EXECUTIVE POWER DIGESTS

ATTY. ROMULO B. MACALINTAL v. COMELEC,

GR No. 157013, 2003-07-10

Facts:

Macalintal, a member of the Philippine Bar, seek... declaration that certain

provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)... suffer from constitutional infirmity.

R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee
Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds
Therefor, and for Other Purposes," appropriates funds under Section 29 thereof
which provides that a supplemental... budget on the General Appropriations Act of
the year of its enactment into law shall provide for the necessary amount to carry
out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an...
unconstitutional statute.

The challenged provision of law involves a public right that affects a great number
of citizens. The Court has adopted the policy of taking jurisdiction over cases
whenever the petitioner has seriously and convincingly presented an issue of
transcendental significance to the Filipino people.

The need to consider the constitutional issues raised before the Court is...
buttressed by the fact that it is now more than fifteen years since the ratification of
the 1987 Constitution requiring Congress to provide a system for absentee voting
by qualified Filipinos... abroad.

Thus, strong reasons of public policy demand that the Court resolves the instant
petition... and determine whether Congress has acted within the limits of the
Constitution or if it had gravely abused the discretion entrusted to it.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1,

Article V of the 1987 Constitution which requires that the voter must be a resident
in the Philippines for at least one year and in the place where he proposes to vote
for at least six... months immediately preceding an election.
He claims that the right of suffrage... should not be granted to anyone who, on the
date of the election, does not possess the qualifications provided for by Section 1,
Article V of the Constitution.

Issues:

Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are
immigrants or permanent residents in other countries... by their mere act of
executing an affidavit expressing their intention to return to the Philippines, violate
the residency requirement in

Section 1 of Article V of the Constitution?

Ruling:

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
Section 2, Article V of the Constitution that Congress shall provide a system for
voting by qualified Filipinos abroad.

It must be stressed that Section 2 does not provide for the parameters of... the
exercise of legislative authority in enacting said law. Hence, in the absence of
restrictions, Congress is presumed to have duly exercised its function as defined in
Article VI (The Legislative Department) of the Constitution.

Such statutes are regarded as conferring a privilege and not a right, or an absolute
right. When the legislature chooses to grant the right by statute, it must operate
with equality among all the class to which it is granted; but statutes of this nature
may be limited in... their application to particular types of elections. The statutes
should be construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to amendment
and to predecessor statutes and... the decisions thereunder; they should also be
construed in the light of the circumstances under which they were enacted; and so
as to carry out the objects thereof, if this can be done without doing violence to
their provisions and mandates. Further, in passing on... statutes regulating absentee
voting, the court should look to the whole and every part of the election laws, the
intent of the entire plan, and reasons and spirit of their adoption, and try to give
effect to every portion thereof.

Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the
same time, both a resident and an absentee.[30] However, under our election laws
and the countless pronouncements of the Court pertaining to elections, an
absentee... remains attached to his residence in the Philippines as residence is
considered synonymous with domicile.

For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election
law, what has clearly and unequivocally emerged is the fact that residence for
election purposes... is used synonymously with domicile.

Thus, the Constitutional Commission recognized the fact that while millions of
Filipinos reside abroad principally for economic reasons and hence they contribute
in no small measure to the economic uplift of this country, their voices are
marginal insofar as the choice of... this country's leaders is concerned.

It is in pursuance of that intention that the Commission provided for Section 2

immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in
construing constitutional... provisions,... the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to the
actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in... effect declared that qualified Filipinos who
are not in the Philippines may be allowed to vote even though they do not satisfy
the residency requirement in Section 1, Article V of the Constitution.

Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only
proof of the intention of the immigrant or permanent resident to go back and
resume residency in the

Philippines, but more significantly, it serves as an explicit expression that he had

not in fact abandoned his domicile of origin. Thus, it is not correct to say that the
execution of the affidavit under Section 5(d) violates the Constitution that
proscribes "provisional... registration or a promise by a voter to perform a
condition to be qualified to vote in a political exercise."

To repeat, the affidavit is required of immigrants and permanent residents abroad

because by their status in their host countries, they are presumed to have
relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of

Philippine domicile shall remain.

It must be emphasized that Section 5(d) does not only require an affidavit or a
promise to "resume actual physical permanent residence in the Philippines not later
than three years from approval of his/her registration," the Filipinos abroad must
also declare that they have... not applied for citizenship in another country. Thus,
they must return to the Philippines; otherwise, their failure to return "shall be cause
for the removal" of their names "from the National Registry of Absentee Voters
and his/her permanent disqualification to vote in... absentia."

Thus, Congress crafted a process of registration by which a Filipino voter

permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who has
not actually abandoned his/her... intentions to return to his/her domicile of origin,
the Philippines, is allowed to register and vote in the Philippine embassy, consulate
or other foreign service establishments of the place which has jurisdiction over the
country where he/she has indicated his/her address for... purposes of the elections,
while providing for safeguards to a clean election.

Contrary to petitioner's claim that Section 5(d) circumvents the Constitution,

Congress enacted the law prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate expressly requires that
Congress provide a system of... absentee voting that necessarily presupposes that
the "qualified citizen of the Philippines abroad" is not physically present in the
country. The provisions of Sections 5(d) and 11 are components of the system of
overseas absentee voting established by R.A. No. 9189. The... qualified Filipino
abroad who executed the affidavit is deemed to have retained his domicile in the
Philippines. He is presumed not to have lost his domicile by his physical absence
from this country. His having become an immigrant or permanent resident of his
host country does... not necessarily imply an abandonment of his intention to return
to his domicile of origin, the Philippines. Therefore, under the law, he must be
given the opportunity to express that he has not actually abandoned his domicile in
the Philippines by executing the affidavit... required by Sections 5(d) and 8(c) of
the law.

AQUILINO Q. PIMENTEL, JR.

versus
JOINT COMMITTEE OF CONGRESS TO CANVASS THE VOTES FOR
PRESIDENT & VICE PRESIDENT IN THE MAY 10 2004 ELECTIONS
Facts:
By a petition for prohibition, Senator Aquilino Q. Pimentel, Jr. seeks a judgment
declaring null and void the continued existence of the Joint Committee of Congress
to determine the authenticity and due execution of the certificates of canvass and
preliminarily canvass the votes cast for Presidential and Vice Presidential
candidates in the May 10 2004 elections following the adjournment of Congress on
June 11 2004.

The petition corollarily prays for the issuance of a writ of prohibition directing the
Joint Committee to cease and desist from conducting any further proceedings
pursuant to the Rules of the Joint Public Session of Congress on Canvassing.

Issue:

Whether or not legislative procedure, precedent or practice as borne out by the

rules of both Houses of Congress supports Pimentel’s arguments against the
existence and proceedings of the Joint Committee of Congress after the
adjournment of Congress.

Held:

NO. Pimentel’s claim that his arguments are buttressed by “legislative procedure,
precedent or practice as borne out by the rules of both Houses of Congress” is
directly contradicted by Section 42 of Rule XIV of the Rules adopted by the
Senate, of which he is an incumbent member.

Moreover, the precedents set by the 1992 and 1998 Presidential Elections do not
support the move to stop the ongoing canvassing by the Joint Committee. Thus,
during the 1992 Presidential elections, both Houses of Congress adjourned on 25
May 1992. Thereafter, on 22 June 1992, the Eight Congress convened in joint
public session as the National Board of Canvassers, and on even date proclaimed
Fidel V. Ramos and Joseph Ejercito Estrada as President and Vice President,
respectively.

QUINTIN S. DOROMAL v. SANDIGANBAYAN,

GR No. 85468, 1989-09-07

Facts:
In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a
preliminary investigation of the charge against the petitioner, Quintin S. Doromal,
a former Commissioner of... the Presidential Commission on Good Government
(PCGG), for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec.
3(h), in connection with his shareholdings and position as president and director of
the Doromal International Trading

Corporation (DITC) which submitted bids to supply P61 million worth of

electronic, electrical, automotive, mechanical and airconditioning equipment to the
Department of Education, Culture and Sports (or DECS) and the National
Manpower and Youth Council (or NMYC). then Commissioner of the Presidential
Commission on Good Government, did then and there willfully and unlawfully
have direct or indirect financial interest in the Doromal International Trading
Corporation, an entity which transacted or entered into a business transaction or
contract with the Department of Education, Culture and Sports and the National
Manpower and Youth Council,... Upon the annulment of the information against
the petitioner, the Special Prosecutor sought clearance from the Ombudsman to
refile it.

The above-named accused [Doromal], a public officer, being then a Commissioner

of the Presidential Commission on Good Government, did then and there wilfully
and unlawfully,... participate in a business through the Doromal International
Trading Corporation, a family corporation of which he is the President, and which
company participated in the biddings conducted by the Department of Education,
Culture and Sports and the National Manpower & Youth Council, which act or
participation is prohibited by law and the constitution."

