6] The
myth of hearsay is that no one understands it, and students and practicing lawyers always [19] Section29, Rule 130 states: the act or declaration of a partner or agent of the party within the
make mistakes about it. Best, Evidence, 59 (3rd ed., p. 59, 1999). scope of his authority and during the existence of the partnership or agency, may be given in
[7] Francisco, Evidence, 513 citing 33 CJS 919. evidence against such party after the partnership or agency is shown by evidence other than such
act or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor, or
[8] Mueller other person jointly interested with the party.
and Kirkpatrick, Evidence under the Rules 116-117 (2nd ed., 1993); McCormick Evidence
93-94 [20] Jones on Evidence, S. 944, p. 1741.
[9] See,
generally, Swift, One Hundred Years of Evidence Law Reform: Thayers Triumph, 88 Cal. [21] Moran,
L. Rev. No. 6, 2437-2476 (2000). Swifts thesis is that the view of Thayer and other major twentieth Evidence3, 298.
century reformers advocating increased discretion of trial judges to admit or exclude evidence has [22] Jones, op cit., S. 1088, p. 2010.
prevailed.
[23] Omnibus
[10] Evidence,
Motion, pp. 24-25, footnotes omitted.
Cases and Materials 473-474 (9th ed.). As well put by author Best, supra, p. 87, the
[24] Wigmore
supreme irony of the hearsay doctrine is that a vast amount of hearsay is admissible at common law on Evidence, sec. 1191, p. 334.
and under the Federal Rules. Our hearsay rules are American in origin. [25] Francisco,
The Revised Rules of Court in the Philippines: Evidence 139 (1999), citing I Jones on
[11] Admissionsof a party should not be confused with declarations against interest, judicial Evidence, 390-391.
admission and confessions. [26] Id.,citing People v. Stuckrath, 64 Cal. App. 84, 220, p. 433; see also Suddayao, et al.v. Agatep,
Admission distinguished from declaration against interest. An admission is distinguishable from a et al., 46 Off. Gaz. 1119.
declaration against interest in several respects. The admission is primary evidence and is receivable, [27] Francisco,
although the declarant is available as a witness; it is competent only when the declarant, or someone supra, p.129.
identified in legal interest with him, is a party to the action; and need not have been considered by [28] 236 SCRA 505 (1994).
the decalrant as opposed to his interest at the time when it was made. The declaration against interest
is in the nature of secondary evidence, receivable only when the declarant is unavailable as a [29] See Decision, p. 41.
witness; it is competent in any action to which it is relevant, although the declarant is not a party to,
[30] See Petition
or in privity with, any party to the action; and it must have been, when made, to the knowledge of in G.R. No. 146738, p. 7, further stating that no one apparently was around or willing
the declarant, against his obvious and real interest. (VIII Francisco, Evidence, 304 [1997 ed.]) to receive the letter to the Senate President earlier.
[31] See
Admission distinguished from confession.- The term admission is distinguished from that of Annex A-1, Petition in G.R. No. 146738.
confession. The former is applied to civil transactions and to matters of fact in criminal cases not [32] Decision, p. 12.
involving criminal intent, the latter to acknowledgements of guilt in crimnal cases. (id., p. 303)
[33] Decision, p. 13.
Judicial and extra-judicial admission defined.- A judicial admission is one so made in pleadings
filed or in the progress of a trial as to dispense with the introduction of evidence otherwise necessary [34]
Ibid.
to dispense with some rules of practice necessary to be observed and complied with.
[35] Decision, p. 12.
Extra-judicial admission is one made out of court.
[36] Omnibus Motion, p. 37.
The most important distinction between judicial and other admissions, is that strictly, judicial
[37] Id.,
admissions are conclusive upon the party making them, while other admissions are, as a rule and pp. 38-39.
where the elements of estoppel are not present, disputable.(id., p. 90) [38] Id., p. 39.
[12] Herrera, Evidence, 315-316. [39] Section
4, Article VII of the Constitution states in part: The Supreme Court sitting en banc, shall
[13] Best, op cit., p. 90. be the sole judge of all contests relating to the election, returns, and qualifications of the President
or Vice-President, and may promulgate its rules for the purpose.
[14] Herrera, op cit., p. 371, citing 2 Jones Sec. 13-28.
[40] Motion for Reconsideration, p. 5.
[15] Evidence Under the Rules, 216 (2nd ed., 1993).
[41] Id., p. 5, citing Bernas, The 1987 Constitution of the Philippines: A Commentary, 1996, p. 532. Republic of the Philippines
[42] Id., p. 5, citing People v. Diaz, 94 Phil. 714 and People v. Robles, 105 Phil. 1016. SUPREME COURT
Manila
[43] Tecson v. Sandiganbayan, 318 SCRA 80 (1999).
[44] Bernas, The Constitution of the Republic of the Philippines: A Commentary, 1987, p. 470. EN BANC
[45] 102
SCRA 861 (1981), citing 4 Morans Comments on the Rules of Court, 1980 Ed., p. 202, citing
Gandicela v. Lutero, 88 Phil. 299, 307 and People v. Diaz, 94 Phil. 714, 717. G.R. No. 83896 February 22, 1991
[46] People v. Leviste, 255 SCRA 238 (1996), citing People v. Tampal, 244 SCRA 202 (1995).
CIVIL LIBERTIES UNION, petitioner,
[47] Tai Lim v. Court of Appeals, 317 SCRA 521 (1999). vs.
[48] People THE EXECUTIVE SECRETARY, respondent.
v. Quizada, 160 SCRA 516; Sta. Rita v. Court of Appeals, 247 SCRA 484; People v.
Leviste, supra.
[49]
G.R. No. 83815 February 22, 1991
Motion for Reconsideration, GR Nos. 146710-15, p. 17.
[50] Topacio Nueno, et al. vs. Angeles, et al., 76 Phil. 12, 21- 22. ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.
[51] Motion for Reconsideration, p. 27. REYES, petitioners,
vs.
[52] 57B Am Jur 2d 493 (1989). PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS
[53] Ibid., pp. 502-503. DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as
Secretary of Education, Culture and Sports; FULGENCIO FACTORAN,
[54] 249
SCRA 54 (1995); see Martelino et al. v. Alejandro, et al., 32 SCRA 106 (1970); Webb v. de JR., as Secretary of Environment and Natural Resources; VICENTE V.
Leon, etc., 247 SCRA 652 (1995); Larranaga v. CA, et al., 289 SCRA 581 (1998).
JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of
[55] People v. Ritter, 194 SCRA 690 (1991). Justice; FRANKLIN N. DRILON, as Secretary of Labor and
[56] Omnibus Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL
Motion, p.55.
V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO,
[57] Vargas v. Rilloraza, et al., 80 Phil. 297 (1948). as Press Secretary; JUANITO FERRER, as Secretary of Public Works
[58] Abbas, et al., v. Senate Electoral Tribunal, 166 SCRA 651 (1988). and Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary
of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David

for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.

FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved
jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President
Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are:
 Sec. 1. Even if allowed by law or by the ordinary functions of his
position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive Department
may, in addition to his primary position, hold not more than two
positions in the government and government corporations and
receive the corresponding compensation therefor; Provided, that this
limitation shall not apply to ad hoc bodies or committees, or to
boards, councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant
secretary or other appointive official of the Executive Department
holds more positions than what is allowed in Section 1 hereof, they
(sic) must relinquish the excess position in favor of the subordinate
official who is next in rank, but in no case shall any official hold more
than two positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government in
government-owned or controlled corporations, at least one-third (1/3)
of the members of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows
members of the Cabinet, their undersecretaries and assistant secretaries to
hold other government offices or positions in addition to their primary
positions, albeit subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided
in this Constitution, hold any other office or employment during their
tenure. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid
conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League
of the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist
from holding, in addition to their primary positions, dual or multiple positions
other than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public
respondents to return, reimburse or refund any and all amounts or benefits
that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision of
the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez,
construing Section 13, Article VII in relation to Section 7, par. (2), Article IX-
B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that
Cabinet members, their deputies (undersecretaries) and assistant
secretaries may hold other public office, including membership in the boards
of government corporations: (a) when directly provided for in the Constitution
as in the case of the Secretary of Justice who is made an ex-officio member
of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or
(b) if allowed by law; or (c) if allowed by the primary functions of their
respective positions; and that on the basis of this Opinion, the President of
the Philippines, on July 25, 1987 or two (2) days before Congress convened
on July 27, 1987: promulgated Executive Order No. 284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion
No. 73 and Executive Order No. 284 as they allegedly "lumped together"
Section 13, Article VII and the general provision in another article, Section 7,
par. (2), Article I-XB. This "strained linkage" between the two provisions,
each addressed to a distinct and separate group of public officers –– one,
the President and her official family, and the other, public servants in general
–– allegedly "abolished the clearly separate, higher, exclusive, and
mandatory constitutional rank assigned to the prohibition against multiple
jobs for the President, the Vice-President, the members of the Cabinet, and
their deputies and subalterns, who are the leaders of government expected
to lead by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his
position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No.
73, series of 1987, as further elucidated and clarified by DOJ Opinion No.
129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the
first official construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of
an appointive executive official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that Executive Order No.
284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is
consequently constitutional. It is worth noting that DOJ Opinion No. 129,
series of 1987 and DOJ Opinion No. 155, series of 1988 construed the
limitation imposed by E.O. No. 284 as not applying to ex-officio positions or
to positions which, although not so designated as ex-officio are allowed by
the primary functions of the public official, but only to the holding of multiple
positions which are not related to or necessarily included in the position of
the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged
by petitioners on the principal submission that it adds exceptions to Section
13, Article VII other than those provided in the Constitution. According to
petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely:
(1) The Vice-President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is
an ex-officio member of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7,
par. (2), Article I-XB on the Civil Service Commission applies to officers and
employees of the Civil Service in general and that said exceptions do not
apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-
President, the members of the Cabinet and their deputies or assistants from
holding dual or multiple positions in the Government admits of certain
exceptions. The disagreement between petitioners and public respondents
lies on the constitutional basis of the exception. Petitioners insist that
because of the phrase "unless otherwise provided in this Constitution" used
in Section 13 of Article VII, the exception must be expressly provided in the
Constitution, as in the case of the Vice-President being allowed to become a
Member of the Cabinet under the second paragraph of Section 3, Article VII
or the Secretary of Justice being designated an ex-officio member of the
Judicial and Bar Council under Article VIII, Sec. 8 (1). Public respondents,
on the other hand, maintain that the phrase "unless otherwise provided in
the Constitution" in Section 13, Article VII makes reference to Section 7, par.
(2), Article I-XB insofar as the appointive officials mentioned therein are
concerned.
The threshold question therefore is: does the prohibition in Section 13,
Article VII of the 1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise allowed
by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers
of the Constitution to enact the particular provision and the purpose sought
to be accomplished thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect that purpose.11
The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned
and controlled corporations, became prevalent during the time legislative
powers in this country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a proliferation of
newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of
presidential issuances where Cabinet members, their deputies or assistants
were designated to head or sit as members of the board with the
corresponding salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the government soon
led to abuses by unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment. In fact, the holding of multiple
offices in government was strongly denounced on the floor of the Batasang
Pambansa.12 This condemnation came in reaction to the published report of
the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards
and Commissions" which carried as its Figure No. 4 a "Roaster of
Membership in Governing Boards of Government-Owned and Controlled
Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and
morality in government service were the data contained therein that Roberto
V. Ongpin was a member of the governing boards of twenty-nine (29)
governmental agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R.
Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of
fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta
and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro,
and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro
Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed
Constitution the provisions under consideration which are envisioned to
remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr.
Justice Isagani A. Cruz during the deliberations in these cases, one of the
strongest selling points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that the scandalous
practice of Cabinet members holding multiple positions in the government
and collecting unconscionably excessive compensation therefrom would be
discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices
or employment in the government subsuming both elective and appointive
public officials, the Constitutional Commission should see it fit to formulate
another provision, Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article
VII with other provisions of the Constitution on the disqualifications of certain
public officials or employees from holding other offices or employment.
Under Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the
armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government,including government-
owned or controlled corporations or any of their subsidiaries." Even Section
7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise
allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other
office or employment, the prohibition pertains to an office or employment in
the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII
which states that "(T)he President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during
their tenure." In the latter provision, the disqualification is absolute, not being
qualified by the phrase "in the Government." The prohibition imposed on the
President and his official family is therefore all-embracing and covers both
public and private office or employment.
Going further into Section 13, Article VII, the second sentence provides:
"They shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the
civil service in general and members of the armed forces, are proof of the
intent of the 1987 Constitution to treat the President and his official family as
a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more
powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case."14
Thus, while all other appointive officials in the civil service are allowed to
hold other office or employment in the government during their tenure when
such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when
expressly authorized by the Constitution itself. In other words, Section 7,
Article I-XB is meant to lay down the general rule applicable to all elective
and appointive public officials and employees, while Section 13, Article VII is
meant to be the exception applicable only to the President, the Vice-
President, Members of the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article I-XB of the 1987 Constitution.
To construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President,
Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during
their tenure. Respondents' interpretation that Section 13 of Article VII admits
of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when
the high-ranking officials of the Executive Branch from the President to
Assistant Secretary, on the one hand, and the generality of civil servants
from the rank immediately below Assistant Secretary downwards, on the
other, may hold any other office or position in the government during their
tenure.
Moreover, respondents' reading of the provisions in question would render
certain parts of the Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of
Article I-XB is absolutely ineligible "for appointment or designation in any
capacity to any public office or position during his tenure." Surely, to say that
the phrase "unless otherwise provided in this Constitution" found in Section
13, Article VII has reference to Section 7, par. (1) of Article I-XB would
render meaningless the specific provisions of the Constitution authorizing
the Vice-President to become a member of the Cabinet,15 and to act as
President without relinquishing the Vice-Presidency where the President
shall not nave been chosen or fails to qualify.16 Such absurd consequence
can be avoided only by interpreting the two provisions under consideration
as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and
the other, i.e., Section 13, Article VII as constituting the exception thereto. In
the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-
vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one
provision of the Constitution is to be separated from all the others, to be
considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to effectuate
the great purposes of the instrument.17 Sections bearing on a particular
subject should be considered and interpreted together as to effectuate the
whole purpose of the Constitution18 and one section is not to be allowed to
defeat another, if by any reasonable construction, the two can be made to
stand together.19
In other words, the court must harmonize them, if practicable, and must lean
in favor of a construction which will render every word operative, rather than
one which may make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to
impose a stricter prohibition on the President, Vice-President, members of
the Cabinet, their deputies and assistants with respect to holding multiple
offices or employment in the government during their tenure, the exception
to this prohibition must be read with equal severity. On its face, the language
of Section 13, Article VII is prohibitory so that it must be understood as
intended to be a positive and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to
be a positive and unequivocal negation.21 The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer
only to those particular instances cited in the Constitution itself, to wit: the
Vice-President being appointed as a member of the Cabinet under Section
3, par. (2), Article VII; or acting as President in those instances provided
under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officiomember of the Judicial and Bar Council by virtue of Section 8
(1), Article VIII.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed
as applying to posts occupied by the Executive officials specified therein
without additional compensation in an ex-officio capacity as provided by law
and as required22 by the primary functions of said officials' office. The reason
is that these posts do no comprise "any other office" within the
contemplation of the constitutional prohibition but are properly an imposition
of additional duties and functions on said officials.23 To characterize these
posts otherwise would lead to absurd consequences, among which are: The
President of the Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24, 1986). Neither
can the Vice-President, the Executive Secretary, and the Secretaries of
National Defense, Justice, Labor and Employment and Local Government sit
in this Council, which would then have no reason to exist for lack of a
chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees
of the National Manpower and Youth Council (NMYC) or the Philippine
Overseas Employment Administration (POEA), both of which are attached to
his department for policy coordination and guidance. Neither can his
Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary
Board.24 Neither can their respective undersecretaries and assistant
secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money,
banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible,
should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional compensation in ex-
officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means "from
office; by virtue of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the individual character, but
rather annexed to the official position." Ex-officio likewise denotes an "act
done in an official character, or as a consequence of office, and without any
other appointment or authority than that conferred by the office."27 An ex-
officio member of a board is one who is a member by virtue of his title to a
certain office, and without further warrant or appointment.28 To illustrate, by
express provision of law, the Secretary of Transportation and
Communications is the ex-officioChairman of the Board of the Philippine
Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position
in Rafael vs. Embroidery and Apparel Control and Inspection Board,31 thus:
"An examination of section 2 of the questioned statute (R.A. 3137) reveals
that for the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned
in the law. Thus, for instance, one who does not hold a previous
appointment in the Bureau of Customs, cannot, under the act, be designated
a representative from that office. The same is true with respect to the
representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely
perform duties in the Board in addition to those already performed under
their original appointments."32
The term "primary" used to describe "functions" refers to the order of
importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural.33 The additional duties
must not only be closely related to, but must be required by the official's
primary functions. Examples of designations to positions by virtue of one's
primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority34 and
the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely
related, inconsistent, incompatible, or otherwise alien to the primary function
of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the
Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions and/or
monetary compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent
with those already prescribed by their offices or appointments by virtue of
their special knowledge, expertise and skill in their respective executive
offices is a practice long-recognized in many jurisdictions. It is a practice
justified by the demands of efficiency, policy direction, continuity and
coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws
affecting national interest and general welfare and delivering basic services
to the people. It is consistent with the power vested on the President and his
alter egos, the Cabinet members, to have control of all the executive
departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to
the President and his official family to sit in the governing bodies or boards
of governmental agencies or instrumentalities in an ex-officio capacity as
provided by law and as required by their primary functions, they would be
supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or
functions may not transgress the prohibition embodied in Section 13, Article
VII of the 1987 Constitution, such additional duties or functions must
be required by the primary functions of the official concerned, who is to
perform the same in an ex-officio capacity as provided by law, without
receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is
that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the
Secretary of Finance attends a meeting of the Monetary Board as an ex-
officio member thereof, he is actually and in legal contemplation performing
the primary function of his principal office in defining policy in monetary and
banking matters, which come under the jurisdiction of his department. For
such attendance, therefore, he is not entitled to collect any extra
compensation, whether it be in the form of a per them or an honorarium or
an allowance, or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B,
originally found as Section 3 of the General Provisions, the exception
"unless required by the functions of his position,"36 express reference to
certain high-ranking appointive public officials like members of the Cabinet
were made.37 Responding to a query of Commissioner Blas Ople,
Commissioner Monsod pointed out that there are instances when although
not required by current law, membership of certain high-ranking executive
officials in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by Commissioner Monsod
was the Minister of Trade and Industry.38
While this exchange between Commissioners Monsod and Ople may be
used as authority for saying that additional functions and duties flowing from
the primary functions of the official may be imposed upon him without
offending the constitutional prohibition under consideration, it cannot,
however, be taken as authority for saying that this exception is by virtue of
Section 7, par. (2) of Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531
which was the proposed article on General Provisions.39 At that time, the
article on the Civil Service Commission had been approved on third reading
on July 22, 1986,40 while the article on the Executive Department, containing
the more specific prohibition in Section 13, had also been earlier approved
on third reading on August 26, 1986.41 It was only after the draft Constitution
had undergone reformatting and "styling" by the Committee on Style that
said Section 3 of the General Provisions became Section 7, par. (2) of
Article IX-B and reworded "Unless otherwise allowed by law or by the
primary functions of his position. . . ."
What was clearly being discussed then were general principles which would
serve as constitutional guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all
appointive public officials. Had the Constitutional Commission intended to
dilute the specific prohibition in said Section 13 of Article VII, it could have
re-worded said Section 13 to conform to the wider exceptions provided in
then Section 3 of the proposed general Provisions, later placed as Section 7,
par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President
and his official family is by reason of the legal principles governing additional
functions and duties of public officials rather than by virtue of Section 7, par.
2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail42 as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the constitutional
1âwphi1
convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what
appears upon its face."43 The proper interpretation therefore depends more
on how it was understood by the people adopting it than in the framers's
understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in
the Constitution itself and as above clarified with respect to posts held
without additional compensation in an ex-officio capacity as provided by law
and as required by the primary functions of their office, the citation of
Cabinet members (then called Ministers) as examples during the debate and
deliberation on the general rule laid down for all appointive officials should
be considered as mere personal opinions which cannot override the
constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No.
284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the
number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than
two (2) positions in the government and government corporations, Executive
Order No. 284 actually allows them to hold multiple offices or employment in
direct contravention of the express mandate of Section 13, Article VII of the
1987 Constitution prohibiting them from doing so, unless otherwise provided
in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that
will result from a strict application of the prohibition mandated under Section
13, Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified
in this decision, ex-officio posts held by the executive official concerned
without additional compensation as provided by law and as required by the
primary functions of his office do not fall under the definition of "any other
office" within the contemplation of the constitutional prohibition. With respect
to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared
impractical consequences are more apparent than real. Being head of an
executive department is no mean job. It is more than a full-time job, requiring
full attention, specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and expertise, he
should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be
precluded from dissipating his efforts, attention and energy among too many
positions of responsibility, which may result in haphazardness and
inefficiency. Surely the advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this stage of our national
and economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in
more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court
hereby orders respondents Secretary of Environment and Natural
Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis
Santos, Secretary of National Defense Fidel V. Ramos, Secretary of Health
Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to
immediately relinquish their other offices or employment, as herein defined,
in the government, including government-owned or controlled corporations
and their subsidiaries. With respect to the other named respondents, the
petitions have become moot and academic as they are no longer occupying
the positions complained of.
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual
services rendered.46 It has been held that "in cases where there is no de
jure,officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the
salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed
from all liability to pay any one for such services.47 Any per diem, allowances
or other emoluments received by the respondents by virtue of actual
services rendered in the questioned positions may therefore be retained by
them.
WHEREFORE, subject to the qualification above-stated, the petitions are
GRANTED. Executive Order No. 284 is hereby declared null and void and is
accordingly set aside.
SO ORDERED.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur.
Sarmiento and Griño-Aquino, JJ., took no part.
Footnotes
5
Annex "A", Petition, G.R. No. 83815, pp. 21-24, Rollo.
6
Thereby, petitioner alleges, eliciting adverse published
commentaries from CONCOM Commissioners Fr. Joaquin G.
Bernas, S. J. and Regalado E. Maambong, Congressman Rodolfo
Albano of Isabela, and retired Supreme Court Justice Felix Q.
Antonio, Annexes "D", "E" and "F", Petition, G.R. No. 83815, pp. 40-
64, Rollo. CONCOM Vice-President Ambrosio B. Padilla, in a
published article cited in the annexes, also commented on EO 284.
 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed
17
EN BANC
345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879.

Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs. Smith, 308
18

Ky 73, 212 SW 2d 521. [A.M. No. 98-5-01-SC. November 9, 1998]

19
People vs. Wright, 6 Col. 92.

Thomas M. Colley, A Treatise on the Constitutional Limitations,

20
In Re Appointments dated March 30, 1998 of Hon. Mateo A.
Vol. I, p. 128, citing Attorney-General vs. Detroit and Erin Plank
Road Co., 2 Mich. 114; People vs. Burns, 5 Mich. 114 ; District Valenzuela and Hon. Placido B. Vallarta as Judges of
Township vs. Dubuque, 7 Iowa 262. the Regional Trial Court of Branch 62, Bago City and
of Branch 24, Cabanatuan City, respectively.
Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State, 22 Tex.
21

App. 396, 3 S.W. 233.

DECISION
As opposed to the term "allowed" used in Section 7, par. (2),
22
NARVASA, CJ.:
Article IX-B of the Constitution, which is permissive. "Required"
suggests an imposition, and therefore, obligatory in nature. The question presented for resolution in the administrative matter at
bar is whether, during the period of the ban on appointments imposed by
Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville
23
Section 15, Article VII of the Constitution, the President is nonetheless
Sewer District, 173 A.L.R. 407.
required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of
24
Executive Order No. 16, May 9, 1986, 82 O.G. 2117. 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.
25
Sec. 20, Art. XII, 1987 Constitution. 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
Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed. 1774, 63 S.
26
that here involved - between the Chief Executive, on the one hand, and on
Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator of Wage and Hour
Div., 312 U.S. 126, 85 L. Ed. 624, 61 S. Ct. 524; Gage vs. Jordan, the other, the Supreme Court and the Judicial and Bar Council over which
23 Cal 2d 794, 174 P 2d, 287 cited in 16 Am Jur 2d, pp. 100, 464. the Court exercises general supervision and wields specific powers
including the assignment to it of other functions and duties in addition to
27
Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392. its principal one of recommending appointees to the Judiciary, and the
determination of its Members' emoluments.[1]
32
Emphasis supplied.
I The Relevant Facts
33A Words and Phrases, p. 210, citing Collector of Revenue vs.
33
The Resolution of the Court En Banc, handed down on May 14, 1998,
Louisiana Ready Mix Co., La. App., 197 S. 2d 141, 145. sets out the relevant facts and is for that reason hereunder reproduce in full.
35
Section 17, Article VII.
Referred to the Court En Banc by the Chief Justice are the
36
The phrase that appears in the Constitution is not appointments signed by His Excellency the President under the
"Unless required by the primary functions" but "Unless date of March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
otherwise allowed by law or by the primary functions . . ." 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:
"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.
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 JBC-recommended
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" 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.
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 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., 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
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[2] -- 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
The provision of the Constitution material to the inquiry at bar read as
follows:[3]
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
suggestions to make the period three, instead of two, months. As thus
amended, the proposal was approved.[4] As it turned out, however, the
Commission ultimately agreed on a fifteen-member Court.[5] Thus it
was that the section fixing the composition of the Supreme Court came to
include a command to fill up any vacancy therein within 90 days from its
occurrence.
 In this connection, it may be pointed out that that instruction that any
"vacancy shall be filled within ninety days" (in the last sentence of Section
4 (1) of Article VIII) contrasts with the prohibition in Section 15, Article
VII, which is couched in stronger negative language - that "a President or
Acting President shall not make appointments"
The commission later approved a proposal of Commissioner Hilario
G. Davide, Jr. (now a Member of this Court) to add to what is now Section
9 of Article VIII, the following paragraph: "WITH RESPECT TO LOWER
COURTS, THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE LIST" (of
nominees by the Judicial and Bar Council to the President).[6] 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.[7]
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.:[8]
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
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 so-called "midnight" appointments. In Aytona v.
Castillo,[9] 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,"[10] can be made by the outgoing President.Accordingly,
several appointments made by President Garcia, which were shown to have
been well considered, were upheld.[11]
Section 15, Article VII has a broader scope than the Aytona ruling. It
may not unreasonably be deemed to contemplate not only "midnight"
appointments - those made obviously for partisan reasons as shown by their
number and the time of their making - but also appointments presumed
made for the purpose of influencing the outcome of the Presidential
election.
On the other hand, the exception in the same Section 15 of Article VII
- allowing appointments to be made during the period of the ban therein
provided - is much narrower than that recognized in Aytona.The exception
allows only the making of temporary appointments to executive positions
when continued vacancies will prejudice public service or endanger public
safety. Obviously, the article greatly restricts the appointing power of the
President during the period of the ban.
Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Court's view that, as a general proposition, in case of
conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six years. Moreover,
those occurring in the lower courts can be filled temporarily by
designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the
results of elections and, for that reason, their making is considered an
election offense.
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 peoplewhen 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.[12]
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.[13] 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
 [1]
of the Office of the Court Administrator; or otherwise to begin performing Section 8, Article VIII, Constitution.
his duties as Judge without the Court Administrator knowing of that [2]
N.B. The letter of the JBC dated March 3, 1998 containing the nomination of Judge
fact. The undesirability of such a situation is illustrated by the case of Judge Valenzuela and two (2) others to RTC Branch 62, Bago City, together with nominations
Valenzuela who acted, with no little impatience or rashness, on a mere copy of other persons to four (4) other courts, was received by the Office of the President on
of his supposed appointment, without having received any formal notice March 20, 1998. The JBC's nominations of Judge Vallarta and three others to RTC Branch
24, Cabanatuan City, and of others to MeTC Branch 56, Malabon, are contained in its
from this Court, and without verifying the authenticity of the appointment letter dated February 24, 1998, also received on March 20, 1998 at Malacaang. Of those
or the propriety of taking oath on the basis thereof. Had he bothered to thus nominated, only Messrs. Valenzuela and Vallarta were appointed by the President.
inquire about his appointment from the Court Administrator's Office, he [3]
Emphasis supplied.
would have been informed of the question concerning it and the Court's
[4]
injunction. RECORD OF THE CONSTITUTIONAL COMMISSION (hereafter cited as
RECORD) pp. 479-482 (Session of July 14, 1986).
VIII. Conclusion [5]
RECORD, pp. 632-634 (Session of Oct. 8, 1986).
The appointments of Messrs. Valenzuela and Vallarta on March 30, [6]
1 RECORD, pp. 489-490 (Session of July 14, 1986).
1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were
[7]
unquestionably made during the period of the ban.Consequently, they Id. at p. 445.
come within the operation of the first prohibition relating to appointments [8]
Emphasis supplied.
which are considered to be for the purpose of buying votes or influencing [9]
114 Phil. vii (1962).
the election. While the filling of vacancies in the judiciary is undoubtedly
[10]
in the public interest, there is no showing in this case of any compelling Id at x-xi.
reason to justify the making of the appointments during the period of the [11]
See Merrera v. Liwag, 18 Phil. 1038 (1963); Jorge v. Mayor, 119 Phil. 595 (1964);
ban. On the other hand, as already discussed, there is a strong public policy Quimsing v. Tajanglangit, 119 Phil. 729 (1964).
for the prohibition against appointments made within the period of the ban. [12]
SEE Sec. 9, second paragraph, of R.A. No. 296 (The Judiciary Act of 1948), in relation
In view of the foregoing considerations, the Court Resolved to to Sec. 47 of B.P. No. 129 (The Judiciary Reorganization Act of 1980): cf: Rilloraza v.
Vargas 80 Phil. 297 (1948).
DECLARE VOID the appointments signed by His Excellency the
[13]
President under date of March 30, 1998 of Hon. Mateo A. Valenzuela and SEE footnote 2, supra.
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. Republic of the Philippines
Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Supreme Court
Mendoza, Panganiban, Quisumbing, Purisima and Pardo, JJ., concur. Manila
Martinez, J., on official leave. EN BANC

ARTURO M. DE CASTRO, G. R. No. 191002

 Petitioner,
- versus -
JUDICIAL AND BAR COUNCIL
(JBC) and PRESIDENT GLORIA
MACAPAGAL ARROYO,
Respondents.
x-----------------------x
JAIME N. SORIANO,
Petitioner,
- versus -
JUDICIAL AND BAR COUNCIL
(JBC),
Respondent.
x-----------------------x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
Petitioner,
- versus -
JUDICIAL AND BAR COUNCIL
(JBC),
Respondent.
x-----------------------x
IN RE APPLICABILITY OF
SECTION 15, ARTICLE VII OF
THE CONSTITUTION TO
APPOINTMENTS TO THE
JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
x-----------------------x
JOHN G. PERALTA,
Petitioner,
- versus -
JUDICIAL AND BAR COUNCIL
(JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
G.R. No. 191032
NATIONAL UNION OF PEOPLES
LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its
G.R. No. 191057 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.
A.M. No. 10-2-5-SC CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO
M. REYES, JR.;
CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-
MENT OF GOVERNMENT
EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE;
G.R. No. 191149 KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY)
SECRETARY GENERAL GLORIA
ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG GovernorSouthern Luzon), and
SAMBAYANAN PARA SA ATTY. ROLAND B. INTING
KAUNLARAN (ANAKBAYAN) (IBP GovernorEastern Visayas),
CHAIRMAN KEN LEONARD Petitioners,
RAMOS; TAYO ANG PAG-ASA
CONVENOR ALVIN PETERS; - versus -
LEAGUE OF FILIPINO
STUDENTS (LFS) CHAIRMAN
JAMES MARK TERRY JUDICIAL AND BAR COUNCIL
LACUANAN RIDON; NATIONAL (JBC), G.R. No. 191420
UNION OF STUDENTS OF THE Respondent.
PHILIPPINES (NUSP) CHAIRMAN x-----------------------x Present:
EINSTEIN RECEDES; COLLEGE PHILIPPINE BAR ASSOCIATION,
EDITORS GUILD OF THE INC., PUNO, C.J.,
PHILIPPINES (CEGP) CHAIRMAN Petitioner, CARPIO,
VIJAE ALQUISOLA; and CORONA,
STUDENT CHRISTIAN CARPIO MORALES,
MOVEMENT OF THE VELASCO, JR.,
PHILIPPINES (SCMP) CHAIRMAN NACHURA,
MA. CRISTINA ANGELA LEONARDO-DE CASTRO,
GUEVARRA; BRION,
PERALTA,
WALDEN F. BELLO and - versus - BERSAMIN,
LORETTA ANN P. ROSALES; DEL CASTILLO,
ABAD,
WOMEN TRIAL LAWYERS VILLARAMA, JR.,
ORGANIZATION OF THE PEREZ, and
PHILIPPINES, represented by MENDOZA, JJ.
YOLANDA QUISUMBING- JUDICIAL AND BAR COUNCIL
JAVELLANA; BELLEZA and HER EXCELLENCY GLORIA Promulgated:
ALOJADO DEMAISIP; TERESITA MACAPAGAL-ARROYO, March 17, 2010
GANDIONCO-OLEDAN; MA. Respondents.
VERENA KASILAG-
x---------------------------------------------------------------------------------------
VILLANUEVA; MARILYN STA.
--x
ROMANA; LEONILA DE JESUS;
and GUINEVERE DE LEON.
DECISION
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x G.R. No. 191342
BERSAMIN, J.:
ATTY. AMADOR Z. TOLENTINO,
JR., (IBP
The compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010 occurs just days after the coming presidential elections on May 10,
2010. Even before the event actually happens, it is giving rise to many legal
dilemmas. May the incumbent President appoint his successor, considering
that Section 15, Article VII (Executive Department) of the Constitution
prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and
up to the end of his term, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or
endanger public safety? What is the relevance of Section 4 (1), Article VIII
(Judicial Department) of the Constitution, which provides that any vacancy
in the Supreme Court shall be filled within 90 days from the occurrence
thereof, to the matter of the appointment of his successor? May the Judicial
and Bar Council (JBC) resume the process of screening the candidates
nominated or being considered to succeed Chief Justice Puno, and submit
the list of nominees to the incumbent President even during the period of
the prohibition under Section 15, Article VII? Does mandamus lie to
compel the submission of the shortlist of nominees by the JBC?
Precs of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively
commenced G.R. No. 191002[1] and G.R. No. 191149[2] as special civil
actions for certiorari and mandamus, praying that the JBC be compelled to
submit to the incumbent President the list of at least three nominees for the
position of the next Chief Justice.
[3]
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,[4] the
Philippine Constitution Association (PHILCONSA) wants the JBC to
submit its list of nominees for the position of Chief Justice to be vacated
by Chief Justice Puno upon his retirement on May 17, 2010, because the
incumbent President is not covered by the prohibition that applies only to
appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC,[5] petitioner Estelito M.
Mendoza, a former Solicitor General, seeks a ruling from the Court for the
guidance of the JBC on whether Section 15, Article VII applies to
appointments to the Judiciary.
In G.R. No. 191342,[6] which the Court consolidated on March 9, 2010 with
the petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland
B. Inting, Integrated Bar of the Philippines (IBP) Governors for Southern
Luzon and Eastern Visayas, respectively, want to enjoin and restrain the
JBC from submitting a list of nominees for the position of Chief Justice to
the President for appointment during the period provided for in Section 15,
Article VII.
All the petitions now before the Court pose as the principal legal question
whether the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement. That question is undoubtedly impressed with
transcendental importance to the Nation, because the appointment of the
Chief Justice is any Presidents most important appointment.
A precedent frequently cited is In Re Appointments Dated March
30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as
Judges of the Regional Trial Court of Branch 62, Bago City and of Branch
24, Cabanatuan City, respectively (Valenzuela),[7] by which the Court held
that Section 15, Article VII prohibited the exercise by the President of the
power to appoint to judicial positions during the period therein fixed.
In G.R. No. 191002, De Castro submits that the conflicting
opinions on the issue expressed by legal luminaries one side holds that the
incumbent President is prohibited from making appointments within two
months immediately before the coming presidential elections and until the
end of her term of office as President on June 30, 2010, while the other
insists that the prohibition applies only to appointments to executive
positions that may influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during the election
ban has impelled the JBC to defer the decision to whom to send its list of
at least three nominees, whether to the incumbent President or to her
successor.[8] He opines that the JBC is thereby arrogating unto itself the
judicial function that is not conferred upon it by the Constitution, which
has limited it to the task of recommending appointees to the Judiciary, but
has not empowered it to finally resolve constitutional questions, which is
the power vested only in the Supreme Court under the Constitution. As
such, he contends that the JBC acted with grave abuse of discretion in
deferring the submission of the list of nominees to the President; and that
a final and definitive resolution of the constitutional questions raised above
would diffuse (sic) the tension in the legal community that would go a long
way to keep and maintain stability in the judiciary and the political
[9]
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 the Members of the Supreme
Court. Hence, the JBC should not intervene in the process, unless a
nominee is not yet a Member of the Supreme Court.[10]
For its part, PHILCONSA observes in its petition in G.R. No.
191057 that unorthodox and exceptional circumstances spawned by the
discordant interpretations, due perhaps to a perfunctory understanding, of
Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and 9, Art. VIII of the
Constitution have bred a frenzied inflammatory legal debate on the
constitutional provisions mentioned that has divided the bench and the bar
and the general public as well, because of its dimensional impact to the
nation and the people, thereby fashioning transcendental questions or
issues affecting the JBCs proper exercise of its principal function of
recommending appointees to the Judiciary by submitting only to the
President (not to the next President) a list of at least three nominees
prepared by the Judicial and Bar Council for every vacancy from which the
members of the Supreme Court and judges of the lower courts may be
appointed.[11] PHILCONSA further believes and submits that now is the
time to revisit and review Valenzuela, the strange and exotic Decision of
the Court en banc.[12]
Peralta states in his petition in G.R. No. 191149 that mandamus can
compel the JBC to immediately transmit to the President, within a
reasonable time, its nomination list for the position of chief justice upon
the mandatory retirement of Chief Justice Reynato S. Puno, in compliance
with its mandated duty under the Constitution in the event that the Court
resolves that the President can appoint a Chief Justice even during the
election ban under Section 15, Article VII of the Constitution.[13]
 The petitioners in G.R. No. 191342 insist that there is an actual It will publish the opening of the position for applications
or recommendations; deliberate on the list of candidates; publish
controversy, considering that the JBC has initiated the process of receiving the names of candidates; accept comments on or opposition to the
applications for the position of Chief Justice and has in fact begun the applications; conduct public interviews of candidates; and
prepare the shortlist of candidates.
evaluation process for the applications to the position, and is perilously
near completing the nomination process and coming up with a list of As to the time to submit this shortlist to the proper
appointing authority, in the light of the Constitution, existing
nominees for submission to the President, entering into the period of the laws and jurisprudence, the JBC welcomes and will consider all
ban on midnight appointments on March 10, 2010, which only highlights views on the matter.
the pressing and compelling need for a writ of prohibition to enjoin such
18 January 2010.
alleged ministerial function of submitting the list, especially if it will be
cone within the period of the ban on midnight appointments.[14]
Antecedents (sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
These cases trace their genesis to the controversy that has arisen
Ex-Officio Secretary
from the forthcoming compulsory retirement of Chief Justice Puno on May Judicial and Bar Council
17, 2010, or seven days after the presidential election. Under Section 4(1),
in relation to Section 9, Article VIII, that vacancy shall be filled within
As a result, the JBC opened the position of Chief Justice for application or
ninety days from the occurrence thereof from a list of at least three
recommendation, and published for that purpose
nominees prepared by the Judicial and Bar Council for every vacancy. [16]
its announcement dated January 20, 2010, viz:

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.
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.

