7 Set 7b Executive Cases Text
7 Set 7b Executive Cases Text
Objections to taxpayers’ suit for lack of sufficient The petitioner raises three principal questions:
personality standing, or interest are, however, in
the main procedural matters. Considering the
importance to the public of the cases at bar, and in A. Does Section 5(d) of Rep. Act No. 9189 allowing
keeping with the Court’s duty, under the 1987 the registration of voters who are immigrants or
Constitution, to determine whether or not the permanent residents in other countries by their
other branches of government have kept mere act of executing an affidavit expressing their
themselves within the limits of the Constitution intention to return to the Philippines, violate the
and the laws and that they have not abused the residency requirement in Section 1 of Article V of
discretion given to them, the Court has brushed the Constitution?
aside technicalities of procedure and has taken
cognizance of these petitions.6 B. Does Section 18.5 of the same law empowering
the COMELEC to proclaim the winning candidates
Indeed, in this case, the Court may set aside procedural for national offices and party list representatives
rules as the constitutional right of suffrage of a considerable including the President and the Vice-President
number of Filipinos is involved. violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning
candidates for President and the Vice-President
The question of propriety of the instant petition which may shall be proclaimed as winners by Congress?
appear to be visited by the vice of prematurity as there are
1 | Executive
C. May Congress, through the Joint Congressional are presumed to have adhered to constitutional limitations;
Oversight Committee created in Section 25 of Rep. the legislature intended to enact a valid, sensible, and just
Act No. 9189, exercise the power to review, revise, law.
amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall
In addition, the Solicitor General points out that Section 1,
promulgate without violating the independence of
Article V of the Constitution is a verbatim reproduction of
the COMELEC under Section 1, Article IX-A of the
those provided for in the 1935 and the 1973 Constitutions.
Constitution?
Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives16 wherein the Court held that the term
The Court will resolve the questions in seriatim. "residence" has been understood to be synonymous with
"domicile" under both Constitutions. He further argues that
a person can have only one "domicile" but he can have two
A. Does Section 5(d) of Rep. Act No. 9189 violate
residences, one permanent (the domicile) and the other
Section 1, Article V of the 1987 Constitution of the
temporary;17 and that the definition and meaning given to
Republic of the Philippines?
the term residence likewise applies to absentee voters.
Invoking Romualdez-Marcos vs. COMELEC18 which reiterates
Section 5(d) provides: the Court’s ruling in Faypon vs. Quirino,19 the Solicitor
General maintains that Filipinos who are immigrants or
Sec. 5. Disqualifications. – The following shall be permanent residents abroad may have in fact never
disqualified from voting under this Act: abandoned their Philippine domicile.20
2 | Executive
disqualified by law, at least eighteen (18) years limitations. The responsibility of upholding the
of age on the day of elections, may vote for Constitution rests not on the courts alone but on
president, vice-president, senators and party-list the legislature as well. The question of the validity
representatives. (Emphasis supplied) of every statute is first determined by the
legislative department of the government itself. 24
in relation to Sections 1 and 2, Article V of the Constitution
which read: Thus, presumption of constitutionality of a law must be
overcome convincingly:
SEC. 1. Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by law, . . . To declare a law unconstitutional, the
who are at least eighteen years of age, and who repugnancy of that law to the Constitution must be
shall have resided in the Philippines for at least clear and unequivocal, for even if a law is aimed at
one year and in the place wherein they propose to the attainment of some public good, no
vote for at least six months immediately preceding infringement of constitutional rights is allowed. To
the election. No literacy, property, or other strike down a law there must be a clear showing
substantive requirement shall be imposed on the that what the fundamental law condemns or
exercise of suffrage. prohibits, the statute allows it to be done.25
SEC. 2. The Congress shall provide a system for As the essence of R.A. No. 9189 is to enfranchise overseas
securing the secrecy and sanctity of the ballot as qualified Filipinos, it behooves the Court to take a holistic
well as a system for absentee voting by view of the pertinent provisions of both the Constitution and
qualified Filipinos abroad. R.A. No. 9189. It is a basic rule in constitutional
construction that the Constitution should be construed as a
whole. In Chiongbian vs. De Leon,26 the Court held that a
. . . . . . . . . (Emphasis supplied)
constitutional provision should function to the full extent of
its substance and its terms, not by itself alone, but in
Section 1, Article V of the Constitution specifically provides conjunction with all other provisions of that great
that suffrage may be exercised by (1) all citizens of the document. Constitutional provisions are mandatory in
Philippines, (2) not otherwise disqualified by law, (3) at character unless, either by express statement or by
least eighteen years of age, (4) who are residents in the necessary implication, a different intention is
Philippines for at least one year and in the place where they manifest.27 The intent of the Constitution may be drawn
propose to vote for at least six months immediately primarily from the language of the document itself. Should
preceding the election. Under Section 5(d) of R.A. No. it be ambiguous, the Court may consider the intent of its
9189, one of those disqualified from voting is an immigrant framers through their debates in the constitutional
or permanent resident who is recognized as such in the host convention.28
country unless he/she executes an affidavit declaring that
he/she shall resume actual physical permanent residence in
R.A. No. 9189 was enacted in obeisance to the mandate of
the Philippines not later than three years from approval of
the first paragraph of Section 2, Article V of the Constitution
his/her registration under said Act.
that Congress shall provide a system for voting by qualified
Filipinos abroad. It must be stressed that Section 2 does
Petitioner questions the rightness of the mere act of not provide for the parameters of the exercise of legislative
execution of an affidavit to qualify the Filipinos abroad who authority in enacting said law. Hence, in the absence of
are immigrants or permanent residents, to vote. He focuses restrictions, Congress is presumed to have duly exercised
solely on Section 1, Article V of the Constitution in ascribing its function as defined in Article VI (The Legislative
constitutional infirmity to Section 5(d) of R.A. No. 9189, Department) of the Constitution.
totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by
To put matters in their right perspective, it is necessary to
qualified Filipinos abroad.
dwell first on the significance of absentee voting. The
concept of absentee voting is relatively new. It is viewed
A simple, cursory reading of Section 5(d) of R.A. No. 9189 thus:
may indeed give the impression that it contravenes Section
1, Article V of the Constitution. Filipino immigrants and
The method of absentee voting has been said to be
permanent residents overseas are perceived as having left
completely separable and distinct from the regular
and abandoned the Philippines to live permanently in their
system of voting, and to be a new and different
host countries and therefore, a provision in the law
manner of voting from that previously known, and
enfranchising those who do not possess the residency
an exception to the customary and usual manner
requirement of the Constitution by the mere act of
of voting. The right of absentee and disabled
executing an affidavit expressing their intent to return to
voters to cast their ballots at an election is purely
the Philippines within a given period, risks a declaration of
statutory; absentee voting was unknown to, and
unconstitutionality. However, the risk is more apparent than
not recognized at, the common law.
real.
3 | Executive
Such statutes are regarded as conferring a which, when absent, one has the intention
privilege and not a right, or an absolute of returning. A man may have a residence
right. When the legislature chooses to grant in one place and a domicile in
the right by statute, it must operate with another. Residence is not domicile, but
equality among all the class to which it is domicile is residence coupled with the
granted; but statutes of this nature may be intention to remain for an unlimited time.
limited in their application to particular types A man can have but one domicile for the
of elections. The statutes should be same purpose at any time, but he may
construed in the light of any constitutional have numerous places of residence. His
provisions affecting registration and place of residence is generally his place of
elections, and with due regard to their texts prior domicile, but it is not by any means
to amendment and to predecessor statutes and the necessarily so since no length of residence
decisions thereunder; they should also be without intention of remaining will
construed in the light of the circumstances constitute domicile."
under which they were enacted; and so as to
carry out the objects thereof, if this can be done
For political purposes the concepts of residence
without doing violence to their provisions and
and domicile are dictated by the peculiar criteria of
mandates. Further, in passing on statutes
political laws. As these concepts have evolved in
regulating absentee voting, the court should
our election law, what has clearly and
look to the whole and every part of the
unequivocally emerged is the fact that
election laws, the intent of the entire plan,
residence for election purposes is used
and reasons and spirit of their adoption, and
synonymously with domicile.32 (Emphasis
try to give effect to every portion
supplied)
thereof.29 (Emphasis supplied)
6 | Executive
MR. REGALADO. I just want to make a note on the Commission even intended to extend to young Filipinos who
statement of Commissioner Suarez that this reach voting age abroad whose parents’ domicile of origin is
envisions Filipinos residing abroad. The in the Philippines, and consider them qualified as voters for
understanding in the amendment is that the the first time.
Filipino is temporarily abroad. He may not be
actually residing abroad; he may just be there on
It is in pursuance of that intention that the Commission
a business trip. It just so happens that the day
provided for Section 2 immediately after the residency
before the elections he has to fly to the United
requirement of Section 1. By the doctrine of necessary
States, so he could not cast his vote. He is
implication in statutory construction, which may be applied
temporarily abroad, but not residing there. He
in construing constitutional provisions,37 the strategic
stays in a hotel for two days and comes back. This
location of Section 2 indicates that the Constitutional
is not limited only to Filipinos temporarily
Commission provided for an exception to the actual
residing abroad. But as long as he is
residency requirement of Section 1 with respect to qualified
temporarily abroad on the date of the
Filipinos abroad. The same Commission has in effect
elections, then he can fall within the
declared that qualified Filipinos who are not in the
prescription of Congress in that situation.
Philippines may be allowed to vote even though they do not
satisfy the residency requirement in Section 1, Article V of
MR. SUAREZ. I thank the Commissioner for his the Constitution.
further clarification. Precisely, we need this
clarification on record.
That Section 2 of Article V of the Constitution is an
exception to the residency requirement found in Section 1
MR. MONSOD. Madam President, to clarify what of the same Article was in fact the subject of debate when
we mean by "temporarily abroad," it need not Senate Bill No. 2104, which became R.A. No. 9189, was
be on very short trips. One can be abroad on a deliberated upon on the Senate floor, thus:
treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in
Senator Arroyo. Mr. President, this bill should be
Angeles and he would be able to vote for the
looked into in relation to the constitutional
candidates in Angeles, but Congress or the
provisions. I think the sponsor and I would agree
Assembly may provide the procedure for
that the Constitution is supreme in any statute that
registration, like listing one’s name, in a
we may enact.
registry list in the embassy abroad. That is still
possible under the system.
Let me read Section 1, Article V, of the
Constitution entitled, "Suffrage." It says:
FR. BERNAS. Madam President, just one
clarification if Commissioner Monsod agrees with
this. Section 1. Suffrage may be exercised by
all citizens of the Philippines not otherwise
disqualified by law, who are at least
Suppose we have a situation of a child of a
eighteen years of age, and who shall have
diplomatic officer who reaches the voting age while
resided in the Philippines for at least one
living abroad and he has never registered here.
year and in the place wherein they
Where will he register? Will he be a registered
propose to vote for at least six months
voter of a certain locality in the Philippines?
immediately preceding the election.
FR. BERNAS. So, he does not have to come home. As the gentleman and I know, Mr. President,
"domicile" is the intent to return to one’s
home. And the fact that a Filipino may have
MR. BENGZON. Madam President, the Floor Leader
been physically absent from the Philippines
wishes to inquire if there are more clarifications
and may be physically a resident of the
needed from the body.
United States, for example, but has a clear
intent to return to the Philippines, will make
Also, the Floor Leader is happy to announce that him qualified as a resident of the Philippines
there are no more registered Commissioners to under this law.
propose amendments. So I move that we close the
period of amendments.36 (Emphasis supplied)
This is consistent, Mr. President, with the
constitutional mandate that we – that Congress –
It is clear from these discussions of the members of the must provide a franchise to overseas Filipinos.
Constitutional Commission that they intended to
enfranchise as much as possible all Filipino citizens abroad
who have not abandoned their domicile of origin. The
7 | Executive
If we read the Constitution and the suffrage physically live in the country, which is quite
principle literally as demanding physical ridiculous because that is exactly the whole
presence, then there is no way we can point of this exercise – to enfranchise them
provide for offshore voting to our and empower them to vote.38 (Emphasis
offshore kababayan, Mr. President. supplied)
Senator Arroyo. Mr. President, when the Accordingly, Section 4 of R.A. No. 9189 provides for the
Constitution says, in Section 2 of Article V, it coverage of the absentee voting process, to wit:
reads: "The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as
SEC. 4. Coverage. – All citizens of the Philippines
well as a system for absentee voting by qualified
abroad, who are not otherwise disqualified by law,
Filipinos abroad."
at least eighteen (18) years of age on the day of
elections, may vote for president, vice-president,
The key to this whole exercise, Mr. President, senators and party-list representatives.
is "qualified." In other words, anything that
we may do or say in granting our compatriots
which does not require physical residency in the Philippines;
abroad must be anchored on the proposition
and Section 5 of the assailed law which enumerates those
that they are qualified. Absent the
who are disqualified, to wit:
qualification, they cannot vote. And
"residents" (sic) is a qualification.
SEC. 5. Disqualifications. – The following shall be
disqualified from voting under this Act:
I will lose votes here from permanent residents so-
called "green-card holders", but the Constitution is
the Constitution. We cannot compromise on this. a) Those who have lost their Filipino citizenship in
The Senate cannot be a party to something that accordance with Philippine laws;
would affect or impair the Constitution.
b) Those who have expressly renounced their
Look at what the Constitution says – "In the place Philippine citizenship and who have pledged
wherein they propose to vote for at least six allegiance to a foreign country;
months immediately preceding the election."
c) Those who have committed and are convicted in
Mr. President, all of us here have run (sic) for a final judgment by a court or tribunal of an
office. offense punishable by imprisonment of not less
than one (1) year, including those who have
committed and been found guilty of Disloyalty as
I live in Makati. My neighbor is Pateros where
defined under Article 137 of the Revised Penal
Senator Cayetano lives. We are separated only by
Code, such disability not having been removed by
a creek. But one who votes in Makati cannot vote
plenary pardon or amnesty: Provided, however,
in Pateros unless he resides in Pateros for six
That any person disqualified to vote under this
months. That is how restrictive our Constitution is.
subsection shall automatically acquire the right to
I am not talking even about the Election Code. I
vote upon expiration of five (5) years after service
am talking about the Constitution.
of sentence; Provided, further, That the
Commission may take cognizance of final
As I have said, if a voter in Makati would want to judgments issued by foreign courts or tribunals
vote in Pateros, yes, he may do so. But he must do only on the basis of reciprocity and subject to the
so, make the transfer six months before the formalities and processes prescribed by the Rules
election, otherwise, he is not qualified to vote. of Court on execution of judgments;
That is why I am raising this point because I think d) An immigrant or a permanent resident who is
we have a fundamental difference here. recognized as such in the host country, unless
he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission
Senator Angara. It is a good point to raise, Mr.
declaring that he/she shall resume actual physical
President. But it is a point already well-debated
permanent residence in the Philippines not later
even in the constitutional commission of
than three (3) years from approval of his/her
1986. And the reason Section 2 of Article V
registration under this Act. Such affidavit shall also
was placed immediately after the six-
state that he/she has not applied for citizenship in
month/one-year residency requirement is to
another country. Failure to return shall be cause
demonstrate unmistakably that Section 2
for the removal of the name of the immigrant or
which authorizes absentee voting is an
permanent resident from the National Registry of
exception to the six-month/one-year
Absentee Voters and his/her permanent
residency requirement. That is the first
disqualification to vote in absentia.
principle, Mr. President, that one must remember.
Senator Angara. The rationale for this, Mr. Thus, Section 11 of R.A. No. 9189 provides:
President, is that we want to be expansive
and all-inclusive in this law. That as long as
SEC. 11. Procedure for Application to Vote in
he is a Filipino, no matter whether he is a
Absentia. –
green-card holder in the U.S. or not, he will
be authorized to vote. But if he is already a
green-card holder, that means he has 11.1. Every qualified citizen of the Philippines
acquired permanent residency in the United abroad whose application for registration has been
States, then he must indicate an intention to approved, including those previously registered
return. This is what makes for the definition under Republic Act No. 8189, shall, in every
of "domicile." And to acquire the vote, we national election, file with the officer of the
thought that we would require the immigrants and embassy, consulate or other foreign service
the green-card holders . . . Mr. President, the establishment authorized by the Commission, a
three administration senators are leaving, maybe sworn written application to vote in a form
we may ask for a vote [Laughter]. prescribed by the Commission. The authorized
9 | Executive
officer of such embassy, consulate or other foreign provides for a deterrence which is that the Filipino who fails
service establishment shall transmit to the to return as promised stands to lose his right of suffrage.
Commission the said application to vote within five Under Section 9, should a registered overseas absentee
(5) days from receipt thereof. The application form voter fail to vote for two consecutive national elections, his
shall be accomplished in triplicate and submitted name may be ordered removed from the National Registry
together with the photocopy of his/her overseas of Overseas Absentee Voters.
absentee voter certificate of registration.
Other serious legal questions that may be raised would be:
11.2. Every application to vote in absentia may be what happens to the votes cast by the qualified voters
done personally at, or by mail to, the embassy, abroad who were not able to return within three years as
consulate or foreign service establishment, which promised? What is the effect on the votes cast by the non-
has jurisdiction over the country where he/she has returnees in favor of the winning candidates? The votes cast
indicated his/her address for purposes of the by qualified Filipinos abroad who failed to return within
elections. three years shall not be invalidated because they were
qualified to vote on the date of the elections, but their
failure to return shall be cause for the removal of the
11.3. Consular and diplomatic services rendered in
names of the immigrants or permanent residents from the
connection with the overseas absentee voting
National Registry of Absentee Voters and their permanent
processes shall be made available at no cost to the
disqualification to vote in absentia.
overseas absentee voter.
The person having the highest number of votes Section 1. The Constitutional Commissions, which
shall be proclaimed elected, but in case two or shall be independent, are the Civil Service
more shall have an equal and highest number of Commission, the Commission on Elections, and the
votes, one of them shall forthwith be chosen by Commission on Audit. (Emphasis supplied)
the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
He submits that the creation of the Joint Congressional
Oversight Committee with the power to review, revise,
The Congress shall promulgate its rules for the amend and approve the Implementing Rules and
canvassing of the certificates. Regulations promulgated by the COMELEC, R.A. No. 9189
intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the
...
executive or legislative departments of government; that
only the COMELEC itself can promulgate rules and
which gives to Congress the duty to canvass the votes and regulations which may be changed or revised only by the
proclaim the winning candidates for president and vice- majority of its members; and that should the rules
president. promulgated by the COMELEC violate any law, it is the
Court that has the power to review the same via the
The Solicitor General asserts that this provision must be petition of any interested party, including the legislators.
harmonized with paragraph 4, Section 4, Article VII of the
Constitution and should be taken to mean that COMELEC It is only on this question that respondent COMELEC
can only proclaim the winning Senators and party-list submitted its Comment. It agrees with the petitioner that
representatives but not the President and Vice-President. 41 Sections 19 and 25 of R.A. No. 9189 are unconstitutional.
Like the petitioner, respondent COMELEC anchors its claim
Respondent COMELEC has no comment on the matter. of unconstitutionality of said Sections upon Section 1,
Article IX-A of the Constitution providing for the
independence of the constitutional commissions such as the
Indeed, the phrase, proclamation of winning candidates, in COMELEC. It asserts that its power to formulate rules and
Section 18.5 of R.A. No. 9189 is far too sweeping that it regulations has been upheld in Gallardo vs. Tabamo,
necessarily includes the proclamation of the winning Jr.42 where this Court held that the power of the COMELEC
candidates for the presidency and the vice-presidency. to formulate rules and regulations is implicit in its power to
implement regulations under Section 2(1) of Article IX-
Section 18.5 of R.A. No. 9189 appears to be repugnant to C43 of the Constitution. COMELEC joins the petitioner in
Section 4, Article VII of the Constitution only insofar as said asserting that as an independent constitutional body, it may
Section totally disregarded the authority given to Congress not be subject to interference by any government
by the Constitution to proclaim the winning candidates for instrumentality and that only this Court may review
the positions of president and vice-president. COMELEC rules and only in cases of grave abuse of
discretion.
In addition, the Court notes that Section 18.4 of the law, to
wit: The COMELEC adds, however, that another provision, vis-à-
vis its rule-making power, to wit:
18.4. . . . Immediately upon the completion of the
canvass, the chairman of the Special Board of SEC. 17. Voting by Mail. –
Canvassers shall transmit via facsimile, electronic
mail, or any other means of transmission equally 17.1. For the May, 2004 elections, the Commission
safe and reliable the Certificates of Canvass and shall authorize voting by mail in not more than
the Statements of Votes to the Commission, . . . three (3) countries, subject to the approval of
[Emphasis supplied] the Congressional Oversight
Committee. Voting by mail may be allowed in
clashes with paragraph 4, Section 4, Article VII of the countries that satisfy the following conditions:
Constitution which provides that the returns of every
election for President and Vice-President shall be certified a) Where the mailing system is fairly well-
by the board of canvassers to Congress. developed and secure to prevent occasion for
fraud;
Congress could not have allowed the COMELEC to usurp a
power that constitutionally belongs to it or, as aptly stated b) Where there exists a technically established
by petitioner, to encroach "on the power of Congress to identification system that would preclude multiple
canvass the votes for president and vice-president and the or proxy voting; and
power to proclaim the winners for the said positions." The
provisions of the Constitution as the fundamental law of the
land should be read as part of The Overseas Absentee c) Where the system of reception and custody of
Voting Act of 2003 and hence, the canvassing of the votes mailed ballots in the embassies, consulates and
and the proclamation of the winning candidates for other foreign service establishments concerned are
president and vice-president for the entire nation must adequate and well-secured.
remain in the hands of Congress.