The Sandiganbayan denied the motion to quash in its orders dated July 25, 1988
and August 19, 1988 (Annexes D, N and O, pp. 81, 173 & 179, Rollo)
Sandiganbayan on September 5, 1988 ordered his supension pendente lite from his
position as PCGG Commissioner and from any other office he may be holding
(Annex T)

His motion for reconsideration of that order was also denied by the Court (Annex
Y).The petitioner contends that as the preliminary investigation that was conducted
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been
conducted before the new... information in Criminal Case No. 12893 was filed
against him.

Issues:

Sandiganbayan gravely abused its discretion:  (1) in denying the petitioner's...

motion to quash the information in Criminal Case No. 12893; and, (2) in
suspending the petitioner from office despite the President's having previously
approved his indefinite leave of absence "until final decision" in this case.

Ruling:

The petition is meritorious.  A new preliminary investigation of the charge against

the petitioner is in order not only because the first was a nullity ("a dead limb on
the judicial tree which should be lopped off and... wholly disregarded" - Anuran
vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right. 
Moreover, the charge against him had been changed, as directed by the
Ombudsman.

Thus, while the first information in Criminal Case No. 12766 charged that the
DITC -

"entered into a business transaction or contract with the Department of Education,

Culture and Sports and the National Manpower and Youth Council, x x x which
business, contracts or transactions he [petitioner] is... prohibited by law and the
constitution from having any interest." (p. 70, Rollo.)... the new information in
Criminal Case No. 12883 alleges that the petitioner:

"unlawfully participate[d] in a business through the Doromal International Trading

Corporation, a  family corporation of which he is the President, and which
company participated in the biddings conducted by the
Department of Education, Culture and Sports and the National Manpower & Youth
Council, which act or participation is prohibited by law and the constitution." (p.
68, Rollo.)

The petitioner's  right to a preliminary investigation of the new charge is secured to

him by the following provisions of Rule 112 of the 1985 Rules on Criminal
Procedure:

That right of the accused is "a substantial one." Its denial over his opposition is a
"prejudicial error, in that it subjects the accused to the loss of life, liberty, or
property without due process of law" (U.S. vs. Marfori, 35

Phil. 666).

despite the dismissal of the original charge for falsification as being 'without any
factual or legal basis,' petitioners are entitled to a new preliminary investigation for
the graft charge,... In line with the settled doctrine as restated in People vs.
Abejuela (38 SCRA 324), respondent court shall hold in abeyance all proceedings
in the... case before it until after the outcome of such new preliminary
investigation.

"In this jurisdiction, the preliminary investigation in criminal cases is not a creation
of the Constitution; its origin is statutory and it exists and the right thereto can be
invoked when so established and granted by... law.  (Mariano Marcos, et al. vs.
Roman A. Cruz, 68 Phil. 96; underscoring supplied.)"

Brought up for review before this Court is the order dated August 19, 1988 of the
Sandiganbayan denying petitioner's motion to quash the information against him in
Criminal Case No. 12893, entitled "People... of the Philippines vs. Hon. Quintin S.
Doromal," and the Sandiganbayan's order suspending him from office during the
pendency of the case.

In October 1987, Special Prosecution Officer II, Dionisio A. Caoili, conducted a

preliminary investigation of the charge against the petitioner, Quintin S. Doromal,
a former Commissioner of... the Presidential Commission on Good Government
(PCGG), for violation of the Anti-Graft and Corrupt Practices Act (RA 3019), Sec.
3(h), in connection with his shareholdings and position as president and director of
the Doromal International Trading

Corporation (DITC) which submitted bids to supply P61 million worth of

electronic, electrical, automotive, mechanical and airconditioning equipment to the
Department of Education, Culture and Sports (or DECS) and the National
Manpower and Youth Council (or

NMYC).

On January 25, 1988, with the approval of Special Prosecutor Raul Gonzales,
Caoili filed in the Sandiganbayan an information against the petitioner (Criminal
Case No. 12766) alleging:

"That in or about the period from April 28, 1986 to October 16, 1987, in Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer, being then Commissioner of the Presidential
Commission on

Good Government, did then and there willfully and unlawfully have direct or
indirect financial interest in the Doromal International Trading Corporation, an
entity which transacted or entered into a business transaction or contract with the
Department of

Education, Culture and Sports and the National Manpower and Youth Council,
both agencies of the government which business, contracts or transactions he is
prohibited by law and the constitution from having any interest." (pp. 246-247,
Rollo; underlining... supplied.)

The petitioner filed a petition for certiorari and prohibition in this Court
questioning the jurisdiction of the "Tanodbayan" to file the information without the
approval of the Ombudsman after the effectivity... of the 1987 Constitution (G.R.
No. 81766, entitled "Doromal vs. Sandiganbayan").

On June 30, 1988, this Court annulled the information in accordance with its
decision in the consolidated cases of Zaldivar vs. Sandiganbayan, G.R. Nos.
79690-707 and Zaldivar... vs. Gonzales, G.R. No. 80578, April 27, 1988 (160
SCRA 843), where it ruled that:

"x x x the incumbent Tanodbayan (called Special Prosecutor under the 1987
Constitution and who is supposed to retain powers and duties NOT GIVEN to the
Ombudsman) is clearly without authority to conduct preliminary... investigations
and to direct the filing of criminal cases with the Sandiganbayan, except upon
orders of the Ombudsman.  This right to do so was lost effective February 2, 1987. 
From that... time, he has been divested of such authority."
Upon the annulment of the information against the petitioner, the Special
Prosecutor sought clearance from the Ombudsman to refile it.

In a Memorandum dated July 8, 1988, the Ombudsman, Honorable Conrado

Vasquez, granted clearance but advised that "some changes be made in the
information previously filed." (p. 107,... Rollo.)

Complying with that Memorandum, a new information, duly approved by the

Ombudsman, was filed in the Sandiganbayan (Criminal Case No. 12893), alleging
that:

"x x x, the above-named accused [Doromal], a public officer, being then a

Commissioner of the Presidential Commission on Good Government, did then and
there wilfully and unlawfully,... participate in a business through the Doromal
International Trading Corporation, a family corporation of which he is the
President, and which company participated in the biddings conducted by the
Department of Education, Culture and

Sports and the National Manpower & Youth Council, which act or participation is
prohibited by law and the constitution." (p. 68, Rollo; emphasis supplied.)

On July 25, 1988, petitioner filed a "Motion to Quash" the information for being:

(a) invalid because there had been no preliminary investigation; and

(b) defective because the facts alleged do not constitute the offense charged
(Annex C).

The Sandiganbayan denied the motion to quash in its orders dated July 25, 1988
and August 19, 1988 (Annexes D, N and O, pp. 81, 173 & 179, Rollo).

On August 22, 1988, the Special Prosecutor filed a "Motion to Suspend Accused
Pendente Lite" pursuant to Section 13 of the Anti-Graft and Corrupt Practices Act
(R.A. 3019).  Over the petitioner's objection (because the President had... earlier
approved his application for indefinite leave of absence as PCGG commissioner
"effective immediately and until final decision of the courts in your case" [Annex
S-1, p. 189, Rollo]), the

Sandiganbayan on September 5, 1988 ordered his supension pendente lite from his
position as PCGG Commissioner and from any other office he may be holding
(Annex T).  His motion for... reconsideration of that order was also denied by the
Court (Annex Y).  Hence, this petition for certiorari and prohibition alleging that
the Sandiganbayan gravely abused its discretion:  (1) in denying the petitioner's...
motion to quash the information in Criminal Case No. 12893; and, (2) in
suspending the petitioner from office despite the President's having previously
approved his indefinite leave of absence "until final decision" in this case.

The petitioner contends that as the preliminary investigation that was conducted
prior to the filing of the original information in Criminal Case No. 12766 was
nullified by this Court, another preliminary investigation should have been
conducted before the new... information in Criminal Case No. 12893 was filed
against him.  The denial of his right to such investigation allegedly violates his
right to due process and constitutes a ground to quash the information.

On the other hand, the public respondent argues that another preliminary
investigation is unnecessary because both old and new informations involve the
same subject matter - a violation of Section 3(H) of R.A. No. 3019 (the Anti-Graft
and

Corrupt Practices Act) in relation to Section 13, Article VII of the 1987
Constitution.  Moreover, the petitioner allegedly waived the second preliminary
investigation by his failure to comply with the Court's Order dated August 12,
1988... directing him to submit a statement of new or additional facts, duly
supported by photo copies of documents which he would present should a new
preliminary investigation be ordered (Annex H, p. 94,... Rollo).

The petition is meritorious.  A new preliminary investigation of the charge against

the petitioner is in order not only because the first was a nullity ("a dead limb on
the judicial tree which should be lopped off and... wholly disregarded" - Anuran
vs. Aquino, 38 Phil. 29) but also because the accused demands it as his right. 
Moreover, the charge against him had been changed, as directed by the
Ombudsman.