In its January 18, 2010 meeting en banc, therefore, the JBC passed
a resolution,[15] which reads:
The JBC, in its en banc meeting of January 18, 2010,
unanimously agreed to start the process of filling up the position
of Chief Justice to be vacated on May 17, 2010 upon the
retirement of the incumbent Chief Justice Honorable Reynato S.
Puno.
Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:
The announcement was published on January 20, 2010 in
the Philippine Daily Inquirer and The Philippine Star.[17]
Conformably with its existing practice, the JBC automatically considered
for the position of Chief Justice the five most senior of the Associate
Justices of the Court, namely: Associate Justice Antonio T. Carpio;
Associate Justice Renato C. Corona; Associate Justice Conchita Carpio
Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice
Antonio Eduardo B. Nachura. However, the last two declined their
nomination through letters dated January 18, 2010 and January 25, 2010,
respectively.[18]
Others either applied or were nominated. Victor Fernandez, the retired
Deputy Ombudsman for Luzon, applied, but later formally withdrew his
name from consideration through his letter dated February 8, 2010.
Candidates who accepted their nominations without conditions were
Associate Justice Renato C. Corona; Associate Justice Teresita J.
Leonardo-De Castro; Associate Justice Arturo D. Brion; and Associate
Justice Edilberto G. Sandoval (Sandiganbayan). Candidates who accepted
their nominations with conditions were Associate Justice Antonio T.
Carpio and Associate Justice Conchita Carpio Morales.[19] Declining their
nominations were Atty. Henry Villarica (via telephone conversation with
the Executive Officer of the JBC on February 5, 2010) and Atty. Gregorio
M. Batiller, Jr. (via telephone conversation with the Executive Officer of
the JBC on February 8, 2010).[20]
The JBC excluded from consideration former RTC Judge Florentino Floro
(for failure to meet the standards set by the JBC rules); and Special
Prosecutor Dennis Villa-Ignacio of the Office of the Ombudsman (due to
cases pending in the Office of the Ombudsman).[21]
In its meeting of February 8, 2010, the JBC resolved to proceed to the next
step of announcing the names of the following candidates to invite the
public to file their sworn complaint, written report, or opposition, if any,
not later than February 22, 2010, to wit: Associate Justice Carpio,
Associate Justice Corona, Associate Justice Carpio Morales, Associate
Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily
Inquirer and The Philippine Star issues of February 13, 2010.[22]
Issues
Although it has already begun the process for the filling of the
position of Chief Justice Puno in accordance with its rules, the JBC is not
yet decided on when to submit to the President its list of nominees for the
position due to the controversy now before us being yet unresolved. In the
meanwhile, time is marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only
among legal luminaries, but also among non-legal quarters, and brought
out highly disparate opinions on whether the incumbent President can
appoint the next Chief Justice or not. Petitioner Mendoza notes that
in Valenzuela, which involved the appointments of two judges of the
Regional Trial Court, the Court addressed this issue now before us as an
administrative matter to avoid any possible polemics concerning the
matter, but he opines that the polemics leading to Valenzuela would be
miniscule [sic] compared to the polemics that have now erupted in regard
to the current controversy, and that unless put to a halt, and this may only
be achieved by a ruling from the Court, the integrity of the process and the
credibility of whoever is appointed to the position of Chief Justice, may
irreparably be impaired.[23]
Accordingly, we reframe the issues as submitted by each petitioner in the
order of the chronological filing of their petitions.
 view of the prohibition against presidential
G.R. No. 191002 appointments from March 11, 2010 until June 30, 2010?

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?
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. 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?
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. 191057