Thereafter, voting by mail in any country
C. Are Sections 19 and 25 of R.A. No. 9189 in shall be allowed only upon review and
violation of Section 1, Article IX-A of the approval of the Joint Congressional Oversight
Constitution? Committee . . . . . . . . . (Emphasis supplied)
11 | Executive
is likewise unconstitutional as it violates Section 1, Article functions: (a) to "review, revise, amend and approve the
IX-A mandating the independence of constitutional Implementing Rules and Regulations" (IRR) promulgated by
commissions. the COMELEC [Sections 25 and 19]; and (b) subject to the
approval of the JCOC [Section 17.1], the voting by mail in
not more than three countries for the May 2004 elections
The Solicitor General takes exception to his prefatory
and in any country determined by COMELEC.
statement that the constitutional challenge must fail and
agrees with the petitioner that Sections 19 and 25 are
invalid and unconstitutional on the ground that there is The ambit of legislative power under Article VI of the
nothing in Article VI of the Constitution on Legislative Constitution is circumscribed by other constitutional
Department that would as much as imply that Congress has provisions. One such provision is Section 1 of Article IX-A of
concurrent power to enforce and administer election laws the 1987 Constitution ordaining that constitutional
with the COMELEC; and by the principles of exclusio unius commissions such as the COMELEC shall be "independent."
est exclusio alterius and expressum facit cessare tacitum,
the constitutionally enumerated powers of Congress
Interpreting Section 1, Article X of the 1935 Constitution
circumscribe its authority to the exclusion of all others.
providing that there shall be an independent COMELEC, the
Court has held that "[w]hatever may be the nature of the
The parties are unanimous in claiming that Sections 19, 25 functions of the Commission on Elections, the fact is that
and portions of Section 17.1 are unconstitutional. Thus, the framers of the Constitution wanted it to be independent
there is no actual issue forged on this question raised by from the other departments of the Government."44 In an
petitioner. earlier case, the Court elucidated:
However, the Court finds it expedient to expound on the The Commission on Elections is a constitutional
role of Congress through the Joint Congressional Oversight body. It is intended to play a distinct and
Committee (JCOC) vis-à-vis the independence of the important part in our scheme of government. In
COMELEC, as a constitutional body. the discharge of its functions, it should not be
hampered with restrictions that would be fully
warranted in the case of a less responsible
R.A. No. 9189 created the JCOC, as follows:
organization. The Commission may err, so may
this court also. It should be allowed considerable
SEC. 25. Joint Congressional Oversight Committee. latitude in devising means and methods that will
– A Joint Congressional Oversight Committee is insure the accomplishment of the great objective
hereby created, composed of the Chairman of the for which it was created – free, orderly and honest
Senate Committee on Constitutional Amendments, elections. We may not agree fully with its choice of
Revision of Codes and Laws, and seven (7) other means, but unless these are clearly illegal or
Senators designated by the Senate President, and constitute gross abuse of discretion, this court
the Chairman of the House Committee on Suffrage should not interfere. Politics is a practical matter,
and Electoral Reforms, and seven (7) other and political questions must be dealt with
Members of the House of Representatives realistically – not from the standpoint of pure
designated by the Speaker of the House of theory. The Commission on Elections, because of
Representatives: Provided, That, of the seven (7) its fact-finding facilities, its contacts with political
members to be designated by each House of strategists, and its knowledge derived from actual
Congress, four (4) should come from the majority experience in dealing with political controversies, is
and the remaining three (3) from the minority. in a peculiarly advantageous position to decide
complex political questions.45 (Emphasis supplied)
The Joint Congressional Oversight Committee
shall have the power to monitor and evaluate The Court has no general powers of supervision over
the implementation of this Act. It shall COMELEC which is an independent body "except those
review, revise, amend and approve the specifically granted by the Constitution," that is, to review
Implementing Rules and Regulations its decisions, orders and rulings.46 In the same vein, it is not
promulgated by the Commission. (Emphasis correct to hold that because of its recognized extensive
supplied) legislative power to enact election laws, Congress may
intrude into the independence of the COMELEC by
SEC. 19. Authority of the Commission to exercising supervisory powers over its rule-making
Promulgate Rules. – The Commission shall issue authority.
the necessary rules and regulations to effectively
implement the provisions of this Act within sixty By virtue of Section 19 of R.A. No. 9189, Congress has
(60) days from the effectivity of this Act. The empowered the COMELEC to "issue the necessary rules and
Implementing Rules and Regulations shall be regulations to effectively implement the provisions of this
submitted to the Joint Congressional Act within sixty days from the effectivity of this Act." This
Oversight Committee created by virtue of this provision of law follows the usual procedure in drafting rules
Act for prior approval. and regulations to implement a law – the legislature grants
an administrative agency the authority to craft the rules
. . . . . . . . . (Emphasis supplied) and regulations implementing the law it has enacted, in
recognition of the administrative expertise of that agency in
its particular field of operation.47 Once a law is enacted and
Composed of Senators and Members of the House of approved, the legislative function is deemed accomplished
Representatives, the Joint Congressional Oversight and complete. The legislative function may spring back to
Committee (JCOC) is a purely legislative body. There is no Congress relative to the same law only if that body deems it
question that the authority of Congress to "monitor and proper to review, amend and revise the law, but certainly
evaluate the implementation" of R.A. No. 9189 is geared not to approve, review, revise and amend the IRR of the
towards possible amendments or revision of the law itself COMELEC.
and thus, may be performed in aid of its legislation.
13 | Executive
(ARMM). The failure of the machines to read correctly some
automated ballots, however, deferred its implementation. 3
16 | Executive
The petitioner essentially posits that the counting and opines that it cannot, therefore, be considered as
consolidation of votes contemplated under Section 6 of Rep. preempting or usurping the exclusive power of Congress to
Act No. 8436 refers to the official COMELEC count under the canvass the votes for President and Vice-President.
fully automated system and not any kind of "unofficial"
count via electronic transmission of advanced results as
The Issues
now provided under the assailed resolution.
At the said hearing on May 8, 2004, the Court set forth the
The petitioners-in-intervention point to several
issues for resolution as follows:
constitutional infractions occasioned by the assailed
resolution. They advance the view that the assailed
resolution effectively preempts the sole and exclusive 1. Whether the petitioner and the petitioners-
authority of Congress under Article VII, Section 4 of the intervenors have standing to sue;
Constitution to canvass the votes for President and Vice-
President. Further, as there has been no appropriation by 2. Assuming that they have standing, whether the
Congress for the respondent COMELEC to conduct an issues they raise are political in nature over which
"unofficial" electronic transmission of results of the May 10, the Court has no jurisdiction;
2004 elections, any expenditure for the said purpose
contravenes Article VI, Section 29 (par. 1) of the
Constitution. 3. Assuming the issues are not political, whether
Resolution No. 6712 is void:
Moreover, the petitioners-in-intervention Drilon and De The preliminary issues having been thus resolved, the Court
Venecia are, respectively, President of the Senate and shall proceed to determine whether the respondent
Speaker of the House of Representatives, the heads of COMELEC committed grave abuse of discretion amounting
Congress which is exclusively authorized by the Constitution to lack or excess of jurisdiction in promulgating the assailed
to canvass the votes for President and Vice-President. They resolution.
have the requisite standing to prevent the usurpation of the
constitutional prerogative of Congress.
The Court rules in the affirmative.
19 | Executive
Irrefragably, the implementation of the assailed resolution JUSTICE CARPIO:
would entail, in due course, the hiring of additional
manpower, technical services and acquisition of equipment,
Now, the encoding is crucial; without the encoding,
including computers and software, among others. According
the entire project collapses?
to the COMELEC, it needed ₱55,000,000 to operationalize
the project, including the encoding process.40 Hence, it
would necessarily involve the disbursement of public funds COMM. SADAIN:
for which there must be the corresponding appropriation.
Yes.42
The COMELEC posited during the hearing that the 2003
General Appropriations Act has appropriated the amount Inexplicably, Commissioner Sadain contradicted himself
needed for its "unofficial" tabulation. We quote the when he said that its Financial Department had already
transcript of stenographic notes taken during the hearing: found the money, but that proper documentation was
forthcoming:
JUSTICE VITUG:
JUSTICE CARPIO:
And you mentioned earlier something about 55
million not being paid as yet? Just a clarification. You stated that you signed
already the main contract for 300 million but you
COMM. SADAIN: have not signed the 55 million supplemental
contract for the encoding?
This is an extra amount that we will be needing to
operationalize. COMM. SADAIN:
COMM. SADAIN: Because you still don’t have the money for that?
Because you still don’t have the money for that? So, you have found the money already?
21 | Executive
We have reviewed Rep. Act No. 9206, the General Secretary of the Senate certified that there is no law
Appropriations Act, which took effect on April 23, 2003 and appropriating any amount for an "unofficial" count and
find no appropriation for the project of the COMELEC for tabulation of the votes cast during the May 10, 2004
electronic transmission of "unofficial" election results. What elections:
is appropriated therein is the amount of ₱225,000,000 of
the capital outlay for the modernization of the electoral
CERTIFICATION
system.
a. For the Modernization of Electoral What is worrisome is that despite the concerns of the
System Commissioners during its En Banc meeting on April 27,
2004, the COMELEC nevertheless approved the assailed
b. FY 2003 Preparatory Activities for resolution the very next day. The COMELEC had not
National Elections executed any supplemental contract for the implementation
of the project with PMSI. Worse, even in the absence of a
certification of availability of funds for the project, it
c. Upgrading of Voters’ Database
approved the assailed resolution.
d. Conduct of Special Election to fill the Third. The assailed resolution disregards existing laws
vacancy in the Third District of Cavite which authorize solely the duly-accredited citizens’ arm to
conduct the "unofficial" counting of votes. Under Section 27
e. Implementation of Absentee Voting of Rep. Act No. 7166, as amended by Rep. Act No.
Act of 2003 (RA 9189) 8173,49 and reiterated in Section 18 of Rep. Act No.
8436,50 the accredited citizen’s arm - in this case, NAMFREL
- is exclusively authorized to use a copy of the election
Sub-Total, Locally-Funded Projects returns in the conduct of an "unofficial" counting of the
votes, whether for the national or the local elections. No
other entity, including the respondent COMELEC itself, is
Under paragraph 3 of the special provisions of Rep. Act No. authorized to use a copy of the election returns for
9206, the amount of ₱225,000,000 shall be used primarily purposes of conducting an "unofficial" count. In addition,
for the establishment of the AES prescribed under Rep. Act the second or third copy of the election returns, while
No. 8436, viz: required to be delivered to the COMELEC under the
aforementioned laws, are not intended for undertaking an
3. Modernization of Electoral System. The "unofficial" count. The aforesaid COMELEC copies are
appropriations herein authorized for the archived and unsealed only when needed by the respondent
Modernization of the Electoral System in the COMELEC to verify election results in connection with
amount of Two Hundred Twenty-Five Million Pesos resolving election disputes that may be imminent. However,
(₱225,000,000.00) shall be used primarily for the in contravention of the law, the assailed Resolution
establishment of the automated election system, authorizes the so-called Reception Officers (RO), to open
prescribed under Republic Act No. 8436, the second or third copy intended for the respondent
particularly for the process of voting, counting of COMELEC as basis for the encoding and transmission of
votes and canvassing/consolidation of results of advanced "unofficial" precinct results. This not only violates
the national and local elections.46 the exclusive prerogative of NAMFREL to conduct an
"unofficial" count, but also taints the integrity of the
envelopes containing the election returns, as well as the
Section 52 of Rep. Act No. 9206 proscribes any change or
returns themselves, by creating a gap in its chain of
modification in the expenditure items authorized
custody from the Board of Election Inspectors to the
thereunder. Thus:
COMELEC.
22 | Executive
… Now, how many candidates are there nationwide
now?
(i) Prescribe the use or adoption of the
latest technological and electronic COMM. SADAIN:
devices, taking into account the situation
prevailing in the area and the funds
I must admit you Honor we were not able to notify
available for the purpose: Provided, That
the candidates but we notified the politicians.
the Commission shall notify the
authorized representatives of accredited
political parties and candidates in areas JUSTICE CARPIO:
affected by the use or adoption of
technological and electronic devices not Yes, but what does the law state? Read the law
less than thirty days prior to the please.
effectivity of the use of such devices.
COMM. SADAIN:
From the clear terms of the above provision, before the
COMELEC may resort to and adopt the latest technological
and electronic devices for electoral purposes, it must act in Yes, Your Honor. I understand that it includes
accordance with the following conditions: candidates.
(a) Take into account the situation prevailing in the JUSTICE CARPIO:
area and the funds available for the purpose; and,
And there are how many candidates nationwide
(b) Notify the authorized representatives of running in this election?
accredited political parties and candidates in areas
affected by the use or adoption of technological COMM. SADAIN:
and electronic devices not less than thirty days
prior to the effectivity of the use of such devices.
Hundreds of thousands, Your Honor.
JUSTICE CARPIO:
You stated that you have notified in writing all the
political parties and candidates as required in
Section 52 (i)? But not the candidates, individual candidates?
Yes, Your Honor. We were not able to do that, Your Honor, I must
admit.
JUSTICE CARPIO:
JUSTICE CARPIO:
23 | Executive
So, you did not notify hundreds of thousands of counting of votes and canvassing/consolidation of results of
candidates? the national and local elections: Provided, however, That for
the May 11, 1998 elections, the System shall be applicable
in all areas within the country only for the positions of
COMM. SADAIN:
president, vice-president, senators and parties,
organizations or coalitions participating under the party-list
No, Your Honors.52 system.
The respondent COMELEC has, likewise, failed to submit To achieve the purpose of this Act, the Commission is
any resolution or document to prove that it had notified all authorized to procure by purchase, lease or otherwise, any
political parties of the intended adoption of Resolution No. supplies, equipment, materials and services needed for the
6712, in compliance with Section 52(i) of the Omnibus holding of the elections by an expedited process of public
Election Code. This notwithstanding the fact that even long bidding of vendors, suppliers or lessors: Provided, That the
before the issuance of the assailed resolution, it had accredited political parties are duly notified of and allowed
admittedly entered into a contract on April 15, 200353 and to observe but not to participate in the bidding. If in spite of
acquired facilities pertaining to the implementation of the its diligent efforts to implement this mandate in the
electronic transmission and official tabulation of election exercise of this authority, it becomes evident by February 9,
results. As correctly pointed out by the petitioners-in- 1998 that the Commission cannot fully implement the
intervention, the invitations dated January 15, 2004 automated election system for national positions in the May
regarding the January 20, 2004 COMELEC Conference with 11, 1998 elections, the elections for both national and local
the political parties on election security measures did not positions shall be done manually except in the Autonomous
mention electronic transmission of advanced results, much Region in Muslim Mindanao (ARMM) where the automated
less the formal adoption of the purpose of the conference. election system shall be used for all positions.
Such "notices" merely invited the addressee thereof or
its/his authorized representative to a conference where the
The AES provided in Rep. Act No. 8436 constitutes the
COMELEC would show a sample of the official ballot to be
entire "process of voting, counting of votes and
used in the elections, discuss various security measures
canvassing/consolidation of results of the national and local
that COMELEC had put in place, and solicit suggestions to
elections" corresponding to the Phase I, Phase II and Phase
improve the administration of the polls.54 Further, the
III of the AES of the COMELEC. The three phases cannot be
invitations purportedly sent out to the political
effected independently of each other. The implementation
parties regarding the April 6, 2004 Field Test of the
of Phase II of the AES is a condition sine qua non to the
Electronic Transmission, Consolidation and Dissemination
implementation of Phase III. The nullification by this Court
System to be conducted by the COMELEC appear to have
of the contract for Phase II of the System effectively put on
been sent out in the late afternoon of April 5, 2004, after
hold, at least for the May 10, 2004 elections, the
office hours. There is no showing that all the political parties
implementation of Phase III of the AES.
attended the Field Test, or received the invitations. More
importantly, the said invitations did not contain a formal
notice of the adoption of a technology, as required by Sixth. As correctly observed by the petitioner, there is a
Section 52(i) of the Omnibus Election Code.55 great possibility that the "unofficial" results reflected in the
electronic transmission under the supervision and control of
the COMELEC would significantly vary from the results
Fifth. The assailed resolution has no constitutional and
reflected in the COMELEC official count. The latter follows
statutory basis. That respondent COMELEC is the sole body
the procedure prescribed by the Omnibus Election Code,
tasked to "enforce and administer all laws and regulations
which is markedly different from the procedure envisioned
relative to the conduct of an election, plebiscite, initiative,
in the assailed resolution.
referendum and recall"56 and to ensure "free, orderly,
honest, peaceful and credible elections"57 is beyond cavil.
That it possesses the power to promulgate rules and Under the Omnibus Election Code, after the votes are cast
regulations in the performance of its constitutional duties is, and the polls closed, the Board of Election Inspectors (BEI)
likewise, undisputed. However, the duties of the COMELEC for each precinct is enjoined to publicly count the votes and
under the Constitution, Rep. Act No. 7166, and other record the same simultaneously on the tally boards and on
election laws are carried out, at all times, in its official two sets of ERs. Each set of the ER is prepared in eight (8)
capacity. There is no constitutional and statutory basis for copies. After the ERs are accomplished, they are forwarded
the respondent COMELEC to undertake a separate and an to the Municipal Board of Canvassers (MBC), which would
"unofficial" tabulation of results, whether manually or canvass all the ERs and proclaim the elected municipal
electronically. Indeed, by conducting such "unofficial" officials. All the results in the ERs are transposed to the
tabulation of the results of the election, the COMELEC statements of votes (SOVs) by precinct. These SOVs are
descends to the level of a private organization, spending then transferred to the certificates of canvass (COCs) which
public funds for the purpose. Besides, it is absurd for the are, in turn, brought to the Provincial Board of Canvassers
COMELEC to conduct two kinds of electoral counts – a slow (PBC). Subsequently, the PBC would canvass all the COCs
but "official" count, and an alleged quicker but "unofficial" from various municipalities and proclaim the elected
count, the results of each may substantially differ. provincial officials, including those to the House of
Representatives. The PBC would then prepare two sets of
Provincial Certificates of Canvass (PCOCs). One set is
Clearly, the assailed resolution is an implementation of
forwarded to Congress for its canvassing of the results for
Phase III of the modernization program of the COMELEC
the President and Vice-President. The other set is forwarded
under Rep. Act No. 8436. Section 2 of the assailed
to the COMELEC for its canvassing of the results for
resolution expressly refers to the Phase III-Modernization
Senators.
Project of the COMELEC. Since this Court has already
scrapped the contract for Phase II of the AES, the COMELEC
cannot as yet implement the Phase III of the program. This As the results are transposed from one document to
is so provided in Section 6 of Rep. Act No. 8436. another, and as each document undergoes the procedure of
canvassing by various Boards of Canvassers, election
returns and certificates of canvass are objected to and at
SEC. 6. Authority to Use an Automated Election System. --
times excluded and/or deferred and not tallied, long after
To carry out the above-stated policy, the Commission on
the pre-proclamation controversies are resolved by the
Elections, herein referred to as the Commission, is hereby
canvass boards and the COMELEC.
authorized to use an automated election system, herein
referred to as the System, for the process of voting,
24 | Executive
On the other hand, under the assailed resolution, the Doubtless, these are laudable intentions. But the rule of law
precinct results of each city and municipality received by requires that even the best intentions must be carried out
the ETCs would be immediately electronically transmitted to within the parameters of the Constitution and the law.
the NCC. Such data, which have not undergone the process Verily, laudable purposes must be carried out by legal
of canvassing, would expectedly be dissimilar to the data on methods.59
which the official count would be based.
WHEREFORE, the petition is GRANTED. The assailed
Resultantly, the official and unofficial canvass, both to be Resolution No. 6712 dated April 28, 2004 issued by the
administered by the respondent COMELEC, would most Commission on Elections (COMELEC) En Banc is hereby
likely not tally. In the past elections, the "unofficial" quick declared NULL AND VOID.
count conducted by the NAMFREL had never tallied with
that of the official count of the COMELEC, giving rise to
SO ORDERED.
allegations of "trending" and confusion. With a second
"unofficial" count to be conducted by the official election
body, the respondent COMELEC, in addition to its official
count, allegations of "trending," would most certainly be
aggravated. As a consequence, the electoral process would
be undermined.