Thus, while the first information in Criminal Case No. 12766 charged that the
DITC -

"entered into a business transaction or contract with the Department of Education,

Culture and Sports and the National Manpower and Youth Council, x x x which
business, contracts or transactions he [petitioner] is... prohibited by law and the
constitution from having any interest." (p. 70, Rollo.)... the new information in
Criminal Case No. 12883 alleges that the petitioner:
"unlawfully participate[d] in a business through the Doromal International Trading
Corporation, a  family corporation of which he is the President, and which
company participated in the biddings conducted by the

Department of Education, Culture and Sports and the National Manpower & Youth
Council, which act or participation is prohibited by law and the constitution." (p.
68, Rollo.)

The petitioner's  right to a preliminary investigation of the new charge is secured to

him by the following provisions of Rule 112 of the 1985 Rules on Criminal
Procedure:

"SEC. 3.  Procedure.  x x x no complaint or information for an offense cognizable

by the Regional Trial Court shall be filed without a preliminary... investigation
having been first conducted x x x."

"SEC. 7.  When accused lawfully arrested without warrant.  - When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional Trial
Court, the complaint or information... may be filed by the offended party, peace
officer or fiscal without a preliminary investigation having been first conducted, on
the basis of the affidavit of the offended party or arresting officer or person.

"However, before the filing of such complaint or information, the person arrested
may ask for a preliminary investigation by a proper officer in accordance with this
Rule x x x.

"If the case has been filed in court without a preliminary investigation having been
first conducted, the accused may within five (5) days from the time he learns of the
filing of the information, ask for a preliminary investigation with the same right...
to adduce evidence in his favor in the manner prescribed in this Rule."

That right of the accused is "a substantial one." Its denial over his opposition is a
"prejudicial error, in that it subjects the accused to the loss of life, liberty, or
property without due process of law" (U.S. vs. Marfori, 35

Phil. 666).

The need to conduct a new preliminary investigation when the defendant demands
it and the allegations of the complaint have been amended, has been more than
once affirmed by this Court:
"III.  (a) x x x, the Court finds that since the information for alleged violation of
the Anti-Graft Law was filed without any previous notice to petitioners and due
preliminary investigation thereof, and... despite the dismissal of the original charge
for falsification as being 'without any factual or legal basis,' petitioners are entitled
to a new preliminary investigation for the graft charge, with all the rights to which
they are entitled under section 1 of Republic Act

No. 5180, approved September 8, 1967, as invoked by them anew from respondent
court, viz, the submittal of the testimonies in affidavit form of the complainant and
his witnesses duly, sworn to before the investigating fiscal, and the right of
accused, through... counsel, to cross-examine them and to adduce  evidence in their
defense.  In line with the settled doctrine as restated in People vs. Abejuela (38
SCRA 324), respondent court shall hold in abeyance all proceedings in the... case
before it until after the outcome of such new preliminary investigation.  (Luciano
vs. Mariano, 40 SCRA 187, 201; underlining ours).

"The right of the accused not to be brought to trial except when remanded therefor
as a result of a preliminary examination before a committing magistrate, it has
been held is a substantial one.  Its denial over the objections of... the accused is
prejudicial error in that it subjects the accused to the loss of life, liberty or property
without due process of law.  (Conde vs. Judge of Court of First Instance of
Tayabas, 45

Phil. 173, 176.)

"The absence of a preliminary investigation - if it is not waived - may amount to a

denial of due process.  (San Diego vs. Hernandez, 24 SCRA 110, 114.)

"In this jurisdiction, the preliminary investigation in criminal cases is not a creation
of the Constitution; its origin is statutory and it exists and the right thereto can be
invoked when so established and granted by... law.  (Mariano Marcos, et al. vs.
Roman A. Cruz, 68 Phil. 96; underscoring supplied.)"

The Solicitor General's argument that the right to a preliminary investigation may
be waived and was in fact waived by the petitioner, impliedly admits that the right
exists.  Since the right belongs... to the accused, he alone may waive it.  If he
demands it, the State may not withhold it.

the court, instead of dismissing the information should conduct such investigation,
order the fiscal to conduct it or remand the case to the inferior court so that the...
preliminary investigation may be conducted.
The Sandiganbayan in its order of August 19, 1988 correctly observed that "the
presence of a signed document bearing the signature of accused Doromal as part of
the application to bid x x x is not a sine qua non" (Annex O,... p. 179, Rollo), for,
the Ombudsman indicated in his Memorandum/Clearance to the Special
Prosecutor, that the petitioner "can rightfully be charged x x x with having
participated in a business which act is absolutely prohibited by Section 13... of
Article VII of the Constitution" because "the DITC remained a family corporation
in which Doromal has at least an indirect interest." (pp. 107-108, Rollo.)

On the suspension of the petitioner from office, Section 13 of the Anti-Graft and
Corrupt Practices Act (RA 3019) provides:

 "SEC. 13.  Suspension and loss of benefits.  - Any public officer against whom
any criminal... prosecution under a valid information under this Act or under the
provisions of the Revised Penal Code on bribery is pending in court, shall be
suspended from office.  Should he be convicted by final judgment, he shall lose all
retirement or... gratuity benefits under any law, but if he is acquitted, he shall be
entitled to reinstatement and to the salaries and benefits which he failed to receive
during suspension, unless in the meantime administrative proceedings have been
filed against him."

Since the petitioner is an incumbent public official charged in a valid information

with an offense punishable under the Constitution and the laws (RA 3019 and PD
807), the law's command that he "shall be suspended from office"... pendente lite
must be obeyed.

His approved leave of absence is not a bar to his preventive suspension for, as
indicated by the Solicitor General, an approved leave, whether it be... for a fixed or
indefinite period, may be cancelled or shortened at will by the incumbent.

Nevertheless, as we held in Layno, Sr. vs. Sandiganbayan, 136 SCRA 536 (1985),
a preventive suspension for an indefinite period of time, such as one that would last
until the case against the incumbent official shall have been finally... terminated,
would "outrun the bounds of reason and result in sheer oppression" and a denial of
due process.

The others believed, however,... that that period may not apply strictly to cases of
presidential appointees, nevertheless, the preventive suspension shall be limited to
a reasonable period.
The petitioner herein is no less entitled to similar protection.  Since his preventive
suspension has exceeded the reasonable maximum period of ninety (90) days
provided in Section 42 of the Civil Service Decree of the Philippines

(P.D. 807), it should now be lifted.

WHEREFORE, the petition for certiorari and prohibition is granted.  The

Sandiganbayan shall immediately remand Criminal Case No. 12893 to the Office
of the Ombudsman for preliminary investigation and shall... hold in abeyance the
proceedings before it pending the result of such investigation.  The preventive
suspension of the petitioner is hereby lifted.  No costs.

Principles:

Section 13, Article VII of the 1987 Constitution provides that "the President, Vice-
President, the members of the Cabinet and their deputies or assistants shall not x x
x during (their) tenure, x... x x directly or indirectly x x x participate in any
business." The constitutional ban is similar to the prohibition in the Civil Service
Law (PD No. 807, Sec. 36,... subpar. 24) that "pursuit of private business x x x
without the permission required by Civil Service Rules and Regulations" shall be a
ground for disciplinary action against any officer or employee in the civil...
service.

CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE

SECRETARY, respondent

G.R. No. 83815             February 22, 1991

FACTS:
 The two petitions in this case sought to declare unconstitutional Executive
Order No. 284 issued by then President Corazon C. Aquino.

 The petitioners alleged that Section 1, 2 and 3 of EO 284 contravenes the

provision of Sec. 13, Article VII of the 1987 Constitution

 The assailed provisions of EO 284 are as follows:

Section 1: A cabinet member, 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.

Section 2: If they hold more positions more than what is required in section 1, they
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.

Section 3: AT least 1/3 of the members of the boards of such corporation should
either be a secretary, or undersecretary, or assistant secretary.

 13, Article VII of the 1987 Constitution, meanwhile, states that:

Section 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.

The spouse and relatives by consanguinity or affinity within the fourth civil degree
of the President shall not, during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.

 PETITIONERS CONTENTION: EO 284 adds exceptions to Section 13 of

Article VII other than those provided in the constitution. According to the
petitioners, 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 of Article VII: “The Vice-President may be appointed as a
Member of the Cabinet. Such appointment requires no confirmation.”) and
the secretary of justice (as an ex-officio member of the Judicial and Bar
Council by virtue of Sec. 8 of article VIII: “A Judicial and Bar Council is
hereby created under the supervision of the Supreme Court composed of the
Chief Justice as ex officio Chairman, the Secretary of Justice, and a
representative of the Congress as ex officio Members, a representative of the
 Integrated Bar, a professor of law, a retired Member of the Supreme Court,
and a representative of the private sector.”)

ISSUE: Whether or not EO 284 is unconstitutional

HELD: Yes. EO 284 is UNCONSTITUTIONAL.

The court said, by allowing Cabinet members, undersecretaries or assistant

secretaries to hold at least two positions in the government and government
corporations, EO 284 actually allows them to hold multiple offices or employment
which is a direct contravention of the express mandate of Article VII, Section 13 of
the 1987 Constitution which prohibits them from doing so, unless otherwise
provided in the 1987 Constitution itself.

The explained that 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 which are Section 3 of Article VII (for VP)
and Section 8 of Article VIII (for Secretary of Justice).