G.R. No. 191342
a. Is the constitutional prohibition against appointment
a. Does the JBC have the authority to submit the list of
under Section 15, Article VII of the Constitution
nominees to the incumbent President without
applicable only to positions in the Executive
committing a grave violation of the Constitution and
Department?
jurisprudence prohibiting the incumbent President from
making midnight appointments two months
b. Assuming that the prohibition under Section 15, Article
immediately preceding the next presidential elections
VII of the Constitution also applies to members of the
until the end of her term?
Judiciary, may such appointments be excepted because
they are impressed with public interest or are demanded
b. Is any act performed by the JBC, including the vetting
by the exigencies of public service, thereby justifying
of the candidates for the position of Chief Justice,
these appointments during the period of prohibition?
constitutionally invalid in view of the JBCs illegal
composition allowing each member from the Senate and
c. Does the JBC have the authority to decide whether or not
the House of Representatives to have one vote each?
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
 On February 16, 2010, the Court directed the JBC and the Office of
the Solicitor General (OSG) to comment on the consolidated petitions,
except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting
therein that the next stage of the process for the selection of the nominees
for the position of Chief Justice would be the public interview of the
candidates and the preparation of the short list of candidates, including the
interview of the constitutional experts, as may be needed.[24] It stated:[25]
Likewise, the JBC has yet to take a position on when to
submit the shortlist to the proper appointing authority, in
light of Section 4 (1), Article VIII of the Constitution,
which provides that vacancy in the Supreme Court shall
be filled within ninety (90) days from the occurrence
thereof, Section 15, Article VII of the Constitution
concerning the ban on Presidential appointments two (2)
months immediately before the next presidential elections
and up to the end of his term and Section 261 (g), Article
XXII of the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of
the Constitution, the JBC will be guided by its decision in
these consolidated Petitions and Administrative Matter.
On February 26, 2010, the OSG also submitted its comment,
essentially stating that the incumbent President can appoint the successor
of Chief Justice Puno upon his retirement by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to
prevent the JBC from performing its principal function under the
Constitution to recommend appointees in the Judiciary; (b) the JBCs
function to recommend is a continuing process, which does not begin with
each vacancy or end with each nomination, because the goal is to submit
the list of nominees to Malacaang on the very day the vacancy arises;[26] the
JBC was thus acting within its jurisdiction when it commenced and set in
motion the process of selecting the nominees to be submitted to the
President for the position of Chief Justice to be vacated by Chief Justice
Puno;[27] (c) petitioner Sorianos theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase members of the Supreme
Court found in Section 9, Article VIII of the Constitution as referring only
to the Associate Justices, to the exclusion of the Chief Justice; [28] (d) a writ
of mandamus can issue to compel the JBC to submit the list of nominees
to the President, considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a ministerial act
that the JBC is mandated to perform under the Constitution; as such, the
JBC, the nature of whose principal function is executive, is not vested with
the power to resolve who has the authority to appoint the next Chief Justice
and, therefore, has no discretion to withhold the list from the
President; [29] and (e) a writ of mandamus cannot issue to compel the JBC
to include or exclude particular candidates as nominees, considering that
there is no imperative duty on its part to include in or exclude from the list
particular individuals, but, on the contrary, the JBCs determination of who
it nominates to the President is an exercise of a discretionary duty.[30]
The OSG contends that the incumbent President may appoint the
next Chief Justice, because the prohibition under Section 15, Article VII of
the Constitution does not apply to appointments in the Supreme Court. It
argues that any vacancy in the Supreme Court must be filled within 90 days
from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution; [31] that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor
referred to the ban against midnight appointments, or its effects on such
period, or vice versa;[32] that had the framers intended the prohibition to
apply to Supreme Court appointments, they could have easily expressly
stated so in the Constitution, which explains why the prohibition found in
Article VII (Executive Department) was not written in Article VIII
(Judicial Department); and that the framers also incorporated in Article
VIII ample restrictions or limitations on the Presidents power to appoint
members of the Supreme Court to ensure its independence from political
vicissitudes and its insulation from political pressures,[33] such as stringent
qualifications for the positions, the establishment of the JBC, the specified
period within which the President shall appoint a Supreme Court Justice.
The OSG posits that although Valenzuela involved the appointment
of RTC Judges, the situation now refers to the appointment of the next
Chief Justice to which the prohibition does not apply; that, at any
rate, Valenzuela even recognized that there might be the imperative need
for an appointment during the period of the ban, like when the membership
of the Supreme Court should be so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious
resolution be divided;[34] and that Valenzuela also recognized that the
filling of vacancies in the Judiciary is undoubtedly in the public interest,
most especially if there is any compelling reason to justify the making of
the appointments during the period of the prohibition.[35]
Lastly, the OSG urges that there are now undeniably compelling
reasons for the incumbent President to appoint the next Chief Justice, to
wit: (a) a deluge of cases involving sensitive political issues is quite
expected;[36] (b) the Court acts as the Presidential Electoral Tribunal (PET),
which, sitting en banc, is the sole judge of all contests relating to the
election, returns, and qualifications of the President and Vice President
and, as such, has the power to correct manifest errors on the statement of
votes (SOV) and certificates of canvass (COC);[37] (c) if history has shown
that during ordinary times the Chief Justice was appointed immediately
upon the occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief
Justice immediately upon the retirement of Chief Justice Puno;[38] and (d)
should the next Chief Justice come from among the incumbent Associate
Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of
the vacancy in accordance with the constitutional mandate.[39]
On March 9, 2010, the Court admitted the following
comments/oppositions-in-intervention, to wit:
(a) The opposition-in-intervention dated February 22,
2010 of Atty. Peter Irving Corvera (Corvera);[40]
(b) The opposition-in-intervention dated February 22,
2010 of Atty. Christian Robert S. Lim (Lim);
(c) The opposition-in-intervention dated February 23,
2010 of Atty. Alfonso V. Tan, Jr. (Tan);
(d) The comment/opposition-in-intervention dated March
1, 2010 of the National Union of Peoples Lawyers
(NUPL);
(e) The opposition-in-intervention dated February 25,
2010 of Atty. Marlou B. Ubano (Ubano);
(f) The opposition-in-intervention dated February 25,
2010 of Integrated Bar of the Philippines-Davao del Sur
Chapter and its Immediate Past President, Atty. Israelito
P. Torreon (IBP- Davao del Sur);
(g) The opposition-in-intervention dated February 26,
2010 of Atty. Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention
dated February 26, 2010 of BAYAN Chairman Dr.
Carolina P. Araullo; BAYAN Secretary General Renato
M. Reyes, Jr.; Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE)
Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria
Arellano; Alyansa ng Nagkakaisang Kabataan ng
Samayanan Para sa Kaunlaran (ANAKBAYAN)
Chairman Ken Leonard Ramos; Tayo ang Pag-asa
Convenor Alvin Peters; League of Filipino Students
(LFS) Chairman James Mark Terry Lacuanan Ridon;
National Union of Students of the Philippines (NUSP)
Chairman Einstein Recedes, College Editors Guild of
the Philippines (CEGP) Chairman Vijae Alquisola; and
Student Christian Movement of the Philippines (SCMP)
Chairman Ma. Cristina Angela Guevarra (BAYAN et
al.);
(i) The opposition-in-intervention dated March 3, 2010 of
Walden F. Bello and Loretta Ann P. Rosales (Bello et
al.); and
(j) The consolidated comment/opposition-in-intervention
dated March 4, 2010 of the Women Trial Lawyers
Organization of the Philippines (WTLOP), represented
by Atty. Yolanda Quisumbing-Javellana; Atty. Belleza
Alojado Demaisip; Atty. Teresita Gandionco-Oledan;
Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn
Sta. Romana; Atty. Leonila de Jesus; and Atty.
Guinevere de Leon (WTLOP).
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao
del Sur, and NUPL take the position that De Castros petition was bereft of
any basis, because under Section 15, Article VII, the outgoing President is
constitutionally banned from making any appointments from March 10,
2010 until June 30, 2010, including the appointment of the successor of
Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the constitutional
prohibition is already in effect. Tan adds that the prohibition against
midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the
duty of the President to fill the vacancies within 90 days from occurrence
of the vacancies (for the Supreme Court) or from the submission of the list
(for all other courts) was not an excuse to violate the constitutional
prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al.,
and Bello et al. oppose the insistence that Valenzuela recognizes the
possibility that the President may appoint the next Chief Justice if exigent
circumstances warrant the appointment, because that recognition is obiter
dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in
the operations of the Judiciary. They insist that even without the successor
of Chief Justice Puno being appointed by the incumbent President, the
Court is allowed to sit and adjudge en banc or in divisions of three, five or
seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless,
being based on a mere possibility, the occurrence of which is entirely
unsure; that it is not in the national interest to have a Chief Justice whose
appointment is unconstitutional and, therefore, void; and that such a
situation will create a crisis in the judicial system and will worsen an
already vulnerable political situation.
ice is imperative for the stability of the judicial system and the political
situation in the country when the election-related questions reach the
Court as false, because there is an existing law on filling the void brought
about by a vacancy in the office of Chief Justice; that the law is Section
12 of the Judiciary Act of 1948, which has not been repealed by Batas
Pambansa Blg. 129 or any other law; that a temporaryor an acting Chief
Justice is not anathema to judicial independence; that the designation of
an acting Chief Justice is not only provided for by law, but is also dictated
by practical necessity; that the practice was intended to be enshrined in
the 1987 Constitution, but the Commissioners decided not to write it in
the Constitution on account of the settled practice; that the practice
was followed under the 1987 Constitution, when, in 1992, at the end of
the term of Chief Justice Marcelo B. Fernan, Associate Justice Andres
Narvasa assumed the position as Acting Chief Justice prior to his official
appointment as Chief Justice; that said filling up of a vacancy in the
office of the Chief Justice was acknowledged and even used by analogy
in the case of the vacancy of the Chairman of the Commission on
Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of
the Supreme Court has shown that this rule of succession has been
repeatedly observed and has become a part of its tradition.
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that
the Omnibus Election Code penalizes as an election offense the act of any
government official who appoints, promotes, or gives any increase in salary
or remuneration or privilege to any government official or employee during
the period of 45 days before a regular election; that the provision covers all
appointing heads, officials, and officers of a government office, agency or
instrumentality, including the President; that for the incumbent President
to appoint the next Chief Justice upon the retirement of Chief Justice Puno,
or during the period of the ban under the Omnibus Election
Code, constitutes an election offense; that even an appointment of the next
Chief Justice prior to the election ban is fundamentally invalid and without
effect because there can be no appointment until a vacancy occurs; and that
the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castros prayer to compel the
submission of nominees by the JBC to the incumbent President is off-
tangent because the position of Chief Justice is still not vacant; that to speak
of a list, much more a submission of such list, before a vacancy occurs is
glaringly premature; that the proposed advance appointment by the
incumbent President of the next Chief Justice will be unconstitutional; and
that no list of nominees can be submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes
no distinction between the kinds of appointments made by the President;
and that the Court, in Valenzuela, ruled that the appointments by the
President of the two judges during the prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987
Constitution does not apply only to the appointments in the Executive
Department, but also to judicial appointments, contrary to the submission
of PHILCONSA; that Section 15 does not distinguish; and
that Valenzuela already interpreted the prohibition as applicable to judicial
appointments.
Intervenor WTLOP further posits that petitioner Sorianos
contention that the power to appoint the Chief Justice is vested, not in the
President, but in the Supreme Court, is utterly baseless, because the Chief
Justice is also a Member of the Supreme Court as contemplated under
Section 9, Article VIII; and that, at any rate, the term members was
interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to
refer to the Chief Justice and the Associate Justices of the Supreme Court;
that PHILCONSAs prayer that the Court pass a resolution declaring that
persons who manifest their interest as nominees, but with conditions, shall
not be considered nominees by the JBC is diametrically opposed to the
arguments in the body of its petition; that such glaring inconsistency
between the allegations in the body and the relief prayed for highlights the
lack of merit of PHILCONSAs petition; that the role of the JBC cannot be
separated from the constitutional prohibition on the President; and that the
Court must direct the JBC to follow the rule of law, that is, to submit the
list of nominees only to the next duly elected President after the period of
the constitutional ban against midnight appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC because it is
neither a judicial nor a quasi-judicial body has no duty under the
Constitution to resolve the question of whether the incumbent President
can appoint a Chief Justice during the period of prohibition; that even if the
JBC has already come up with a short list, it still has to bow to the strict
limitations under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial function, but
simply respecting the clear mandate of the Constitution; and that the
application of the general rule in Section 15, Article VII to the Judiciary
does not violate the principle of separation of powers, because said
provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the
JBCs act of nominating appointees to the Supreme Court is purely
ministerial and does not involve the exercise of judgment; that there can be
no default on the part of the JBC in submitting the list of nominees to the
President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the
commencement of the process of screening of applicants to fill the vacancy
in the office of the Chief Justice only begins from the retirement on May
17, 2010, for, prior to this date, there is no definite legal basis for any party
to claim that the submission or non-submission of the list of nominees to
the President by the JBC is a matter of right under law.
The main question presented in all the filings herein because it
involves two seemingly conflicting provisions of the
Constitution imperatively demands the attention and resolution of this
Court, the only authority that can resolve the question definitively and
finally. The imperative demand rests on the ever-present need, first, to
safeguard the independence, reputation, and integrity of the entire
Judiciary, particularly this Court, an institution that has been unnecessarily
dragged into the harsh polemics brought on by the controversy; second, to
settle once and for all the doubt about an outgoing Presidents power to
appoint to the Judiciary within the long period starting two months before
the presidential elections until the end of the presidential term; and third,
to set a definite guideline for the JBC to follow in the discharge of its
primary office of screening and nominating qualified persons for
appointment to the Judiciary.
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners
have locus standi.
Black defines locus standi as a right of appearance in a court of
justice on a given question.[41] In public or constitutional litigations, the
Court is often burdened with the determination of the locus standi of the
petitioners due to the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices
involved in public service. It is required, therefore, that the petitioner must
have a personal stake in the outcome of the controversy, for, as indicated
in Agan, Jr. v. Philippine International Air Terminals Co., Inc.:[42]
The question on legal standing is whether such parties
have alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so
 largely depends for illumination of difficult constitutional
questions.[43] Accordingly, it has been held that the interest of
a person assailing the constitutionality of a statute must be
direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he
suffers thereby in some indefinite way. It must appear that
the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that
he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.[44]
It is true that as early as in 1937, in People v. Vera,[45] the Court
adopted the direct injury test for determining whether a petitioner in a
public action had locus standi. There, the Court held that the person who
would assail the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain direct injury
as a result. Vera was followed in Custodio v. President of the
Senate,[46] Manila Race Horse Trainers Association v. De la
Fuente,[47] Anti-Chinese League of the Philippines v. Felix,[48] and Pascual
v. Secretary of Public Works.[49]
Yet, the Court has also held that the requirement of locus standi,
being a mere procedural technicality, can be waived by the Court in the
exercise of its discretion. For instance, in 1949, in Araneta v.
Dinglasan,[50] the Court liberalized the approach when the cases
had transcendental importance. Some notable controversies
whose petitioners did not pass the direct injury test were allowed to be
treated in the same way as in Araneta v. Dinglasan.[51]
In the 1975 decision in Aquino v. Commission on Elections,[52] this Court
decided to resolve the issues raised by the petition due to their far-reaching
implications, even if the petitioner had no personality to file the suit. The
liberal approach of Aquino v. Commission on Elections has been adopted
in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity
of laws, regulations, and rulings.[53]
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive or legislative
action rests on the theory that the petitioner represents the public in general.
Although such petitioner may not be as adversely affected by the action
complained against as are others, it is enough that he sufficiently
demonstrates in his petition that he is entitled to protection or relief from
the Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as
a citizen or taxpayer to gain locus standi. That is not surprising, for even if
the issue may appear to concern only the public in general, such capacities
nonetheless equip the petitioner with adequate interest to sue. In David v.
Macapagal-Arroyo,[54] the Court aptly explains why:
Case law in most jurisdictions now allows both citizen and
taxpayer standing in public actions. The distinction was first laid
down in Beauchamp v. Silk,[55] where it was held that the plaintiff
in a taxpayers suit is in a different category from the plaintiff in
a citizens suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New
York Supreme Court in People ex rel Case v. Collins:[56] In
matter of mere public right, howeverthe people are the real
partiesIt is at least the right, if not the duty, of every citizen
to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied. With
respect to taxpayers suits, Terr v. Jordan[57] held that the right of
a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot
be denied.[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No.
191032) and Peralta (G.R. No. 191149) all assert their right as citizens
filing their petitions on behalf of the public who are directly affected by the
issue of the appointment of the next Chief Justice. De Castro and Soriano
further claim standing as taxpayers, with Soriano averring that he is
affected by the continuing proceedings in the JBC, which involve
unnecessary, if not, illegal disbursement of public funds.[59]
PHILCONSA alleges itself to be a non-stock, non-profit
organization existing under the law for the purpose of defending,
protecting, and preserving the Constitution and promoting its growth and
flowering. It also alleges that the Court has recognized its legal standing to
file cases on constitutional issues in several cases.[60]
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the
Philippines, a member of the Philippine Bar engaged in the active practice
of law, and a former Solicitor General, former Minister of Justice, former
Member of the Interim Batasang Pambansa and the Regular Batasang
Pambansa, and former member of the Faculty of the College of Law of the
University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the
Integrated Bar of the Philippines (IBP) for Southern Luzon and Eastern
Visayas. They allege that they have the legal standing to enjoin the
submission of the list of nominees by the JBC to the President, for [a]n
adjudication of the proper interpretation and application of the
constitutional ban on midnight appointments with regard to respondent
JBCs function in submitting the list of nominees is well within the concern
of petitioners, who are duty bound to ensure that obedience and respect for
the Constitution is upheld, most especially by government offices, such as
respondent JBC, who are specifically tasked to perform crucial functions
in the whole scheme of our democratic institution. They further allege that,
reposed in them as members of the Bar, is a clear legal interest in the
process of selecting the members of the Supreme Court, and in the selection
of the Chief Justice, considering that the person appointed becomes a
member of the body that has constitutional supervision and authority over
them and other members of the legal profession.[61]
The Court rules that the petitioners have each demonstrated
adequate interest in the outcome of the controversy as to vest them with the
requisite locus standi. The issues before us are of transcendental
importance to the people as a whole, and to the petitioners in particular.
Indeed, the issues affect everyone (including the petitioners), regardless of
ones personal interest in life, because they concern that great doubt about
the authority of the incumbent President to appoint not only the successor
of the retiring incumbent Chief Justice, but also others who may serve in
the Judiciary, which already suffers from a far too great number of
vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the
requirement of legal standing in favor of any petitioner when the matter
involved has transcendental importance, or otherwise requires a
liberalization of the requirement.[62]
Yet, if any doubt still lingers about the locus standi of any
petitioner, we dispel the doubt now in order to remove any obstacle or
obstruction to the resolution of the essential issue squarely presented
herein. We are not to shirk from discharging our solemn duty by reason
alone of an obstacle more technical than otherwise. In Agan, Jr.
v.Philippine International Air Terminals Co., Inc.,[63] we pointed out:
Standing is a peculiar concept in constitutional law because in some cases,
suits are not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public interest. But even
if, strictly speaking, the petitioners are not covered by the definition, it is
still within the wide discretion of the Court to waive the requirement and
so remove the impediment to its addressing and resolving the serious
constitutional questions raised.[64]
Justiciability
Intervenor NUPL maintains that there is no actual case or
controversy that is appropriate or ripe for adjudication, considering that
although the selection process commenced by the JBC is going on, there is
yet no final list of nominees; hence, there is no imminent controversy as to
whether such list must be submitted to the incumbent President, or reserved
for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy
that is ripe for judicial determination, pointing out that petitioner De Castro
has not even shown that the JBC has already completed its selection
process and is now ready to submit the list to the incumbent President; and
that petitioner De Castro is merely presenting a hypothetical scenario that
is clearly not sufficient for the Court to exercise its power of judicial
review.
Intervenors Corvera and Lim separately opine that De Castros
petition rests on an overbroad and vague allegation of political tension,
which is insufficient basis for the Court to exercise its power of judicial
review.
Intervenor BAYAN et al. contend that the petitioners are seeking a
mere advisory opinion on what the JBC and the President should do, and
are not invoking any issues that are justiciable in nature.
Intervenors Bello et al. submit that there exist no conflict of legal
rights and no assertion of opposite legal claims in any of the petitions; that
PHILCONSA does not allege any action taken by the JBC, but simply
avers that the conditional manifestations of two Members of the Court,
accented by the divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues published in the daily
newspapers are matters of paramount and transcendental importance to the
bench, bar and general public; that PHILCONSA fails not only to cite any
legal duty or allege any failure to perform the duty, but also to indicate
what specific action should be done by the JBC; that Mendoza does not
even attempt to portray the matter as a controversy or conflict of rights,
but, instead, prays that the Court should rule for the guidance of the JBC;
that the fact that the Court supervises the JBC does not automatically imply
that the Court can rule on the issues presented in the Mendoza petition,
because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with
prescribed rules, then, and only then, may the person exercising oversight
order the action to be redone to conform to the prescribed rules; that the
Mendoza petition does not allege that the JBC has performed a specific act
susceptible to correction for being illegal or unconstitutional; and that the
Mendoza petition asks the Court to issue an advisory ruling, not to exercise
its power of supervision to correct a wrong act by the JBC, but to declare
the state of the law in the absence of an actual case or controversy.
We hold that the petitions set forth an actual case or controversy
that is ripe for judicial determination. The reality is that the JBC already
commenced the proceedings for the selection of the nominees to be
included in a short list to be submitted to the President for consideration of
which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the
process of nomination pursuant to its rules and practices, although it has
yet to decide whether to submit the list of nominees to the incumbent
outgoing President or to the next President, makes the situation ripe for
judicial determination, because the next steps are the public interview of
the candidates, the preparation of the short list of candidates, and the
interview of constitutional experts, as may be needed.
A part of the question to be reviewed by the Court is whether the
JBC properly initiated the process, there being an insistence from some of
the oppositors-intervenors that the JBC could only do so once the vacancy
has occurred (that is, after May 17, 2010). Another part is, of course,
whether the JBC may resume its process until the short list is prepared, in
view of the provision of Section 4(1), Article VIII, which unqualifiedly
requires the President to appoint one from the short list to fill the vacancy
in the Supreme Court (be it the Chief Justice or an Associate Justice) within
90 days from the occurrence of the vacancy.
The ripeness of the controversy for judicial determination may not
be doubted. The challenges to the authority of the JBC to open the process
of nomination and to continue the process until the submission of the list
of nominees; the insistence of some of the petitioners to compel the JBC
through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting
the short list to the incumbent President on the ground that said list should
be submitted instead to the next President; the strong position that the
incumbent President is already prohibited under Section 15, Article VII
from making any appointments, including those to the Judiciary, starting
on May 10, 2010 until June 30, 2010; and the contrary position that the
incumbent President is not so prohibited are only some of the real issues
for determination. All such issues establish the ripeness of the controversy,
considering that for some the short list must be submitted before the
vacancy actually occurs by May 17, 2010. The outcome will not be an
abstraction, or a merely hypothetical exercise. The resolution of the
controversy will surely settle with finality the nagging questions that are
preventing the JBC from moving on with the process that it already began,
or that are reasons persuading the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17,
2010 in order for the principal issue to ripe for judicial determination by
the Court. It is enough that one alleges conduct arguably affected with a
constitutional interest, but seemingly proscribed by the Constitution. A
reasonable certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for bringing a challenge,
provided the Court has sufficient facts before it to enable it to intelligently
adjudicate the issues.[65]Herein, the facts are not in doubt, for only legal
issues remain.
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a President or
Acting President shall not make appointments, except temporary
 appointments to executive positions when continued vacancies
therein will prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a
Chief Justice and fourteen Associate Justices. It may sit en
banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from
the occurrence thereof.
In the consolidated petitions, the petitioners, with the exception of
Soriano, Tolentino and Inting, submit that the incumbent President can
appoint the successor of Chief Justice Puno upon his retirement on May
17, 2010, on the ground that the prohibition against presidential
appointments under Section 15, Article VII does not extend to
appointments in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional
Commission reveal that the framers devoted time to meticulously drafting,
styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution
were not arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of what the
Constitution should contain.
The Constitution consists of 18 Articles, three of which embody the
allocation of the awesome powers of government among the three great
departments, the Legislative (Article VI), the Executive (Article VII), and
the Judicial Departments (Article VIII). The arrangement was a true
recognition of the principle of separation of powers that underlies the
political structure, as Constitutional Commissioner Adolfo S. Azcuna (later
a worthy member of the Court) explained in his sponsorship speech:
We have in the political part of this Constitution opted for
the separation of powers in government because we believe that
the only way to protect freedom and liberty is to separate and
divide the awesome powers of government. Hence, we return to
the separation of powers doctrine and the legislative, executive
and judicial departments.[66]
As can be seen, Article VII is devoted to the Executive Department,
and, among others, it lists the powers vested by the Constitution in the
President. The presidential power of appointment is dealt with in Sections
14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the
duties and qualifications of Members of the Supreme Court, among others.
Section 4(1) and Section 9 of this Article are the provisions specifically
providing for the appointment of Supreme Court Justices. In particular,
Section 9 states that the appointment of Supreme Court Justices can only
be made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4(1) of the Article mandates the President to
fill the vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in
Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have ignored the
meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members of
the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making appointments
within two months before the next presidential elections and up to the end
of the Presidents or Acting Presidents term does not refer to the Members
of the Supreme Court.
Although Valenzuela[67] came to hold that the prohibition covered
even judicial appointments, it cannot be disputed that
the Valenzuela dictum did not firmly rest on the deliberations of the
Constitutional Commission. Thereby, the confirmation made to the JBC by
then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being
intended to apply to the appointments to the Judiciary, which
confirmation Valenzuela even expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis
of Section 4 (1), Article VIII, viz:
V . Intent of the Constitutional Commission
The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an
eleven-member Supreme Court. Commissioner Eulogio Lerum
wanted to increase the number of Justices to fifteen. He also
wished to ensure that that number would not be reduced for any
appreciable length of time (even only temporarily), and to this
end proposed that any vacancy must be filled within two months
from the date that the vacancy occurs. His proposal to have a 15-
member Court was not initially adopted. Persisting however in
his desire to make certain that the size of the Court would not be
decreased for any substantial period as a result of vacancies,
Lerum proposed the insertion in the provision (anent the Courts
membership) of the same mandate that IN CASE OF ANY
VACANCY, THE SAME SHALL BE FILLED WITHIN TWO
MONTHS FROM OCCURRENCE THEREOF. He later agreed
to suggestions to make the period three, instead of two,
months. As thus amended, the proposal was approved. As it
turned out, however, the Commission ultimately agreed on a
fifteen-member Court. Thus it was that the section fixing the
composition of the Supreme Court came to include a
command to fill up any vacancy therein within 90 days from
its occurrence.
In this connection, it may be pointed out that that
instruction that any vacancy shall be filled within ninety days (in
the last sentence of Section 4 (1) of Article VIII) contrasts with
the prohibition in Section 15, Article VII, which is couched in
stronger negative language - that a President or Acting
President shall not make appointments
The commission later approved a proposal of
Commissioner Hilario G. Davide, Jr. (now a Member of this
Court) to add to what is now Section 9 of Article VIII, the
following paragraph: WITH RESPECT TO LOWER COURTS,
THE PRESIDENT SHALL ISSUE THE APPOINTMENT
WITHIN NINETY DAYS FROM THE SUBMISSION OF THE
LIST (of nominees by the Judicial and Bar Council to the
President). Davide stated that his purpose was to provide a
uniform rule for lower courts. According to him, the 90-day
period should be counted from submission of the list of nominees
to the President in view of the possibility that the President might
reject the list submitted to him and the JBC thus need more time
to submit a new one.
On the other hand, Section 15, Article VII - which in effect
deprives the President of his appointing power two months
immediately before the next presidential elections up to the end
ofhis term - was approved without discussion.[68]
However, the reference to the records of the Constitutional Commission
did not advance or support the result in Valenzuela. Far to the contrary, the
records disclosed the express intent of the framers to enshrine in the
Constitution, upon the initiative of Commissioner Eulogio Lerum, a
command [to the President] to fill up any vacancy therein within 90 days
from its occurrence, which even Valenzuela conceded.[69] The exchanges
during deliberations of the Constitutional Commission on October 8,
1986 further show that the filling of a vacancy in the Supreme Court within
the 90-day period was a true mandate for the President, viz:
MR. DE CASTRO. I understand that our justices now in the
Supreme Court, together with the Chief Justice, are only 11.
MR. CONCEPCION. Yes.
MR. DE CASTRO. And the second sentence of this
subsection reads: Any vacancy shall be filled within ninety
days from the occurrence thereof.
MR. CONCEPCION. That is right.
MR. DE CASTRO. Is this now a mandate to the executive
to fill the vacancy?
MR. CONCEPCION. That is right. That is borne out of
the fact that in the past 30 years, seldom has the Court had a
complete complement.[70]
Moreover, the usage in Section 4(1), Article VIII of the
word shall an imperative, operating to impose a duty that may be
enforced[71] should not be disregarded. Thereby, Sections 4(1) imposes on
the President the imperative duty to make an appointment of a Member of
the Supreme Court within 90 days from the occurrence of the vacancy. The
failure by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4(1), Article VIII for the
President to fill the vacancy in the Supreme Court was undoubtedly a
special provision to establish a definite mandate for the President as the
appointing power, and cannot be defeated by mere judicial interpretation
in Valenzuela to the effect that Section 15, Article VII prevailed because it
was couched in stronger negative language. Such interpretation even
turned out to be conjectural, in light of the records of the Constitutional
Commissions deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly
warranted. According to an authority on statutory construction:[72]
xxx the court should seek to avoid any conflict in the
provisions of the statute by endeavoring to harmonize and
reconcile every part so that each shall be effective. It is not easy
to draft a statute, or any other writing for that matter, which may
not in some manner contain conflicting provisions. But what
appears to the reader to be a conflict may not have seemed so to
the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its
entirety, what appears to be on its face a conflict may be cleared
up and the provisions reconciled.
Consequently, that construction which will leave every
word operative will be favored over one which leaves some word
or provision meaningless because of inconsistency. But a word
should not be given effect, if to do so gives the statute a meaning
contrary to the intent of the legislature. On the other hand, if full
effect cannot be given to the words of a statute, they must be
made effective as far as possible. Nor should the provisions of a
statute which are inconsistent be harmonized at a sacrifice of the
legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the
law-makers should control. And the arbitrary rule has been
frequently announced that where there is an irreconcilable
conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest
expression of the legislative will. Obviously, the rule is subject to
deserved criticism. It is seldom applied, and probably then only
where an irreconcilable conflict exists between different sections
of the same act, and after all other means of ascertaining the
meaning of the legislature have been exhausted. Where the
conflict is between two statutes, more may be said in favor of the
rules application, largely because of the principle of implied
repeal.
In this connection, PHILCONSAs urging of a revisit and a review
of Valenzuela is timely and appropriate. Valenzuela arbitrarily ignored the
express intent of the Constitutional Commission to have Section 4 (1),
Article VIII stand independently of any other provision, least of all one
found in Article VII. It further ignored that the two provisions had no
irreconcilable conflict, regardless of Section 15, Article VII being couched
in the negative. As judges, we are not to unduly interpret, and should not
accept an interpretation that defeats the intent of the framers.[73]
Consequently, prohibiting the incumbent President from appointing a
Chief Justice on the premise that Section 15, Article VII extends to
appointments in the Judiciary cannot be sustained. A misinterpretation
like Valenzuela should not be allowed to last after its false premises have
been exposed.[74] It will not do to merely distinguish Valenzuela from these
cases, for the result to be reached herein is entirely incompatible with
what Valenzuela decreed. Consequently, Valenzuela now deserves to be
quickly sent to the dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to
all other appointments in the Judiciary.
There is no question that one of the reasons underlying the adoption
of Section 15 as part of Article VII was to
eliminate midnight appointments from being made by an outgoing Chief
Executive in the mold of the appointments dealt with in the leading case
of Aytona v. Castillo.[75] In fact, in Valenzuela, the Court so observed,
stating that:
xxx it appears that Section 15, Article VII is directed
against two types of appointments: (1) those made for buying
votes and (2) those made for partisan considerations. The first
refers to those appointments made within the two months
preceding a Presidential election and are similar to those which
are declared election offenses in the Omnibus Election Code, viz.:
xxx
The second type of appointments prohibited by Section 15,
Article VII consists of the so-called midnight appointments.
In Aytona v. Castillo, it was held that after the proclamation of
Diosdado Macapagal as duly elected President, President Carlos
P. Garcia, who was defeated in his bid for reelection, became no
more than a caretaker administrator whose duty was to prepare
for the orderly transfer of authority to the incoming
President. Said the Court:
The filling up of vacancies in important positions, if
few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need
for the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of
almost all of them in a few hours before the inauguration
of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new
administration of an opportunity to make the
corresponding appointments.
As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even
after the proclamation of the new President. Such appointments,
so long as they are few and so spaced as to afford some
assurance of deliberate action and careful consideration of
the need for the appointment and the appointees
qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President
Garcia, which were shown to have been well considered, were
upheld.
Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to
contemplate not only midnight appointments those made
obviously for partisan reasons as shown by their number and
the time of their making but also appointments presumed
 made for the purpose of influencing the outcome of the
Presidential election.
On the other hand, the exception in the same Section 15 of
Article VII allowing appointments to be made during the period
of the ban therein provided is much narrower than that recognized
in Aytona. The exception allows only the making
of temporary appointments to executive positions when
continued vacancies will prejudice public service or endanger
public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for
filling vacancies in the courts and the restriction on the
President's power of appointment, it is this Courts view that, as a
general proposition, in case of conflict, the former should yield
to the latter. Surely, the prevention of vote-buying and similar
evils outweighs the need for avoiding delays in filling up of court
vacancies or the disposition of some cases. Temporary vacancies
can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six
years.Moreover, those occurring in the lower courts can be filled
temporarily by designation. But prohibited appointments are
long-lasting and permanent in their effects. They may, as earlier
pointed out, in fact influence the results of elections and, for that
reason, their making is considered an election offense.[76]
Given the background and rationale for the prohibition in Section
15, Article VII, we have no doubt that the Constitutional Commission
confined the prohibition to appointments made in the Executive
Department. The framers did not need to extend the prohibition to
appointments in the Judiciary, because their establishment of the JBC and
their subjecting the nomination and screening of candidates for judicial
positions to the unhurried and deliberate prior process of the JBC ensured
that there would no longer be midnight appointments to the Judiciary. If
midnight appointments in the mold of Aytona were made in haste and with
irregularities, or made by an outgoing Chief Executive in the last days of
his administration out of a desire to subvert the policies of the incoming
President or for partisanship,[77] the appointments to the Judiciary made
after the establishment of the JBC would not be suffering from such defects
because of the JBCs prior processing of candidates. Indeed, it is axiomatic
in statutory construction that the ascertainment of the purpose of the
enactment is a step in the process of ascertaining the intent or meaning of
the enactment, because the reason for the enactment must necessarily shed
considerable light on the law of the statute, i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and
purpose, and the court should seek to carry out this purpose rather than to
defeat it.[78]
Also, the intervention of the JBC eliminates the danger that
appointments to the Judiciary can be made for the purpose of buying votes
in a coming presidential election, or of satisfying partisan considerations.
The experience from the time of the establishment of the JBC shows that
even candidates for judicial positions at any level backed by people
influential with the President could not always be assured of being
recommended for the consideration of the President, because they first had
to undergo the vetting of the JBC and pass muster there. Indeed, the
creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments.
This insulating process was absent from the Aytona midnight appointment.
Third. As earlier stated, the non-applicability of Section 15, Article
VII to appointments in the Judiciary was confirmed by then Senior
Associate Justice Regalado to the JBC itself when it met on March 9,
1998 to discuss the question raised by some sectors about the
constitutionality of xxx appointments to the Court of Appeals in light of
the forthcoming presidential elections. He assured that on the basis of the
(Constitutional) Commissions records, the election ban had no application
to appointments to the Court of Appeals.[79] This confirmation
was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of
Appeals.[80]
The fault of Valenzuela was that it accorded no weight and due
consideration to the confirmation of Justice Regalado. Valenzuela was
weak, because it relied on interpretation to determine the intent of the
framers rather than on the deliberations of the Constitutional Commission.
Much of the unfounded doubt about the Presidents power to appoint during
the period of prohibition in Section 15, Article VII could have been
dispelled since its promulgation on November 9, 1998,
had Valenzuela properly acknowledged and relied on the confirmation of a
distinguished member of the Constitutional Commission like Justice
Regalado.
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14,
Section15, and Section 16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to
revoke appointments made by an Acting President,[81] and evidently refers
only to appointments in the Executive Department. It has no application to
appointments in the Judiciary, because temporary or acting appointments
can only undermine the independence of the Judiciary due to their being
[82]
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.[83]
Section 14, Section 15, and Section 16 are obviously of the same
character, in that they affect the power of the President to appoint. The fact
that Section 14 and Section 16 refer only to appointments within the
Executive Department renders conclusive that Section 15 also applies only
to the Executive Department. This conclusion is consistent with the rule
that every part of the statute must be interpreted with reference to the
context, i.e. that every part must be considered together with the other
parts, and kept subservient to the general intent of the whole
enactment.[84] It is absurd to assume that the framers deliberately situated
Section 15 between Section 14 and Section 16, if they intended Section 15
to cover all kinds of presidential appointments. If that was their intention
in respect of appointments to the Judiciary, the framers, if only to be clear,
would have easily and surely inserted a similar prohibition in Article VIII,
most likely within Section 4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15
extends to appointments to the Judiciary further undermines the intent of
the Constitution of ensuring the independence of the Judicial Department
from the Executive and Legislative Departments. Such a holding will tie
the Judiciary and the Supreme Court to the fortunes or misfortunes of
political leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President, instead of the
current incumbent President, appoint the next Chief Justice is itself suspect,
and cannot ensure judicial independence, because the appointee can also
become beholden to the appointing authority. In contrast, the appointment
by the incumbent President does not run the same risk of compromising
judicial independence, precisely because her term will end by June 30,
2010.
Sixth. The argument has been raised to the effect that there will be
no need for the incumbent President to appoint during the prohibition
period the successor of Chief Justice Puno within the context of Section 4
(1), Article VIII, because anyway there will still be about 45 days of the 90
days mandated in Section 4(1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming
vacancy occurring from Chief Justice Punos retirement by May 17, 2010.
It ignores the need to apply Section 4(1) to every situation of a vacancy in
the Supreme Court.
The argument also rests on the fallacious assumption that there will
still be time remaining in the 90-day period under Section 4(1), Article
VIII. The fallacy is easily demonstrable, as the OSG has shown in its
comment.
Section 4 (3), Article VII requires the regular elections to be held
on the second Monday of May, letting the elections fall on May 8, at the
earliest, or May 14, at the latest. If the regular presidential elections are
held on May 8, the period of the prohibition is 115 days. If such elections
are held on May 14, the period of the prohibition is 109 days. Either period
of the prohibition is longer than the full mandatory 90-day period to fill the
vacancy in the Supreme Court. The result is that there are at least 19
occasions (i.e., the difference between the shortest possible period of the
ban of 109 days and the 90-day mandatory period for appointments) in
which the outgoing President would be in no position to comply with the
constitutional duty to fill up a vacancy in the Supreme Court. It is safe to
assume that the framers of the Constitution could not have intended such
an absurdity. In fact, in their deliberations on the mandatory period for the
appointment of Supreme Court Justices under Section 4 (1), Article VIII,
the framers neither discussed, nor mentioned, nor referred to the ban
against midnight appointments under Section 15, Article VII, or its effects
on the 90-day period, or vice versa. They did not need to, because they
never intended Section 15, Article VII to apply to a vacancy in the Supreme
Court, or in any of the lower courts.
Seventh. As a matter of fact, in an extreme case, we can even raise
a doubt on whether a JBC list is necessary at all for the
President any President to appoint a Chief Justice if the appointee is to
come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
xxx. The Members of the Supreme Court xxx shall be
appointed by the President from a list of at least three nominees
prepared by the Judicial and Bar Council for any vacancy. Such
appointments need no confirmation.
xxx
The provision clearly refers to an appointee coming into the Supreme Court
from the outside, that is, a non-member of the Court aspiring to become
one. It speaks of candidates for the Supreme Court, not of those who are
already members or sitting justices of the Court, all of whom have
previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices
of the Court as Chief Justice?
 The question is not squarely before us at the moment, but it should
lend itself to a deeper analysis if and when circumstances permit. It should
be a good issue for the proposed Constitutional Convention to consider in
the light of Senate President Juan Ponce Enriles statement that the
President can appoint the Chief Justice from among the sitting justices of
the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to
appoint the successor of Chief Justice Puno, considering that the Judiciary
Act of 1948 can still address the situation of having the next President
appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. In case of a
vacancy in the office of Chief Justice of the Supreme Court or of
his inability to perform the duties and powers of his office, they
shall devolve upon the Associate Justice who is first in
precedence, until such disability is removed, or another Chief
Justice is appointed and duly qualified. This provision shall apply
to every Associate Justice who succeeds to the office of Chief
Justice.
The provision calls for an Acting Chief Justice in the event of a
vacancy in the office of the Chief Justice, or in the event that the Chief
Justice is unable to perform his duties and powers. In either of such
circumstances, the duties and powers of the office of the Chief Justice shall
devolve upon the Associate Justice who is first in precedence until a new
Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral
matter after the Court has hereby resolved the question of consequence, we
do not find it amiss to confront the matter now.
We cannot agree with the posture.
A review of Sections 4(1) and 9 of Article VIII shows that the Supreme
Court is composed of a Chief Justice and 14 Associate Justices, who all
shall be appointed by the President from a list of at least three nominees
prepared by the JBC for every vacancy, which appointments require no
confirmation by the Commission on Appointments. With reference to the
Chief Justice, he or she is appointed by the President as Chief Justice, and
the appointment is never in an acting capacity. The express reference to a
Chief Justice abhors the idea that the framers contemplated an Acting Chief
Justice to head the membership of the Supreme Court. Otherwise, they
would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative
need to appoint the next Chief Justice soonest is to defy the plain intent of
the Constitution.
For sure, the framers intended the position of Chief Justice to be
permanent, not one to be occupied in an acting or temporary capacity. In
relation to the scheme of things under the present Constitution, Section 12
of the Judiciary Act of 1948 only responds to a rare situation in which the
new Chief Justice is not yet appointed, or in which the incumbent Chief
Justice is unable to perform the duties and powers of the office. It ought to
be remembered, however, that it was enacted because the Chief Justice
appointed under the 1935 Constitution was subject to the confirmation of
the Commission on Appointments, and the confirmation process might
take longer than expected.