Conclusion
25 | Executive
petitioner of receiving some P220 million in jueteng money
from Governor Singson from November 1998 to August
2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes
intended for Ilocos Sur. The privilege speech was referred
by then Senate President Franklin Drilon, to the Blue Ribbon
Committee (then headed by Senator Aquilino Pimentel) and
the Committee on Justice (then headed by Senator Renato
Cayetano) for joint investigation.2
JOSEPH E. ESTRADA, petitioner, The heat was on. On November 1, four (4) senior economic
vs. advisers, members of the Council of Senior Economic
GLORIA MACAPAGAL-ARROYO, respondent. Advisers, resigned. They were Jaime Augusto Zobel de
Ayala, former Prime Minister Cesar Virata, former Senator
PUNO, J.: Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department
of Trade and Industry.9 On November 3, Senate President
On the line in the cases at bar is the office of the President. Franklin Drilon, and House Speaker Manuel Villar, together
Petitioner Joseph Ejercito Estrada alleges that he is the with some 47 representatives defected from the ruling
President on leave while respondent Gloria Macapagal- coalition, Lapian ng Masang Pilipino.10
Arroyo claims she is the President. The warring
personalities are important enough but more transcendental
are the constitutional issues embedded on the parties' The month of November ended with a big bang. In a
dispute. While the significant issues are many, the jugular tumultuous session on November 13, House Speaker Villar
issue involves the relationship between the ruler and the transmitted the Articles of Impeachment11 signed by 115
ruled in a democracy, Philippine style. representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused
political convulsions in both houses of Congress. Senator
First, we take a view of the panorama of events that Drilon was replaced by Senator Pimentel as Senate
precipitated the crisis in the office of the President. President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened
In the May 11, 1998 elections, petitioner Joseph Ejercito the impeachment trial of the petitioner. Twenty-one (21)
Estrada was elected President while respondent Gloria senators took their oath as judges with Supreme Court
Macapagal-Arroyo was elected Vice-President. Some ten Chief Justice Hilario G. Davide, Jr., presiding.13
(10) million Filipinos voted for the petitioner believing he
would rescue them from life's adversity. Both petitioner and The political temperature rose despite the cold December.
the respondent were to serve a six-year term commencing On December 7, the impeachment trial started.14 The battle
on June 30, 1998. royale was fought by some of the marquee names in the
legal profession. Standing as prosecutors were then House
From the beginning of his term, however, petitioner was Minority Floor Leader Feliciano Belmonte and
plagued by a plethora of problems that slowly but surely Representatives Joker Arroyo, Wigberto Tañada, Sergio
eroded his popularity. His sharp descent from power started Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina,
on October 4, 2000. Ilocos Sur Governor, Luis "Chavit" Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio
Singson, a longtime friend of the petitioner, went on air and Nachura. They were assisted by a battery of private
accused the petitioner, his family and friends of receiving prosecutors led by now Secretary of Justice Hernando Perez
millions of pesos from jueteng lords.1 and now Solicitor General Simeon Marcelo. Serving as
defense counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito P.
The exposẻ immediately ignited reactions of rage. The next Mendoza, former City Fiscal of Manila Jose Flaminiano,
day, October 5, 2000, Senator Teofisto Guingona, Jr., then former Deputy Speaker of the House Raul Daza, Atty.
the Senate Minority Leader, took the floor and delivered a Siegfried Fortun and his brother, Atty. Raymund Fortun.
fiery privilege speech entitled "I Accuse." He accused the
26 | Executive
The day to day trial was covered by live TV and during its highly controversial second envelope.26 There was no
course enjoyed the highest viewing rating. Its high and low turning back the tide. The tide had become a tsunami.
points were the constant conversational piece of the
chattering classes. The dramatic point of the December
January 20 turned to be the day of surrender. At 12:20
hearings was the testimony of Clarissa Ocampo, senior vice
a.m., the first round of negotiations for the peaceful and
president of Equitable-PCI Bank. She testified that she was
orderly transfer of power started at Malacañang'' Mabini
one foot away from petitioner Estrada when he affixed the
Hall, Office of the Executive Secretary. Secretary Edgardo
signature "Jose Velarde" on documents involving a P500
Angara, Senior Deputy Executive Secretary Ramon
million investment agreement with their bank on February
Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary
4, 2000.15
Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the
After the testimony of Ocampo, the impeachment trial was petitioner. Respondent Arroyo was represented by now
adjourned in the spirit of Christmas. When it resumed on Executive Secretary Renato de Villa, now Secretary of
January 2, 2001, more bombshells were exploded by the Finance Alberto Romulo and now Secretary of Justice
prosecution. On January 11, Atty. Edgardo Espiritu who Hernando Perez.27 Outside the palace, there was a brief
served as petitioner's Secretary of Finance took the witness encounter at Mendiola between pro and anti-Estrada
stand. He alleged that the petitioner jointly owned BW protesters which resulted in stone-throwing and caused
Resources Corporation with Mr. Dante Tan who was facing minor injuries. The negotiations consumed all morning until
charges of insider trading.16 Then came the fateful day of the news broke out that Chief Justice Davide would
January 16, when by a vote of 11-1017 the senator-judges administer the oath to respondent Arroyo at high noon at
ruled against the opening of the second envelope which the EDSA Shrine.
allegedly contained evidence showing that petitioner held
P3.3 billion in a secret bank account under the name "Jose
At about 12:00 noon, Chief Justice Davide administered the
Velarde." The public and private prosecutors walked out in
oath to respondent Arroyo as President of the
protest of the ruling. In disgust, Senator Pimentel resigned
Philippines.28 At 2:30 p.m., petitioner and his family
as Senate President.18 The ruling made at 10:00 p.m. was
hurriedly left Malacañang Palace.29 He issued the following
met by a spontaneous outburst of anger that hit the streets
press statement:30
of the metropolis. By midnight, thousands had assembled at
the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) "20 January 2001
senators.
STATEMENT FROM
On January 17, the public prosecutors submitted a letter to
Speaker Fuentebella tendering their collective resignation. PRESIDENT JOSEPH EJERCITO ESTRADA
They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal.19 Senator Raul
Roco quickly moved for the indefinite postponement of the At twelve o'clock noon today, Vice President Gloria
impeachment proceedings until the House of Macapagal-Arroyo took her oath as President of
Representatives shall have resolved the issue of resignation the Republic of the Philippines. While along with
of the public prosecutors. Chief Justice Davide granted the many other legal minds of our country, I have
motion.20 strong and serious doubts about the legality and
constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the
January 18 saw the high velocity intensification of the call restoration of unity and order in our civil society.
for petitioner's resignation. A 10-kilometer line of people
holding lighted candles formed a human chain from the
Ninoy Aquino Monument on Ayala Avenue in Makati City to It is for this reason that I now leave Malacañang
the EDSA Shrine to symbolize the people's solidarity in Palace, the seat of the presidency of this country,
demanding petitioner's resignation. Students and teachers for the sake of peace and in order to begin the
walked out of their classes in Metro Manila to show their healing process of our nation. I leave the Palace of
concordance. Speakers in the continuing rallies at the EDSA our people with gratitude for the opportunities
Shrine, all masters of the physics of persuasion, attracted given to me for service to our people. I will not
more and more people.21 shirk from any future challenges that may come
ahead in the same service of our country.
28 | Executive
legally warranted." Thru another counsel, petitioner, on President on leave while respondent Arroyo is an
February 6, filed GR No. 146738 for Quo Warranto. He Acting President.
prayed for judgment "confirming petitioner to be the lawful
and incumbent President of the Republic of the Philippines
III
temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting Whether conviction in the impeachment
capacity pursuant to the provisions of the Constitution." proceedings is a condition precedent for the
Acting on GR Nos. 146710-15, the Court, on the same day, criminal prosecution of petitioner Estrada. In the
February 6, required the respondents "to comment thereon negative and on the assumption that petitioner is
within a non-extendible period expiring on 12 February still President, whether he is immune from criminal
2001." On February 13, the Court ordered the consolidation prosecution.
of GR Nos. 146710-15 and GR No. 146738 and the filing of
the respondents' comments "on or before 8:00 a.m. of IV
February 15."
29 | Executive
In the Philippine setting, this Court has been continuously President as President are subject to judicial review. EDSA
confronted with cases calling for a firmer delineation of the I presented a political question; EDSA II involves
inner and outer perimeters of a political question. 57 Our legal questions. A brief discourse on freedom of speech
leading case is Tanada v. Cuenco,58 where this Court, and of the freedom of assembly to petition the government
through former Chief Justice Roberto Concepcion, held that for redress of grievance which are the cutting edge of
political questions refer "to those questions which, under EDSA People Power II is not inappropriate.
the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full
Freedom of speech and the right of assembly are treasured
discretionary authority has been delegated to the
by Filipinos. Denial of these rights was one of the reasons of
legislative or executive branch of the government. It is
our 1898 revolution against Spain. Our national hero, Jose
concerned with issues dependent upon the wisdom,
P. Rizal, raised the clarion call for the recognition of
not legality of a particular measure." To a great degree,
freedom of the press of the Filipinos and included it as
the 1987 Constitution has narrowed the reach of the
among "the reforms sine quibus non."65 The Malolos
political question doctrine when it expanded the power of
Constitution, which is the work of the revolutionary
judicial review of this court not only to settle actual
Congress in 1898, provided in its Bill of Rights that Filipinos
controversies involving rights which are legally demandable
shall not be deprived (1) of the right to freely express his
and enforceable but also to determine whether or not
ideas or opinions, orally or in writing, through the use of the
there has been a grave abuse of discretion amounting
press or other similar means; (2) of the right of association
to lack or excess of jurisdiction on the part of any
for purposes of human life and which are not contrary to
branch or instrumentality of government. 59 Heretofore,
public means; and (3) of the right to send petitions to the
the judiciary has focused on the "thou shalt not's" of the
authorities, individually or collectively." These
Constitution directed against the exercise of its
fundamental rights were preserved when the United
jurisdiction.60 With the new provision, however, courts are
States acquired jurisdiction over the Philippines. In
given a greater prerogative to determine what it can do to
the Instruction to the Second Philippine Commission of April
prevent grave abuse of discretion amounting to lack or
7, 1900 issued by President McKinley, it is specifically
excess of jurisdiction on the part of any branch or
provided "that no law shall be passed abridging the freedom
instrumentality of government. Clearly, the new
of speech or of the press or of the rights of the people to
provision did not just grant the Court power of doing
peaceably assemble and petition the Government for
nothing. In sync and symmetry with this intent are other
redress of grievances." The guaranty was carried over in
provisions of the 1987 Constitution trimming the so called
the Philippine Bill, the Act of Congress of July 1, 1902 and
political thicket. Prominent of these provisions is section 18
the Jones Law, the Act of Congress of August 29, 1966.66
of Article VII which empowers this Court in limpid language
to "x x x review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual basis of the Thence on, the guaranty was set in stone in our 1935
proclamation of martial law or the suspension of the Constitution,67 and the 197368 Constitution. These rights
privilege of the writ (of habeas corpus) or the extension are now safely ensconced in section 4, Article III of the
thereof x x x." 1987 Constitution, viz:
Respondents rely on the case of Lawyers League for a "Sec. 4. No law shall be passed abridging the
Better Philippines and/or Oliver A. Lozano v. freedom of speech, of expression, or of the press,
President Corazon C. Aquino, et al. 61 and related or the right of the people peaceably to assemble
cases62 to support their thesis that since the cases at bar and petition the government for redress of
involve the legitimacy of the government of grievances."
respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will The indispensability of the people's freedom of speech and
show that they are inapplicable. In the cited cases, we held of assembly to democracy is now self-evident. The reasons
that the government of former President Aquino was the are well put by Emerson: first, freedom of expression is
result of a successful revolution by the sovereign people, essential as a means of assuring individual fulfillment;
albeit a peaceful one. No less than the Freedom second, it is an essential process for advancing knowledge
Constitution63 declared that the Aquino government was and discovering truth; third, it is essential to provide for
installed through a direct exercise of the power of the participation in decision-making by all members of society;
Filipino people "in defiance of the provisions of the and fourth, it is a method of achieving a more adaptable
1973 Constitution, as amended." In is familiar learning and hence, a more stable community of maintaining the
that the legitimacy of a government sired by a successful precarious balance between healthy cleavage and necessary
revolution by people power is beyond judicial scrutiny for consensus."69 In this sense, freedom of speech and of
that government automatically orbits out of the assembly provides a framework in which the "conflict
constitutional loop. In checkered contrast, the necessary to the progress of a society can take place
government of respondent Arroyo is not revolutionary without destroying the society."70 In Hague v.
in character. The oath that she took at the EDSA Shrine is Committee for Industrial Organization, 71 this function
the oath under the 1987 Constitution.64 In her oath, she of free speech and assembly was echoed in the amicus
categorically swore to preserve and defend the 1987 curiae filed by the Bill of Rights Committee of the American
Constitution. Indeed, she has stressed that she is Bar Association which emphasized that "the basis of the
discharging the powers of the presidency under the right of assembly is the substitution of the expression of
authority of the 1987 Constitution. opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent
In fine, the legal distinction between EDSA People Power I case of Subayco v. Sandiganbayan,73 this Court similar
EDSA People Power II is clear. EDSA I involves the exercise stressed that "… it should be clear even to those with
of the people power of revolution which overthrew the intellectual deficits that when the sovereign people
whole government. EDSA II is an exercise of people assemble to petition for redress of grievances, all should
power of freedom of speech and freedom of assembly listen. For in a democracy, it is the people who count;
to petition the government for redress of those who are deaf to their grievances are ciphers."
grievances which only affected the office of the
President. EDSA I is extra constitutional and the Needless to state, the cases at bar pose legal and not
legitimacy of the new government that resulted from it political questions. The principal issues for resolution
cannot be the subject of judicial review, but EDSA II is require the proper interpretation of certain provisions in the
intra constitutional and the resignation of the sitting 1987 Constitution, notably section 1 of Article II,74 and
President that it caused and the succession of the Vice
30 | Executive
section 875 of Article VII, and the allocation of governmental Ribbon investigation spiked the hate against him. The
powers under section 1176 of Article VII. The issues likewise Articles of Impeachment filed in the House of
call for a ruling on the scope of presidential immunity from Representatives which initially was given a near cipher
suit. They also involve the correct calibration of the right of chance of succeeding snowballed. In express speed, it
petitioner against prejudicial publicity. As early as the 1803 gained the signatures of 115 representatives or more than
case of Marbury v. Madison,77 the doctrine has been laid 1/3 of the House of Representatives. Soon, petitioner's
down that "it is emphatically the province and duty of powerful political allies began deserting him. Respondent
the judicial department to say what the law is . . ." Arroyo quit as Secretary of Social Welfare. Senate President
Thus, respondent's in vocation of the doctrine of political Drilon and former Speaker Villar defected with 47
question is but a foray in the dark. representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and
Industry.
II
31 | Executive
The first negotiation for a peaceful and orderly transfer of 4. The Armed Forced of the Philippines, through its
power immediately started at 12:20 a.m. of January 20, Chief of Staff, shall guarantee the security of the
that fateful Saturday. The negotiation was limited to President and his family as approved by the
three (3) points: (1) the transition period of five days after national military and police authority (Vice
the petitioner's resignation; (2) the guarantee of the safety President).
of the petitioner and his family, and (3) the agreement to
open the second envelope to vindicate the name of the
5. It is to be noted that the Senate will open the
petitioner.87 Again, we note that the resignation of
second envelope in connection with the alleged
petitioner was not a disputed point. The petitioner
savings account of the President in the Equitable
cannot feign ignorance of this fact. According to
PCI Bank in accordance with the rules of the
Secretary Angara, at 2:30 a.m., he briefed the petitioner on
Senate, pursuant to the request to the Senate
the three points and the following entry in the Angara
President.
Diary shows the reaction of the petitioner, viz:
Our deal
"x x x
32 | Executive
The second round of negotiation cements the reading that Gloria Macapagal-Arroyo is President and will be
the petitioner has resigned. It will be noted that during this sworn in at 12 noon.
second round of negotiation, the resignation of the
petitioner was again treated as a given fact. The only
'Bakit hindi naman kayo nakahintay? Paano na ang
unsettled points at that time were the measures to be
agreement (why couldn't you wait? What about
undertaken by the parties during and after the transition
the agreement)?' I asked.
period.
11:00 a.m. – Between General Reyes and myself, But I immediately instruct Macel to delete the first
there is a firm agreement on the five points to provision on resignation since this matter is
effect a peaceful transition. I can hear the general already moot and academic. Within moments,
clearing all these points with a group he is with. I Macel erases the first provision and faxes the
hear voices in the background. documents, which have been signed by myself,
Dondon and Macel, to Nene Pimentel and General
Agreement. Reyes.
The agreement starts: 1. The President shall resign I direct Demaree Ravel to rush the original
today, 20 January 2001, which resignation shall be document to General Reyes for the signatures of
effective on 24 January 2001, on which day the the other side, as it is important that the
Vice President will assume the presidency of the provisions on security, at least, should be
Republic of the Philippines. respected.
May the Almighty bless our country and our After petitioner contended that as a matter of fact he did
beloved people. not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019,
MABUHAY!"' otherwise known as the Anti-graft and Corrupt Practices
Act, which allegedly prohibits his resignation, viz:
It is, however, urged that the petitioner did not resign but The separation or cessation of a public official form
only took a temporary leave dated January 20, 2001 of the office shall not be a bar to his prosecution under
petitioner sent to Senate President Pimentel and Speaker this Act for an offense committed during his
Fuentebella is cited. Again, we refer to the said letter, viz: incumbency."93
"Sir. The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the
By virtue of the provisions of Section II, Article VII provision and insisted that the President's immunity should
of the Constitution, I am hereby transmitting this extend after his tenure.
declaration that I am unable to exercise the
powers and duties of my office. By operation of law Senate Bill No. 571, which was substantially similar Senate
and the Constitution, the Vice President shall be Bill No. 293, was thereafter passed. Section 15 above
the Acting president. became section 13 under the new bill, but the deliberations
on this particular provision mainly focused on the immunity
(Sgd.) Joseph Ejercito Estrada" of the President, which was one of the reasons for the veto
of the original bill. There was hardly any debate on the
prohibition against the resignation or retirement of a public
To say the least, the above letter is wrapped in official with pending criminal and administrative cases
mystery.91 The pleadings filed by the petitioner in the cases against him. Be that as it may, the intent of the law ought
at bar did not discuss, may even intimate, the to be obvious. It is to prevent the act of resignation or
circumstances that led to its preparation. Neither did the retirement from being used by a public official as a
counsel of the petitioner reveal to the Court these protective shield to stop the investigation of a pending
circumstances during the oral argument. It strikes the Court criminal or administrative case against him and to prevent
as strange that the letter, despite its legal value, was never
34 | Executive
his prosecution under the Anti-Graft Law or prosecution for duties of his office, and until he transmits to them
bribery under the Revised Penal Code. To be sure, no a written declaration to the contrary, such powers
person can be compelled to render service for that would be and duties shall be discharged by the Vice-
a violation of his constitutional right.94 A public official has President as Acting President.
the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public
Whenever a majority of all the Members of the
official is facing administrative or criminal investigation or
Cabinet transmit to the President of the Senate
prosecution, such resignation or retirement will not cause
and to the Speaker of the House of
the dismissal of the criminal or administrative proceedings
Representatives their written declaration that the
against him. He cannot use his resignation or retirement to
President is unable to discharge the powers and
avoid prosecution.
duties of his office, the Vice-President shall
immediately assume the powers and duties of the
There is another reason why petitioner's contention should office as Acting President.
be rejected. In the cases at bar, the records show that
when petitioner resigned on January 20, 2001, the cases
Thereafter, when the President transmits to the
filed against him before the Ombudsman were OMB Case
President of the Senate and to the Speaker of the
Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-
House of Representatives his written declaration
00-1758. While these cases have been filed, the respondent
that no inability exists, he shall reassume the
Ombudsman refrained from conducting the preliminary
powers and duties of his office. Meanwhile, should
investigation of the petitioner for the reason that as the
a majority of all the Members of the Cabinet
sitting President then, petitioner was immune from suit.
transmit within five days to the President of the
Technically, the said cases cannot be considered as pending
Senate and to the Speaker of the House of
for the Ombudsman lacked jurisdiction to act on them.
Representatives their written declaration that the
Section 12 of RA No. 3019 cannot therefore be invoked by
President is unable to discharge the powers and
the petitioner for it contemplates of cases whose
duties of his office, the Congress shall decide the
investigation or prosecution do not suffer from any
issue. For that purpose, the Congress shall
insuperable legal obstacle like the immunity from suit of a
convene, if it is not in session, within forty-eight
sitting President.
hours, in accordance with its rules and without
need of call.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA
If the Congress, within ten days after receipt of the
3019, bars him from resigning. We hold otherwise. The
last written declaration, or, if not in session, within
exact nature of an impeachment proceeding is debatable.
twelve days after it is required to assemble,
But even assuming arguendo that it is an administrative
determines by a two-thirds vote of both Houses,
proceeding, it can not be considered pending at the time
voting separately, that the President is unable to
petitioner resigned because the process already broke down
discharge the powers and duties of his office, the
when a majority of the senator-judges voted against the
Vice-President shall act as President; otherwise,
opening of the second envelope, the public and private
the President shall continue exercising the powers
prosecutors walked out, the public prosecutors filed their
and duties of his office."
Manifestation of Withdrawal of Appearance, and the
proceedings were postponed indefinitely. There was, in
effect, no impeachment case pending against petitioner That is the law. Now, the operative facts:
when he resigned.
1. Petitioner, on January 20, 2001, sent the
III above letter claiming inability to the
Senate President and Speaker of the
House;
Whether or not the petitioner Is only temporarily
2. Unaware of the letter, respondent Arroyo
unable to Act as President.
took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
We shall now tackle the contention of the petitioner that he 3. Despite receipt of the letter, the House of
is merely temporarily unable to perform the powers and Representatives passed on January 24,
duties of the presidency, and hence is a President on leave. 2001 House Resolution No. 175;96
As aforestated, the inability claim is contained in the
January 20, 2001 letter of petitioner sent on the same day
On the same date, the House of the Representatives
to Senate President Pimentel and Speaker Fuentebella.
passed House Resolution No. 17697 which states:
This Resolution was adopted by the House of WHEREAS, the recent transition in government
Representatives on January 24, 2001. offers the nation an opportunity for meaningful
change and challenge;
(Sgd.) ROBERTO P. NAZARENO
Secretary General" WHEREAS, to attain desired changes and
overcome awesome challenges the nation needs
On February 7, 2001, the House of the Representatives unity of purpose and resolve cohesive resolute
passed House Resolution No. 17898 which states: (sic) will;
"RESOLUTION CONFIRMING PRESIDENT GLORIA WHEREAS, the Senate of the Philippines has been
MACAPAGAL-ARROYO'S NOMINATION OF SENATOR the forum for vital legislative measures in unity
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT despite diversities in perspectives;
OF THE REPUBLIC OF THE PHILIPPINES
36 | Executive
WHEREFORE, we recognize and express support to Resolved, as it is hereby resolved. That the Senate
the new government of President Gloria recognize that the Impeachment Court is functus
Macapagal-Arroyo and resolve to discharge and officio and has been terminated.
overcome the nation's challenges." 99
Resolved, further, That the Journals of the
On February 7, the Senate also passed Senate Impeachment Court on Monday, January 15,
Resolution No. 82100 which states: Tuesday, January 16 and Wednesday, January 17,
2001 be considered approved.