Thus, the PETITION is GRANTED.

Funa vs Executive Secretary

G.R. No. 184740 February 11, 2010

VILLARAMA, JR., J.:

Facts:

This is a petition for certiorari, prohibition and mandamus under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction, to declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the
Maritime Industry Authority (MARINA).

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent

Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of
Transportation and Communications (DOTC).
On September 1, 2008, following the resignation of then MARINA
Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-
Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity
as DOTC Undersecretary.

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned

citizen and lawyer, filed the instant petition challenging the constitutionality of
Bautista’s appointment/designation, which is proscribed by the prohibition on the
President, Vice-President, the Members of the Cabinet, and their deputies and
assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was

appointed Administrator of the MARINA and she assumed her duties and
responsibilities as such on February 2, 2009.

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and

MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution .
On the other hand, the respondents argue that the requisites of a judicial inquiry are
not present in this case. In fact, there no longer exists an actual controversy that
needs to be resolved in view of the appointment of respondent Bautista as
MARINA Administrator effective February 2, 2009 and the relinquishment of her
post as DOTC Undersecretary for Maritime Transport, which rendered the present
petition moot and academic. Petitioner’s prayer for a temporary restraining order
or writ of preliminary injunction is likewise moot and academic since, with this
supervening event, there is nothing left to enjoin.

Issue:

Whether or not the designation of respondent Bautista as OIC of MARINA,

concurrent with the position of DOTC Undersecretary for Maritime Transport to
which she had been appointed, violated the constitutional proscription against dual
or multiple offices for Cabinet Members and their deputies and assistants.

Held:

The petition is meritorious.

Petitioner having alleged a grave violation of the constitutional prohibition against

Members of the Cabinet, their deputies and assistants holding two (2) or more
positions in government, the fact that he filed this suit as a concerned citizen
sufficiently confers him with standing to sue for redress of such illegal act by
public officials.

A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events, so that a declaration thereon would be of no practical
use or value. Generally, courts decline jurisdiction over such case or dismiss it on
ground of mootness. But even in cases where supervening events had made the
cases moot, this Court did not hesitate to resolve the legal or constitutional issues
raised to formulate controlling principles to guide the bench, bar, and public. In the
present case, the mootness of the petition does not bar its resolution.
Resolution of the present controversy hinges on the correct application of Section
13, Article VII of the 1987 Constitution, which provides:

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.

The spouse and relatives by consanguinity or affinity within the fourth civil degree
of the President shall not, during his tenure, be appointed as Members of the
Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-
owned or controlled corporations and their subsidiaries.

On the other hand, Section 7, paragraph (2), Article IX-B reads:

Sec. 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no
appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
Noting that the prohibition imposed on the President and his official family is all-
embracing, the disqualification was held to be absolute, as the holding of "any
other office" is not qualified by the phrase "in the Government" unlike in
Section 13, Article VI prohibiting Senators and Members of the House of
Representatives from holding "any other office or employment in the
Government"; and when compared with other officials and employees such as
members of the armed forces and civil service employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the President and his

official family, which prohibitions are not similarly imposed on other public
officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the
1987 Constitution to treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized by
the Constitution itself. In other words, Section 7, Article IX-B 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.

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. The
phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of
the Cabinet under Section 3, par. (2), Article VII; or acting as President in
those instances provided under Section 7, pars. (2) and (3), Article VII; and,
the Secretary of Justice being ex-officio member of the Judicial and Bar
Council by virtue of Section 8 (1), Article VIII.
Respondent Bautista being then the appointed Undersecretary of DOTC, she was
thus covered by the stricter prohibition under Section 13, Article VII and
consequently she cannot invoke the exception provided in Section 7, paragraph 2,
Article IX-B where holding another office is allowed by law or the primary
functions of the position. Neither was she designated OIC of MARINA in an ex-
officio capacity, which is the exception recognized in Civil Liberties Union.
WHEREFORE, the petition is GRANTED. The designation of respondent Ma.
Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime
Industry Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987
Constitution and therefore, NULL and VOID.

Note:
Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent official, as where, in the
case before us, the Secretary of Tourism is designated Chairman of the Board of
Directors of the Philippine Tourism Authority, or where, under the Constitution,
three Justices of the Supreme Court are designated by the Chief Justice to sit in the
Electoral Tribunal of the Senate or the House of Representatives. It is said that
appointment is essentially executive while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is
the common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the office
only in a temporary capacity and may be replaced at will by the appointing
authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure on the person
named.
Marcos v. Manglapus

Facts:

Former President Ferdinand Marcos petitions the SC for mandamus and

prohibition asking to order respondents to issue travel documents to him and his
immediate family and to enjoin the implementation of the President "s decision to
bar their return to the Philippines.

Issue:

WON the President may prohibit the Marcoses from returning to the Philippines, in
the exercise of the powers granted in her by the Constitution.

Ruling:

Affirmative. 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 ". The powers of the President cannot be
said to be limited only to the specific powers enumerated in the Constitution.
Whatever power inherent in the government that is neither legislative nor judicial
has to be executive. Even the members of the Legislature has recognized that
indeed Mrs. Aquino has the power under the Constitution to bar the Marcoses from
returning, as per House Resolution No. 1342.

Marcos v Manglapus, et. al.

Facts: Same as above, except that Ferdinand has died.

Held: 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.  
------------------

Facts:

This case involves a petition of mandamus and prohibition asking the court to
order the respondents Secretary of Foreign Affairs, etc. To issue a "travel
documents "to former Pres. 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. Petitioners assert that the right of the Marcoses "to return "in the
Philippines is guaranteed by "the Bill of Rights, specifically "Sections "1 and 6.
They contended that Pres. Aquino 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 the President impair their right to travel because no law has authorized
her to do so.

They further assert that under "international law, their right "to return "to the
Philippines is guaranteed particularly by the Universal Declaration of Human
Rights and the International Covenant on "Civil "and Political Rights, which has
been ratified by the Philippines.

Issue:

"Whether or not, in the exercise of the powers granted by "the constitution, the
President (Aquino) may prohibit the Marcoses from returning to the Philippines.

Held:

"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 in this
case at bar is the right "to return "to one's country, a distinct right under
"international law, independent from although related to the right to travel. Thus,
the Universal Declaration of Human 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 the country, and the right to enter
one's country as separate and distinct rights. What the Declaration speaks of is the
"right to freedom of "movement "and residence within the borders of each state".
On the other hand, the Covenant guarantees the right to liberty of "movement "and
freedom to choose his residence and the right to be free to leave any country,
including his own. Such rights may only be restricted by laws protecting the
"national security, public order, "public health "or morals or the separate rights of
others. However, right to enter one's country cannot be arbitrarily deprived. It
would be therefore inappropriate to construe the limitations to the right "to return
"to ones country in the same context as those pertaining to the liberty of abode and
the right to travel.

The Bill of rights "treats only the liberty of abode and the right to travel, but it is a
well considered view that the right "to return "may be considered, as a generally
accepted principle of "International Law "and under our Constitution as part of the
law of the land. "

The court held that President did not act arbitrarily or with grave abuse of
discretion in determining that the return of the Former Pres. Marcos and his family
poses a serious threat to national interest and welfare. President Aquino has
determined that the destabilization caused by the return of the Marcoses would
wipe away the gains achieved during the past few years after the Marcos regime.

The return of the Marcoses poses a serious threat and therefore prohibiting their
return to the Philippines, the instant petition is hereby DISMISSED.

 —

Ocampo v. Enriquez G.R. No. 225973, November 08, 2016 with former C.J.
Sereno’s Dissenting Opinion

AUGUST 20, 2018

FACTS:

Public respondent Secretary of National Defense Delfin N. Lorenzana issued a

Memorandum to the public respondent Chief of Staff of the AFP, General Ricardo
R. Visaya, regarding the interment of Marcos at the Libingan Ng Mga
Bayani (LNMB) in reference to the Verbal Order of President Duterte.

Respondent AFP Rear Admiral Ernesto C. Enriquez issued directives to the

Philippine Army (PA) Commanding General for the Funeral Honors and Service to
former President Marcos.

Dissatisfied with the said issuance, the following were filed by petitioners:

1. Petition for Certiorari and Prohibition filed by Saturnino Ocampo and several

others, in their capacities as human rights advocates or human rights violations
victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human
Rights Victims Reparation and Recognition Act of 2013).

2. Petition for Certiorari-in-Intervention filed by Rene A.V. Saguisag, Sr. and his

son, as members of the Bar and human rights lawyers, and his grandchild.

3. Petition for Prohibition filed by Representative Edcel C. Lagman, in his personal

capacity, as member of the House of Representatives and as Honorary Chairperson
of Families of Victims of Involuntary Disappearance (FIND), a duly-registered
corporation and organization of victims and families of enforced disappearance,
mostly during the martial law regime of the former President Marcos, and several
others, in their official capacities as duly-elected Congressmen of the House of
Representatives of the Philippines.