The appointment of the next Chief Justice by the incumbent
President is preferable to having the Associate Justice who is first in
precedence take over. Under the Constitution, the heads of the Legislative
and Executive Departments are popularly elected, and whoever are elected
and proclaimed at once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of Chief Justice
harms the independence of the Judiciary, because the Chief Justice is the
head of the entire Judiciary. The Chief Justice performs functions
absolutely significant to the life of the nation. With the entire Supreme
Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the appointment of
the next Chief Justice, aside from its being mandatory for the incumbent
President to make within the 90-day period from May 17, 2010, there is no
justification to insist that the successor of Chief Justice Puno be appointed
by the next President.
Historically, under the present Constitution, there has been no wide
gap between the retirement and the resignation of an incumbent Chief
Justice, on one hand, and the appointment to and assumption of office of
his successor, on the other hand. As summarized in the comment of the
OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April
18, 1988, Chief Justice Pedro Yap was appointed on the
same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief
Justice Marcelo Fernan was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7,
1991, Chief Justice Andres Narvasa was appointed the
following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29,
1998, Chief Justice Hilario Davide, Jr. was sworn into
office the following early morning of November 30,
1998;
5. When Chief Justice Davide retired on December 19,
2005, Chief Justice Artemio Panganiban was appointed
the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6,
2006, Chief Justice Reynato S. Puno took his oath as
Chief Justice at midnight of December 6, 2006.[85]
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act that the law
specifically enjoins as a duty resulting from an office, trust, or station.[86] It
is proper when the act against which it is directed is one addressed to the
discretion of the tribunal or officer. Mandamus is not available to direct the
exercise of a judgment or discretion in a particular way.[87]
For mandamus to lie, the following requisites must be complied with:
(a) the plaintiff has a clear legal right to the act demanded; (b) it must be
the duty of the defendant to perform the act, because it is mandated by law;
(c) the defendant unlawfully neglects the performance of the duty enjoined
by law; (d) the act to be performed is ministerial, not discretionary; and (e)
there is no appeal or any other plain, speedy and adequate remedy in the
ordinary course of law.
 Section 8(5) and Section 9, Article VIII, mandate the JBC to submit
a list of at least three nominees to the President for every vacancy in the
Judiciary:
Section 8. xxx
(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx
Section 9. The Members of the Supreme Court and judges
of lower courts shall be appointed by the President from a list of
at least three nominees prepared by the Judicial and Bar
Council for every vacancy. Such appointments need no
confirmation.
For the lower courts, the President shall issue the
appointments within ninety days from the submission of the
list.
However, Section 4(1) and Section 9, Article VIII, mandate the
President to fill the vacancy in the Supreme Court within 90 days from the
occurrence of the vacancy, and within 90 days from the submission of the
list, in the case of the lower courts. The 90-day period is directed at the
President, not at the JBC. Thus, the JBC should start the process of
selecting the candidates to fill the vacancy in the Supreme Court before the
occurrence of the vacancy.
Under the Constitution, it is mandatory for the JBC to submit to the
President the list of nominees to fill a vacancy in the Supreme Court in
order to enable the President to appoint one of them within the 90-day
period from the occurrence of the vacancy. The JBC has no discretion to
submit the list to the President after the vacancy occurs, because that
shortens the 90-day period allowed by the Constitution for the President to
make the appointment. For the JBC to do so will be unconscionable on its
part, considering that it will thereby effectively and illegally deprive the
President of the ample time granted under the Constitution to reflect on the
qualifications of the nominees named in the list of the JBC before making
the appointment.
The duty of the JBC to submit a list of nominees before the start of
the Presidents mandatory 90-day period to appoint is ministerial, but its
selection of the candidates whose names will be in the list to be submitted
to the President lies within the discretion of the JBC. The object of the
petitions for mandamus herein should only refer to the duty to submit to
the President the list of nominees for every vacancy in the Judiciary,
because in order to constitute unlawful neglect of duty, there must be an
unjustified delay in performing that duty.[88] For mandamus to lie against
the JBC, therefore, there should be an unexplained delay on its part in
recommending nominees to the Judiciary, that is, in submitting the list to
the President.
The distinction between a ministerial act and a discretionary one
has been delineated in the following manner:
The distinction between a ministerial and discretionary act is well
delineated. A purely ministerial act or duty is one which an
officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of his own
judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public officer and gives
him the right to decide how or when the duty shall be
performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same
requires neither the exercise of official discretion or
judgment.[89]
Accordingly, we find no sufficient grounds to grant the petitions
for mandamus and to issue a writ of mandamus against the JBC. The
actions for that purpose are premature, because it is clear that the JBC still
has until May 17, 2010, at the latest, within which to submit the list of
nominees to the President to fill the vacancy created by the compulsory
retirement of Chief Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable
that only the President can appoint the Chief Justice. Hence, Sorianos
petition for prohibition in G.R. No. 191032, which proposes to prevent the
JBC from intervening in the process of nominating the successor of Chief
Justice Puno, lacks merit.
On the other hand, the petition for prohibition in G.R. No. 191342
is similarly devoid of merit. The challenge mounted against the
composition of the JBC based on the allegedly unconstitutional allocation
of a vote each to the ex officio members from the Senate and the House of
Representatives, thereby prejudicing the chances of some candidates for
nomination by raising the minimum number of votes required in
accordance with the rules of the JBC, is not based on the petitioners actual
interest, because they have not alleged in their petition that they were
nominated to the JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R.
No. 191002 and G.R. No. 191149, and the petition for mandamus in G.R.
No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and
G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S. Puno
by May 17, 2010;
(b) To prepare the short list of nominees for the position of
Chief Justice;
(c) To submit to the incumbent President the short list of
nominees for the position of Chief Justice on or before
May 17, 2010; and
(d) To continue its proceedings for the nomination of
candidates to fill other vacancies in the Judiciary and
submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.
[1] Filed on February 9, 2010.
[2] Begun on February 23, 2010.
[3] Initiated on February 10, 2010.
[4] Commenced on February 11, 2010.
[5] Dated February 15, 2010.
[6] [47]
Filed on March 8, 2010. G.R. No. 2947, January 11, 1959 (Unreported).
[7] [48]
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. 77 Phil. 1012 (1947).
[8] Petition in G.R. No. 191002, pp. 3-4. [49] 110 Phil. 331 (1960).
[9] [50]
Id., p. 5. 84 Phil. 368 (1949)
[10] Petition in G.R. No. 191032, pp. 4-8. [51] E.g., Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152 (in
[11] Petition in G.R. No. 191057, pp. 1-2. which the Court ruled that the enforcement of the constitutional right to information and the
[12] Id., p. 11. equitable diffusion of natural resources are matters of transcendental importance which clothe the
[13] Petition in G.R. No. 191149. petitioner with locus standi); Bagong Alyansang Makabayan v. Zamora, G.R. Nos. 138570,
[14] Petition in G.R. No. 191342. 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449 (in which the Court held
[15] http://jbc.judiciary.gov.ph/announcements/JBCreCJ.pdf that given the transcendental importance of the issues involved, the Court may relax the standing
[16] http://jbc.judiciary.gov.ph/announcements/jbc_announce_2009/jan22%20%2710.pdf requirements and allow the suit to prosper despite the lack of direct injury to the parties seeking
[17] Comment of the JBC, p. 3. judicial review of the Visiting Forces Agreement); Lim v. Executive Secretary, G.R. No. 151445,
[18] Id. April 11, 2002, 380 SCRA 739 (in which the Court, albeit conceding that the petitioners might not
[19] Id., pp. 4-5. file suit in their capacity as taxpayers without a showing that Balikatan 02-01 involved the exercise
[20] Id., p. 5. of Congress taxing or spending powers, reiterated Bagong Alyansang Makabayan v.
[21] Id. Zamora, declaring that cases of transcendental importance must be settled promptly and definitely
[22] Id., p. 6. and the standing requirements may be relaxed); and Osmea v. Commission on Elections,G.R. No.
[23] Petition in A.M. No. 10-2-5-SC, pp. 5-6. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750 (in which the Court held that where
[24] Comment of the JBC, p. 6. serious constitutional questions were involved, the transcendental importance to the public of the
[25] Id., p. 7; bold emphasis is in the original text. cases demanded that they be settled promptly and definitely, brushing aside technicalities of
[26] Comment of the OSG, pp. 13-14. procedure).
[27] Id., p. 14. [52] L-No. 40004, January 31, 1975, 62 SCRA 275.
[28] Id., p. 15. [53] E.g., Taada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 (in which the Court held
[29] Id., pp. 20-24. that it is sufficient that the petitioner is a citizen interested in the execution of the law, because the
[30] Id., pp. 25-27. question is one of public duty and the enforcement of a public right, and the people are the real
[31] Id., pp. 29-30. party-in-interest); Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA
[32] Id. 530 (in which the Court declared that where an assertion of a public right is involved, the
[33] Id., pp. 32-33. requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen and is part
[34] Id., pp. 34-35. of the general public which possesses the right); Kapatiran ng mga Naglilingkod sa Pamahalaan
[35] Id. ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163 SCRA 371 (in which the Court
[36] Id., pp. 35-36. The OSG posits: disregarded objections to taxpayers lack of personality to sue in determining the validity of the VAT
National interest compels the President to make such appointment for it is particularly Law); Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264 (in which the Court
during this crucial period when national leaders are seeking fresh mandates from the people pronounced that although no expenditure of public funds was involved in the questioned contract,
that the Supreme Court, more than at any other time, represents stability. Hence, a full court the petitioner was nonetheless clothed with the legal personality under the disclosure provision of
is ideal to ensure not only due deliberation on and careful consideration of issues but also the Constitution to question it, considering its important role in the economic development of the
expeditious disposition of cases. country and the magnitude of the financial consideration involved, indicating that public interest
Indeed, such function becomes especially significant in view of the fact that this is the first was definitely involved); and Association of Small Landowners in the Philippines, Inc. v. Sec. of
time that the whole country will experience automated elections. Agrarian Reform, G.R. No. 78742, July 14, 1989, 175 SCRA 343 (in which the Court ruled that it
[37] Id., pp. 36-37. The OSG stresses: had the discretion to waive the requirement of locus standi in determining the validity of the
The possible fallouts or serious aftermath of allowing a vacuum in the position of the implementation of the Comprehensive Agrarian Reform Program, although the petitioners were not,
Chief Justice may be greater and riskier than the consequences or repercussions of inaction. strictly speaking, covered by the definition of proper party).
[54] David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160.
Needless to state, the appointment of the Chief Justice of this Honorable Court (sic) is the most
[55] 275 Ky 91, 120 SW2d 765 (1938).
important appointment vested by the 1987 Constitution to (sic) the President.
[38] Id., p. 37. [56] 19 Wend. 56 (1837).
[39] Id., p. 38. [57] 232 NC 48, 59 SE2d 359 (1950).
[40] Filed by Atty. Pitero M. Reig. [58] Bold emphasis is in the original text.
[41] Blacks Law Dictionary, 941 (6th Ed. 1991). [59] Petition in G.R. No. 191032, p. 2.
[42] G.R. No. 155001, May 5, 2003, 402 SCRA 612. [60] Petition in G.R. No. 191057, pp. 3-4; citing the cases of PHILCONSA v. Gimenez, 15 SCRA
[43] Citing Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562- 479; PHILCONSA v. Mathay, 18 SCRA 300; PHILCONSA v. Enriquez, 235 SCRA 506;
563, citing Baker v. Carr, 369 U.S. 186, 7 L. Ed. 633 (1962). and Lambino v. COMELEC, 505 SCRA 160.
[44] Citing Kilosbayan, Inc. v. Morato, supra; Bayan v. Zamora, G.R. No. 138570, October 10, 2000; [61] Petition in G.R. No. 191342, pp. 2-3.
[62] See, for instance, Integrated Bar of the Philippines v. Zamora, G.R. No. 141284, August 15,
342 SCRA 449, 478.
[45] 65 Phil. 56. 2000, 338 SCRA 81 (where the petitioner questioned the validity of the deployment and utilization
[46] G.R. No. 117, November 7, 1945 (Unreported). of the Marines to assist the PNP in law enforcement,asserting that IBP was the official organization
of Filipino lawyers tasked with the bounden duty to uphold the rule of law and the Constitution, but or promoted; at any rate, the appointments still required confirmation by the Commission on
the Court held that the IBP had not shown that it was so tasked: In this case, a reading of the petition Appointments).
[78] Crawford, op. cit., supra, note 72, pp. 248-249.
shows that the IBP has advanced constitutional issues which deserve the attention of this Court in
[79]
view of their seriousness, novelty and weight as precedents. Moreover, because peace and order are Supra, note 6, p. 413.
[80] Id.
under constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by
[81] Section 14. Appointments extended by an Acting President shall remain effective, unless
the Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will
not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the rules on revoked by the elected President within ninety days from his assumption or reassumption of office.
[82] Cruz, I., Philippine Political Law, 253 (2002); also Rilloraza v. Vargas, 80 Phil. 297 (1948).
standing and to resolve the issue now, rather than later, and went on to resolve the issues because
[83] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 908, which
the petitioner advanced constitutional issues that deserved the attention of the Court in view of their
seriousness, novelty, and weight as precedents). indicates that in his sponsorship speech delivered on October 12, 1986 on the floor of the
[63] Supra, note 42, p. 645. Constitutional Commission, Commissioner Teofisto Guingona explained that [a]ppointments to the
[64] Id. judiciary shall not be subject to confirmation by the Commission on Appointments.
[65] See Buckley v. Valeo, 424 U.S. 1, 113-118 (1976); Regional Rail Reoganization Act Cases, [84] Rodriguez, Statutory Construction, 171 (1999).
[85] Comment of the OSG, p. 37.
419 U.S. 102, 138-148 (1974).
[66] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., p. 912, October [86] Section 3, Rule 65, 1997 Rules of Civil Procedure.
[87] JG Summit Holdings, Inc. v. Court of Appeals, G.R. No. 124293, November 20, 2000, 345 SCRA
12, 1998.
[67] Supra, note 6, p. 426-427, stating: 143.
[88] Nery v. Gamolo, A.M. No. P-01-1508, February 7, 2003, 397 SCRA 110, citing Musni v.
Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the Presidents power of appointment, it is this Courts view that, as a Morales, 315 SCRA 85, 86 (1999).
[89] Espiridion v. Court of Appeals, G.R. No. 146933, June 8, 2006, 490 SCRA 273.
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 . No. 146933, June 8, 2006, 490 SCRA 273.
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.
[68] Id., pp. 422-423.
[69] Id., p. 423.
[70] Record of Proceedings and Debates of the Constitutional Commission, Vol. V., pp. 632-633.
[71] Dizon v. Encarnacion, G.R. No. L-18615, December 24, 1963, 9 SCRA 714.
[72] Crawford, Earl. T., The Construction of Statutes, Thomas Law Book Company, St. Republic of the Philippines
Louis, Missouri, 262-264 (1940). SUPREME COURT
[73] Garcia v. Social Security Commission Legal and Collection, G.R. No. 170735, December 17, Manila
2007, 540 SCRA 456, 472; citing Escosura v. San Miguel Brewery, Inc., 4 SCRA 285, (1962).
[74] According to Arizona v. Rumsey, 467 U. S. 203, 212 (1984): Although adherence to precedent
EN BANC
is not rigidly required in constitutional cases, any departure from the doctrine of stare
decisis demands special justification. The special justification for the reversal of Valenzuela lies in
its intrinsic unsoundness. G.R. No. 203372 June 16, 2015
[75] No. L-19313, January 19, 1962, 4 SCRA 1.
[76] Supra, note 6, pp. 424-426; bold underscoring supplied for emphasis.
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner,
[77] Aytona v. Castillo, supra, note 74, pp. 8-10 (N.B. - In the time material to Aytona, there were
vs.
judges of the Court of First Instance who were appointed to districts that had no vacancies, because OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE
the incumbents had not qualified for other districts to which they had been supposedly transferred ANSELMO I. CADIZ, Respondents.
x-----------------------x Petitioners seek the :reversal of the separate Decisions of the Court of Appeals
(CA) that dismissed their petitions and upheld the constitutionality of EO 2. G.R.
G.R. No. 206290 No. 203372 filed by Atty. Velicaria-Garafil is a Petition for Review on
Certiorari, assailing the Decision dated 31 August 2012 of the CA in CA-G.R.
1 2