"RESOLUTION CONFIRMING PRESIDENT GLORIA
MACAPAGAL ARROYO'S NOMINATION OF SEM. Resolved, further, That the records of the
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT Impeachment Court including the "second
OF THE REPUBLIC OF THE PHILIPPINES envelope" be transferred to the Archives of the
Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate.
WHEREAS, there is vacancy in the Office of the
Disposition and retrieval thereof shall be made
Vice President due to the assumption to the
only upon written approval of the Senate
Presidency of Vice President Gloria Macapagal-
president.
Arroyo;
37 | Executive
political in nature and addressed solely to Congress Philippine Commission of the Philippine Assembly.
by constitutional fiat. It is a political issue, which cannot Public policy forbids it.
be decided by this Court without transgressing the principle
of separation of powers.
Neither does this principle of nonliability mean that
the chief executive may not be personally sued at
In fine, even if the petitioner can prove that he did all in relation to acts which he claims to perform as
not resign, still, he cannot successfully claim that he such official. On the contrary, it clearly appears
is a President on leave on the ground that he is from the discussion heretofore had, particularly
merely unable to govern temporarily. That claim has that portion which touched the liability of judges
been laid to rest by Congress and the decision that and drew an analogy between such liability and
respondent Arroyo is the de jure, president made by a that of the Governor-General, that the latter is
co-equal branch of government cannot be reviewed liable when he acts in a case so plainly outside of
by this Court. his power and authority that he can not be said to
have exercised discretion in determining whether
or not he had the right to act. What is held here is
IV
that he will be protected from personal liability for
damages not only when he acts within his
Whether or not the petitioner enjoys immunity from authority, but also when he is without authority,
suit. provided he actually used discretion and
judgement, that is, the judicial faculty, in
Assuming he enjoys immunity, the extent of the determining whether he had authority to act or
immunity not. In other words, in determining the question of
his authority. If he decide wrongly, he is still
protected provided the question of his authority
Petitioner Estrada makes two submissions: first, the cases was one over which two men, reasonably qualified
filed against him before the respondent Ombudsman should for that position, might honestly differ; but he s
be prohibited because he has not been convicted in the not protected if the lack of authority to act is so
impeachment proceedings against him; and second, he plain that two such men could not honestly differ
enjoys immunity from all kinds of suit, whether criminal or over its determination. In such case, be acts, not
civil. as Governor-General but as a private individual,
and as such must answer for the consequences of
Before resolving petitioner's contentions, a revisit of our his act."
legal history executive immunity will be most enlightening.
The doctrine of executive immunity in this jurisdiction Mr. Justice Johnson underscored the consequences if the
emerged as a case law. In the 1910 case of Forbes, etc. Chief Executive was not granted immunity from
vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, suit, viz "xxx. Action upon important matters of state
a Chinese citizen, sued petitioner W. Cameron Forbes, delayed; the time and substance of the chief executive
Governor-General of the Philippine Islands. J.E. Harding and spent in wrangling litigation; disrespect engendered for the
C.R. Trowbridge, Chief of Police and Chief of the Secret person of one of the highest officials of the state and for the
Service of the City of Manila, respectively, for damages for office he occupies; a tendency to unrest and disorder
allegedly conspiring to deport him to China. In granting a resulting in a way, in distrust as to the integrity of
writ of prohibition, this Court, speaking thru Mr. Justice government itself."105
Johnson, held:
Our 1935 Constitution took effect but it did not contain any
" The principle of nonliability, as herein enunciated, specific provision on executive immunity. Then came the
does not mean that the judiciary has no authority tumult of the martial law years under the late President
to touch the acts of the Governor-General; that he Ferdinand E. Marcos and the 1973 Constitution was born. In
may, under cover of his office, do what he will, 1981, it was amended and one of the amendments involved
unimpeded and unrestrained. Such a construction executive immunity. Section 17, Article VII stated:
would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad,
destroying rights of person and of property, wholly "The President shall be immune from suit during
free from interference of courts or legislatures. his tenure. Thereafter, no suit whatsoever shall lie
This does not mean, either that a person injured for official acts done by him or by others pursuant
by the executive authority by an act unjustifiable to his specific orders during his tenure.
under the law has n remedy, but must submit in
silence. On the contrary, it means, simply, that the The immunities herein provided shall apply to the
governors-general, like the judges if the courts and incumbent President referred to in Article XVII of
the members of the Legislature, may not be this Constitution.
personally mulcted in civil damages for the
consequences of an act executed in the
In his second Vicente G. Sinco professional Chair lecture
performance of his official duties. The judiciary has
entitled, "Presidential Immunity and All The King's Men: The
full power to, and will, when the mater is properly
Law of Privilege As a Defense To Actions For
presented to it and the occasion justly warrants it,
Damages,"106 petitioner's learned counsel, former Dean of
declare an act of the Governor-General illegal and
the UP College of Law, Atty. Pacificao Agabin, brightened
void and place as nearly as possible in status quo
the modifications effected by this constitutional amendment
any person who has been deprived his liberty or
on the existing law on executive privilege. To quote his
his property by such act. This remedy is assured to
disquisition:
every person, however humble or of whatever
country, when his personal or property rights have
been invaded, even by the highest authority of the "In the Philippines, though, we sought to do the
state. The thing which the judiciary can not do is Americans one better by enlarging and fortifying
mulct the Governor-General personally in damages the absolute immunity concept. First, we extended
which result from the performance of his official it to shield the President not only form civil claims
duty, any more than it can a member of the but also from criminal cases and other claims.
Second, we enlarged its scope so that it would
38 | Executive
cover even acts of the President outside the scope place him in a better situation than a non-sitting President
of official duties. And third, we broadened its who has not been subjected to impeachment proceedings
coverage so as to include not only the President and yet can be the object of a criminal prosecution. To be
but also other persons, be they government sure, the debates in the Constitutional Commission make it
officials or private individuals, who acted upon clear that when impeachment proceedings have become
orders of the President. It can be said that at that moot due to the resignation of the President, the proper
point most of us were suffering from AIDS (or criminal and civil cases may already be filed against him,
absolute immunity defense syndrome)." viz:110
Mr. Suarez. On that understanding, I will not press Indeed, critical reading of current literature on executive
for any more query, Madam President. immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or
I think the Commissioner for the clarifications." impairs the vindication of a right. In the 1974 case of US v.
Nixon,115 US President Richard Nixon, a sitting President,
was subpoenaed to produce certain recordings and
We shall now rule on the contentions of petitioner in the documents relating to his conversations with aids and
light of this history. We reject his argument that he cannot advisers. Seven advisers of President Nixon's associates
be prosecuted for the reason that he must first be convicted were facing charges of conspiracy to obstruct Justice and
in the impeachment proceedings. The impeachment trial of other offenses, which were committed in a burglary of the
petitioner Estrada was aborted by the walkout of the Democratic National Headquarters in Washington's
prosecutors and by the events that led to his loss of the Watergate Hotel during the 972 presidential campaign.
presidency. Indeed, on February 7, 2001, the Senate President Nixon himself was named an unindicted co-
passed Senate Resolution No. 83 "Recognizing that the conspirator. President Nixon moved to quash the subpoena
Impeachment Court is Functus Officio."109 Since, the on the ground, among others, that the President was not
Impeachment Court is now functus officio, it is untenable subject to judicial process and that he should first be
for petitioner to demand that he should first be impeached impeached and removed from office before he could be
and then convicted before he can be prosecuted. The plea if made amenable to judicial proceedings. The claim was
granted, would put a perpetual bar against his prosecution. rejected by the US Supreme Court. It concluded that "when
Such a submission has nothing to commend itself for it will the ground for asserting privilege as to subpoenaed
39 | Executive
materials sought for use in a criminal trial is based only on "We cannot sustain appellant's claim that he was
the generalized interest in confidentiality, it cannot prevail denied the right to impartial trial due to prejudicial
over the fundamental demands of due process of law in the publicity. It is true that the print and broadcast
fair administration of criminal justice." In the 1982 case of media gave the case at bar pervasive publicity,
Nixon v. Fitzgerald,116 the US Supreme Court further held just like all high profile and high stake criminal
that the immunity of the president from civil damages trials. Then and now, we rule that the right of an
covers only "official acts." Recently, the US Supreme Court accused to a fair trial is not incompatible to a free
had the occasion to reiterate this doctrine in the case of press. To be sure, responsible reporting enhances
Clinton v. Jones117 where it held that the US President's accused's right to a fair trial for, as well pointed
immunity from suits for money damages arising out of their out, a responsible press has always been regarded
official acts is inapplicable to unofficial conduct. as the criminal field xxx. The press does not simply
publish information about trials but guards against
the miscarriage of justice by subjecting the police,
There are more reasons not to be sympathetic to appeals to
prosecutors, and judicial processes to extensive
stretch the scope of executive immunity in our jurisdiction.
public scrutiny and criticism.
One of the great themes of the 1987 Constitution is that a
public office is a public trust.118 It declared as a state policy
that "the State shall maintain honesty and integrity in the Pervasive publicity is not per se prejudicial to the
public service and take positive and effective measures right of an accused to fair trial. The mere fact that
against graft and corruptio."119 it ordained that "public the trial of appellant was given a day-to-day,
officers and employees must at all times be accountable to gavel-to-gavel coverage does not by itself prove
the people, serve them with utmost responsibility, integrity, that the publicity so permeated the mind of the
loyalty, and efficiency act with patriotism and justice, and trial judge and impaired his impartiality. For one, it
lead modest lives."120 It set the rule that 'the right of the is impossible to seal the minds of members of the
State to recover properties unlawfully acquired by public bench from pre-trial and other off-court publicity of
officials or employees, from them or from their nominees or sensational criminal cases. The state of the art of
transferees, shall not be barred by prescription, latches or our communication system brings news as they
estoppel."121 It maintained the Sandiganbayan as an anti- happen straight to our breakfast tables and right to
graft court.122 It created the office of the Ombudsman and our bedrooms. These news form part of our
endowed it with enormous powers, among which is to everyday menu of the facts and fictions of life. For
"investigate on its own, or on complaint by any person, any another, our idea of a fair and impartial judge is
act or omission of any public official, employee, office or not that of a hermit who is out of touch with the
agency, when such act or omission appears to be illegal, world. We have not installed the jury system
unjust improper or inefficient."123 The Office of the whose members are overly protected from
Ombudsman was also given fiscal autonomy.124 These publicity lest they lose there impartially. xxx xxx
constitutional policies will be devalued if we sustain xxx. Our judges are learned in the law and trained
petitioner's claim that a non-sitting president enjoys to disregard off-court evidence and on-camera
immunity from suit for criminal acts committed during his performances of parties to litigation. Their mere
incumbency. exposure to publications and publicity stunts does
not per se fatally infect their impartiality.
V
At best, appellant can only conjure possibility of
prejudice on the part of the trial judge due to the
Whether or not the prosecution of petitioner
barrage of publicity that characterized the
investigation and trial of the case. In Martelino, et
Estrada should be enjoined due to prejudicial al. v. Alejandro, et al., we rejected this standard of
publicity possibility of prejudice and adopted the test of
actual prejudice as we ruled that to warrant a
Petitioner also contends that the respondent Ombudsman finding of prejudicial publicity, there must be
should be stopped from conducting the investigation of the allegation and proof that the judges have been
cases filed against him due to the barrage of prejudicial unduly influenced, not simply that they might be,
publicity on his guilt. He submits that the respondent by the barrage of publicity. In the case at a bar,
Ombudsman has developed bias and is all set file the the records do not show that the trial judge
criminal cases violation of his right to due process. developed actual bias against appellants as a
consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of
There are two (2) principal legal and philosophical schools circumstances of the case does not prove that the
of thought on how to deal with the rain of unrestrained trial judge acquired a fixed opinion as a result of
publicity during the investigation and trial of high profile prejudicial publicity, which is incapable of change
cases.125 The British approach the problem with the even by evidence presented during the trial.
presumption that publicity will prejudice a jury. Thus, Appellant has the burden to prove this actual bias
English courts readily stay and stop criminal trials when the and he has not discharged the burden.'
right of an accused to fair trial suffers a threat. 126 The
American approach is different. US courts assume a
skeptical approach about the potential effect of pervasive We expounded further on this doctrine in the subsequent
publicity on the right of an accused to a fair trial. They have case of Webb vs. Hon. Raul de Leon, etc.130 and its
developed different strains of tests to resolve this issue, companion cases, viz:
i.e., substantial; probability of irreparable harm, strong
likelihood, clear and present danger, etc. "Again petitioners raise the effect of prejudicial
publicity on their right to due process while
This is not the first time the issue of trial by publicity has undergoing preliminary investigation. We find no
been raised in this Court to stop the trials or annul procedural impediment to its early invocation
convictions in high profile criminal cases.127 In People vs. considering the substantial risk to their liberty
Teehankee, Jr.,128 later reiterated in the case of Larranaga while undergoing a preliminary investigation.
vs. court of Appeals, et al.,129 we laid down the doctrine
that: xxx
40 | Executive
The democratic settings, media coverage of trials right but also as a catalyst to augment
of sensational cases cannot be avoided and the free exercise of the other First
oftentimes, its excessiveness has been aggravated Amendment rights with which the
by kinetic developments in the telecommunications draftsmen deliberately linked it. A trial
industry. For sure, few cases can match the high courtroom is a public place where the
volume and high velocity of publicity that attended people generally and representatives of
the preliminary investigation of the case at bar. the media have a right to be present, and
Our daily diet of facts and fiction about the case where their presence historically has been
continues unabated even today. Commentators thought to enhance the integrity and
still bombard the public with views not too many of quality of what takes place.
which are sober and sublime. Indeed, even the c. Even though the Constitution contains no
principal actors in the case – the NBI, the provision which be its terms guarantees
respondents, their lawyers and their sympathizers to the public the right to attend criminal
have participated in this media blitz. The possibility trials, various fundamental rights, not
of media abuses and their threat to a fair trial expressly guaranteed, have been
notwithstanding, criminal trials cannot be recognized as indispensable to the
completely closed to the press and public. In the enjoyment of enumerated rights. The
seminal case of Richmond Newspapers, Inc. v. right to attend criminal trial is implicit in
Virginia, it was the guarantees of the First Amendment:
without the freedom to attend such trials,
which people have exercised for centuries,
xxx
important aspects of freedom of speech
and of the press be eviscerated.
a. The historical evidence of the evolution of
the criminal trial in Anglo-American
Be that as it may, we recognize that pervasive and
justice demonstrates conclusively that at
prejudicial publicity under certain circumstances
the time this Nation's organic laws were
can deprive an accused of his due process right to
adopted, criminal trials both here and in
fair trial. Thus, in Martelino, et al. vs. Alejandro, et
England had long been presumptively
al., we held that to warrant a finding of prejudicial
open, thus giving assurance that the
publicity there must be allegation and proof that
proceedings were conducted fairly to all
the judges have been unduly influenced, not
concerned and discouraging perjury, the
simply that they might be, by the barrage of
misconduct of participants, or decisions
publicity. In the case at bar, we find nothing in the
based on secret bias or partiality. In
records that will prove that the tone and content of
addition, the significant community
the publicity that attended the investigation of
therapeutic value of public trials was
petitioners fatally infected the fairness and
recognized when a shocking crime occurs
impartiality of the DOJ Panel. Petitioners cannot
a community reaction of outrage and
just rely on the subliminal effects of publicity on
public protest often follows, and
the sense of fairness of the DOJ Panel, for these
thereafter the open processes of justice
are basically unbeknown and beyond knowing. To
serve an important prophylactic purpose,
be sure, the DOJ Panel is composed of an Assistant
providing an outlet for community
Chief State Prosecutor and Senior State
concern, hostility and emotion. To work
Prosecutors. Their long experience in criminal
effectively, it is important that society's
investigation is a factor to consider in determining
criminal process satisfy the appearance of
whether they can easily be blinded by the klieg
justice,' Offutt v. United States, 348 US
lights of publicity. Indeed, their 26-page Resolution
11, 14, 99 L ED 11, 75 S Ct 11, which can
carries no indubitable indicia of bias for it does not
best be provided by allowing people to
appear that they considered any extra-record
observe such process. From this
evidence except evidence properly adduced by the
unbroken, uncontradicted history,
parties. The length of time the investigation was
supported by reasons as valid today as in
conducted despite its summary nature and the
centuries past, it must be concluded that
generosity with which they accommodated the
a presumption of openness inheres in the
discovery motions of petitioners speak well of their
very nature of a criminal trial under this
fairness. At no instance, we note, did petitioners
Nation's system of justice, Cf., e,g.,
seek the disqualification of any member of the DOJ
Levine v. United States, 362 US 610, 4 L
Panel on the ground of bias resulting from their
Ed 2d 989, 80 S Ct 1038.
bombardment of prejudicial publicity." (emphasis
b. The freedoms of speech. Press and
supplied)
assembly, expressly guaranteed by the
First Amendment, share a common core
purpose of assuring freedom of Applying the above ruling, we hold that there is not
communication on matters relating to the enough evidence to warrant this Court to enjoin the
functioning of government. In preliminary investigation of the petitioner by the
guaranteeing freedom such as those of respondent Ombudsman. Petitioner needs to offer more
speech and press, the First Amendment than hostile headlines to discharge his burden of
can be read as protecting the right of proof.131 He needs to show more weighty social science
everyone to attend trials so as give evidence to successfully prove the impaired capacity of a
meaning to those explicit guarantees; the judge to render a bias-free decision. Well to note, the cases
First Amendment right to receive against the petitioner are still undergoing preliminary
information and ideas means, in the investigation by a special panel of prosecutors in the office
context of trials, that the guarantees of of the respondent Ombudsman. No allegation whatsoever
speech and press, standing alone, prohibit has been made by the petitioner that the minds of the
government from summarily closing members of this special panel have already been infected
courtroom doors which had long been by bias because of the pervasive prejudicial publicity
open to the public at the time the First against him. Indeed, the special panel has yet to come out
Amendment was adopted. Moreover, the with its findings and the Court cannot second guess
right of assembly is also relevant, having whether its recommendation will be unfavorable to the
been regarded not only as an independent petitioner.1âwphi1.nêt
41 | Executive
The records show that petitioner has instead charged
respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has
been influenced by the barrage of slanted news reports, and
he has buckled to the threats and pressures directed at him
by the mobs."132 News reports have also been quoted to
establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner will be
influenced by this bias of their superior.
VI.
Epilogue
SO ORDERED.
42 | Executive
government corporations and receive the
corresponding compensation therefor; Provided,
that this limitation shall not apply to ad hoc bodies
or committees, or to boards, councils or bodies of
which the President is the Chairman.
Petitioners further argue that the exception to the This practice of holding multiple offices or positions in the
prohibition in Section 7, par. (2), Article I-XB on the Civil government soon led to abuses by unscrupulous public
Service Commission applies to officers and employees of officials who took advantage of this scheme for purposes of
the Civil Service in general and that said exceptions do not self-enrichment. In fact, the holding of multiple offices in
44 | Executive
government was strongly denounced on the floor of the appointive official shall hold any other office or
Batasang Pambansa.12 This condemnation came in reaction employment in the Government."
to the published report of the Commission on Audit, entitled
"1983 Summary Annual Audit Report on: Government-
It is quite notable that in all these provisions on
Owned and Controlled Corporations, Self-Governing Boards
disqualifications to hold other office or employment, the
and Commissions" which carried as its Figure No. 4 a
prohibition pertains to an office or employment in the
"Roaster of Membership in Governing Boards of
government and government-owned or controlled
Government-Owned and Controlled Corporations as of
corporations or their subsidiaries. In striking contrast is the
December 31, 1983."
wording of Section 13, Article VII which states that "(T)he
President, Vice-President, the Members of the Cabinet, and
Particularly odious and revolting to the people's sense of their deputies or assistants shall not, unless otherwise
propriety and morality in government service were the data provided in this Constitution, hold any other office or
contained therein that Roberto V. Ongpin was a member of employment during their tenure." In the latter provision,
the governing boards of twenty-nine (29) governmental the disqualification is absolute, not being qualified by the
agencies, instrumentalities and corporations; Imelda R. phrase "in the Government." The prohibition imposed on
Marcos of twenty-three (23); Cesar E.A. Virata of twenty- the President and his official family is therefore all-
two (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. embracing and covers both public and private office or
Hipolito and Geronimo Z. Velasco, of fourteen each (14); employment.
Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and
Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto
Going further into Section 13, Article VII, the second
O. Teodoro, and Edgardo Tordesillas of eleven (11) each;
sentence provides: "They shall not, during said tenure,
and Lilia Bautista and Teodoro Q. Peña of ten (10) each.13
directly or indirectly, practice any other profession,
participate in any business, or be financially interested in
The blatant betrayal of public trust evolved into one of the any contract with, or in any franchise, or special privilege
serious causes of discontent with the Marcos regime. It was granted by the Government or any subdivision, agency or
therefore quite inevitable and in consonance with the instrumentality thereof, including government-owned or
overwhelming sentiment of the people that the 1986 controlled corporations or their subsidiaries." These
Constitutional Commission, convened as it was after the sweeping, all-embracing prohibitions imposed on the
people successfully unseated former President Marcos, President and his official family, which prohibitions are not
should draft into its proposed Constitution the provisions similarly imposed on other public officials or employees
under consideration which are envisioned to remedy, if not such as the Members of Congress, members of the civil
correct, the evils that flow from the holding of multiple service in general and members of the armed forces, are
governmental offices and employment. In fact, as keenly proof of the intent of the 1987 Constitution to treat the
observed by Mr. Justice Isagani A. Cruz during the President and his official family as a class by itself and to
deliberations in these cases, one of the strongest selling impose upon said class stricter prohibitions.
points of the 1987 Constitution during the campaign for its
ratification was the assurance given by its proponents that
Such intent of the 1986 Constitutional Commission to be
the scandalous practice of Cabinet members holding
stricter with the President and his official family was also
multiple positions in the government and collecting
succinctly articulated by Commissioner Vicente Foz after
unconscionably excessive compensation therefrom would be
Commissioner Regalado Maambong noted during the floor
discontinued.
deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in
But what is indeed significant is the fact that although the General Provisions and the anticipated report on the
Section 7, Article I-XB already contains a blanket Executive Department. Commissioner Foz Commented, "We
prohibition against the holding of multiple offices or actually have to be stricter with the President and the
employment in the government subsuming both elective members of the Cabinet because they exercise more
and appointive public officials, the Constitutional powers and, therefore, more cheeks and restraints on them
Commission should see it fit to formulate another provision, are called for because there is more possibility of abuse in
Sec. 13, Article VII, specifically prohibiting the President, their case."14
Vice-President, members of the Cabinet, their deputies and
assistants from holding any other office or employment
Thus, while all other appointive officials in the civil service
during their tenure, unless otherwise provided in the
are allowed to hold other office or employment in the
Constitution itself.
government during their tenure when such is allowed by
law or by the primary functions of their positions, members
Evidently, from this move as well as in the different of the Cabinet, their deputies and assistants may do so only
phraseologies of the constitutional provisions in question, when expressly authorized by the Constitution itself. In
the intent of the framers of the Constitution was to impose other words, Section 7, Article I-XB is meant to lay down
a stricter prohibition on the President and his official family the general rule applicable to all elective and appointive
in so far as holding other offices or employment in the public officials and employees, while Section 13, Article VII
government or elsewhere is concerned. is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet,
their deputies and assistants.
Moreover, such intent is underscored by a comparison of
Section 13, Article VII with other provisions of the
Constitution on the disqualifications of certain public This being the case, the qualifying phrase "unless otherwise
officials or employees from holding other offices or provided in this Constitution" in Section 13, Article VII
employment. Under Section 13, Article VI, "(N)o Senator or cannot possibly refer to the broad exceptions provided
Member of the House of Representatives may hold any under Section 7, Article I-XB of the 1987 Constitution. To
other office or employment in the Government . . .". Under construe said qualifying phrase as respondents would have
Section 5(4), Article XVI, "(N)o member of the armed forces us do, would render nugatory and meaningless the manifest
in the active service shall, at any time, be appointed in any intent and purpose of the framers of the Constitution to
capacity to a civilian position in the Government, including impose a stricter prohibition on the President, Vice-
government-owned or controlled corporations or any of President, Members of the Cabinet, their deputies and
their subsidiaries." Even Section 7 (2), Article IX-B, relied assistants with respect to holding other offices or
upon by respondents provides "(U)nless otherwise allowed employment in the government during their tenure.
by law or by the primary functions of his position, no Respondents' interpretation that Section 13 of Article VII
45 | Executive
admits of the exceptions found in Section 7, par. (2) of Constitution must not, however, be construed as applying
Article IX-B would obliterate the distinction so carefully set to posts occupied by the Executive officials specified therein
by the framers of the Constitution as to when the high- without additional compensation in an ex-officio capacity as
ranking officials of the Executive Branch from the President provided by law and as required22 by the primary functions
to Assistant Secretary, on the one hand, and the generality of said officials' office. The reason is that these posts do no
of civil servants from the rank immediately below Assistant comprise "any other office" within the contemplation of the
Secretary downwards, on the other, may hold any other constitutional prohibition but are properly an imposition of
office or position in the government during their tenure. additional duties and functions on said officials.23 To
characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the
Moreover, respondents' reading of the provisions in
Philippines cannot chair the National Security Council
question would render certain parts of the Constitution
reorganized under Executive Order No. 115 (December 24,
inoperative. This observation applies particularly to the
1986). Neither can the Vice-President, the Executive
Vice-President who, under Section 13 of Article VII is
Secretary, and the Secretaries of National Defense, Justice,
allowed to hold other office or employment when so
Labor and Employment and Local Government sit in this
authorized by the Constitution, but who as an elective
Council, which would then have no reason to exist for lack
public official under Sec. 7, par. (1) of Article I-XB is
of a chairperson and members. The respective
absolutely ineligible "for appointment or designation in any
undersecretaries and assistant secretaries, would also be
capacity to any public office or position during his tenure."
prohibited.
Surely, to say that the phrase "unless otherwise provided in
this Constitution" found in Section 13, Article VII has
reference to Section 7, par. (1) of Article I-XB would render The Secretary of Labor and Employment cannot chair the
meaningless the specific provisions of the Constitution Board of Trustees of the National Manpower and Youth
authorizing the Vice-President to become a member of the Council (NMYC) or the Philippine Overseas Employment
Cabinet,15 and to act as President without relinquishing the Administration (POEA), both of which are attached to his
Vice-Presidency where the President shall not nave been department for policy coordination and guidance. Neither
chosen or fails to qualify.16 Such absurd consequence can can his Undersecretaries and Assistant Secretaries chair
be avoided only by interpreting the two provisions under these agencies.
consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13,
The Secretaries of Finance and Budget cannot sit in the
Article VII as constituting the exception thereto. In the
Monetary Board.24 Neither can their respective
same manner must Section 7, par. (2) of Article I-XB be
undersecretaries and assistant secretaries. The Central
construed vis-a-vis Section 13, Article VII.
Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of
It is a well-established rule in Constitutional construction money, banking and credit.25
that no one provision of the Constitution is to be separated
from all the others, to be considered alone, but that all the
Indeed, the framers of our Constitution could not have
provisions bearing upon a particular subject are to be
intended such absurd consequences. A Constitution, viewed
brought into view and to be so interpreted as to effectuate
as a continuously operative charter of government, is not to
the great purposes of the instrument.17 Sections bearing on
be interpreted as demanding the impossible or the
a particular subject should be considered and interpreted
impracticable; and unreasonable or absurd consequences, if
together as to effectuate the whole purpose of the
possible, should be avoided.26
Constitution18 and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.19 To reiterate, the prohibition under Section 13, Article VII is
not to be interpreted as covering positions held without
additional compensation in ex-officio capacities as provided
In other words, the court must harmonize them, if
by law and as required by the primary functions of the
practicable, and must lean in favor of a construction which
concerned official's office. The term ex-officio means "from
will render every word operative, rather than one which
office; by virtue of office." It refers to an "authority derived
may make the words idle and nugatory.20
from official character merely, not expressly conferred upon
the individual character, but rather annexed to the official
Since the evident purpose of the framers of the 1987 position." Ex-officio likewise denotes an "act done in an
Constitution is to impose a stricter prohibition on the official character, or as a consequence of office, and without
President, Vice-President, members of the Cabinet, their any other appointment or authority than that conferred by
deputies and assistants with respect to holding multiple the office."27 An ex-officio member of a board is one who is
offices or employment in the government during their a member by virtue of his title to a certain office, and
tenure, the exception to this prohibition must be read with without further warrant or appointment.28 To illustrate, by
equal severity. On its face, the language of Section 13, express provision of law, the Secretary of Transportation
Article VII is prohibitory so that it must be understood as and Communications is the ex-officio Chairman of the Board
intended to be a positive and unequivocal negation of the of the Philippine Ports Authority,29 and the Light Rail Transit
privilege of holding multiple government offices or Authority.30
employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as
The Court had occasion to explain the meaning of an ex-
intended to be a positive and unequivocal negation.21 The
officio position in Rafael vs. Embroidery and Apparel Control
phrase "unless otherwise provided in this Constitution"
and Inspection Board,31 thus: "An examination of section 2
must be given a literal interpretation to refer only to those
of the questioned statute (R.A. 3137) reveals that for the
particular instances cited in the Constitution itself, to wit:
chairman and members of the Board to qualify they need
the Vice-President being appointed as a member of the
only be designated by the respective department heads.
Cabinet under Section 3, par. (2), Article VII; or acting as
With the exception of the representative from the private
President in those instances provided under Section 7, pars.
sector, they sit ex-officio. In order to be designated they
(2) and (3), Article VII; and, the Secretary of Justice
must already be holding positions in the offices mentioned
being ex-officio member of the Judicial and Bar Council by
in the law. Thus, for instance, one who does not hold a
virtue of Section 8 (1), Article VIII.
previous appointment in the Bureau of Customs, cannot,
under the act, be designated a representative from that
The prohibition against holding dual or multiple offices or office. The same is true with respect to the representatives
employment under Section 13, Article VII of the from the other offices. No new appointments are necessary.
46 | Executive
This is as it should be, because the representatives so department. For such attendance, therefore, he is not
designated merely perform duties in the Board in addition entitled to collect any extra compensation, whether it be in
to those already performed under their original the form of a per them or an honorarium or an allowance,
appointments."32 or some other such euphemism. By whatever name it is
designated, such additional compensation is prohibited by
the Constitution.
The term "primary" used to describe "functions" refers to
the order of importance and thus means chief or principal
function. The term is not restricted to the singular but may It is interesting to note that during the floor deliberations
refer to the plural.33 The additional duties must not only be on the proposal of Commissioner Christian Monsod to add
closely related to, but must be required by the official's to Section 7, par. (2), Article IX-B, originally found as
primary functions. Examples of designations to positions by Section 3 of the General Provisions, the exception "unless
virtue of one's primary functions are the Secretaries of required by the functions of his position,"36 express
Finance and Budget sitting as members of the Monetary reference to certain high-ranking appointive public officials
Board, and the Secretary of Transportation and like members of the Cabinet were made.37 Responding to a
Communications acting as Chairman of the Maritime query of Commissioner Blas Ople, Commissioner Monsod
Industry Authority34 and the Civil Aeronautics Board. pointed out that there are instances when although not
required by current law, membership of certain high-
ranking executive officials in other offices and
If the functions required to be performed are merely
corporations is necessary by reason of said officials' primary
incidental, remotely related, inconsistent, incompatible, or
functions. The example given by Commissioner Monsod was
otherwise alien to the primary function of a cabinet official,
the Minister of Trade and Industry.38
such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a While this exchange between Commissioners Monsod and
member of the Board of the Philippine Amusement and Ople may be used as authority for saying that additional
Gaming Corporation. The same rule applies to such functions and duties flowing from the primary functions of
positions which confer on the cabinet official management the official may be imposed upon him without offending the
functions and/or monetary compensation, such as but not constitutional prohibition under consideration, it cannot,
limited to chairmanships or directorships in government- however, be taken as authority for saying that this
owned or controlled corporations and their subsidiaries. exception is by virtue of Section 7, par. (2) of Article I-XB.
This colloquy between the two Commissioners took place in
the plenary session of September 27, 1986. Under
Mandating additional duties and functions to the President,
consideration then was Section 3 of Committee Resolution
Vice-President, Cabinet Members, their deputies or
No. 531 which was the proposed article on General
assistants which are not inconsistent with those already
Provisions.39 At that time, the article on the Civil Service
prescribed by their offices or appointments by virtue of their
Commission had been approved on third reading on July 22,
special knowledge, expertise and skill in their respective
1986,40 while the article on the Executive Department,
executive offices is a practice long-recognized in many
containing the more specific prohibition in Section 13, had
jurisdictions. It is a practice justified by the demands of
also been earlier approved on third reading on August 26,
efficiency, policy direction, continuity and coordination
1986.41 It was only after the draft Constitution had
among the different offices in the Executive Branch in the
undergone reformatting and "styling" by the Committee on
discharge of its multifarious tasks of executing and
Style that said Section 3 of the General Provisions became
implementing laws affecting national interest and general
Section 7, par. (2) of Article IX-B and reworded "Unless
welfare and delivering basic services to the people. It is
otherwise allowed by law or by the primary functions of his
consistent with the power vested on the President and his
position. . . ."
alter egos, the Cabinet members, to have control of all the
executive departments, bureaus and offices and to ensure
that the laws are faithfully executed.35 Without these What was clearly being discussed then were general
additional duties and functions being assigned to the principles which would serve as constitutional guidelines in
President and his official family to sit in the governing the absence of specific constitutional provisions on the
bodies or boards of governmental agencies or matter. What was primarily at issue and approved on that
instrumentalities in an ex-officio capacity as provided by occasion was the adoption of the qualified and delimited
law and as required by their primary functions, they would phrase "primary functions" as the basis of an exception to
be supervision, thereby deprived of the means for control the general rule covering all appointive public officials. Had
and resulting in an unwieldy and confused bureaucracy. the Constitutional Commission intended to dilute the
specific prohibition in said Section 13 of Article VII, it could
have re-worded said Section 13 to conform to the wider
It bears repeating though that in order that such additional
exceptions provided in then Section 3 of the proposed
duties or functions may not transgress the prohibition
general Provisions, later placed as Section 7, par. (2) of
embodied in Section 13, Article VII of the 1987
Article IX-B on the Civil Service Commission.
Constitution, such additional duties or functions must
be required by the primary functions of the official
concerned, who is to perform the same in an ex-officio That this exception would in the final analysis apply also to
capacity as provided by law, without receiving any the President and his official family is by reason of the legal
additional compensation therefor. principles governing additional functions and duties of
public officials rather than by virtue of Section 7, par. 2,
Article IX-B At any rate, we have made it clear that only the
The ex-officio position being actually and in legal
additional functions and duties "required," as opposed to
contemplation part of the principal office, it follows that the
"allowed," by the primary functions may be considered as
official concerned has no right to receive additional
not constituting "any other office."
compensation for his services in the said position. The
reason is that these services are already paid for and
covered by the compensation attached to his principal While it is permissible in this jurisdiction to consult the
office. It should be obvious that if, say, the Secretary of debates and proceedings of the constitutional convention in
Finance attends a meeting of the Monetary Board as an ex- order to arrive at the reason and purpose of the resulting
officio member thereof, he is actually and in legal Constitution, resort thereto may be had only when other
contemplation performing the primary function of his guides fail42 as said proceedings are powerless to vary the
principal office in defining policy in monetary and banking terms of the Constitution when the meaning is
matters, which come under the jurisdiction of his clear.1âwphi1 Debates in the constitutional convention "are
47 | Executive
of value as showing the views of the individual members, Environment and Natural Resources Fulgencio Factoran, Jr.,
and as indicating the reasons for their votes, but they give Secretary of Local Government45 Luis Santos, Secretary of
us no light as to the views of the large majority who did not National Defense Fidel V. Ramos, Secretary of Health
talk, much less of the mass of our fellow citizens whose Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
votes at the polls gave that instrument the force of Carague to immediately relinquish their other offices or
fundamental law. We think it safer to construe the employment, as herein defined, in the government,
constitution from what appears upon its face."43 The proper including government-owned or controlled corporations and
interpretation therefore depends more on how it was their subsidiaries. With respect to the other named
understood by the people adopting it than in the framers's respondents, the petitions have become moot and academic
understanding thereof.44 as they are no longer occupying the positions complained
of.
It being clear, as it was in fact one of its best selling points,
that the 1987 Constitution seeks to prohibit the President, During their tenure in the questioned positions, respondents
Vice-President, members of the Cabinet, their deputies or may be considered de facto officers and as such entitled to
assistants from holding during their tenure multiple offices emoluments for actual services rendered.46 It has been held
or employment in the government, except in those cases that "in cases where there is no de jure, officer, a de
specified in the Constitution itself and as above clarified facto officer, who, in good faith has had possession of the
with respect to posts held without additional compensation office and has discharged the duties pertaining thereto, is
in an ex-officio capacity as provided by law and as required legally entitled to the emoluments of the office, and may in
by the primary functions of their office, the citation of an appropriate action recover the salary, fees and other
Cabinet members (then called Ministers) as examples compensations attached to the office. This doctrine is,
during the debate and deliberation on the general rule laid undoubtedly, supported on equitable grounds since it seems
down for all appointive officials should be considered as unjust that the public should benefit by the services of an
mere personal opinions which cannot override the officer de facto and then be freed from all liability to pay
constitution's manifest intent and the people' understanding any one for such services.47 Any per diem, allowances or
thereof. other emoluments received by the respondents by virtue of
actual services rendered in the questioned positions may
therefore be retained by them.
In the light of the construction given to Section 13, Article
VII in relation to Section 7, par. (2), Article IX-B of the
1987 Constitution, Executive Order No. 284 dated July 23, WHEREFORE, subject to the qualification above-stated, the
1987 is unconstitutional. Ostensibly restricting the number petitions are GRANTED. Executive Order No. 284 is hereby
of positions that Cabinet members, undersecretaries or declared null and void and is accordingly set aside.
assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the
SO ORDERED.
government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate
of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided
EN BANC
in the 1987 Constitution itself.
In the interest of the safety of those who 3. Contrary to petitioners' view, it cannot be denied that the
will take the death of Mr. Marcos in widely President, upon whom executive power is vested, has
and passionately conflicting ways, and for unstated residual powers which are implied from the grant
the tranquility of the state and order of of executive power and which are necessary for her to
society, the remains of Ferdinand E. comply with her duties under the Constitution. The powers
Marcos will not be allowed to be brought of the President are not limited to what are expressly
to our country until such time as the enumerated in the article on the Executive Department and
government, be it under this in scattered provisions of the Constitution. This is so,
administration or the succeeding one, notwithstanding the avowed intent of the members of the
shall otherwise decide. [Motion for Constitutional Commission of 1986 to limit the powers of
Reconsideration, p. 1; Rollo, p, 443.] the President as a reaction to the abuses under the regime
of Mr. Marcos, for the result was a limitation of specific
power of the President, particularly those relating to the
On October 2, 1989, a Motion for Reconsideration was filed
commander-in-chief clause, but not a diminution of the
by petitioners, raising the following major arguments:
general grant of executive power.
49 | Executive
And neither can we subscribe to the view that a recognition for brevity) as COMELEC Commissioners. Petitioner also
of the President's implied or residual powers is tantamount questions the legality of the appointment of Velma J.
to setting the stage for another dictatorship. Despite Cinco1 ("Cinco" for brevity) as Director IV of the COMELEC’s
petitioners' strained analogy, the residual powers of the Education and Information Department ("EID" for brevity).
President under the Constitution should not be confused
with the power of the President under the 1973 Constitution
The Facts
to legislate pursuant to Amendment No. 6 which provides:
The Issues
We are not persuaded.
51 | Executive
Respondents harp on petitioner’s belated act of questioning Based on petitioner’s theory, there can be no ad
the constitutionality of the ad interim appointments of interim appointment to the COMELEC or to the other two
Benipayo, Borra and Tuason. Petitioner filed the instant constitutional commissions, namely the Civil Service
petition only on August 3, 2001, when the first ad Commission and the Commission on Audit. The last
interim appointments were issued as early as March 22, sentence of Section 1 (2), Article IX-C of the Constitution is
2001. However, it is not the date of filing of the petition also found in Article IX-B and Article IX-D providing for the
that determines whether the constitutional issue was raised creation of the Civil Service Commission and the
at the earliest opportunity. The earliest opportunity to raise Commission on Audit, respectively. Petitioner interprets the
a constitutional issue is to raise it in the pleadings before a last sentence of Section 1 (2) of Article IX-C to mean that
competent court that can resolve the same, such that, "if it the ad interim appointee cannot assume office until his
is not raised in the pleadings, it cannot be considered at the appointment is confirmed by the Commission on
trial, and, if not considered at the trial, it cannot be Appointments for only then does his appointment become
considered on appeal."22 Petitioner questioned the permanent and no longer temporary in character.
constitutionality of the ad interim appointments of
Benipayo, Borra and Tuason when she filed her petition
The rationale behind petitioner’s theory is that only an
before this Court, which is the earliest opportunity for
appointee who is confirmed by the Commission on
pleading the constitutional issue before a competent body.
Appointments can guarantee the independence of the
Furthermore, this Court may determine, in the exercise of
COMELEC. A confirmed appointee is beyond the influence of
sound discretion, the time when a constitutional issue may
the President or members of the Commission on
be passed upon.23 There is no doubt petitioner raised the
Appointments since his appointment can no longer be
constitutional issue on time.
recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and
Moreover, the legality of petitioner’s reassignment hinges confirming powers since his appointment can be terminated
on the constitutionality of Benipayo’s ad at any time for any cause. In the words of petitioner, a
interim appointment and assumption of office. Unless the Sword of Damocles hangs over the head of every appointee
constitutionality of Benipayo’s ad interim appointment and whose confirmation is pending with the Commission on
assumption of office is resolved, the legality of petitioner’s Appointments.
reassignment from the EID to the Law Department cannot
be determined. Clearly, the lis mota of this case is the very
We find petitioner’s argument without merit.
constitutional issue raised by petitioner.