4. Petition for Prohibition filed by Loretta Ann Pargas-Rosales, former

Chairperson of the Commission on Human Rights, and several others, suing as
victims of State-sanctioned human rights violations during the martial law regime
of Marcos.

5. Petition for Mandamus and Prohibition filed by Heherson T. Alvarez, former

Senator of the Republic of the Philippines, who fought to oust the dictatorship of
Marcos, and several others, as concerned Filipino citizens and taxpayers.

6. Petition for Certiorari and Prohibition filed by Zaira Patricia B. Baniaga and

several others, as concerned Filipino citizens and taxpayers.

7. Petition for Certiorari and Prohibition filed by Algamar A. Latiph, former

Chairperson of the Regional Human Rights Commission, Autonomous Region in
Muslim Mindanao, by himself and on behalf of the Moro who are victims of
human rights during the martial law regime of Marcos.

8. Petition for Certiorari and Prohibition filed by Leila M. De Lima as member of

the Senate of the Republic of the Philippines, public official and concerned citizen.

ISSUES:

1. Whether President Duterte’s determination to have the remains of Marcos

interred at the LNMB poses a justiciable controversy.

2. Whether petitioners have locus standi to file the instant petitions.

3. Whether petitioners violated the doctrines of exhaustion of administrative

remedies and hierarchy of courts.

4. Whether the Issuance and implementation of the assailed memorandum and

directive violate the Constitution, domestic and international laws.

RULING:

Justiciable controversy

It is well settled that no question involving the constitutionality or validity of a law

or governmental act may be heard and decided by the Court unless the following
requisites for judicial inquiry are present:

(a) there must be an actual case or controversy calling for the exercise of judicial
power;

(b) the person challenging the act must have the standing to question the validity of
the subject act or issuance;

(c) the question of constitutionality must be raised at the earliest opportunity; and

(d) the issue of constitutionality must be the very lis mota of the case.

In this case, the absence of the first two requisites, which are the most essential,
renders the discussion of the last two superfluous.
An “actual case or controversy” is one which involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.

Moreover, the limitation on the power of judicial review to actual cases and
controversies carries the assurance that the courts will not intrude into areas
committed to the other branches of government. Those areas pertain to questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government.cralawred As they are
concerned with questions of policy and issues dependent upon the wisdom, not
legality of a particular measure, political questions used to be beyond the ambit of
judicial review.

The Court agrees with the OSG that President Duterte’s decision to have the
remains of Marcos interred at the LNMB involves a political question that is not a
justiciable controversy.

In the exercise of his powers under the Constitution and E.O. No. 292
(Administrative Code of 1987) to allow the interment of Marcos at the LNMB,
which is a land of the public domain devoted for national military cemetery and
military shrine purposes, President Duterte decided a question of policy based on
his wisdom that it shall promote national healing and forgiveness.

Locus standi

Locus standi, a right of appearance in a court of justice on a given question,

requires that a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues
upon which the court depends for illumination of difficult constitutional questions.

Unless a person has sustained or is in imminent danger of sustaining an injury as a

result of an act complained of, such proper party has no standing.

Petitioners, who filed their respective petitions for certiorari, prohibition and

mandamus, in their capacities as citizens, human rights violations victims,
legislators, members of the Bar and taxpayers, have no legal standing to file such
petitions because they failed to show that they have suffered or will suffer direct
and personal injury as a result of the interment of Marcos at the LNMB.

Taxpayers have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an invalid or
unconstitutional law. In this case, what is essentially being assailed is the wisdom
behind the decision of the President to proceed with the interment of Marcos at the
LNMB. As taxpayers, petitioners merely claim illegal disbursement of public
funds, without showing that Marcos is disqualified to be interred at the LNMB by
either express or implied provision of the Constitution, the laws or jurisprudence.

As concerned citizens, petitioners are also required to substantiate that the issues
raised are of transcendental importance, of overreaching significance to society, or
of paramount public interest.

Exhaustion of Administrative Remedies

Under the doctrine of exhaustion of administrative remedies, before a party is

allowed to seek the intervention of the court, one should have availed first of all
the means of administrative processes available. If resort to a remedy within the
administrative machinery can still be made by giving the administrative officer
concerned every opportunity to decide on a matter that comes within his
jurisdiction, then such remedy should be exhausted first before the court’s judicial
power can be sought.

For reasons of comity and convenience, courts of justice shy away from a dispute
until the system of administrative redress has been completed and complied with,
so as to give the administrative agency concerned every opportunity to correct its
error and dispose of the case.

While there are exceptions to the doctrine of exhaustion of administrative

remedies, petitioners failed to prove the presence of any of those exceptions.

Hierarchy of Courts

In the same vein, while direct resort to the Court through petitions for the
extraordinary writs of certiorari, prohibition and mandamus are allowed under
exceptional cases, which are lacking in this case, petitioners cannot simply brush
aside the doctrine of hierarchy of courts that requires such petitions to be filed first
with the proper RTC. The RTC is not just a trier of facts, but can also resolve
questions of law in the exercise of its original and concurrent jurisdiction over
petitions for certiorari, prohibition and mandamus, and has the power to issue
restraining order and injunction when proven necessary.

Constitutionality

The President’s decision to bury Marcos at the LNMB is in accordance with the
Constitution, the law or jurisprudence.

Petitioners argue that the burial of Marcos at the LNMB should not be allowed
because it has the effect of not just rewriting history as to the Filipino people’s act
of revolting against an authoritarian ruler but also condoning the abuses committed
during the Martial Law, thereby violating the letter and spirit of the 1987
Constitution, which is a “post-dictatorship charter” and a “human rights
constitution.” For them, the ratification of the Constitution serves as a clear
condemnation of Marcos’ alleged “heroism.” To support their case, petitioners
invoke Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Sec. 17 of Art. VII, Sec.
3(2) of Art. XIV, Sec. 1 of Art. XI, and Sec. 26 of Art. XVII of the Constitution.

There is no merit to the contention.

As the OSG logically reasoned out, while the Constitution is a product of our

collective history as a people, its entirety should not be interpreted as providing
guiding principles to just about anything remotely related to the Martial Law
period such as the proposed Marcos burial at the LNMB.

Tañada v. Angara already ruled that the provisions in Article II of the Constitution

are not self-executing. Thus:

By its very title, Article II of the Constitution is a “declaration of principles and

state policies.” The counterpart of this article in the 1935 Constitution is called the
“basic political creed of the nation” by Dean Vicente Sinco. These principles in
Article II are not intended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its enactment of
laws.

As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles
and state policies enumerated in Article II x x x are not “self-executing provisions,
the disregard of which can give rise to a cause of action in the courts. They do not
embody judicially enforceable constitutional rights but guidelines for legislation.”
xxx

The petitions must be dismissed.

Note:

DISSENTING OPINION

SERENO, C.J.:

The 1987 Constitution is the embodiment of the Filipino nations’ enduring values,
which this Court must zealously protect.

Countless times, this Court has said in so many words that the 1987 Constitution
embodies the Filipinos’ enduring values. The protection of those values has
consequently become the duty of the Court. That this is the legal standard by which
to measure whether it has properly comported itself in its constitutional role has
been declared in various fashions by the Court itself.

See, for example, how this Court articulated its duty to protect the environment,
women, children, labor, the indigenous people, and consistently, those who have
been or are in danger of being deprived of their human rights.

Note the power that the Constitution vests in the Court to actively promulgate rules
for the protection of human rights, and how the Court in turn described this duty
when it promulgated the writs of kalikasan, habeas data, and amparo.

Any conclusion in this case that betrays a lack of enthusiasm on the part of this
Court to protect the cherished values of the Constitution would be a judicial
calamity. That the Judiciary is designed to be passive relative to the “active” nature
of the political departments is a given. But when called upon to discharge its
relatively passive role, the post-1986 Supreme Court has shown zealousness in the
protection of constitutional rights, a zealousness that has been its hallmark from
then up to now. It cannot, in the year 2016, be reticent in asserting this brand of
protective activism.

Flores v. Drilon G.R. No. 104732 June 22, 1993 Eligibility and
Qualifications, Law on Public Officers
AUGUST 17, 2018

FACTS:

Respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman

and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic,
Zambales, and officers and members of the Filipino Civilian Employees Association
in U.S. Facilities in the Philippines, challenge the constitutionality of Sec. 13, par.
(d), of R.A. 7227, otherwise known as the “Bases Conversion and Development
Act of 1992,”.

They maintain that the proviso in par. (d) of Sec. 13 infringes on the following
constitutional and statutory provisions:

(a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that “[n]o elective
official shall be eligible for appointment or designation in any capacity to any
public officer or position during his tenure,” because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices;

(b) Sec. 16, Art. VII, of the Constitution, which provides that “[t]he President
shall . . . . appoint all other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may be authorized by law
to appoint”, since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts; and,
(c) Sec. 261, par. (g), of the Omnibus Election Code, for the reason that the
appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior
to the 11 May 1992 Elections.

ISSUE:

Whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, “Provided,
however, That for the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority,” violates the constitutional proscription
against appointment or designation of elective officials to other government
posts.