ATTY. DINDO G. VENTURANZA, Petitioner, SP No. 123662. G.R. No. 206290 filed by Atty. Venturanza is a Petition for
Review on Certiorari, assailing the Decision dated 31 August 2012 and
3 4
vs.
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity as the Resolution dated 12 March 2013 of the CA in CA-G.R. SP No. 123659. G.R.
5

Secretary of the Department of Justice, CLARO A. ARELLANO, in his No. 209138 filed by Villanueva and Rosquita is a Petition for Certiorari, seeking
6

capacity as the Prosecutor General, and RICHARD ANTHONY D. to nullify the Decision dated 28 August 2013 of the CA in CA-G.R. SP Nos.
7

FADULLON, in his capacity as the Officer-in-Charge of the Office of the 123662, 123663, and 123664. Villanueva and Rosquita filed a Petition-in-
8

City Prosecutor of Quezon City,Respondents. Intervention in the consolidated cases before the CA. G.R. No. 212030 is a
Petition for Review on Certiorari, assailing the Decision dated 31 August 2012
9 10

of the CA in CAG.R. SP No. 123664 and Resolution dated 7 April 2014 of the
11

x-----------------------x CA in CAG.R. SP Nos. 123662, 123663, and 123664. 12

G.R. No. 209138 Facts of the Cases

IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners, Prior to the conduct of the May 2010 elections, then President Gloria
vs. Macapagal-Arroyo (President Macapagal-Arroyo) issued more than 800
COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents. appointments to various positions in several government offices.

x-----------------------x The ban on midnight appointments in Section 15, Article VII of the 1987
Constitution reads:
G.R. No. 212030
Two months immediately before the next presidential elections and up to the
EDDIE U. TAMONDONG, Petitioner, end of his term, a President or Acting President shall not make appointments,
vs. except temporary appointments to executive positions when continued
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent. vacancies therein will prejudice public service or endanger public safety.

DECISION Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for
valid appointments and the next day, 11 March 2010, was the start of the ban on
CARPIO, J.: midnight appointments. Section 15, Article VII of the 1987 Constitution
recognizes as an exception to the ban on midnight appointments only
The present consolidated cases involve four petitions: G.R. No. 203372 with "temporary appointments to executive positions when continued vacancies
Atty. Cheloy E. Velicaria-Garafil (Atty. Velicaria-Garafil), who was appointed therein will prejudice public service or endanger public safety." None of the
State Solicitor II at the Office of the Solicitor General (OSG), as petitioner; G.R. petitioners claim that their appointments fall under this exception.
No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was
appointed Prosecutor IV (City Prosecutor) of Quezon City, as petitioner; G.R. Appointments
No. 209138 with Irma A. Villanueva (Villanueva), who was appointed
Administrator for Visayas of the Board of Administrators of the Cooperative
Development Authority (CDA), and Francisca B. Rosquita (Rosquita), who was
appointed Commissioner of the National Commission of Indigenous Peoples
(NCIP), as petitioners; and G.R. No. 212030 with Atty. Eddie U. Tamondong
(Atty. Tamondong), who was appointed member of the Board of Directors of the
Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions question
the constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with
Section 15, Article VII of the 1987 Constitution.
G.R. No. 203372 G.R. No. Date of Date of Date of Date of Assumption of
Appointment Transmittal Receipt by Oath of Office
The paper evidencing Atty. Velicaria-Garafil's appointment as State Letter Letter MRO Office
Solicitor II at the OSG was dated 5 March 2010. There was a
13

transmittal letter dated 8 March 2010 of the appointment paper from 203372
13 May 22 March
the Office of the President (OP), but this transmittal letter was (Atty. Velicaria- 5 March 2010 8 March 2010 6 April 2010
2010 2010
received by the Malacañang Records Office (MRO) only on 13 May Garafil)
2010. There was no indication as to the OSG's date of receipt of the
appointment paper. On 19 March 2010, the OSG's Human 206290
23 February 12 March 15 March 15 March
Resources Department called up Atty. Velicaria-Garafil to schedule (Atty. 9 March 2010
2010 2010 2010 2010
her oath-taking. Atty. Velicaria-Garafil took her oath of office as State Venturanza)
Solicitor II on 22 March 2010 and assumed her position on 6 April
2010.
209138 13 April
3 March 2010 4 May 2010
(Villanueva) 2010
G.R. No. 206290 209138 13 May 18 March
5 March 2010
(Rosquita) 2010 2010
The paper evidencing Atty. Venturanza's appointment as Prosecutor
IV (City Prosecutor) of Quezon City was dated 23 February 2010. It 25 March
14
212030
is apparent, however, that it was only on 12 March 2010 that the OP, 2010 and
(Atty. 1 March 2010
in a letter dated 9 March 2010, transmitted Atty. Venturanza's 6 July
Tamondong)
appointment paper to then Department of Justice (DOJ) Secretary 2010
Alberto C. Agra. During the period between 23 February and 12
15
To summarize, the pertinent dates for each petitioner are as follows:
March 2010, Atty. Venturanza, upon verbal advice from Malacañang of his
promotion but without an official copy of his appointment paper, secured Issuance of EO 2
clearances from the Civil Service Commission (CSC), Sandiganbayan, and
16 17

the DOJ. Atty. Venturanza took his oath of office on 15 March 2010, and
18

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his
assumed office on the same day.
oath of office as President of the Republic of the Philippines. On 30 July 2010,
President Aquino issued EO 2 recalling, withdrawing, and revoking
G.R. No. 209138 appointments issued by President Macapagal-Arroyo which violated the
constitutional ban on midnight appointments.
The paper evidencing Villanueva's appointment as Administrator for Visayas of
the Board of Administrators of the CDA was dated 3 March 2010. There was no
19
The entirety of EO 2 reads:
transmittal letter of the appointment paper from the OP. Villanueva took her oath
of office on 13 April 2010.
EXECUTIVE ORDER NO. 2
The paper evidencing Rosquita's appointment as Commissioner, representing
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED
Region I and the Cordilleras, of the NCIP was dated 5 March 2010. Like 20

BY THE PREVIOUS ADMINISTRATION IN VIOLATION OF THE

Villanueva, there was no transmittal letter of the appointment paper from the OP.
CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR OTHER
Rosquita took her oath of office on 18 March 2010. G.R. No. 212030
PURPOSES.
The paper evidencing Atty. Tamondong's appointment as member, representing
WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "Two
the private sector, of the SBMA Board of Directors was dated 1 March
months immediately before the next presidential elections and up to the end of
2010. Atty. Tamondong admitted that the appointment paper was received by
21

his term, a President or Acting President shall not make appointments, except
the Office of the SBMA Chair on 25 March 2010 and that he took his oath of
22

temporary appointments to executive positions when continued vacancies

office on the same day. He took another oath of office on 6 July 2010 as "an
23

therein will prejudice public service or endanger public safety."; WHEREAS, in

act of extra caution because of the rising crescendo of noise from the new
the case of "In re: Appointments dated March 30, 1998 of Hon. Mateo
political mandarins against the so-called 'midnight appointments."' 24

Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of Branch
62 of Bago City and Branch 24 of Cabanatuan City, respectively" (A.M. No. 98-
5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to mean
that the President is neither required to make appointments nor allowed to do so
during the two months immediately before the next presidential elections and up
to the end of her term. The only known exceptions to this prohibition are (1)
temporary appointments in the executive positions when continued vacancies
will prejudice public service or endanger public safety and in the light of the
recent Supreme Court decision in the case of De Castro, et al. vs. JBC and
PGMA, G.R. No. 191002, 17 March 2010, (2) appointments to the Judiciary;
WHEREAS, Section 261 of the Omnibus Election Code provides that:
"Section 261. Prohibited Acts.-The following shall be guilty of an election
offense:
(g) Appointments 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 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 to 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.
As an exception to the foregoing provisions, a new employee
may be appointed in the case of urgent need:
Provided, however, that notice of the appointment shall be given
to the Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this
provision shall be null and void.
(2) Any government official who promotes or gives any increase
of salary or remuneration or privilege to any government official
or employee, including those in government-owned or controlled
corporations.";
WHEREAS, it appears on record that a number of appointments were made on
or about 10 March 2010 in complete disregard of the intent and spirit of the
constitutional ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;
WHEREAS, based on established jurisprudence, an appointment is deemed
complete only upon acceptance of the appointee;
WHEREAS, in order to strengthen the civil service system, it is necessary to
uphold the principle that appointments to the civil service must be made on the
basis of merit and fitness, it is imperative to recall, withdraw, and revoke all
appointments made in violation of the letter and spirit of the law;
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested
in me by the Constitution as President of the Philippines, do hereby order and
direct that:
SECTION 1. Midnight Appointments Defined. - The following appointments
made by the former President and other appointing authorities in departments,
agencies, offices, and instrumentalities, including government-owned or
controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all
appointments bearing dates prior to March 11, 2010 where the
appointee has accepted, or taken his oath, or assumed public
office on or after March 11, 2010, except temporary
appointments in the executive positions when continued
vacancies will prejudice public service or endanger public safety
as may be determined by the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after
said date or appointments to office that would be vacant only
after March 11, 2010.
(c) Appointments and promotions made during the period of 45
days prior to the May 10, 2010 elections in violation of Section
261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments.
Midnight appointments, as defined under Section 1, are hereby recalled,
withdrawn, and revoked. The positions covered or otherwise affected are hereby
declared vacant.
SECTION 3. Temporary designations. - When necessary to maintain efficiency
in public service and ensure the continuity of government operations, the
Executive Secretary may designate an officer-in-charge (OIC) to perform the
duties and discharge the responsibilities of any of those whose appointment has
been recalled, until the replacement of the OIC has been appointed and
qualified.
SECTION 4. Repealing Clause. - All executive issuances, orders, rules and
regulations or part thereof inconsistent with the provisions of this Executive
Order are hereby repealed or modified accordingly.
SECTION 5. Separability Clause. - If any section or provision of this executive
order shall be declared unconstitutional or invalid, the other sections or provision
not affected thereby shall remain in full force and effect.
SECTION 6. Effectivity. - This Executive order shall take effect immediately.
DONE in the City of Manila, this 30th day of July, in the year Two Thousand and
Ten.
By the President:
(Sgd.) PAQUITO N. OCHOA, JR.
Executive Secretary 25
(Sgd.) BENIGNO S. AQUINO III
Effect of the Issuance of EO 2
G.R. No. 203372
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General
(Sol. Gen. Cadiz). On 6 August 2010, Sol. Gen. Cadiz instructed a Senior
Assistant Solicitor General to inform the officers and employees affected by EO
2 that they were terminated from service effective the next day.
Atty. Velicaria-Garafil reported for work on 9 August 2010 without any
knowledge of her termination. She was made to return the office-issued laptop
and cellphone, and was told that her salary ceased as of 7 August 2010. On 12
August 2010, Atty. Velicaria-Garafil was informed that her former secretary at
the OSG received a copy of a memorandum on her behalf. The memorandum,
dated 9 August 2010, bore the subject "Implementation of Executive Order No. 2
dated 30 July 2010" and was addressed to the OSG's Director of Finance and
Management Service.
Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this
Court on 1 September 2010. The petition prayed for the nullification of EO 2,
and for her reinstatement as State Solicitor II without loss of seniority, rights and
privileges, and with full backwages from the time that her salary was withheld. 26
G.R. No. 206290
On 1 September 2010, Atty. Venturanza received via facsimile transmission an
undated copy of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ
Secretary Leila M. De Lima (Sec. De Lima), designated Senior Deputy State
Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge
of the Office of the City Prosecutor in Quezon City. In a letter to Sec. De Lima
dated 15 September 2010, Atty. Venturanza asked for clarification of his status,
duties, and functions since DOJ Order No. 556 did not address the same. Atty.
Venturanza also asked for a status quo ante order to prevent Pros. Fadullon
·from usurping the position and functions of the City Prosecutor of Quezon City.
Atty. Venturanza also wrote a letter to President Aquino on the same day, and
sought reaffirmation of his promotion as City Prosecutor of Quezon City.
On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010
from Sec. De Lima which directed him to relinquish the office to which he was
appointed, and to cease from performing its functions.
Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with
Urgent Prayer for Status Quo Ante Order, Temporary Restraining Order and/or
Preliminary Mandatory Injunction (G.R. No. 193 867) before this Court on 14
October 2010. 27
G.R. No. 209138
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2.
On 3 August 2010, Villanueva and Rosquita sought to intervene in G.R. No.
192991. On 1 October 2010, Executive Secretary Paquito N. Ochoa, Jr.
28
revoked Rosquita's appointment as NCIP Commissioner. On 13 October 2010,
29
Villanueva and Rosquita notified this Court that they wanted to intervene in Atty.
Tamondong's petition (G.R. No. 192987) instead.
G.R. No. 212030
Atty. Tamondong was removed from the SBMA Board of Directors on 30 July
2010. He filed a petition for prohibition, declaratory relief and preliminary
injunction with prayer for temporary restraining order (G.R. No. 192987) before
this Court on 9 August 2010. The petition prayed for the prohibition of the
implementation of EO 2, the declaration of his appointment as legal, and the
declaration of EO 2 as unconstitutional.30
Referral to CA
There were several petitions and motions for intervention that challenged the
31 32
constitutionality of EO 2.
On 31 January 2012, this Court issued a Resolution referring the petitions,
motions for intervention, as well as various letters, to the CA for further
proceedings, including the reception and assessment of the evidence from all
parties. We defined the issues as follows:
1. Whether the appointments of the petitioners and intervenors were
midnight appointments within the coverage of EO 2;
2. Whether all midnight appointments, including those of petitioners and
intervenors, were invalid;
3 . Whether the appointments of the petitioners and intervenors were
made with undue haste, hurried maneuvers, for partisan reasons, and
not in accordance with good faith; and
4. Whether EO 2 violated the Civil Service Rules on Appointment. 33
This Court gave the CA the authority to resolve all pending matters and
applications, and to decide the issues as if these cases were originally filed with
the CA.
Rulings of the CA
Even though the same issues were raised in the different petitions, the CA
promulgated separate Decisions for the petitions. The CA consistently ruled that
EO 2 is constitutional. The CA, however, issued different rulings as to the
evaluation of the circumstances of petitioners' appointments. In the cases of
Attys. Velicaria-Garafil and Venturanza, the CA stated that the OP should
consider the circumstances of their appointments. In the cases of Villanueva,
Rosquita, and Atty. Tamondong, the CA explicitly stated that · the revocation of
their appointments was proper because they were midnight appointees.
G.R. No. 203372 (CA-G.R. SP No. 123662)
The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August
2012. The CA ruled that EO 2 is not unconstitutional. However, the CA relied on
Sales v. Carreon in ruling that the OP should evaluate whether Atty. Velicaria-
34
Garafil's appointment had extenuating circumstances that might make it fall
outside the ambit of EO 2.
The dispositive portion of the CA's Decision reads:
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.
Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
The issue on whether or not to uphold petitioner's appointment as State Solicitor
II at the OSG is hereby referred to the Office of the President which has the sole
authority and discretion to pass upon the same.
SO ORDERED. 35
G.R. No. 212030 (CA-G.R. SP No. 123664)
On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No.
123664. The dispositive portion reads as follows:
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED.
Executive Order No. 2 is hereby declared NOT UNCONSTITUTIONAL.
Accordingly, the revocation of Atty. Eddie Tamondong's appointment as Director
of Subic Bay Metropolitan Authority is VALID for being a midnight appointment.
SO ORDERED. 39
The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners'
appointments violate Section 15, Article VII of the 1987 Constitution, and (2)
whether EO 2 is constitutional. Ruling of the Court
The petitions have no merit. All of petitioners' appointments are midnight
appointments and are void for violation of Section 15, Article VII of the 1987
Constitution. EO 2 is constitutional. Villanueva and Rosquita, petitioners in G.R.
No. 209138, did not appeal the CA's ruling under Rule 45, but instead filed a
petition for certiorari under Rule 65. This procedural error alone warrants an
outright dismissal of G.R. No. 209138. Even if it were correctly filed under Rule
45, the petition should still be dismissed for being filed out of time. There was
40
also no explanation as to why they did not file a motion for reconsideration of the
CA's Decision. Midnight Appointments
This ponencia and the dissent both agree that the facts in all these cases show
that "none of the petitioners have shown that their appointment papers (and
transmittal letters) have been issued (and released) before the ban." The dates
41
of receipt by the MRO, which in these cases are the only reliable evidence of
actual transmittal of the appointment papers by President Macapagal-Arroyo,
are dates clearly falling during the appointment ban. Thus, this ponencia and the
dissent both agree that all the appointments in these cases are midnight
appointments in violation of Section 15, Article VII of the 1987 Constitution.
Constitutionality of EO 2
Based on prevailing jurisprudence, appointment to a government post is a
process that takes several steps to complete. Any valid appointment, including
one made under the exception provided in Section 15, Article VII of the 1987
Constitution, must consist of the President signing an appointee's appointment
paper to a vacant office, the official transmittal of the appointment paper
(preferably through the MRO), receipt of the appointment paper by the
appointee, and acceptance of the appointment by the appointee evidenced by
his or her oath of office or his or her assumption to office.
Aytona v. Castillo (Aytona) is the basis for Section 15, Article VII of the 1987
42
Constitution. Aytona defined "midnight or last minute" appointments for
Philippine jurisprudence. President Carlos P. Garcia submitted on 29
1âw phi1
December 1961, his last day in office, 350 appointments, including that of
Dominador R. Aytona for Central Bank Governor. President Diosdado P.
Macapagal assumed office on 30 December 1961, and issued on 31 December
1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all
appointments made by President Garcia after 13 December 1961 (President
Macapagal's proclamation date). President Macapagal appointed Andres V.
Castillo as Central Bank Governor on 1 January 1962. This Court dismissed
Aytona's quo warranto proceeding against Castillo, and upheld Administrative
Order No. 2's cancellation of the "midnight or last minute" appointments. We
wrote:
x x x But the issuance of 350 appointments in one night and the planned
induction of almost all of them 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.
x x x Now it is hard to believe that in signing 350 appointments in one night,
President Garcia exercised such "double care" which was required and
expected of him; and therefore, there seems to be force to the contention that
these appointments fall beyond the intent and spirit of the constitutional
provision granting to the Executive authority to issue ad interim appointments.
Under the circumstances above described, what with the separation of powers,
this Court resolves that it must decline to disregard the Presidential
.Administrative Order No. 2, cancelling such "midnight" or "last-minute"
appointments.
Of course the Court is . aware of many precedents to the effect that once an
appointment has been issued, it cannot be reconsidered, specially where the
appointee has qualified. But none of them refer to mass ad interim appointments
(three hundred and fifty), issued in the last hours of an outgoing Chief Executive,
in a setting similar to that outlined herein. On the other hand, the authorities
admit of exceptional circumstances justifying revocation and if any
circumstances justify revocation, those described herein should fit the exception.
Incidentally, it should be stated that the underlying reason for denying the power
to revoke after the appointee has qualified is the latter's equitable rights. Yet it is
doubtful if such equity might be successfully set up in the present situation,
considering the rush conditional appointments, hurried maneuvers and other
happenings detracting from that degree of good faith, morality and propriety
which form the basic foundation of claims to equitable relief. The appointees, it
might be argued, wittingly or unwittingly cooperated with the stratagem to beat
the deadline, whatever the resultant consequences to the dignity and efficiency
of the public service. Needless to say, there are instances wherein not only strict
legality, but also fairness, justice and righteousness should be taken into
account. 43
During the deliberations for the 1987 Constitution, then Constitutional
Commissioner (now retired Supreme Court Chief Justice) Hilario G. Davide, Jr.
referred to this Court's ruling in Aytona and stated that his proposal seeks to
prevent a President, whose term is about to end, from preempting his successor
by appointing his own people to sensitive positions.
MR. DAVIDE: The idea of the proposal is that about the end of the term of the
President, he may prolong his rule indirectly by appointing people to these
sensitive positions, like the commissions, the Ombudsman, the judiciary, so he
could perpetuate himself in power even beyond his term of office; therefore
foreclosing the right of his successor to make appointments to these positions.
We should realize that the term of the President is six years and under what we
had voted on, there is no reelection for him. Yet he can continue to rule the
country through appointments made about the end of his term to these sensitive
positions. 44
The 1986 Constitutional Commission put a definite period, or an empirical value,
on Aytona's intangible "stratagem to beat the deadline," and also on the act of
"preempting the President's successor," which shows a lack of "good faith,
morality and propriety." Subject to only one exception, appointments made
during this period are thus automatically prohibited under the Constitution,
regardless of the appointee's qualifications or even of the President's motives.
The period for prohibited appointments covers two months before the elections
until the end of the President's term. The Constitution, with a specific exception,
ended the President's power to appoint "two months immediately before the next
presidential elections." For an appointment to be valid, it must be made outside
of the prohibited period or, failing that, fall under the specified exception.
The dissent insists that, during the prohibited period, an appointment should be
viewed in its "narrow sense." In its narrow sense, an appointment is not a
process, but is only an "executive act that the President unequivocally exercises
pursuant to his discretion." The dissent makes acceptance of the appointment
45
inconsequential. The dissent holds that an appointment is void if the
appointment is made before the ban but the transmittal and acceptance are
made after the ban. However, the dissent holds that an appointment is valid, or
"efficacious," if the appointment and transmittal are made before the ban even if
the acceptance is made after the ban. In short, the dissent allows an
appointment to take effect during the ban, as long as the President signed and
transmitted the appointment before the ban, even if the appointee never
received the appointment paper before the ban and accepted the appointment
only during the ban.
The dissent's view will lead to glaring absurdities. Allowing the dissent's
proposal that an appointment is complete merely upon the signing of an
appointment paper and its transmittal, excluding the appointee's acceptance
from the appointment process, will lead to the absurdity that, in case of non-
acceptance, the position is considered occupied and nobody else may be
appointed to it. Moreover, an incumbent public official, appointed to another
public office by the President, will automatically be deemed to occupy the new
public office and to have automatically resigned from his first office upon
transmittal of his appointment paper, even if he refuses to accept the new
appointment. This will result in chaos in public service.
Even worse, a President who is unhappy with an incumbent public official can
simply appoint him to another public office, effectively removing him from his first
office without due process. The mere transmittal of his appointment paper will
remove the public official from office without due process and even without
cause, in violation of the Constitution.
The dissent's proferred excuse (that the appointee is not alluded to in Section
15, Article VII) for its rejection of "acceptance by the appointee" as an integral
part of the appointment process ignores the reason for the limitation of the
President's power to appoint, which is .to prevent the outgoing President from
continuing to rule the country indirectly after the end of his term. The 1986
Constitutional Commission installed a definite cut-off date as an objective and
unbiased marker against which this once-in-every-six-years prohibition should
be measured.
The dissent's assertion that appointment should be viewed in its narrow sense
(and is not a process) only during the prohibited period is selective and time-
based, and ignores well-settled jurisprudence. For purposes of complying with
the time limit imposed by the appointment ban, the dissent' s position cuts short
the appointment process to the signing of the appointment paper and its
transmittal, excluding the receipt of the appointment paper and acceptance of
the appointment by the appointee.
The President exercises only one kind of appointing power. There is no need to
differentiate the exercise of the President's appointing power outside, just
before, or during the appointment ban. The Constitution allows the President to
exercise the power of appointment during the period not covered by the
appointment ban, and disallows (subject to an exception) the President from
exercising the power of appointment during the period covered by the
appointment ban. The concurrence of all steps in the appointment process is
admittedly required for appointments outside the appointment ban. There is no
justification whatsoever to remove acceptance as a requirement in the
appointment process for appointments just before the start of the appointment
ban, or during the appointment ban in appointments falling within the exception.
The existence of the appointment ban makes no difference in the power of the
President to appoint; it is still the same power to appoint. In fact, considering the
purpose of the appointment ban, the concurrence of all steps in the appointment
process must be strictly applied on appointments made just before or during the
appointment ban.
In attempting to extricate itself from the obvious consequences of its selective
application, the dissent glaringly contradicts itself:
Thus, an acceptance is still necessary in order for the appointee to validly
assume his post and discharge the functions of his new office, and thus make
the appointment effective. There can never be an instance where the
appointment of an incumbent will automatically result in his resignation from his
present post and his subsequent assumption of his new position; or where the
President can simply remove an incumbent from his current office by appointing
him to another one. I stress that acceptance through oath or any positive act is
still indispensable before any assumption of office may occur. (Emphasis
46
added)
The dissent proposes that this Court ignore well-settled jurisprudence during the
appointment ban, but apply the same jurisprudence outside of the appointment
ban.
[T]he well-settled rule in our jurisprudence, that an appointment is a process that
begins with the selection by the appointing power and ends with acceptance of
the appointment by the appointee, stands. As early as the 1949 case of Lacson
v. Romero, this Court laid down the rule that acceptance by the appointee is the
last act needed to make an appointment complete. The Court reiterated this rule
in the 1989 case of Javier v. Reyes. In the 1996 case of Garces v. Court of
Appeals, this Court emphasized that acceptance by the appointee is
indispensable to complete an appointment. The 1999 case of Bermudez v.
Executive Secretary, cited in the ponencia, affirms this standing rule in our
jurisdiction, to wit:
"The appointment is deemed complete once the last act required of the
appointing authority has been complied with and its acceptance thereafter by the
appointee in order to render it effective."
47
The dissent's assertion creates a singular exception to the well-settled doctrine
that appointment is a process that begins with the signing of the appointment
paper, followed by the transmittal and receipt of the appointment paper, and
becomes complete with the acceptance of the appointment. The dissent makes
the singular exception that during the constitutionally mandated ban on
appointments, acceptance is not necessary to complete the appointment. The
dissent gives no reason why this Court should make such singular exception,
which is contrary to the express provision of the Constitution prohibiting the
President from making appointments during the ban. The dissent's singular
exception will allow the President, during the ban on appointments, to remove
from office incumbents without cause by simply appointing them to another
office and transmitting the appointment papers the day before the ban begins,
appointments that the incumbents cannot refuse because their acceptance is
not required during the ban. Adoption by this Court of the dissent's singular
exception will certainly wreak havoc on the civil service.
The following elements should always concur in the making of a valid (which
should be understood as both complete and effective) appointment: (1) authority
to appoint and evidence of the exercise of the authority; (2) transmittal of the
appointment paper and evidence of the transmittal; (3) a vacant position at the
time of appointment; and (4) receipt of the appointment paper and acceptance of
the appointment by the appointee who possesses all the qualifications and none
of the disqualifications. The concurrence of all these elements should always
apply, regardless of when the appointment is made, whether outside, just
before, or during the appointment ban. These steps in the appointment process
should always concur and operate as a single process. There is no valid
appointment if the process lacks even one step. And, unlike the dissent's
proposal, there is no need to further distinguish between an effective and an
ineffective appointment when an appointment is valid.
Appointing Authority
The President's exercise of his power to appoint officials is provided for in the
Constitution and laws. Discretion is an integral part in the exercise of the power
48
of appointment. Considering that appointment calls for a selection, the
49
appointing power necessarily exercises a discretion. According to Woodbury, J.,
"the choice of a person to fill an office constitutes the essence of his
appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." In Pamantasan
ng Lungsod ng Maynila v. Intermediate Appellate Court we held:
The power to appoint is, in essence, discretionary. The appointing power has
the right of choice which he may exercise freely according to his judgment,
deciding for himself who is best qualified among those who have the necessary
qualifications and eligibilities. It is a prerogative of the appointing power x x x x
Indeed, the power of choice is the heart of the power to appoint. Appointment
involves an exercise of discretion of whom to appoint; it is not a ministerial act of
issuing appointment papers to the appointee. In other words, the choice of the
appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an
officer, it (Congress) cannot at the same time limit the choice of the President to
only one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications of the officer,
Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the appointing
power to choose and constitutes an irregular restriction on the power of
appointment. 50
Transmittal
It is not enough that the President signs the appointment paper. There should be
evidence that the President intended the appointment paper to be issued. It
could happen that an appointment paper may be dated and signed by the
President months before the appointment ban, but never left his locked drawer
for the entirety of his term. Release of the appointment paper through the MRO
is an unequivocal act that signifies the President's intent of its issuance.
The MRO was created by Memorandum Order No. 1, Series of 1958, Governing
the Organization and Functions of the Executive Office and General Matters of
Procedure Therein. Initially called the Records Division, the MRO functioned as
an administrative unit of the Executive Office. Memorandum Order No. 1
assigned the following functions:
a. Receive, record and screen all incoming correspondence, telegrams,
documents and papers, and
(1) Forward those of a personal and unofficial nature to the
President's Private Office; and
(2) Distribute those requiring action within the Office or requiring
staff work prior to presentation to the President to the
appropriate units within the Office.
b. Follow up on correspondence forwarded to entities outside the Office
to assure that prompt replies are made and copies thereof furnished the
Office.
c. Dispatch outgoing correspondence and telegrams.
d. Have custody of records of the Office, except personal papers of the
President, and keep them in such condition as to meet the documentary
and reference requirements of the Office.
e. Keep and maintain a filing and records system for acts, memoranda,
orders, circulars, correspondence and other documents affecting the
Office for ready reference and use.
f. Issue certified true copies of documents on file in the Division m
accordance with prevailing standard operating procedure.
g. Keep a separate record of communications or documents of
confidential nature.
h. Have custody of the Great Seal of the Republic of the Philippines.
i. Prepare and submit to the approving authority, periodic disposition
schedules of non-current records which have no historical, legal and/or
claim value.
j. With the approval of the Executive Secretary, assist other offices in
the installation or improvement of their records management system;
and
k. Give instructions or deliver lectures and conduct practical training to
in-service trainees from other offices and to students from educational
institutions on records management. 51
The Records Division was elevated to an Office in 1975, with the
addition of the following functions:
1. Maintain and control vital documents and essential records to
support the functions of the OP in its day to day activities;
2. Monitor the flow of communications' from their time of receipt
up to their dispatch;
3. Service the documentary, information and reference
requirements of top management and action officers of the OP,
and the reference and research needs of other government
agencies and the general public;
4. Ensure the proper storage, maintenance, protection and
preservation of vital and presidential documents, and the
prompt disposal of obsolete and valueless records;
5. Effect the prompt publication/dissemination of laws,
presidential issuances and classified documents;
6. Provide computerized integrated records management
support services for easy reference and retrieval of data and
information; and
7. To be able to represent the OP and OP officials in response
to Subpoena Duces Tecum and Testificandum served by courts
and other investigating bodies. 52
For purposes of verification of the appointment paper's existence and
authenticity, the appointment paper must bear the security marks (i.e.,
handwritten signature of the President, bar code, etc.) and must be
accompanied by a transmittal letter from the MRO.
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO, underscores
the purpose of the release of papers through his office.
Q: What are the functions of the MRO?
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1)
receive, record, and screen all incoming correspondence, telegrams,
documents, and papers; (2) follow up on correspondence forwarded to entities
outside the Office of the President ("OP") to assure that prompt replies are made
and copies thereof furnished the OP; (3) timely dispatch all outgoing documents
and correspondence; (4) have custody of records of the OP, except personal
papers of the President, and keep them in such condition as to meet the
documentary and reference requirements of the Office; (5) keep and maintain a
filing and records system for Acts, Memoranda, Orders, Circulars,
correspondence, and other pertinent documents for ready reference and use; (
6) issue certified copies of documents on file as requested and in accordance
with prevailing standard operating procedures; (7) maintain and control vital
documents and essential records to support the OP in its day-to-day activities;
(8) monitor the flow of communications from the time of receipt up to their
dispatch; and (9) other related functions.
xxxx
Q: As you previously mentioned, the MRO is the custodian of all documents
emanating from Malacañang pursuant to its mandate under Memorandum Order
No. 1, Series of 1958. Is the MRO required to follow a specific procedure in
dispatching outgoing documents?
A: Yes.
Q: Is this procedure observed for the release of an appointment paper signed by
the President? A: Yes. It is observed for the release of the original copy of the
appointment paper signed by the President.
Q: Can you briefly illustrate the procedure for the release of the original copy of
the appointment paper signed by the President?
A: After an appointment paper is signed by the President, the Office of the
Executive Secretary (OES) forwards the appointment paper bearing the stamp
mark, barcode, and hologram of the Office of the President, together with a
transmittal letter, to the MRO for official release. Within the same day, the MRO
sends the original copy of the appointment paper together with the transmittal
letter and a delivery receipt which contains appropriate spaces for the name of
the addressee, the date released, and the date received by the addressee. Only
a photocopy of the appointment is retained for the MRO's official file.
Q: What is the basis for the process you just discussed?
A: The Service Guide of the MRO.
xxxx
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?
A: The MRO Service Guide was issued pursuant to Memorandum Circular No.
35, Series of 2003 and Memorandum Circular No. 133, Series of 2007.
xxxx
Q: Do you exercise any discretion in the release of documents forwarded to the
MRO for transmittal to various offices?
A: No. We are mandated to immediately release all documents and
correspondence forwarded to us for transmittal.
Q: If a document is forwarded by the OES to the MRO today, when is it officially
released by the MRO to the department or agency concerned?
A: The document is released within the day by the MRO if the addressee is
within Metro Manila. For example, in the case of the appointment paper of Dindo
Venturanza, the OES forwarded to the MRO on March 12, 2010 his original
appointment paper dated February 23, 2010 and the transmittal letter dated
March 9, 2010 prepared by the OES. The MRO released his appointment paper
on the same day or on March 12, 2010, and was also received by the DOJ on
March 12, 2010 as shown by the delivery receipt.
Q: What is the effect if a document is released by an office or department within
Malacañan without going through the MRO?
A: If a document does not pass through the MRO contrary to established
procedure, the MRO cannot issue a certified true copy of the same because as
far as the MRO is concerned, it does not exist in our official records, hence, not
an official document from the Malacañang. There is no way of verifying the
document's existence and authenticity unless the document is on file with the
MRO even if the person who claims to have in his possession a genuine
document furnished to him personally by the President. As a matter of fact, it is
only the MRO which is authorized to issue certified true copies of documents
emanating from Malacañan being the official custodian and central repository of
said documents. Not even the OES can issue a certified true copy of documents
prepared by them.
Q: Why do you say that, Mr. Witness?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang Palace.
All incoming and outgoing documents and correspondence must pass through
the MRO. As the official custodian, the MRO is in charge of the official release of
documents.
Q: What if an appointment paper was faxed by the Office of the Executive
Secretary to the appointee, is that considered an official release by the MRO?
A: No. It is still the MRO which will furnish the original copy of the appointment
paper to the appointee. That appointment paper is, at best, only an "advanced
copy."
Q: Assuming the MRO has already received the original appointment paper
signed by the President together with the transmittal letter prepared by the OES,
you said that the MRO is bound to transmit these documents immediately, that
is, on the same day?
A: Yes.
Q: Were there instances when the President, after the original appointment
paper has already been forwarded to the MRO, recalls the appointment and
directs the MRO not to transmit the documents?
A: Yes, there were such instances.
Q: How about if the document was already transmitted by the MRO, was there
any instance when it was directed to recall the appointment and retrieve the
documents already transmitted? A: Yes, but only in a few instances. Sometimes,
when the MRO messenger is already in transit or while he is already in the
agency or office concerned, we get a call to hold the delivery. Q: You previously
outlined the procedure governing the transmittal of original copies of
appointment papers to the agency or office concerned. Would you know if this
procedure was followed by previous administrations?
A: Yes. Since I started working in the MRO in 1976, the procedure has been
followed. However, it was unusually disregarded when the appointments
numbering more than 800 were made by then President Arroyo in March 2010.
The MRO did not even know about some of these appointments and we were
surprised when we learned about them in the newspapers.
Q: You mentioned that then President Arroyo appointed more than 800 persons
in the month of March alone. How were you able to determine this number?
A: My staff counted all the appointments made by then President An-oyo within
the period starting January 2009 until June 2010.
Q: What did you notice, if any, about these appointments?
A: There was a steep rise in the number of appointments made by then
President Arroyo in the month of March 2010 compared to the other months.
Q: Do you have any evidence to show this steep rise?
A: Yes. I prepared a Certification showing these statistics and the graphical
representation thereof.
Q: If those documents will be shown to you, will you be able to recognize them?
A: Yes.
Q: I am showing you a Certification containing the number of presidential
appointees per month since January 2009 until June 2010, and a graphical
representation thereof. Can you go over these documents and tell us the relation
of these documents to the ones you previously mentioned?
A: These are [sic] the Certification with the table of statistics I prepared after we
counted the appointments, as well as the graph thereof.
xxxx
Q: Out of the more than 800 appointees made in March 2010, how many
appointment papers and transmittal letters were released through the MRO?
A: Only 133 appointment papers were released through the MRO.
Q: In some of these transmittal letters and appointment papers which were not
released through the MRO but apparently through the OES, there were portions
on the stamp of the OES which supposedly indicated the date and time it was
actually received by the agency or office concerned but were curiously left blank,
is this regular or irregular?
A: It is highly irregular.
Q: Why do you say so?
A: Usually, if the document released by the MRO, the delivery receipt attached
to the transmittal letter is filled out completely because the dates when the
original appointment papers were actually received are very material. It is a
standard operating procedure for the MRO personnel to ask the person
receiving the documents to write his/her name, his signature, and the date and
time when he/she received it.
Q: So, insofar as these transmittal letters and appointment papers apparently
released by the OES are concerned, what is the actual date when the agency or
the appointee concerned received it?
A: I cannot answer. There is no way of knowing when they were actually
received because the date and time were deliberately or inadvertently left blank.
Q: Can we say that the date appearing on the face of the transmittal letters or
the appointment papers is the actual date when it was released by the OES?
A: We cannot say that for sure. That is why it is very unusual that the person
who received these documents did not indicate the date and time when it was
received because these details are very important. 53
The MRO's exercise of its mandate does not prohibit the President or the
Executive Secretary from giving the appointment paper directly to the appointee.
However, a problem may arise if an appointment paper is not coursed through
the MRO and the appointment paper is lost or the appointment is questioned.
The appointee would then have to prove that the appointment paper was directly
given to him.
Dimaandal's counsel made this manifestation about petitioners' appointment
papers and their transmittal:
Your Honors, we respectfully request for the following markings to be made:
1. A) The Transmittal Letter pertinent to the appointment of petitioner
DINDO VENTURANZA dated March 9, 2010 as Exhibit "2-F" for the
respondents;
B) The delivery receipt attached in front of the letter bearing the
date March 12, 2010 as Exhibit "2-F-l";
C) The Appointment Paper of DINDO VENTURANZA dated
February 23, 2010 as Exhibit "2-G" for the respondents;
2. A) The Transmittal Letter pertinent to the appointment of CHELOY E.
VELICARIA-GARAFIL turned over to the MRO on May 13, 2010
consisting of seven (7) pages as Exhibits "2-H," "2-H-l," "2-H-2," "2-H-3,"
"2-H-4," "2-H-5," and "2-H-6" respectively for the respondents;
i. The portion with the name "CHELOY E.
VELICARIAGARAFIL" as "State Solicitor II, Office of the
Solicitor General" located on the first page of the letter
as Exhibit "2-H-7;"
ii. The portion rubber stamped by the Office of the
Executive Secretary located at the back of the last page
of the -letter showing receipt by the DOJ with blank
spaces for the date and time when it was actually
received as Exhibit "2-H-8;"
B) The Appointment Paper of CHELOY E. VELICARIA-
GARAFIL dated March 5, 2010 as Exhibit "2-I" for the
respondents;
xxxx
4. A) The Transmittal Letter pertinent to the appointment of EDDIE U.
TAMONDONG dated 8 March 2010 but turned over to the MRO only on
May 6, 2010 consisting of two (2) pages as Exhibits "2-L" and "2-L-l"
respectively for the respondents;
(a) The portion with the name "EDDIE U. TAMONDONG" as
"Member, representing the Private Sector, Board of Directors"
as Exhibit "2-L-2";
(b) The portion rubber stamped by the Office of the Executive
Secretary located at the back of the last page of the letter
showing receipt by Ma. Carissa O. Coscuella with blank spaces
for the date and time when it was actually received as Exhibit
"2-L-3";
xxxx
8. A) The Transmittal Letter pertinent to the appointments of x x
x FRANCISCA BESTOYONG-ROSQUITA dated March 8, 2010
but turned over to the MRO on May 13, 2010 as Exhibit "2-T" for
the respondents;
xxxx
(c) The portion with the name "FRANCISCA
BESTOYONGROSQUIT A" as "Commissioner, Representing
Region I and the Cordilleras" as Exhibit "2-T-3·"
(d) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by Masli A.
Quilaman of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"
xxxx
D) The Appointment Paper of FRANCISCA BESTOYONGROSQUIT A
dated March 5, 2010 as Exhibit "2-W" for the respondents;
9. A) The Transmittal Letter pertinent to the appointment of IRMA A.
VILLANUEVA as Administrator for Visayas, Board of Administrators,
Cooperative Development Authority, Department of Finance dated
March 8, 2010 as Exhibit "2-X" for the respondents;
(a) The portion rubber stamped by the Office of the Executive
Secretary at the back thereof showing receipt by DOF with
blank spaces for the date and time when it was actually
received as Exhibit "2-X-1 ;"
B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3,
2010 as Exhibit "2-Y" for the respondents. 54
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and
Retrieval Division of the MRO, supports Dimaandal's counsel's manifestation
that the transmittal of petitioners' appointment papers is questionable.
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State
Solicitor II of the Office of the Solicitor General, was her appointment paper
released through the MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Eddie U. Tamondong, who was appointed as member of the
Board of Directors of Subic Bay Metropolitan Authority, was her [sic]
appointment paper released through the MRO?
The possession of the original appointment paper is not indispensable to
authorize an appointee to assume office. If it were indispensable, then a loss of
the original appointment paper, which could be brought about by negligence,
accident, fraud, fire or theft, corresponds to a loss of the office. However, in
56