52 | Executive
disapproved certainly for a reason other than that "We have already mentioned that an ad interim
its provisional period has expired. Said appointment is not descriptive of the nature of the
appointment is of course distinguishable from an appointment, that is, it is not indicative of whether
‘acting’ appointment which is merely temporary, the appointment is temporary or in an acting
good until another permanent appointment is capacity, rather it denotes the manner in which the
issued." (Emphasis supplied) appointment was made. In the instant case, the
appointment extended to private respondent by
then MSU President Alonto, Jr. was issued without
The Constitution imposes no condition on the effectivity of
condition nor limitation as to tenure. The
an ad interim appointment, and thus an ad
permanent status of private respondent’s
interim appointment takes effect immediately. The
appointment as Executive Assistant II was
appointee can at once assume office and exercise, as a de
recognized and attested to by the Civil Service
jure officer, all the powers pertaining to the office. In
Commission Regional Office No. 12. Petitioner’s
Pacete vs. Secretary of the Commission on
submission that private respondent’s ad interim
Appointments,26 this Court elaborated on the nature of
appointment is synonymous with a temporary
an ad interim appointment as follows:
appointment which could be validly terminated at
any time is clearly untenable. Ad interim
"A distinction is thus made between the exercise of appointments are permanent but their terms are
such presidential prerogative requiring only until the Board disapproves them." (Emphasis
confirmation by the Commission on Appointments supplied)
when Congress is in session and when it is in
recess. In the former, the President nominates,
An ad interim appointee who has qualified and assumed
and only upon the consent of the Commission on
office becomes at that moment a government employee
Appointments may the person thus named assume
and therefore part of the civil service. He enjoys the
office. It is not so with reference to ad interim
constitutional protection that "[n]o officer or employee in
appointments. It takes effect at once. The
the civil service shall be removed or suspended except for
individual chosen may thus qualify and perform his
cause provided by law." 29 Thus, an ad interim appointment
function without loss of time. His title to such
becomes complete and irrevocable once the appointee has
office is complete. In the language of the
qualified into office. The withdrawal or revocation of an ad
Constitution, the appointment is effective ‘until
interim appointment is possible only if it is communicated to
disapproval by the Commission on Appointments
the appointee before the moment he qualifies, and any
or until the next adjournment of the Congress.’"
withdrawal or revocation thereafter is tantamount to
removal from office.30 Once an appointee has qualified, he
Petitioner cites Black’s Law Dictionary which defines the acquires a legal right to the office which is protected not
term "ad interim" to mean "in the meantime" or "for the only by statute but also by the Constitution. He can only be
time being." Hence, petitioner argues that an ad removed for cause, after notice and hearing, consistent with
interim appointment is undoubtedly temporary in character. the requirements of due process.
This argument is not new and was answered by this Court
in Pamantasan ng Lungsod ng Maynila vs. Intermediate
An ad interim appointment can be terminated for two
Appellate Court,27 where we explained that:
causes specified in the Constitution. The first cause is the
disapproval of his ad interim appointment by the
"x x x From the arguments, it is easy to see why the Commission on Appointments. The second cause is the
petitioner should experience difficulty in understanding the adjournment of Congress without the Commission on
situation. Private respondent had been extended several ‘ad Appointments acting on his appointment. These two causes
interim’ appointments which petitioner mistakenly are resolutory conditions expressly imposed by the
understands as appointments temporary in nature. Perhaps, Constitution on all ad interim appointments. These
it is the literal translation of the word ‘ad interim’ which resolutory conditions constitute, in effect, a Sword of
creates such belief. The term is defined by Black to mean Damocles over the heads of ad interim appointees. No one,
"in the meantime" or "for the time being". Thus, an however, can complain because it is the Constitution itself
officer ad interim is one appointed to fill a vacancy, or to that places the Sword of Damocles over the heads of the ad
discharge the duties of the office during the absence or interim appointees.
temporary incapacity of its regular incumbent (Black’s Law
Dictionary, Revised Fourth Edition, 1978). But such is not
While an ad interim appointment is permanent and
the meaning nor the use intended in the context of
irrevocable except as provided by law, an appointment or
Philippine law. In referring to Dr. Esteban’s appointments,
designation in a temporary or acting capacity can be
the term is not descriptive of the nature of the
withdrawn or revoked at the pleasure of the appointing
appointments given to him. Rather, it is used to denote the
power.31 A temporary or acting appointee does not enjoy
manner in which said appointments were made, that is,
any security of tenure, no matter how briefly. This is the
done by the President of the Pamantasan in the meantime,
kind of appointment that the Constitution prohibits the
while the Board of Regents, which is originally vested by
President from making to the three independent
the University Charter with the power of appointment, is
constitutional commissions, including the COMELEC.
unable to act. x x x." (Emphasis supplied)
Thus, in Brillantes vs. Yorac,32 this Court struck down as
unconstitutional the designation by then President Corazon
Thus, the term "ad interim appointment", as used in letters Aquino of Associate Commissioner Haydee Yorac as Acting
of appointment signed by the President, means a Chairperson of the COMELEC. This Court ruled that:
permanent appointment made by the President in the
meantime that Congress is in recess. It does not mean a
"A designation as Acting Chairman is by its very
temporary appointment that can be withdrawn or revoked
terms essentially temporary and therefore
at any time. The term, although not found in the text of the
revocable at will. No cause need be established to
Constitution, has acquired a definite legal meaning under
justify its revocation. Assuming its validity, the
Philippine jurisprudence. The Court had again occasion to
designation of the respondent as Acting Chairman
explain the nature of an ad interim appointment in the more
of the Commission on Elections may be withdrawn
recent case of Marohombsar vs. Court of Appeals,28 where
by the President of the Philippines at any time and
the Court stated:
for whatever reason she sees fit. It is doubtful if
the respondent, having accepted such designation,
53 | Executive
will not be estopped from challenging its MS. AQUINO: My concern is that unless this
withdrawal. problem is addressed, this might present problems
in terms of anticipating interruption of government
business, considering that we are not certain of the
xxx
length of involuntary recess or adjournment of the
Congress. We are certain, however, of the
The Constitution provides for many safeguards to involuntary adjournment of the Congress which is
the independence of the Commission on Elections, 30 days, but we cannot leave to conjecture the
foremost among which is the security of tenure of matter of involuntary recess.
its members. That guarantee is not available to the
respondent as Acting Chairman of the Commission
FR. BERNAS: That is correct, but we are trying to
on Elections by designation of the President of the
look for a formula. I wonder if the Commissioner
Philippines."
has a formula x x x.
"FR. BERNAS: X x x our compulsory recess now is Indeed, the timely application of the last sentence of
only 30 days. So under such circumstances, is it Section 16, Article VII of the Constitution barely avoided
necessary to provide for ad interim appointments? the interruption of essential government services in the May
Perhaps there should be a little discussion on that. 2001 national elections. Following the decision of this Court
in Gaminde vs. Commission on
Appointments,39 promulgated on December 13, 2000, the
xxx
terms of office of constitutional officers first appointed
54 | Executive
under the Constitution would have to be counted starting make ad interim appointments is lodged in the President to
February 2, 1987, the date of ratification of the be exercised by her in her sound judgment. Under the
Constitution, regardless of the date of their actual second paragraph of Section 16, Article VII of the
appointment. By this reckoning, the terms of office of three Constitution, the President can choose either of two modes
Commissioners of the COMELEC, including the Chairman, in appointing officials who are subject to confirmation by
would end on February 2, 2001.40 the Commission on Appointments. First, while Congress is
in session, the President may nominate the prospective
appointee, and pending consent of the Commission on
Then COMELEC Chairperson Harriet O. Demetriou was
Appointments, the nominee cannot qualify and assume
appointed only on January 11, 2000 to serve, pursuant to
office. Second, during the recess of Congress, the President
her appointment papers, until February 15, 2002,41 the
may extend an ad interim appointment which allows the
original expiry date of the term of her predecessor, Justice
appointee to immediately qualify and assume office.
Bernardo P. Pardo, who was elevated to this Court. The
original expiry date of the term of Commissioner Teresita
Dy-Liacco Flores was also February 15, 2002, while that of Whether the President chooses to nominate the prospective
Commissioner Julio F. Desamito was November 3, appointee or extend an ad interim appointment is a matter
2001.42 The original expiry dates of the terms of office of within the prerogative of the President because the
Chairperson Demetriou and Commissioners Flores and Constitution grants her that power. This Court cannot
Desamito were therefore supposed to fall after the May inquire into the propriety of the choice made by the
2001 elections. Suddenly and unexpectedly, because of President in the exercise of her constitutional power, absent
the Gaminde ruling, there were three vacancies in the grave abuse of discretion amounting to lack or excess of
seven-person COMELEC, with national elections looming jurisdiction on her part, which has not been shown in the
less than three and one-half months away. To their credit, instant case.
Chairperson Demetriou and Commissioner Flores vacated
their offices on February 2, 2001 and did not question any
The issuance by Presidents of ad interim appointments to
more before this Court the applicability of
the COMELEC is a long-standing practice. Former President
the Gaminde ruling to their own situation.
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg.47 Former President Fidel V.
In a Manifestation43 dated December 28, 2000 filed with this Ramos extended ad interim appointments to Commissioners
Court in the Gaminde case, Chairperson Demetriou stated Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-
that she was vacating her office on February 2, 2001, as Claravall and Manolo F. Gorospe.48 Former President Joseph
she believed any delay in choosing her successor might Estrada also extended ad interim appointments to
create a "constitutional crisis" in view of the proximity of Commissioners Abdul Gani M. Marohombsar, Luzviminda
the May 2001 national elections. Commissioner Desamito Tancangco, Mehol K. Sadain and Ralph C. Lantion.49
chose to file a petition for intervention44 in
the Gaminde case but this Court denied the intervention.
The President’s power to extend ad interim appointments
Thus, Commissioner Desamito also vacated his office on
may indeed briefly put the appointee at the mercy of both
February 2, 2001.
the appointing and confirming powers. This situation,
however, is only for a short period - from the time of
During an election year, Congress normally goes on issuance of the ad interim appointment until the
voluntary recess between February and June considering Commission on Appointments gives or withholds its
that many of the members of the House of Representatives consent. The Constitution itself sanctions this situation, as a
and the Senate run for re-election. In 2001, the Eleventh trade-off against the evil of disruptions in vital government
Congress adjourned from January 9, 2001 to June 3, services. This is also part of the check-and-balance under
2001.45 Concededly, there was no more time for Benipayo, the separation of powers, as a trade-off against the evil of
Borra and Tuason, who were originally extended ad granting the President absolute and sole power to appoint.
interim appointments only on March 22, 2001, to be The Constitution has wisely subjected the President’s
confirmed by the Commission on Appointments before the appointing power to the checking power of the legislature.
May 14, 2001 elections.
This situation, however, does not compromise the
If Benipayo, Borra and Tuason were not extended ad independence of the COMELEC as a constitutional body. The
interim appointments to fill up the three vacancies in the vacancies in the COMELEC are precisely staggered to insure
COMELEC, there would only have been one division that the majority of its members hold confirmed
functioning in the COMELEC instead of two during the May appointments, and not one President will appoint all the
2001 elections. Considering that the Constitution requires COMELEC members.50 In the instant case, the Commission
that "all x x x election cases shall be heard and decided in on Appointments had long confirmed four51 of the incumbent
division",46 the remaining one division would have been COMELEC members, comprising a majority, who could now
swamped with election cases. Moreover, since under the be removed from office only by impeachment. The special
Constitution motions for reconsideration "shall be decided constitutional safeguards that insure the independence of
by the Commission en banc", the mere absence of one of the COMELEC remain in place.52 The COMELEC enjoys fiscal
the four remaining members would have prevented a autonomy, appoints its own officials and employees, and
quorum, a less than ideal situation considering that the promulgates its own rules on pleadings and practice.
Commissioners are expected to travel around the country Moreover, the salaries of COMELEC members cannot be
before, during and after the elections. There was a great decreased during their tenure.
probability that disruptions in the conduct of the May 2001
elections could occur because of the three vacancies in the
In fine, we rule that the ad interim appointments extended
COMELEC. The successful conduct of the May 2001 national
by the President to Benipayo, Borra and Tuason, as
elections, right after the tumultuous EDSA II and EDSA III
COMELEC Chairman and Commissioners, respectively, do
events, was certainly essential in safeguarding and
not constitute temporary or acting appointments prohibited
strengthening our democracy.
by Section 1 (2), Article IX-C of the Constitution.
55 | Executive
Petitioner also agues that assuming the first ad interim explained in his concurring opinion in Guevara vs.
appointments and the first assumption of office by Inocentes53 why by-passed ad interim appointees could be
Benipayo, Borra and Tuason are constitutional, the renewal extended new appointments, thus:
of the their ad interim appointments and their subsequent
assumption of office to the same positions violate the
"In short, an ad interim appointment ceases to be
prohibition on reappointment under Section 1 (2), Article
effective upon disapproval by the Commission,
IX-C of the Constitution, which provides as follows:
because the incumbent can not continue holding
office over the positive objection of the
"The Chairman and the Commissioners shall be Commission. It ceases, also, upon "the next
appointed by the President with the consent of the adjournment of the Congress", simply because the
Commission on Appointments for a term of seven President may then issue new appointments - not
years without reappointment. Of those first because of implied disapproval of the Commission
appointed, three Members shall hold office for deduced from its inaction during the session of
seven years, two Members for five years, and the Congress, for, under the Constitution, the
last members for three years, without Commission may affect adversely the interim
reappointment. X x x." (Emphasis supplied) appointments only by action, never by omission. If
the adjournment of Congress were an implied
disapproval of ad interim appointments made prior
Petitioner theorizes that once an ad interim appointee is by-
thereto, then the President could no longer appoint
passed by the Commission on Appointments, his ad interim
those so by-passed by the Commission. But, the
appointment can no longer be renewed because this will
fact is that the President may reappoint them, thus
violate Section 1 (2), Article IX-C of the Constitution which
clearly indicating that the reason for said
prohibits reappointments. Petitioner asserts that this is
termination of the ad interim appointments is not
particularly true to permanent appointees who have
the disapproval thereof allegedly inferred from said
assumed office, which is the situation of Benipayo, Borra
omission of the Commission, but the circumstance
and Tuason if their ad interim appointments are deemed
that upon said adjournment of the Congress, the
permanent in character.
President is free to make ad interim appointments
or reappointments." (Emphasis supplied)
There is no dispute that an ad interim appointee
disapproved by the Commission on Appointments can no
Guevara was decided under the 1935 Constitution from
longer be extended a new appointment. The disapproval is
where the second paragraph of Section 16, Article VII of the
a final decision of the Commission on Appointments in the
present Constitution on ad interim appointments was
exercise of its checking power on the appointing authority
lifted verbatim.54 The jurisprudence under the 1935
of the President. The disapproval is a decision on the
Constitution governing ad interim appointments by the
merits, being a refusal by the Commission on Appointments
President is doubtless applicable to the present
to give its consent after deliberating on the qualifications of
Constitution. The established practice under the present
the appointee. Since the Constitution does not provide for
Constitution is that the President can renew the
any appeal from such decision, the disapproval is final and
appointments of by-passed ad interim appointees. This is a
binding on the appointee as well as on the appointing
continuation of the well-recognized practice under the 1935
power. In this instance, the President can no longer renew
Constitution, interrupted only by the 1973 Constitution
the appointment not because of the constitutional
which did not provide for a Commission on Appointments
prohibition on reappointment, but because of a final
but vested sole appointing power in the President.
decision by the Commission on Appointments to withhold its
consent to the appointment.
The prohibition on reappointment in Section 1 (2), Article
IX-C of the Constitution applies neither to disapproved nor
An ad interim appointment that is by-passed because of
by-passed ad interim appointments. A disapproved ad
lack of time or failure of the Commission on Appointments
interim appointment cannot be revived by another ad
to organize is another matter. A by-passed appointment is
interim appointment because the disapproval is final under
one that has not been finally acted upon on the merits by
Section 16, Article VII of the Constitution, and not because
the Commission on Appointments at the close of the session
a reappointment is prohibited under Section 1 (2), Article
of Congress. There is no final decision by the Commission
IX-C of the Constitution. A by-passed ad
on Appointments to give or withhold its consent to the
interim appointment can be revived by a new ad
appointment as required by the Constitution. Absent such
interim appointment because there is no final disapproval
decision, the President is free to renew the ad interim
under Section 16, Article VII of the Constitution, and such
appointment of a by-passed appointee. This is recognized in
new appointment will not result in the appointee serving
Section 17 of the Rules of the Commission on
beyond the fixed term of seven years.
Appointments, which provides as follows:
The fourth situation is where the appointee has previously The phrase "without reappointment" applies only to one
served a term of less than seven years, and a vacancy who has been appointed by the President and confirmed by
arises from death or resignation. Even if it will not result in the Commission on Appointments, whether or not such
his serving more than seven years, a reappointment of such person completes his term of office. There must be a
person to serve an unexpired term is also prohibited confirmation by the Commission on Appointments of the
because his situation will be similar to those appointed previous appointment before the prohibition on
under the second sentence of Section 1 (2), Article IX-C of reappointment can apply. To hold otherwise will lead to
the Constitution. This provision refers to the first appointees absurdities and negate the President’s power to make ad
under the Constitution whose terms of office are less than interim appointments.
seven years, but are barred from ever being reappointed
under any situation. Not one of these four situations applies
In the great majority of cases, the Commission on
to the case of Benipayo, Borra or Tuason.
Appointments usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad
The framers of the Constitution made it quite clear that any interim appointments can no longer be renewed, the
person who has served any term of office as COMELEC President will certainly hesitate to make ad
member – whether for a full term of seven years, a interim appointments because most of her appointees will
truncated term of five or three years, or even for an effectively be disapproved by mere inaction of the
unexpired term of any length of time – can no longer be Commission on Appointments. This will nullify the
reappointed to the COMELEC. Commissioner Foz succinctly constitutional power of the President to make ad
explained this intent in this manner: interim appointments, a power intended to avoid
disruptions in vital government services. This Court cannot
subscribe to a proposition that will wreak havoc on vital
"MR. FOZ. But there is the argument made in the
government services.
concurring opinion of Justice Angelo Bautista in the
case of Visarra vs. Miraflor, to the effect that the
prohibition on reappointment applies only when The prohibition on reappointment is common to the three
the term or tenure is for seven years. But in cases constitutional commissions. The framers of the present
where the appointee serves only for less than Constitution prohibited reappointments for two reasons. The
seven years, he would be entitled to first is to prevent a second appointment for those who have
reappointment. Unless we put the qualifying words been previously appointed and confirmed even if they
"without reappointment" in the case of those served for less than seven years. The second is to insure
appointed, then it is possible that an interpretation that the members of the three constitutional commissions
could be made later on their case, they can still be do not serve beyond the fixed term of seven years. As
reappointed to serve for a total of seven years. reported in the Journal of the Constitutional Commission,
Commissioner Vicente B. Foz, who sponsored58 the proposed
articles on the three constitutional commissions, outlined
Precisely, we are foreclosing that possibility by
the four important features of the proposed articles, to wit:
making it clear that even in the case of those first
appointed under the Constitution, no
reappointment can be made."55 (Emphasis "Mr. Foz stated that the Committee had introduced
supplied) basic changes in the common provision affecting
the three Constitutional Commissions, and which
are: 1) fiscal autonomy which provides (that)
In Visarra vs. Miraflor,56 Justice Angelo Bautista, in
appropriations shall be automatically and regularly
his concurring opinion, quoted Nacionalista vs. De
released to the Commission in the same manner
Vera57 that a "[r]eappointment is not prohibited
(as) provided for the Judiciary; 2) fixed term of
when a Commissioner has held office only for, say,
office without reappointment on a staggered basis
three or six years, provided his term will not
to ensure continuity of functions and to minimize
exceed nine years in all." This was the
the opportunity of the President to appoint all the
interpretation despite the express provision in the
members during his incumbency; 3) prohibition to
1935 Constitution that a COMELEC member "shall
decrease salaries of the members of the
hold office for a term of nine years and may not be
Commissions during their term of office; and 4)
reappointed."
appointments of members would not require
confirmation."59 (Emphasis supplied)
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article IX-C
There were two important amendments subsequently made
of the present Constitution. The first phrase prohibits
by the Constitutional Commission to these four features.
reappointment of any person previously appointed for a
First, as discussed earlier, the framers of the Constitution
term of seven years. The second phrase prohibits
decided to require confirmation by the Commission on
reappointment of any person previously appointed for a
Appointments of all appointments to the constitutional
term of five or three years pursuant to the first set of
commissions. Second, the framers decided
appointees under the Constitution. In either case, it does
to strengthen further the prohibition on serving beyond the
not matter if the person previously appointed completes his
fixed seven-year term, in the light of a former chair of the
term of office for the intention is to prohibit any
Commission on Audit remaining in office for 12 years
reappointment of any kind.
despite his fixed term of seven years. The following
exchange in the deliberations of the Constitutional
However, an ad interim appointment that has lapsed by Commission is instructive:
inaction of the Commission on Appointments does not
constitute a term of office. The period from the time the ad
"MR. SUAREZ: These are only clarificatory
interim appointment is made to the time it lapses is neither
questions, Madam President. May I call the
a fixed term nor an unexpired term. To hold otherwise
sponsor’s attention, first of all, to Section 2 (2) on
would mean that the President by his unilateral action could
the Civil Service Commission wherein it is stated:
57 | Executive
"In no case shall any Member be appointed in a term exceeded the constitutional limit but the
temporary or acting capacity." I detect in the Minister of Justice opined that it did not because
Committee’s proposed resolutions a constitutional he was only designated during the time that he
hangover, if I may use the term, from the past acted as Commissioner on Audit. So, in order to
administration. Am I correct in concluding that the erase that distinction between appointment and
reason the Committee introduced this particular designation, we should specifically place the word
provision is to avoid an incident similar to the case so that there will be no more ambiguity. "In no
of the Honorable Francisco Tantuico who was case shall any Member be appointed OR
appointed in an acting capacity as Chairman of the DESIGNATED in a temporary or acting capacity."
Commission on Audit for about 5 years from 1975
until 1980, and then in 1980, was appointed as
MR. FOZ: The amendment is accepted, Mr.