RULING:

Sec. 7 of Art. IX-B of the Constitution provides:

 No elective official shall be eligible for appointment or designation in any capacity
to any public office or position during his tenure.

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 section expresses the policy against the concentration of several public
positions in one person, so that a public officer or employee may serve full-time
with dedication and thus be efficient in the delivery of public services. It is an
affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil Liberties
Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform,
“. . . . should be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties 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 . . . .”

Particularly as regards the first paragraph of Sec. 7, “(t)he basic idea really is to
prevent a situation where a local elective official will work for his appointment in
an executive position in government, and thus neglect his constituents . . . .”

In the case before us, the subject proviso directs the President to appoint an

elective official, i.e., the Mayor of Olongapo City, to other government posts (as
Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely
what the constitutional proscription seeks to prevent, it needs no stretching of
the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-
B, of the Constitution. Here, the fact that the expertise of an elective official may
be most beneficial to the higher interest of the body politic is of no moment.

While it may be viewed that the proviso merely sets the qualifications of the

officer during the first year of operations of SBMA, i.e., he must be the Mayor of
Olongapo City, it is manifestly an abuse of congressional authority to prescribe
qualifications where only one, and no other, can qualify. Accordingly, while the
conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment
on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout
his tenure or during his incumbency, he may however resign first from his elective
post to cast off the constitutionally-attached disqualification before he may be
considered fit for appointment.

Consequently, as long as he is an incumbent, an elective official remains ineligible

for appointment to another public office.
SARMIENTO III VS MISON AND CARAGUE

156 SCRA 549 G.R. No. 79974 December 17 1987 [Appointing Power]

FACTS:

Mison was appointed as the Commissioner of the Bureau of Customs and Carague
as the Secretary of the Department of Budget, without the confirmation of the
Commission on Appointments. Sarmiento assailed the appointments as
unconstitutional by reason of its not having been confirmed by CoA.

ISSUE:
Whether or not the appointment is valid.

RULING:

Yes. The President acted within her constitutional authority and power in
appointing Salvador Mison, without submitting his nomination to the CoA for
confirmation. He is thus entitled to exercise the full authority and functions of the
office and to receive all the salaries and emoluments pertaining thereto.

Under Sec 16 Art. VII of the 1987 Constitution, there are 4 groups of officers
whom the President shall appoint:

1st, appointment of executive departments and bureaus heads, ambassadors, other

public ministers, consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers with the consent and confirmation of the CoA.

2nd, all other Government officers whose appointments are not otherwise provided
by law;

3rd those whom the President may be authorized by the law to appoint;
4th, low-ranking officers whose appointments the Congress may by law vest in the
President alone.

First group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if
the nomination is confirmed by the Commission on Appointments, the President
appoints.

2nd, 3rd and 4th group of officers are the present bone of contention. By following
the accepted rule in constitutional and statutory construction that an express
enumeration of subjects excludes others not enumerated, it would follow that only
those appointments to positions expressly stated in the first group require the
consent (confirmation) of the Commission on Appointments.

It is evident that the position of Commissioner of the Bureau of Customs (a bureau

head) is not one of those within the first group of appointments where the consent
of the Commission on Appointments is required. The 1987 Constitution
deliberately excluded the position of "heads of bureaus" from appointments that
need the consent (confirmation) of the Commission on Appointments.

Bermudez vs. Torres G.R. No. 131429, August 4, 1999

Facts: 

Petitioner Oscar Bermudez, the First Assistant Provincial Prosecutor of Tarlac and
Officer-in-Charge of the Office of Provincial Prosecutor, was a recommendee of
then Sec. of Justice Guingona for the position of Provincial Prosecutor. Private
respondent Atty. Conrado Quiaoit had the support of then Representative Yap of
the Second District of Tarlac. Quiaoit was appointed by Pres. Ramos to the office.
Quiaoit took his oath and assumed office. Bermudez refused to vacate the Office of
the Provincial Prosecutor. Nonetheless, Quiaoit, performed the duties and
functions of the Office of Provincial Prosecutor. Petitioner Bermudez challenged
the appointment of Quiaoit primarily on the ground that the appointment lacks the
recommendation of the Sec. Of Justice prescribed under the Revised
Administrative Code of 1987. Section 9, Chap. II, Title III, Book IV of the Revised
Administrative Code provides that “all provincial and city prosecutors and
their assistants shall be appointed by the Pres. upon the recommendation of the
Secretary.” 

Issue:

 Whether or not the absence of a recommendation of the Secretary of Justice to the

President can be held fatal to the appointment of Quiaoit

Held: An appointment to a public office is the unequivocal act of designating or

selecting by one having the authority therefor of an individual to discharge and
perform the duties and functions of an office or trust. 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.

The power to appoint is, in essence, discretionary. The appointing authority 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.

When the Constitution or the law clothes the Pres. with the power to appoint a
subordinate officer, such conferment must be understood as necessarily carrying
with it an ample discretion of whom to appoint. The Pres. is the head of
government whose authority includes the power of control over all
“executive departments, bureaus and offices.” Control means the authority of
an empowered officer to alter or modify, or even nullify or set aside, what a
subordinate officer has done in the performance of his duties, as well as to
substitute the judgment of the latter, as and when the former deems it to be
appropriate. The Pres. has the power to assume directly the functions of an
executive department, bureau and office. It can therefore be inferred that the Pres.
can interfere in the exercise of discretion of officials under him or altogether ignore
their recommendations.

The phrase “upon recommendation of the Secretary” found in Sec. 9,Chap. II, Title
III, Book IV of the Revised Administrative Code should be interpreted to be a
mere advice, exhortation or indorsement, which is essentially persuasive in
character and not binding or obligatory upon the party to whom it is made. The
recommendation is here nothing really more than advisory in nature. The Pres.,
being the head of the Executive Department, could very well disregard or do away
with the action of thedepartments, bureaus or offices even in the exercise of
discretionary authority, and in so opting, he cannot be said as having acted beyond
the scope of his authority. 

Quintos-Deles v. COA
177 SCRA 259
FACTS:

On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the
President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the
Constitution. In the May 12, 1988 meeting of the Committee on Appointments ruled against
the position of petitioner Deles. Petitioner Teresita Quintos-Deles contends that her
appointment as Sectoral Representative for Women by the President does not require
confirmation by the Commission on Appointments to qualify her to take her seat in the
House of Representatives.

ISSUE:
Whether or not the Constitution requires the appointment of sectoral representatives to the
House of Representatives to be confirmed by the Commission on Appointments

HELD:
The first group of people that may be appointed by the president, as previously
stated in the Sarmiento v. Mison case, are “the heads of the executive
departments, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution.” Since the seats reserved for
sectoral representatives in paragraph 2, Section 5, Art. VI may be filled by
appointment by the President by express provision of Section 7, Art. XVIII of the
Constitution, it is indubitable that sectoral representatives to the House of
Representatives are among the “other officers whose appointments are vested in
the President in this Constitution,” referred to in the first sentence of Section 16,
Article VII (or the first group of people who may be appointed) whose
appointments are subject to confirmation by the Commission on Appointments.

Calderon v Carale

Gr No. 91636 April 23, 1992

FACTS:

(1) This petition for prohibition questions the constitutionality and legality of the
permanent appointments extended by the President of the Philippines to the
respondents Chairman and Members of the National Labor Relations Commission
(NLRC), without submitting the same to the Commission on Appointments for
confirmation pursuant to Art. 215 of the Labor Code as amended by said RA 6715,
stating:

The Chairman, the Division Presiding Commissioners and other Commissioners

shall all be appointed by the President, subject to confirmation by the Commission
on Appointments. Appointments to any vacancy shall come from the nominees of
the sector which nominated the predecessor. The Executive Labor Arbiters and
Labor Arbiters shall also be appointed by the President, upon recommendation of
the Secretary of Labor and

Employment, and shall be subject to the Civil Service Law, rules and regulations.

(2) Petitioner claims that the Mison and Bautista rulings are not decisive of the
issue in this case for in the case at bar, the President issued permanent
appointments to the respondents without submitting them to the CA for
confirmation despite passage of a law (RA 6715) which requires the confirmation
by the Commission on Appointments of such appointments.The Solicitor General,
on the other hand, contends that RA 6715 which amended the Labor Code
transgresses Section 16, Article VII by expanding the confirmation powers of the
Commission on Appointments without constitutional basis.

ISSUE:

Whether or not Congress may, by law, require confirmation by the Commission on

Appointments of appointments extended by the president to governmentofficers
additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of
the Constitution whoseappointments require confirmation by the Commission on
Appointments.

HELD:

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as

amended by RA 6715 insofar as it requires the confirmation of the Commission on
Appointments of appointments of the Chairman and Members of the National
Labor Relations Commission (NLRC) is hereby declared unconstitutional and of
no legal force and effect.
RATIO:

(1) To the extent that RA 6715 requires confirmation by the Commission on

Appointments of the appointments of respondents Chairman and Members of the
National Labor Relations Commission, it is unconstitutional because:

(1) It amends by legislation, the first sentence of Sec. 16, Art. VII of the
Constitution by adding thereto appointments requiring confirmation by the
Commission on Appointments; and

(2) It amends by legislation the second sentence of Sec. 16, Art. VII of the
Constitution, by imposing the confirmation of the Commission on Appointments
on appointments which are otherwise entrusted only with the President.