A: No. His appointment paper dated March 1, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 6, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
case of loss of the original appointment paper, the appointment must be
evidenced by a certified true copy issued by the proper office, in this case the
MRO. Vacant Position
An appointment can be made only to a vacant office. An appointment cannot be
made to an occupied office. The incumbent must first be legally removed, or his
appointment validly terminated, before one could be validly installed to succeed
him.57

A: The transmittal letter and appointment paper turned over to the MRO.
To illustrate: in Lacson v. Romero, Antonio Lacson (Lacson) occupied the post
58

of provincial fiscal of Negros Oriental. He was later nominated and confirmed as

xxxx
Q: In the case of Francisca Bestoyong-Resquita who was appointed as
Commissioner of the National Commission on Indigenous Peoples, representing
Region 1 and the Cordilleras, was her appointment paper released thru the
MRO?
A: No. Her appointment paper dated March 5, 2010, with its corresponding
transmittal letter, was merely turned over to the MRO on May 13, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary and received on March 15,
2010.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MRO.
xxxx
Q: In the case of Irma A. Villanueva who was appointed as Administrator for
Visayas of the Cooperative Development Authority, was her appointment paper
released thru the MRO?
A: No. Her appointment paper dated March 3, 2010, with its corresponding
provincial fiscal of Tarlac. The President nominated and the Commission on
Appointments confirmed Honorio Romero (Romero) as provincial fiscal of
Negros Oriental as Lacson's replacement. Romero took his oath of office, but
Lacson neither accepted the appointment nor assumed office as provincial fiscal
of Tarlac. This Court ruled that Lacson remained as provincial fiscal of Negros
Oriental, having declined the appointment as provincial fiscal of Tarlac. There
was no vacancy to which Romero could be legally appointed; hence, Romero's
appointment as provincial fiscal ofNegros Oriental vice Lacson was invalid.
The appointment to a government post like that of provincial fiscal to be
complete involves several steps. First, comes the nomination by the President.
Then to make that nomination valid and permanent, the Commission on
Appointments of the Legislature has to confirm said nomination. The last step is
the acceptance thereof by the appointee by his assumption of office. The first
two steps, nomination and confirmation, constitute a mere offer of a post. They
are acts of the Executive and Legislative departments of the Government. But
the last necessary step to make the appointment complete and effective rests
solely with the appointee himself. He may or he may not accept the appointment
or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, "there
is no power in this country which can compel a man to accept an office."
Consequently, since Lacson has declined to accept his appointment as
provincial fiscal of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no vacancy in said office
was created, unless Lacson had been lawfully removed as such fiscal of Negros
Oriental.59

transmittal letter, was merely turned over to the MRO on May 4, 2010. The
transmittal letter that was turned over to the MRO was already stamped
"released" by the Office of the Executive Secretary, but the date and time as to
when it was actually received were unusually left blank.
Q: What is your basis?
A: The transmittal letter and appointment paper turned over to the MR0.
Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those
appointments to offices that will only be vacant on or after 11 March 2010 even
though the appointments are made prior to 11 March 2010. EO 2 remained
faithful to the intent of Section 15, Article VII of the 1987 Constitution: the
outgoing President is prevented from continuing to rule the country indirectly
after the end of his term.
55
Acceptance by the Qualified Appointee declared VOID. We DECLARE that Executive Order No. 2 dated 30 July 2010 is
VALID and CONSTITUTIONAL.
Acceptance is indispensable to complete an appointment. Assuming office and
taking the oath amount to acceptance of the appointment. An oath of office is a
60
SO ORDERED.
qualifying requirement for a public office, a prerequisite to the full investiture of
the office.
61
Footnotes

Javier v. Reyes is instructive in showing how acceptance is indispensable to

62
* On official leave.
complete an appointment. On 7 November 1967, petitioner Isidro M. Javier
(Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of Police
** No part.
of Malolos, Bulacan. The Municipal Council confirmed and approved Javier's
appointment on the same date. Javier took his oath of office on 8 November
1967, and subsequently discharged the rights, prerogatives, and duties of the
1
Under Rule 45 of the Rules of Court. .
office. On 3 January 1968, while the approval of Javier's appointment was
pending with the CSC, respondent Purificacion C. Reyes (Reyes), as the new 2
Rollo (G.R. No. 203372), pp. 45-67. Penned by Associate Justice Noel
mayor of Malolos, sent to the . CSC a letter to recall Javier's appointment. G. Tijam, with Associate Justices Romeo F. Barza and Edwin D.
Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of Sorongon concurring.
the police department. The CSC approved Javier's appointment as permanent
on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes, on the 3
Under Rule 45 of the Rules of Court.
other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of
Malolos, Bulacan on 4 September 1967. This Court ruled that Javier's 4
Rollo (G.R. No. 206290), pp. 10-40. Penned by Associate Justice Noel
appointment prevailed over that of Bernardo. It cannot be said that Bernardo G. Tijam, with Associate Justices Romeo F. Barza and Edwin D.
accepted his appointment because he never assumed office or took his oath. Sorongon concurring.

Excluding the act of acceptance from the appointment process leads us to the 5
Id. at 42-47. Penned by Associate Justice Noel G. Tijam, with
very evil which we seek to avoid (i.e., antedating of appointments). Excluding Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
the act of acceptance will only provide more occasions to honor the
Constitutional provision in the breach. The inclusion of acceptance by the 6
Under Rule 65 of the Rules of Court.
appointee as an integral part of the entire appointment process prevents the
abuse of the Presidential power to appoint. It is relatively easy to antedate
appointment papers and make it appear that they were issued prior to the
7
Rollo (G.R. No. 209138), pp. 38-60. Penned by Associate Justice Noel
appointment ban, but it is more difficult to simulate the entire appointment G. Tijam, with Associate Justices Romeo F. Barza and Edwin D.
process up until acceptance by the appointee. Sorongon concurring.

Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers
were transmitted before the appointment ban took effect. On the other hand,
petitioners admit that they took their oaths of office during the appointment ban.
Petitioners have failed to raise any valid ground for the Court to declare EO 2, or
any part of it, unconstitutional. Consequently, EO 2 remains valid and
8
The following cases were consolidated in the CA: CA-G.R. SP No.
123662 (Atty. Velicaria-Garafil), CA-G.R. SP No. 123663 (Bai Omera D.
Dianalan-Lucman), and CA-G.R. SP No. 123664 (Atty. Tamondong).
9
Under Rule 45 of the Rules of Court.
Rollo (G.R. No. 212030), pp. 30-53. Penned by Associate Justice Noel
10

constitutional. G. Tijam, with Associate Justices Romeo F. Barza and Edwin D.

Sorongon concurring.
WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are
DENIED, and the petition in G.R. No. 209138 is DISMISSED. The appointments Id. at 59-63. Penned by Associate Justice Noel G. Tijam, with
11

of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Associate Justices Romeo F. Barza and Edwin D. Sorongon concurring.
Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita
(G.R. No. 209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are
12
In this Resolution, the following were listed as petitioners-intervenors: 30
Rollo (G.R. No. 212030), p. 13.
Atty. Jose Sonny G. Matula, member of the Social Security Commission
and National Vice President of Federation of Free Workers; Ronnie M. 31
G.R. No. 192987, Eddie U. Tamondong v. Executive Secretary
Nismal, Alvin R. Gonzales, Jome) B. General, Alfredo E. Maranan, Paquito N. Ochoa, Jr.,; G.R. No. 193327, Atty. Cheloy E. Velicaria-
Exequiel V. Bacarro, and Juanito S. Facundo, Board Members, union Garafil v. Office of the President, represented by Hon. Executive
officers, or members of the Federation of Free Workers. Secretary Paquito N. Ochoa, Jr., and Solicitor General Jose Anselmo L.
Cadiz; G.R. No. 193519, Bai Omera D. Dianalan-Lucman v. Executive
13
Rollo (G.R. No. 203372), p. 99. Secretary Paquito N. Ochoa, Jr.; G.R. No. 193867, Atty. Dindo G.
Venturanza, as City Prosecutor a/Quezon City v. Office of the President,
14
Rollo (G.R. No. 206290), p. 115. represented by President of the Republic of the Philippines Benigno
Simeon C. Aquino, Executive Secretary Paquito N. Ochoa, Jr., et al.;
G.R. No. 194135, Manuel D. Anda! v. Paquito N. Ochoa, Jr., as
15
Id. at 121.
Executive Secretary and Junia M. Ragrario; G.R. No. 194398, Atty.
Charita Planas v. Executive Secretary Paquito N. Ochoa, Jr., Tourism
16
Id. at 118. Secretary Alberto A. Lim and Atty. Apolonia B. Anota, Jr.
17
Id. at 119. Intervenors were: Dr. Ronald L. Adamat, in his capacity as
32

Commissioner, National Commission on Indigenous Peoples; Angelita

18
Id. at 120. De Jesus-Cruz, in her capacity as Director, Subic Bay Metropolitan
Authority; Atty. Jose Sonny G. Matula, Member of the Social Security
19
Rollo (G.R. No. 209138), p. 25. Commission National Vice President of Federation of Free Workers;
Ronnie M. Nismal, Alvin R. Gonzales, Jomel B. General, Alfredo E.
20
Id. at 26. Maranan, Exequiel V. Bacarro, and Juanito S. Facundo, as Board
Members, union officers or members of the Federation of Free Workers;
Atty. Noel K. Felongco in his capacity as Commissioner of the National
21
Rollo (G.R. No. 212030), p. 72.
Commission on Indigenous Peoples; Irma A. Villanueva, in her capacity
as Administrator for Visayas, Board of Administrators of the Cooperative
22
Id. at 13. Development Authority; and Francisca B. Rosquita, in her capacity as
Commissioner of the National Commission on Indigenous Peoples.
23
Id. at 73.
33
Rollo (G.R. No. 203372), p. 80.
24
Id. at 13.
34
544 Phil. 525, 5;31 (2007), citing Davide v. Roces, 160-A Phil. 430
http://www.gov.ph/2010/07 /30/executive-order-no-2/ (accessed 15
25
(1975).
June 2015). (Boldfacing and underscoring supplied)
35
Rollo (G.R. No. 203372), p. 66.
26
Rollo (G.R. No. 203372), pp. 19-21.
36
Supra note 34.
27
Rollo (G.R. No. 206290), pp. 55-57.
37
Rollo (G.R. No. 206290), p. 39.
28
G.R. No. 192991 was titled "Atty. Jose Arturo Cagampang De Castro,
J.D., in his capacity as Assistant Secretary, Department of Justice v. 38
Rollo (G.R. No. 209138), p. 60.
Office of the President, represented by Executive Secretary Paquito N.
Ochoa, Jr." 39
Rollo (G.R. No. 212030), p. 52.
29
Rollo (G.R. No. 209138), p. 5.
 See Rule 45, Section 2. Villanueva and Rosquita only had until 2
40 56
See Marbury v. Madison, 5 U.S. 137 (1803).
October 2013 to file their appeal. They filed their petition on 7 October
2013. 57
See Garces v. Court of Appeals, 328 Phil. 403 (1996).

41
Dissenting Opinion of Justice Arturo Brion, p. 43. 58
84 Phil. 740 (1949).

42
No. L-19313, 19 January 1962, 4 SCRA I. 59
Id. at 745.

43
Id. at 10-11. See Javier v. Reyes, 252 Phil. 369 ( 1989). See also Mitra v. Subido,
60

128 Phil. 128 (1967).

44
http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/24/51487
(accessed 15 June 2015). Chavez v. Ronidel, 607 Phil. 76 (2009), citing Mendoza v. Laxina, Sr.,
61

453 Phil. 1013, 1026-1027 (2003); Lecaroz v. Sandiganbayan, 364 Phil.

Dissent, pp. 26-27, citing Bermudez v. Executive Secretary Torres,
45
890, 904 (1999).
370 Phil. 769, 776 (1999) citing Apari v. Court of Appeals, 212 Phil. 215,
222-223 (1984). 62
252 Phil. 369 (1989).

46
Dissent, p. 37.

47
Separate Concurring Opinion of Justice Antonio T. Carpio in Re:
Seniority Among the Four (4) Most Recent Appointments to the Position
of Associate Justices of the Court of Appeals, 646 Phil. 1, 17 (2010),
citing Lacson v. Romero, 84 Phil. 740 (1949); Javier v. Reyes, 252 Phil.
369 (1989); Garces v. Court of Appeals, 328 Phil. 403 (1996); and
Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

See Section 16, Chapter 5, Title I, Book III, Executive Order No. 292,
48

Administrative Code of 1987.

49
See Bermudez v. Executive Secretary Torres, 370 Phil. 769 (1999).

Flores v. Drilon, G.R. No. 104732, 22 June 1993, 223 SCRA 568, 579-
50

580. Citations omitted.

51
Rollo (G.R. No. 206290), pp. 526-527.

52
Id. at 527.

53
Id. at 455-471.

54
Id. at 460-466.

55
Judicial Affidavit of Ellenita G. Gatbunton, Division Chief of File
Maintenance and Retrieval Division of the Malacañang Records Office.
Id. at 410-412, 416-417.