Chairman with a tenure of another 7 years. So, if
Presiding Officer.
we follow that appointment to (its) logical
conclusion, he occupied that position for about 12
years in violation of the Constitution? MR. DE LOS REYES: Thank you.
MR. FOZ: It is only one of the THE PRESIDING OFFICER (Mr. Trenas): Is there
considerations. Another is really to make sure that any objection? (Silence) The Chair hears none; the
any member who is appointed to any of the amendment is approved."62
commissions does not serve beyond 7
years."60 (Emphasis supplied) The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate
Commissioner Christian Monsod further clarified the the prohibition on reappointments because there were no
prohibition on reappointment in this manner: previous appointments that were confirmed by the
Commission on Appointments. A reappointment
presupposes a previous confirmed appointment. The
"MR. MONSOD. If the (Commissioner) will read the
same ad interim appointments and renewals of
whole Article, she will notice that there is no
appointments will also not breach the seven-year term limit
reappointment of any kind and, therefore as a
because all the appointments and renewals of appointments
whole there is no way that somebody can serve for
of Benipayo, Borra and Tuason are for a fixed term expiring
more than seven years. The purpose of the last
on February 2, 2008.63 Any delay in their confirmation will
sentence is to make sure that this does not
not extend the expiry date of their terms of office.
happen by including in the appointment both
Consequently, there is no danger whatsoever that the
temporary and acting capacities."61 (Emphasis
renewal of the ad interim appointments of these three
supplied)
respondents will result in any of the evils intended to be
exorcised by the twin prohibitions in the Constitution. The
Plainly, the prohibition on reappointment is intended to continuing renewal of the ad interim appointment of these
insure that there will be no reappointment of any kind. On three respondents, for so long as their terms of office expire
the other hand, the prohibition on temporary or acting on February 2, 2008, does not violate the prohibition on
appointments is intended to prevent any circumvention of reappointments in Section 1 (2), Article IX-C of the
the prohibition on reappointment that may result in an Constitution.
appointee’s total term of office exceeding seven years. The
evils sought to be avoided by the twin prohibitions are very
Fourth Issue: Respondent Benipayo’s Authority to Reassign
specific - reappointment of any kind and exceeding one’s
Petitioner
term in office beyond the maximum period of seven years.
58 | Executive
The Chairman, as the Chief Executive of the COMELEC, is xxx
expressly empowered on his own authority to transfer or
reassign COMELEC personnel in accordance with the Civil
(h) Transfer of officers and employees in the civil
Service Law. In the exercise of this power, the Chairman is
service - Any public official who makes or causes
not required by law to secure the approval of the
any transfer or detail whatever of any officer or
COMELEC en banc.
employee in the civil service including public school
teachers, within the election period except upon
Petitioner’s appointment papers dated February 2, 1999, prior approval of the Commission."
February 15, 2000 and February 15, 2001, attached as
Annexes "X", "Y" and "Z" to her Petition, indisputably show
Petitioner claims that Benipayo failed to secure the approval
that she held her Director IV position in the EID only in
of the COMELEC en banc to effect transfers or
an acting or temporary capacity.64 Petitioner is not a Career
reassignments of COMELEC personnel during the election
Executive Service (CES) officer, and neither does she hold
period.67 Moreover, petitioner insists that the COMELEC en
Career Executive Service Eligibility, which are necessary
banc must concur to every transfer or reassignment of
qualifications for holding the position of Director IV as
COMELEC personnel during the election period.
prescribed in the Qualifications Standards (Revised 1987)
issued by the Civil Service Commission.65 Obviously,
petitioner does not enjoy security of tenure as Director IV. Contrary to petitioner’s allegation, the COMELEC did in fact
In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. issue COMELEC Resolution No. 3300 dated November 6,
Bacal,66 this Court held that: 2000,68 exempting the COMELEC from Section 261 (h) of
the Omnibus Election Code. The resolution states in part:
"As respondent does not have the rank appropriate
for the position of Chief Public Attorney, her "WHEREAS, Sec. 56 and Sec. 261, paragraphs (g)
appointment to that position cannot be considered and (h), of the Omnibus Election Code provides as
permanent, and she can claim no security of follows:
tenure in respect of that position. As held
in Achacoso v. Macaraig: xxx
59 | Executive
reassign COMELEC personnel. The COMELEC Chairman will This is a petition for certiorari and prohibition1 with a prayer
logically exercise the authority to transfer or reassign for the issuance of a writ of preliminary injunction to
COMELEC personnel pursuant to COMELEC Resolution No. declare unconstitutional the appointments issued by
3300. The COMELEC en banc cannot arrogate unto itself President Gloria Macapagal-Arroyo ("President Arroyo")
this power because that will mean amending the Revised through Executive Secretary Eduardo R. Ermita ("Secretary
Administrative Code, an act the COMELEC en banc cannot Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael
legally do. T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto
G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents")
as acting secretaries of their respective departments. The
COMELEC Resolution No. 3300 does not require that every
petition also seeks to prohibit respondents from performing
transfer or reassignment of COMELEC personnel should
the duties of department secretaries.
carry the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such
concurrence will render the resolution meaningless since Antecedent Facts
the COMELEC en banc will have to approve every personnel
transfer or reassignment, making the resolution utterly
The Senate and the House of Representatives ("Congress")
useless. Resolution No. 3300 should be interpreted for what
commenced their regular session on 26 July 2004. The
it is, an approval to effect transfers and reassignments of
Commission on Appointments, composed of Senators and
personnel, without need of securing a second approval from
Representatives, was constituted on 25 August 2004.
the COMELEC en banc to actually implement such transfer
or reassignment.
Meanwhile, President Arroyo issued appointments 2 to
respondents as acting secretaries of their respective
The COMELEC Chairman is the official expressly authorized
departments.
by law to transfer or reassign COMELEC personnel. The
person holding that office, in a de jure capacity, is
Benipayo. The COMELEC en banc, in COMELEC Resolution Appointee Department Date of App
No. 3300, approved the transfer or reassignment of Arthur C. Yap Agriculture 15 Augus
COMELEC personnel during the election period. Thus,Alberto G. Romulo Foreign Affairs 23 Augus
Benipayo’s order reassigning petitioner from the EID Raul
to the
M. Gonzalez Justice 23 Augus
Law Department does not violate Section 261 (h) of the
Florencio B. Abad Education 23 Augus
Omnibus Election Code. For the same reason, Benipayo’s
order designating Cinco Officer-in-Charge of the EIDAvelino
is J. Cruz, Jr. National Defense 23 Augus
legally unassailable. Rene C. Villa Agrarian Reform 23 Augus
Joseph H. Durano Tourism 23 Augus
Fifth Issue: Legality of Disbursements to Respondents Michael T. Defensor Environment and Natural Resources 23 Augus
Based on the foregoing discussion, respondent Gideon C. The appointment papers are uniformly worded as follows:
De Guzman, Officer-in-Charge of the Finance Services
Department of the Commission on Elections, did not act in Sir:
excess of jurisdiction in paying the salaries and other
emoluments of Benipayo, Borra, Tuason and Cinco.
Pursuant to the provisions of existing laws, you are hereby
appointed ACTING SECRETARY, DEPARTMENT OF
WHEREFORE, the petition is dismissed for lack of merit. (appropriate department) vice (name of person replaced).
Costs against petitioner.
EN BANC (signed)
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, Respondents took their oath of office and assumed duties
JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, as acting secretaries.
JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO
S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R. On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator
OSMEÑA III, Petitioners Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan
vs. Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator
B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T. Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S.
DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator
ALBERTO G. ROMULO, RENE C. VILLA, and ARTHUR C. Madrigal"), and Sergio R. Osmeña, III ("Senator Osmeña")
YAP, Respondents. ("petitioners") filed the present petition as Senators of the
Republic of the Philippines.
DECISION
Congress adjourned on 22 September 2004. On 23
CARPIO, J.: September 2004, President Arroyo issued ad
interim appointments3 to respondents as secretaries of the
departments to which they were previously appointed in an
The Case acting capacity. The appointment papers are uniformly
worded as follows:
60 | Executive
Sir: members of Congress, said Commission is independent of
Congress. The powers of the Commission do not come from
Congress, but emanate directly from the Constitution.
Pursuant to the provisions of existing laws, you are hereby
Hence, it is not an agent of Congress. In fact, the functions
appointed SECRETARY [AD INTERIM], DEPARTMENT OF
of the Commissioner are purely executive in nature. xxx 9
(appropriate department).
On Petitioners’ Standing
By virtue hereof, you may qualify and enter upon the
performance of the duties and functions of the office,
furnishing this Office and the Civil Service Commission with The Solicitor General states that the present petition is
copies of your oath of office. a quo warranto proceeding because, with the exception of
Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of
(signed)
department secretaries. The Solicitor General further states
that petitioners may not claim standing as Senators
Gloria Arroyo because no power of the Commission on Appointments has
been "infringed upon or violated by the President. xxx If at
Issue all, the Commission on Appointments as a body (rather
than individual members of the Congress) may possess
standing in this case."10
The petition questions the constitutionality of President
Arroyo’s appointment of respondents as acting secretaries
without the consent of the Commission on Appointments Petitioners, on the other hand, state that the Court can
while Congress is in session. exercise its certiorari jurisdiction over unconstitutional acts
of the President.11 Petitioners further contend that they
possess standing because President Arroyo’s appointment
The Court’s Ruling of department secretaries in an acting capacity while
Congress is in session impairs the powers of Congress.
The petition has no merit. Petitioners cite Sanlakas v. Executive Secretary12 as
basis, thus:
Preliminary Matters
To the extent that the powers of Congress are impaired, so
is the power of each member thereof, since his office
On the Mootness of the Petition confers a right to participate in the exercise of the powers
of that institution.
The Solicitor General argues that the petition is moot
because President Arroyo had extended to respondents ad An act of the Executive which injures the institution of
interim appointments on 23 September 2004 immediately Congress causes a derivative but nonetheless substantial
after the recess of Congress. injury, which can be questioned by a member of Congress.
In such a case, any member of Congress can have a resort
As a rule, the writ of prohibition will not lie to enjoin acts to the courts.
already done.4 However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it Considering the independence of the Commission on
is capable of repetition yet evading review.5 Appointments from Congress, it is error for petitioners to
claim standing in the present case as members of Congress.
In the present case, the mootness of the petition does not President Arroyo’s issuance of acting appointments while
bar its resolution. The question of the constitutionality of Congress is in session impairs no power of Congress.
the President’s appointment of department secretaries in an Among the petitioners, only the following are members of
acting capacity while Congress is in session will arise in the Commission on Appointments of the 13th Congress:
every such appointment. Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara,
Senator Ejercito-Estrada, and Senator Osmeña as
On the Nature of the Power to Appoint
members.
xxx
(3) In no case shall a temporary designation exceed
one (1) year. (Emphasis supplied)
(5) Temporarily discharge the duties of the Secretary in the
latter’s absence or inability to discharge his duties for any
Petitioners and respondents maintain two diametrically
cause or in case of vacancy of the said office, unless
opposed lines of thought. Petitioners assert that the
otherwise provided by law. Where there are more than one
President cannot issue appointments in an acting capacity
Undersecretary, the Secretary shall allocate the foregoing
to department secretaries while Congress is in session
powers and duties among them. The President shall likewise
because the law does not give the President such power. In
make the temporary designation of Acting Secretary from
contrast, respondents insist that the President can issue
among them; and
such appointments because no law prohibits such
appointments.
xxx
The essence of an appointment in an acting capacity is its
Petitioners further assert that "while Congress is in session, temporary nature. It is a stop-gap measure intended to fill
there can be no appointments, whether regular or acting, to an office for a limited time until the appointment of a
a vacant position of an office needing confirmation by the permanent occupant to the office.16 In case of vacancy in an
Commission on Appointments, without first having obtained office occupied by an alter ego of the President, such as the
its consent."15 office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting
In sharp contrast, respondents maintain that the President secretary before the permanent appointee of her choice
can issue appointments in an acting capacity to department could assume office.
secretaries without the consent of the Commission on
Appointments even while Congress is in session. Congress, through a law, cannot impose on the President
Respondents point to Section 16, Article VII of the 1987 the obligation to appoint automatically the undersecretary
Constitution. Section 16 reads: as her temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great trust and
SEC. 16. The President shall nominate and, with the confidence. Congress, in the guise of prescribing
consent of the Commission on Appointments, appoint the qualifications to an office, cannot impose on the President
heads of the executive departments, ambassadors, other who her alter ego should be.
public ministers and consuls, or officers of the armed forces
from the rank of colonel or naval captain, and other officers The office of a department secretary may become vacant
whose appointments are vested in him in this Constitution. while Congress is in session. Since a department secretary
He shall also appoint all other officers of the Government is the alter ego of the President, the acting appointee to the
whose appointments are not otherwise provided for by law, office must necessarily have the President’s confidence.
and those whom he may be authorized by law to appoint. Thus, by the very nature of the office of a department
The Congress may, by law, vest the appointment of other secretary, the President must appoint in an acting capacity
officers lower in rank in the President alone, in the courts, a person of her choice even while Congress is in session.
or in the heads of departments, agencies, commissions, or That person may or may not be the permanent appointee,
boards. but practical reasons may make it expedient that the acting
appointee will also be the permanent appointee.
The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or The law expressly allows the President to make such acting
compulsory, but such appointments shall be effective only appointment. Section 17, Chapter 5, Title I, Book III of EO
until disapproval by the Commission on Appointments or 292 states that "[t]he President may temporarily designate
until the next adjournment of the Congress. an officer already in the government service or any other
competent person to perform the functions of an office in
Respondents also rely on EO 292, which devotes a chapter the executive branch." Thus, the President may even
to the President’s power of appointment. Sections 16 and appoint in an acting capacity a person not yet in the
17, Chapter 5, Title I, Book III of EO 292 read: government service, as long as the President deems that
person competent.
62 | Executive
appointments as a way to circumvent confirmation by the Subsequently, the President confirmed his previous
Commission on Appointments. directive on the deployment of the Marines in a
Memorandum, dated 24 January 2000, addressed to the
Chief of Staff of the AFP and the PNP Chief.3 In the
In distinguishing ad interim appointments from
Memorandum, the President expressed his desire to
appointments in an acting capacity, a noted textbook writer
improve the peace and order situation in Metro Manila
on constitutional law has observed:
through a more effective crime prevention program
including increased police patrols.4 The President further
Ad-interim appointments must be distinguished from stated that to heighten police visibility in the metropolis,
appointments in an acting capacity. Both of them are augmentation from the AFP is necessary.5 Invoking his
effective upon acceptance. But ad-interim appointments are powers as Commander-in-Chief under Section 18, Article
extended only during a recess of Congress, whereas acting VII of the Constitution, the President directed the AFP Chief
appointments may be extended any time there is a of Staff and PNP Chief to coordinate with each other for the
vacancy. Moreover ad-interim appointments are submitted proper deployment and utilization of the Marines to assist
to the Commission on Appointments for confirmation or the PNP in preventing or suppressing criminal or lawless
rejection; acting appointments are not submitted to the violence.6 Finally, the President declared that the services of
Commission on Appointments. Acting appointments are a the Marines in the anti-crime campaign are merely
way of temporarily filling important offices but, if abused, temporary in nature and for a reasonable period only, until
they can also be a way of circumventing the need for such time when the situation shall have improved.7
confirmation by the Commission on Appointments.18
The LOI explains the concept of the PNP-Philippine Marines
However, we find no abuse in the present case. The joint visibility patrols as follows:
absence of abuse is readily apparent from President
Arroyo’s issuance of ad interim appointments to
xxx
respondents immediately upon the recess of Congress, way
before the lapse of one year.
2. PURPOSE:
WHEREFORE, we DISMISS the present petition
for certiorari and prohibition. The Joint Implementing Police Visibility Patrols between the
PNP NCRPO and the Philippine Marines partnership in the
conduct of visibility patrols in Metro Manila for the
SO ORDERED.
suppression of crime prevention and other serious threats
to national security.
3. SITUATION:
EN BANC
Criminal incidents in Metro Manila have been perpetrated
G.R. No. 141284 August 15, 2000 not only by ordinary criminals but also by organized
syndicates whose members include active and former
police/military personnel whose training, skill, discipline and
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
firepower prove well-above the present capability of the
vs.
local police alone to handle. The deployment of a joint PNP
HON. RONALDO B. ZAMORA, GEN. PANFILO M.
NCRPO-Philippine Marines in the conduct of police visibility
LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO
patrol in urban areas will reduce the incidence of crimes
REYES, respondents.
specially those perpetrated by active or former
police/military personnel.
DECISION
4. MISSION:
KAPUNAN, J.:
The PNP NCRPO will organize a provisional Task Force to
At bar is a special civil action for certiorari and prohibition conduct joint NCRPO-PM visibility patrols to keep Metro
with prayer for issuance of a temporary restraining order Manila streets crime-free, through a sustained street
seeking to nullify on constitutional grounds the order of patrolling to minimize or eradicate all forms of high-profile
President Joseph Ejercito Estrada commanding the crimes especially those perpetrated by organized crime
deployment of the Philippine Marines (the "Marines") to join syndicates whose members include those that are well-
the Philippine National Police (the "PNP") in visibility patrols trained, disciplined and well-armed active or former
around the metropolis. PNP/Military personnel.
In view of the alarming increase in violent crimes in Metro 5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
Manila, like robberies, kidnappings and carnappings, the
President, in a verbal directive, ordered the PNP and the
a. The visibility patrols shall be conducted jointly
Marines to conduct joint visibility patrols for the purpose of
by the NCRPO [National Capital Regional Police
crime prevention and suppression. The Secretary of
Office] and the Philippine Marines to curb
National Defense, the Chief of Staff of the Armed Forces of
criminality in Metro Manila and to preserve the
the Philippines (the "AFP"), the Chief of the PNP and the
internal security of the state against insurgents
Secretary of the Interior and Local Government were tasked
and other serious threat to national security,
to execute and implement the said order. In compliance
although the primary responsibility over Internal
with the presidential mandate, the PNP Chief, through
Security Operations still rests upon the AFP.
Police Chief Superintendent Edgar B. Aglipay, formulated
Letter of Instruction 02/20001 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task b. The principle of integration of efforts shall be
Force Tulungan, would be conducted.2 Task applied to eradicate all forms of high-profile crimes
Force Tulungan was placed under the leadership of the perpetrated by organized crime syndicates
Police Chief of Metro Manila. operating in Metro Manila. This concept requires
the military and police to work cohesively and
63 | Executive
unify efforts to ensure a focused, effective and The Solicitor General vigorously defends the
holistic approach in addressing crime prevention. constitutionality of the act of the President in deploying the
Along this line, the role of the military and police Marines, contending, among others, that petitioner has no
aside from neutralizing crime syndicates is to bring legal standing; that the question of deployment of the
a wholesome atmosphere wherein delivery of basic Marines is not proper for judicial scrutiny since the same
services to the people and development is involves a political question; that the organization and
achieved. Hand-in-hand with this joint NCRPO- conduct of police visibility patrols, which feature the team-
Philippine Marines visibility patrols, local Police up of one police officer and one Philippine Marine soldier,
Units are responsible for the maintenance of peace does not violate the civilian supremacy clause in the
and order in their locality. Constitution.
c. To ensure the effective implementation of this The issues raised in the present petition are: (1) Whether
project, a provisional Task Force "TULUNGAN" shall or not petitioner has legal standing; (2) Whether or not the
be organized to provide the mechanism, structure, President’s factual determination of the necessity of calling
and procedures for the integrated planning, the armed forces is subject to judicial review; and, (3)
coordinating, monitoring and assessing the Whether or not the calling of the armed forces to assist the
security situation. PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the
civilian character of the PNP.
xxx.8
II
"Legal standing" or locus standi has been defined as a
personal and substantial interest in the case such that the
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, party has sustained or will sustain direct injury as a result
THE ADMINISTRATION IS UNWITTINGLY MAKING THE of the governmental act that is being challenged.13 The term
MILITARY MORE POWERFUL THAN WHAT IT SHOULD "interest" means a material interest, an interest in issue
REALLY BE UNDER THE CONSTITUTION.10 affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest.14 The
Asserting itself as the official organization of Filipino lawyers gist of the question of standing is whether a party alleges
tasked with the bounden duty to uphold the rule of law and "such personal stake in the outcome of the controversy as
the Constitution, the IBP questions the validity of the to assure that concrete adverseness which sharpens the
deployment and utilization of the Marines to assist the PNP presentation of issues upon which the court depends for
in law enforcement. illumination of difficult constitutional questions." 15
Without granting due course to the petition, the Court in a In the case at bar, the IBP primarily anchors its standing on
Resolution,11 dated 25 January 2000, required the Solicitor its alleged responsibility to uphold the rule of law and the
General to file his Comment on the petition. On 8 February Constitution. Apart from this declaration, however, the IBP
2000, the Solicitor General submitted his Comment. asserts no other basis in support of its locus standi. The
mere invocation by the IBP of its duty to preserve the rule
64 | Executive
of law and nothing more, while undoubtedly true, is not calling of the military to assist the police force. It contends
sufficient to clothe it with standing in this case. This is too that no lawless violence, invasion or rebellion exist to
general an interest which is shared by other groups and the warrant the calling of the Marines. Thus, the IBP prays that
whole citizenry. Based on the standards above-stated, the this Court "review the sufficiency of the factual basis for
IBP has failed to present a specific and substantial interest said troop [Marine] deployment."19
in the resolution of the case. Its fundamental purpose
which, under Section 2, Rule 139-A of the Rules of Court, is
The Solicitor General, on the other hand, contends that the
to elevate the standards of the law profession and to
issue pertaining to the necessity of calling the armed forces
improve the administration of justice is alien to, and cannot
is not proper for judicial scrutiny since it involves a political
be affected by the deployment of the Marines. It should also
question and the resolution of factual issues which are
be noted that the interest of the National President of the
beyond the review powers of this Court.