(2) It is the duty of the Court to apply the 1987 Constitution in accordance with
what it says and not in accordance with how the legislature or the executive would
want it interpreted.

Matibag v. Benipayo (G.R. No. 149036 )

Facts:

Herein petitioner Matibag was appointed by the COMELEC en banc as “Acting

Director IV” of the EID and was reappointed twice for the same position in a
temporary capacity. Meanwhile, then PGMA also made appointments, ad interim,
of herein respondents Benipayo, Borra and Tuason, as COMELEC Chairman and
Commissioners, respectively. Their appointments were renewed thrice by PGMA,
the last one during the pendency of the case, all due to the failure of the
Commission of Appointments to act upon the confirmation of their appointments.
Respondent Benipayo, acting on his capacity as COMELEC Chairman, issued a
memorandum removing petitioner as Acting Director IV and reassigning her to the
Law Department. Petitioner requested for reconsideration but was denied. Thus,
petitioner filed the instant petition questioning the appointment and the right to
remain in office of herein respondents, claiming that their ad interim appointments
violate the constitutional provisions on the independence of the COMELEC, as
well as on the prohibitions on temporary appointments and reappointments of its
Chairman and members.
Issue:

(1) Whether the ad interim appointments made by PGMA were prohibited under
the Constitution

(2) Whether the ad interim appointments made by PGMA were temporary in

character

Ruling: NO.

(1) While the Constitution mandates that the COMELEC “shall be independent”,
this provision should be harmonized with the President’s power to extend ad
interim appointments. To hold that the independence of the COMELEC requires
the Commission on Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power to make ad
interim appointments. This is contrary to the rule on statutory construction to give
meaning and effect to every provision of the law. It will also run counter to the
clear intent of the framers of the Constitution. The original draft of Section 16,
Article VII of the Constitution – on the nomination of officers subject to
confirmation by the Commission on Appointments – did not provide for ad interim
appointments. The original intention of the framers of the Constitution was to do
away with ad interim appointments because the plan was for Congress to remain in
session throughout the year except for a brief 30-day compulsory recess. However,
because of the need to avoid disruptions in essential government services, the
framers of the Constitution thought it wise to reinstate the provisions of the 1935
Constitution on ad interim appointments. Clearly, the reinstatement in the present
Constitution of the ad interim appointing power of the President was for the
purpose of avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices, including the three
constitutional commissions.
Evidently, the exercise by the President in the instant case of her constitutional
power to make ad interim appointments prevented the occurrence of the very evil
sought to be avoided by the second paragraph of Section 16, Article VII of the
Constitution. This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under the second
paragraph of Section 16, Article VII of the Constitution, the President can choose
either of two modes in appointing officials who are subject to confirmation by the
Commission on Appointments. First, while Congress is in session, the President
may nominate the prospective appointee, and pending consent of the Commission
on Appointments, the nominee cannot qualify and assume office. Second, during
the recess of Congress, the President may extend an ad interim appointment which
allows the appointee to immediately qualify and assume office. Whether the
President chooses to nominate the prospective appointee or extend an ad
interim appointment is a matter within the prerogative of the President because the
Constitution grants her that power. This Court cannot inquire into the propriety of
the choice made by the President in the exercise of her constitutional power, absent
grave abuse of discretion amounting to lack or excess of jurisdiction on her part,
which has not been shown in the instant case.
In fine, we rule that the ad interim appointments extended by the President to
Benipayo, Borra and Tuason, as COMELEC Chairman and Commissioners,
respectively, do not constitute temporary or acting appointments prohibited by
Section 1 (2), Article IX-C of the Constitution.

(2) An ad interim appointment is a permanent appointment because it takes effect

immediately and can no longer be withdrawn by the President once the appointee
has qualified into office. The fact that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in character by
making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. The second paragraph of Section 16, Article VII
of the Constitution provides as follows:
“The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall
be effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.”
Thus, the ad interim appointment remains effective until such disapproval or next
adjournment, signifying that it can no longer be withdrawn or revoked by the
President.
While an ad interim appointment is permanent and irrevocable except as provided
by law, an appointment or designation in a temporary or acting capacity can be
withdrawn or revoked at the pleasure of the appointing power. A temporary or
acting appointee does not enjoy any security of tenure, no matter how briefly. This
is the kind of appointment that the Constitution prohibits the President from
making to the three independent constitutional commissions, including the
COMELEC.

In the instant case, the President did in fact appoint permanent Commissioners to
fill the vacancies in the COMELEC, subject only to confirmation by the
Commission on Appointments. Benipayo, Borra and Tuason were extended
permanent appointments during the recess of Congress. They were not appointed
or designated in a temporary or acting capacity. The ad interim appointments of
Benipayo, Borra and Tuason are expressly allowed by the Constitution which
authorizes the President, during the recess of Congress, to make appointments that
take effect immediately.

Pimentel, Jr. vs Ermita, 472 SCRA 587

(Public Officer, Difference Between Ad-Interim and Acting Appointments)

Facts:

President Arroyo issued appointments to respondents as acting secretaries of

their respective departments without the consent of the Commission on
Appointments, while Congress is in their regular session.

Subsequently after the Congress had adjourned, President Arroyo issued ad

interim appointments to respondents as secretaries of the departments to which
they were previously appointed in an acting capacity.

Petitioners senators assailing the constitutionality of the appointments, assert

that “while Congress is in session, there can be no appointments, whether regular
or acting, to a vacant position of an office needing confirmation by the
Commission on Appointments, without first having obtained its consent.
Respondent secretaries maintain that the President can issue appointments in an
acting capacity to department secretaries without the consent of the Commission
on Appointments even while Congress is in session.

EO 292, which devotes a chapter to the President’s power of appointment. 

Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:

SEC. 16.  Power of Appointment. — The President shall exercise the power to

appoint such officials as provided for in the Constitution and laws.

SEC. 17.  Power to Issue Temporary Designation. — (1) The President may

temporarily designate an officer already in the government service or any other
competent person to perform the functions of an office in the executive branch,
appointment to which is vested in him by law, when: (a) the officer regularly
appointed to the office is unable to perform his duties by reason of illness,
absence or any other cause; or (b) there exists a vacancy[.]

Issue:

WON the President can issue appointments in an acting capacity to department

secretaries while Congress is in session.

Held:

Yes. The essence of an appointment in an acting capacity is its temporary nature. 

It is a stop-gap measure intended to fill an office for a limited time until the
appointment of a permanent occupant to the office.  In case of vacancy in an
office occupied by an alter ego of the President, such as the office of a
department secretary, the President must necessarily appoint an alter ego of her
choice as acting secretary before the permanent appointee of her choice could
assume office.

The office of a department secretary may become vacant while Congress is in

session.  Since a department secretary is the alter ego of the President, the acting
appointee to the office must necessarily have the President’s confidence. Thus, by
the very nature of the office of a department secretary, the President must
appoint in an acting capacity a person of her choice even while Congress is in
session.

Ad interim appointments and acting appointments are both effective upon

acceptance.  But ad-interim appointments are extended only during a recess of
Congress, whereas acting appointments may be extended any time there is a
vacancy.  Moreover ad-interim appointments are submitted to the Commission
on Appointments for confirmation or rejection; acting appointments are not
submitted to the Commission on Appointments.  Acting appointments are a way
of temporarily filling important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on Appointments.

The absence of abuse is readily apparent from President Arroyo’s issuance of ad
interim appointments to respondents immediately upon the recess of Congress,
way before the lapse of one year.

Note: Can Congress impose the automatic appointment of the undersecretary? 

Congress, through a law, cannot impose on the President the obligation to

appoint automatically the undersecretary as her temporary alter ego. 

The power to appoint is essentially executive in nature, and the legislature may
not interfere with the exercise of this executive power except in those instances
when the Constitution expressly allows it to interfere. Limitations on the
executive power to appoint are construed strictly against the legislature. The
scope of the legislature’s interference in the executive’s power to appoint is
limited to the power to prescribe the qualifications to an appointive office. 
Congress cannot appoint a person to an office in the guise of prescribing
qualifications to that office.  Neither may Congress impose on the President the
duty to appoint any particular person to an office. 

 
Jorge vs Mayor

FACTS:

                Nicanor G. Jorge, is a career official in the Bureau of Lands. He started working there
as a Junior Computer in the course of 38 years service, from February 1, 1922 to October 31,
1960, and attained the position of Acting Director, through regular and successive promotions, in
accordance with civil service rules. On June 17, 1961, he was designated Acting Director of the
same Bureau, and on December 13, 1961 was appointed by President Carlos Garcia ad
interim Director. He qualified by taking the oath of office on the December 23, 1961. His
appointment was on December 26, 1961, transmitted to the Commission on Appointments, and
on May 14, 1962, petitioner's ad interim appointment as Director of Lands was confirmed by the
Commission.

                On November 14, 1962 he received a letter from Benjamin Gozon, then Secretary of
Agriculture and Natural Resources of the Macapagal administration, informing him that pursuant
to a letter from the Assistant Executive Secretary Bernal, served on Jorge on November 13, his
appointment was among those revoked by Administrative Order No. 2 of President Diosdado
Macapagal; that the position of Director of Lands was considered vacant; and that Jorge
was designated Acting Director of Lands, effective November 13, 1962. Upon learning that
Mayor, an outsider, had been designate by the President to be Acting Director of Lands Jorge
protested (in a letter of November 16, 1962) to the Secretary of Agriculture informing the latter
that he would stand on his rights, and issued office circulars claiming to be the legally appointed
Director of Lands. Finally, on September 2, 1963, he instituted the present proceedings.

ISSUE:

                Whether or not Administrative Order No. 2 of President Macapaga operated as a valid

revocation of Jorge's ad interim  appointment.

RULING:

                No. The SC ruled that Nicanor G. Jorge is declared to be the duly appointed,
confirmed, and qualified Director of Lands.

                Petitioner Jorge's ad interim appointment is dated December 13, 1961, but there is no
evidence on record that it was made and released after the joint session of Congress that ended
on the same day. It is a matter of contemporary history, of which SC may take judicial
 cognizance, that the session ended late in the night of December 13, 1961, and, therefore, after
regular office hours. In the absence of competent evidence to the contrary, it is to be presumed
that the appointment of Jorge was made before the close of office hours, that being the regular
course of business. The appointment, therefore, was not included in, nor intended to be covered
by, Administrative Order No. 2, and the same stands unrevoked. Consequently, it was validly
confirmed by the Commission on Appointments, and thereafter, the office never became vacant.

                In common with the Gillera appointment sustained by the SC, Jorge's appointment is
featured by a recognition of his tenure by the Macapagal administration itself, since he was
allowed to hold and discharge undisturbed his duties as de jure Director of Lands for nearly
eleven months and it was only in mid-November of 1962 that the attempt was actually made to
demote him and appoint a rank outsider in his place in the person of respondent Mayor.

                If anyone is entitled to the protection of the civil service provisions of the Constitution,
particularly those against removals without lawful cause, it must be the officers who, like Jorge,
entered the Civil Service in their youth, bent on making a career out of it, gave it the best years
of their lives and grew gray therein in the hope and expectation that they would eventually attain
the upper reaches and levels of the official hierarchy, not through political patronage, but through
loyalty, merit, and faithful and unremitting toil.

Lacson-Magallanes Co. Inc. v Pano (Constitution)

Lacson-Magallanes Co. Inc. v Pañ o

GR No. L-27811 November 17, 1967

Section 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.cralaw

SANCHEZ, J:

FACTS:

       1932 - Jose Magallanes was a permittee and actual occupant of a 1,103-

hectare pasture land situated inTamlangon, Municipality of Bansalan,
Province of Davao.

       January 9, 1953 -Magallanes ceded his rights and interests to a portion

(392,7569 hectares) of the abovepublic land to plaintiff.
       April 13, 1954 - the portion Magallanes ceded to plaintiff was officially
released from the forest zone as pastureland and declared agricultural land.

       January 26, 1955 - Jose Pañ o and nineteen other claimantsapplied for the
purchase of ninety (90) hectares of thereleased area.

       March 29, 1955 -Plaintiff Corporation in turn filed its own sales application
covering the entire released area.This was protested by Jose Pañ o and his
nineteen companions upon the averment that they are actual occupantsof the
part thereof covered by their own sales application.

       July 31, 1956 - The Director of Lands, following an investigation of the

conflict, rendered a decision on giving duecourse to the application of plaintiff
corporation, and dismissing the claim of Jose Pañ o and his companions.
Amove to reconsider failed.

       July 5, 1957 - the Secretary of Agriculture and Natural Resources — on

appeal by Jose Pañ o for himself andhis companions — held that the appeal
was without merit and dismissed the same.

       June 25, 1958 -Executive Secretary Juan Pajo, "[b]y authority of the
President" decided the controversy, modified the decision of the Director of
Lands as affirmed by the Secretary of Agriculture and Natural Resources, and

(1) declared that "it would be for the public interest that appellants, who are
mostly landless farmers who depend on the land for their existence, be
allocated that portion on which they have made improvements;" and

(2)directed that the controverted land (northern portion of Block I, LC Map

1749, Project No. 27, of Bansalan, Davao,with Latian River as the dividing line)
"should be subdivided into lots of convenient sizes and allocated to
actualoccupants, without prejudice to the corporation's right to
reimbursement for the cost of surveying this portion.”

Plaintiff corporation took the foregoing decision to the Court of First Instance
praying that judgment be rendered declaring:
(1) that the decision of the Secretary of Agriculture and Natural Resources has
full force and effect; and

(2) that the decision of the Executive Secretary is contrary to law and of no
legal force and effect.

ISSUE:

Whether or not the Executive Secretary, acting by authority of the President,

reverse a decision of the

Director of Lands that had been affirmed by the Executive Secretary of

Agriculture and Natural Resources —yielded an affirmative answer from the
lower court

HELD:

Judgment under review is hereby affirmed. Executive Secretary’s act cannot

be assailed and therefore has full force and effect.

RATIO:

(1) The President's duty to execute the law is of constitutional origin.So, too, is
his control of all executive departments.Thus it is, that department heads are
men of his confidence. His is the power to appoint them; his, too, is the
privilege to dismiss them at pleasure. Naturally, he controls and directs their
acts. Implicit then is his authority to go over, confirm, modify or reverse the
action taken by his department secretaries.

In this context, it may not be said that the President cannot rule on the
correctness of a decision of a department secretary.
 (2) Parenthetically, it may be stated that the right to appeal to the President
reposes upon the President's power of control over the executive
departments.

Control simply means "the power of an officer to alter or modify or nullify or

set aside what a subordinate officer had done in the performance of his duties
and to substitute thejudgment of the former for that of the latter."
(3) The rule which has thus gained recognition is that "under our
constitutional setup the Executive Secretary who acts for and in behalf and by
authority of the President has an undisputed jurisdiction to affirm, modify, or
even reverse any order" that the Secretary of Agriculture and Natural
Resources, including the Director of Lands, may issue.

(4) The action taken is "disapproved or reprobated by the Chief Executive,"

that remains the act of the Chief Executive, and cannot be successfully
assailed.No such disapproval or reprobation is even intimated in the record of
this case.

De Leon vs. Carpio

178 SCRA 457 (1989)

o "Alter-ego" Doctrine

FACTS:

Estavillo and de Leon are two NBI agents terminated by then Minister of
Justice Neptali A. Gonzales. Upon appeal to the Review Committee, the said
body declined to act on their petitions for reconsideration on the ground that it
had lost its jurisdiction with the ratification of the new Constitution. They were
advised instead to seek relief from the Civil Service Commission.
 The Merit Systems Protection Board of CSC held that their dismissals were
invalid and unconstitutional, having been done in violation of their security of
tenure under the 1987 Constitution. Accordingly, the Board ordered their
reinstatement.

However, respondent Carpio, as Director of NBI, returned the orders issued

by the Secretary of Justice to CSC “without action,” claiming that they were
null and void for having been rendered without jurisdiction.

ISSUE:

o Whether or not the Director of the NBI can disobey an explicit and direct
order issued to him by the Secretary of Justice

HELD:

It is an elementary principle of our republican government, enshrined in the

Constitution and honored not in the breach but in the observance, that all
executive departments, bureaus and offices are under the control of the
President of the Philippines.

The President’s power of control is directly exercised by him over the

members of the Cabinet who, in turn and by his authority, control the bureaus
and other offices under their respective jurisdictions in the executive
department. The constitutional vesture of this power in the President is self-
executing and does not require statutory implementation, nor may its exercise
be limited, much less withdrawn, by the legislature.

Theoretically, the President has full control of all the members of his Cabinet
and may appoint them as he sees fit or shuffle them at pleasure, subject only
to confirmation by the Commission on Appointments, and replace them in his
discretion. Once in place, they are at all times under the disposition of the
President as their immediate superior. “Without minimizing the importance of
the heads of the various departments, their personality is in reality but the
projection of that of the President. Hence, their acts, performed and
promulgated in the regular course of business are, unless disapproved or
reprobated by the Chief Executive, presumptively the acts of the Chief
Executive.” (Villena v. Secretary of the Interior)

In the case at bar, there is no question that when he directed the respondent
to reinstate the petitioners, Sec. Ordonez was acting in the regular discharge
of his functions as an alter ego of the President. His acts should therefore
have been respected by the respondent Director of the NBI, which is in the
Department of Justice under the direct control of its Secretary. As a
subordinate in this department, the respondent was (and is) bound to obey the
Secretary’s directives, which are presumptively the acts of the President of the
Philippines