IBP who signed the petition, is his alone, absent a formal
board resolution authorizing him to file the present action.
To be sure, members of the BAR, those in the judiciary As framed by the parties, the underlying issues are the
included, have varying opinions on the issue. Moreover, the scope of presidential powers and limits, and the extent of
IBP, assuming that it has duly authorized the National judicial review. But, while this Court gives considerable
President to file the petition, has not shown any specific weight to the parties’ formulation of the issues, the
injury which it has suffered or may suffer by virtue of the resolution of the controversy may warrant a creative
questioned governmental act. Indeed, none of its members, approach that goes beyond the narrow confines of the
whom the IBP purportedly represents, has sustained any issues raised. Thus, while the parties are in agreement that
form of injury as a result of the operation of the joint the power exercised by the President is the power to call
visibility patrols. Neither is it alleged that any of its out the armed forces, the Court is of the view that the
members has been arrested or that their civil liberties have power involved may be no more than the maintenance of
been violated by the deployment of the Marines. What the peace and order and promotion of the general welfare.20 For
IBP projects as injurious is the supposed "militarization" of one, the realities on the ground do not show that there
law enforcement which might threaten Philippine exist a state of warfare, widespread civil unrest or anarchy.
democratic institutions and may cause more harm than Secondly, the full brunt of the military is not brought upon
good in the long run. Not only is the presumed "injury" not the citizenry, a point discussed in the latter part of this
personal in character, it is likewise too vague, highly decision. In the words of the late Justice Irene Cortes
speculative and uncertain to satisfy the requirement of in Marcos v. Manglapus:
standing. Since petitioner has not successfully established a
direct and personal injury as a consequence of the More particularly, this case calls for the exercise of the
questioned act, it does not possess the personality to assail President’s powers as protector of the peace. [Rossiter, The
the validity of the deployment of the Marines. This Court, American Presidency]. The power of the President to keep
however, does not categorically rule that the IBP has the peace is not limited merely to exercising the
absolutely no standing to raise constitutional issues now or commander-in-chief powers in times of emergency or to
in the future. The IBP must, by way of allegations and leading the State against external and internal threats to its
proof, satisfy this Court that it has sufficient stake to obtain existence. The President is not only clothed with
judicial resolution of the controversy. extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of
Having stated the foregoing, it must be emphasized that maintaining peace and order and ensuring domestic
this Court has the discretion to take cognizance of a suit tranquility in times when no foreign foe appears on the
which does not satisfy the requirement of legal standing horizon. Wide discretion, within the bounds of law, in
when paramount interest is involved. 16 In not a few cases, fulfilling presidential duties in times of peace is not in any
the Court has adopted a liberal attitude on the locus way diminished by the relative want of an emergency
standi of a petitioner where the petitioner is able to craft an specified in the commander-in-chief provision. For in
issue of transcendental significance to the people.17 Thus, making the President commander-in-chief the enumeration
when the issues raised are of paramount importance to the of powers that follow cannot be said to exclude the
public, the Court may brush aside technicalities of President’s exercising as Commander-in-Chief powers short
procedure.18 In this case, a reading of the petition shows of the calling of the armed forces, or suspending the
that the IBP has advanced constitutional issues which privilege of the writ of habeas corpus or declaring martial
deserve the attention of this Court in view of their law, in order to keep the peace, and maintain public order
seriousness, novelty and weight as precedents. Moreover, and security.
because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly xxx21
aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not
go away. It will stare us in the face again. It, therefore, Nonetheless, even if it is conceded that the power involved
behooves the Court to relax the rules on standing and to is the President’s power to call out the armed forces to
resolve the issue now, rather than later. prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
65 | Executive
concerned with issues dependent upon the wisdom, not the When the President calls the armed forces to prevent or
legality, of a particular act or measure being assailed. suppress lawless violence, invasion or rebellion, he
Moreover, the political question being a function of the necessarily exercises a discretionary power solely vested in
separation of powers, the courts will not normally interfere his wisdom. This is clear from the intent of the framers and
with the workings of another co-equal branch unless the from the text of the Constitution itself. The Court, thus,
case shows a clear need for the courts to step in to uphold cannot be called upon to overrule the President’s wisdom or
the law and the Constitution. substitute its own. However, this does not prevent an
examination of whether such power was exercised within
permissible constitutional limits or whether it was exercised
As Tañada v. Cuenco23 puts it, political questions refer "to
in a manner constituting grave abuse of discretion. In view
those questions which, under the Constitution, are to be
of the constitutional intent to give the President full
decided by the people in their sovereign capacity, or in
discretionary power to determine the necessity of calling
regard to which full discretionary authority has been
out the armed forces, it is incumbent upon the petitioner to
delegated to the legislative or executive branch of
show that the President’s decision is totally bereft of factual
government." Thus, if an issue is clearly identified by the
basis. The present petition fails to discharge such heavy
text of the Constitution as matters for discretionary action
burden as there is no evidence to support the assertion that
by a particular branch of government or to the people
there exist no justification for calling out the armed forces.
themselves then it is held to be a political question. In the
There is, likewise, no evidence to support the proposition
classic formulation of Justice Brennan in Baker v.
that grave abuse was committed because the power to call
Carr,24 "[p]rominent on the surface of any case held to
was exercised in such a manner as to violate the
involve a political question is found a textually
constitutional provision on civilian supremacy over the
demonstrable constitutional commitment of the issue to a
military. In the performance of this Court’s duty of
coordinate political department; or a lack of judicially
"purposeful hesitation"32 before declaring an act of another
discoverable and manageable standards for resolving it; or
branch as unconstitutional, only where such grave abuse of
the impossibility of deciding without an initial policy
discretion is clearly shown shall the Court interfere with the
determination of a kind clearly for nonjudicial discretion; or
President’s judgment. To doubt is to sustain.
the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due
coordinate branches of government; or an unusual need for There is a clear textual commitment under the Constitution
unquestioning adherence to a political decision already to bestow on the President full discretionary power to call
made; or the potentiality of embarassment from out the armed forces and to determine the necessity for the
multifarious pronouncements by various departments on exercise of such power. Section 18, Article VII of the
the one question." Constitution, which embodies the powers of the President
as Commander-in-Chief, provides in part:
The 1987 Constitution expands the concept of judicial
review by providing that "(T)he Judicial power shall be The President shall be the Commander-in-Chief of all armed
vested in one Supreme Court and in such lower courts as forces of the Philippines and whenever it becomes
may be established by law. Judicial power includes the duty necessary, he may call out such armed forces to prevent or
of the courts of justice to settle actual controversies suppress lawless violence, invasion or rebellion. In case of
involving rights which are legally demandable and invasion or rebellion, when the public safety requires it, he
enforceable, and to determine whether or not there has may, for a period not exceeding sixty days, suspend the
been a grave abuse of discretion amounting to lack or privilege of the writ of habeas corpus, or place the
excess of jurisdiction on the part of any branch or Philippines or any part thereof under martial law.
instrumentality of the Government."25 Under this definition,
the Court cannot agree with the Solicitor General that the
xxx
issue involved is a political question beyond the jurisdiction
of this Court to review. When the grant of power is
qualified, conditional or subject to limitations, the issue of The full discretionary power of the President to determine
whether the prescribed qualifications or conditions have the factual basis for the exercise of the calling out power is
been met or the limitations respected, is justiciable - the also implied and further reinforced in the rest of Section 18,
problem being one of legality or validity, not its Article VII which reads, thus:
wisdom.26 Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court.27 When political xxx
questions are involved, the Constitution limits the
determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of Within forty-eight hours from the proclamation of martial
jurisdiction on the part of the official whose action is being law or the suspension of the privilege of the writ of habeas
questioned.28 corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
By grave abuse of discretion is meant simply capricious or special session, may revoke such proclamation or
whimsical exercise of judgment that is patent and gross as suspension, which revocation shall not be set aside by the
to amount to an evasion of positive duty or a virtual refusal President. Upon the initiative of the President, the Congress
to perform a duty enjoined by law, or to act at all in may, in the same manner, extend such proclamation or
contemplation of law, as where the power is exercised in an suspension for a period to be determined by the Congress,
arbitrary and despotic manner by reason of passion or if the invasion or rebellion shall persist and public safety
hostility.29 Under this definition, a court is without power to requires it.
directly decide matters over which full discretionary
authority has been delegated. But while this Court has no
power to substitute its judgment for that of Congress or of The Congress, if not in session, shall within twenty-four
the President, it may look into the question of whether such hours following such proclamation or suspension, convene
exercise has been made in grave abuse of discretion.30 A in accordance with its rules without need of a call.
showing that plenary power is granted either department of
government, may not be an obstacle to judicial inquiry, for The Supreme Court may review, in an appropriate
the improvident exercise or abuse thereof may give rise to proceeding filed by any citizen, the sufficiency of the factual
justiciable controversy.31 basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof, and
66 | Executive
must promulgate its decision thereon within thirty days MR. REGALADO. That does not require any concurrence by
from its filing. the legislature nor is it subject to judicial review. 34
A state of martial law does not suspend the operation of the The reason for the difference in the treatment of the
Constitution, nor supplant the functioning of the civil courts aforementioned powers highlights the intent to grant the
or legislative assemblies, nor authorize the conferment of President the widest leeway and broadest discretion in
jurisdiction on military courts and agencies over civilians using the power to call out because it is considered as the
where civil courts are able to function, nor automatically lesser and more benign power compared to the power to
suspend the privilege of the writ. suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and
The suspension of the privilege of the writ shall apply only
individual freedoms, and thus necessitating safeguards by
to persons judicially charged for rebellion or offenses
Congress and review by this Court.
inherent in or directly connected with invasion.
The deployment of the Marines does not violate the civilian 3. Relief and rescue operations during calamities
supremacy clause nor does it infringe the civilian character and disasters;44
of the police force.
4. Amateur sports promotion and development; 45
Prescinding from its argument that no emergency situation
exists to justify the calling of the Marines, the IBP asserts 5. Development of the culture and the arts;46
that by the deployment of the Marines, the civilian task of
law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution. 6. Conservation of natural resources;47
We disagree. The deployment of the Marines does not 7. Implementation of the agrarian reform
constitute a breach of the civilian supremacy clause. The program;48
calling of the Marines in this case constitutes permissible
use of military assets for civilian law enforcement. The 8. Enforcement of customs laws;49
participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of 9. Composite civilian-military law enforcement
the LOI itself, which sufficiently provides the metes and activities;50
bounds of the Marines’ authority. It is noteworthy that the
local police forces are the ones in charge of the visibility 10. Conduct of licensure examinations;51
patrols at all times, the real authority belonging to the PNP.
In fact, the Metro Manila Police Chief is the overall leader of
11. Conduct of nationwide tests for elementary and
the PNP-Philippine Marines joint visibility patrols. 37 Under
high school students;52
the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures.38 It is their
responsibility to direct and manage the deployment of the 12. Anti-drug enforcement activities;53
Marines.39 It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to 13. Sanitary inspections;54
these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over
civilian authority. Moreover, the deployment of the Marines 14. Conduct of census work;55
to assist the PNP does not unmake the civilian character of
the police force. Neither does it amount to an "insidious 15. Administration of the Civil Aeronautics Board;56
incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.41
16. Assistance in installation of weather forecasting
devices;57
In this regard, it is not correct to say that General Angelo
Reyes, Chief of Staff of the AFP, by his alleged involvement
in civilian law enforcement, has been virtually appointed to 17. Peace and order policy formulation in local
a civilian post in derogation of the aforecited provision. The government units.58
real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and This unquestionably constitutes a gloss on executive power
not with the military. Such being the case, it does not resulting from a systematic, unbroken, executive practice,
matter whether the AFP Chief actually participates in the long pursued to the knowledge of Congress and, yet, never
Task Force Tulungan since he does not exercise any before questioned.59 What we have here is mutual support
authority or control over the same. Since none of the and cooperation between the military and civilian
Marines was incorporated or enlisted as members of the authorities, not derogation of civilian supremacy.
PNP, there can be no appointment to civilian position to
speak of. Hence, the deployment of the Marines in the joint
In the United States, where a long tradition of suspicion and
visibility patrols does not destroy the civilian character of
hostility towards the use of military force for domestic
the PNP.
purposes has persisted,60 and whose Constitution, unlike
ours, does not expressly provide for the power to call, the
Considering the above circumstances, the Marines render use of military personnel by civilian law enforcement
nothing more than assistance required in conducting the officers is allowed under circumstances similar to those
patrols. As such, there can be no "insidious incursion" of the surrounding the present deployment of the Philippine
military in civilian affairs nor can there be a violation of the Marines. Under the Posse Comitatus Act61 of the US, the use
civilian supremacy clause in the Constitution. of the military in civilian law enforcement is generally
prohibited, except in certain allowable circumstances. A
It is worth mentioning that military assistance to civilian provision of the Act states:
authorities in various forms persists in Philippine
jurisdiction. The Philippine experience reveals that it is not § 1385. Use of Army and Air Force as posse comitatus
averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil"
68 | Executive
Whoever, except in cases and under circumstances of the deployment of the Marines. It was precisely to
expressly authorized by the Constitution or Act of Congress, safeguard peace, tranquility and the civil liberties of the
willfully uses any part of the Army or the Air Force as posse people that the joint visibility patrol was conceived.
comitatus or otherwise to execute the laws shall be fined Freedom and democracy will be in full bloom only when
not more than $10,000 or imprisoned not more than two people feel secure in their homes and in the streets, not
years, or both.62 when the shadows of violence and anarchy constantly lurk
in their midst.
To determine whether there is a violation of the Posse
Comitatus Act in the use of military personnel, the US WHEREFORE, premises considered, the petition is hereby
courts63 apply the following standards, to wit: DISMISSED.
Were Army or Air Force personnel used by the civilian law SO ORDERED.
enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the
exercise of military power which was regulatory,
proscriptive, or compulsory64 George Washington Law
Review, pp. 404-433 (1986), which discusses the four G.R. No. 135457 September 29, 2000
divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
vs.
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law
JOSE PATRIARCA, JR., alias "KA DJANGO," CARLOS
Journal, pp. 130-152, 1973. 64 in nature, either presently
NARRA, alias "KA JESSIE" and TEN (10) JOHN
or prospectively?
DOES, accused-appellant.
xxx
DECISION
3. The designation of tasks in Annex A65 does not constitute "That on or about the 30th day of June, 1987 at about
the exercise of regulatory, proscriptive, or compulsory 10:00 o'clock in the evening in the Municipality of Donsol,
military power. First, the soldiers do not control or direct Province of Sorsogon, Philippines and within the jurisdiction
the operation. This is evident from Nos. 6,66 8(k)67 and of this Honorable Court, the above-named accused
9(a)68 of Annex A. These soldiers, second, also have no conspiring, confederating and mutually helping one another,
power to prohibit or condemn. In No. 9(d)69 of Annex A, all armed with guns, forcibly took away ALFREDO AREVALO
arrested persons are brought to the nearest police stations from his residence and brought him to Sitio Abre, Mabini,
for proper disposition. And last, these soldiers apply no Donsol, Sorsogon, and did then and there willfully,
coercive force. The materials or equipment issued to them, unlawfully and feloniously with intent to kill, with treachery
as shown in No. 8(c)70 of Annex A, are all low impact and and evident premeditation, attack, assault and shoot
defensive in character. The conclusion is that there being no ALFREDO AREVALO thereby inflicting upon him mortal
exercise of regulatory, proscriptive or compulsory military wounds, which directly caused his death to the damage and
power, the deployment of a handful of Philippine Marines prejudice of his legal heirs.
constitutes no impermissible use of military power for
civilian law enforcement.71 "CONTRARY TO LAW."
It appears that the present petition is anchored on fear that Accused-appellant Jose Patriarca, Jr. was also charged with
once the armed forces are deployed, the military will gain Murder for the killing of one Rudy de Borja and a certain
ascendancy, and thus place in peril our cherished liberties. Elmer Cadag under Informations docketed as Criminal
Such apprehensions, however, are unfounded. The power to Cases Nos. 2665 and 2672, respectively.
call the armed forces is just that - calling out the armed
forces. Unless, petitioner IBP can show, which it has not,
that in the deployment of the Marines, the President has Upon arraignment on November 25, 1993, accused-
violated the fundamental law, exceeded his authority or appellant, assisted by his counsel de parte, pleaded not
jeopardized the civil liberties of the people, this Court is not guilty to the crimes charged. Joint trial of the three cases
inclined to overrule the President’s determination of the was conducted considering the substantial identity of the
factual basis for the calling of the Marines to prevent or facts and circumstances of the case.
suppress lawless violence.
Prosecution witness Nonito Malto testified that on June 30,
One last point. Since the institution of the joint visibility 1987, the accused, with ten (10) armed companions,
patrol in January, 2000, not a single citizen has complained requested permission to rest in his house, which was
that his political or civil rights have been violated as a result granted. They had with them a person who was hogtied.
69 | Executive
Accused Patriarca asked that the lights in Malto's house be "With cost de-oficio.
extinguished and Malto complied.
"SO ORDERED."1
Around 2:00 o'clock in the early morning of July 1, 1987,
Malto was awakened by a gunshot. When he looked out, he
Hence, this appeal where accused-appellant assigns the
saw Patriarca holding a gun and ordering the person who
following lone error allegedly committed by the trial court:
was hogtied to lie down. After several minutes, Malto heard
two gunshots. He then heard the accused direct his
companions to carry away the dead man. THE TRIAL COURT ERRED IN FINDING ACCUSED-
APPELLANT GUILTY OF THE CRIME OF MURDER, AN
OFFENSE COMMITTED IN PURSUANCE OR IN FURTHERANCE
Nonito Malto, later on, learned that the dead man was
OF REBELLION.
Alfredo Arevalo when Patriarca went back to his place,
together with the military, on March 29, 1990.
Accused-appellant applied for amnesty under Proclamation
No. 724 amending Proclamation No. 347, dated March 25,
The skeletal remains of Alfredo Arevalo were recovered in
1994, entitled "Granting Amnesty to Rebels, Insurgents,
the property of a Rubuang Tolosa and were identified by
and All Other Persons Who Have or May Have Committed
Elisa Arevalo, the mother of the victim.
Crimes Against Public Order, Other Crimes Committed in
Furtherance of Political Ends, and Violations of the Article of
The second witness for the prosecution was Elisa Arevalo. War, and Creating a National Amnesty Commission." His
She knew Patriarca, alias "Ka Django", as he told her on application was favorably granted by the National Amnesty
March 10, 1987 not to let her son join the military. She, Board. Attached to appellant's brief is the Notice of
however, replied that they were only seeking employment. Resolution of the National Amnesty Commission (NAC)
Her son Alfredo was her companion in attending to their dated November 17, 1999 which states:
farm and he was a member of the Civilian Home Defense
Force (CHDF) in their locality.
"Quoted below is a resolution of the National Amnesty
Commission dated 22 October 1998.2
After she was informed by her tenant Alegria Moratelio
Alcantara that her son was abducted by the New People's
'RESOLUTION NO. D-99-8683 refers to Application No.
Army (NPA) led by Patriarca, she reported the matter to the
02125 of MR. JOSE NARRA PATRIARCA filed with the Local
military and looked for him. She was informed by the
Amnesty Board of Legazpi City on 18 February 1997.
residents of the place where the NPA passed, that they saw
her son hogtied, that her son even asked for drinking
water, and complained that he was being maltreated by the 'Applicant admitted joining the NPA in 1977. He served
NPA. After three days of searching, a certain Walter under the Sandatahang Yunit Pampropaganda and
Ricafort, an NPA member and a relative of hers, notified her participated in the following armed activities:
that her son Alfredo was killed by Jose Patriarca, Jr.
'a) Encounter with the Philippine Army forces at
In the municipal building, Nonito Malto likewise informed Barangay Hirawon, Donsol, Sorsogon on 14
her of her son's death in the hands of Ka Django. February 1986;
Consequently, a Death Certificate was issued by the Local
Civil Registrar. 'b) Encounter with elements of the Philippine
Constabulary at Barangay Godon, Donsol,
When the skeletal remains of a man were recovered, she Sorsogon on 15 February 1986;
was able to identify them as belonging to her son by reason
of the briefs found in the burial site. Her son, Alfredo 'c) Encounter with the Philippine Army forces at
Arevalo, used to print his name on the waistband of his Barangay Banwang, Gurang, Donsol, Sorsogon in
briefs so that it would not get lost. 1987;
The defense presented accused Jose Patriarca, Jr. and 'd) Liquidation of ELMER CADAG an alleged military
Francisco Derla who admitted that accused is a member of informer at Barangay Boroan, Donsol, Sorsogon,
the NPA operating in Donsol, Sorsogon, but denied ever on 21 March 1987, in which a case of Murder in
abducting the victims in the three criminal cases filed Criminal Case No. 2672 was filed against him
against him. before the Regional Trial Court, Branch 52,
Sorsogon, Sorsogon;
On January 20, 1998, a decision was rendered convicting
the accused and imposing the following penalty: 'e) Liquidation of a certain RUDY DEBORJA, a thief
and nuisance of the community, at Donsol,
"WHEREFORE, premises considered, the Court finds accused Sorsogon, on 09 March 1984, in which a case of
Jose Patriarca, Jr. alias Ka Django, alias Carlos Narra guilty Murder in Criminal Case No. 2665 was filed against
beyond reasonable doubt of the crime of Murder for the him before the Regional Trial Court, Branch 52,
death of Alfredo Arevalo and hereby sentences him to suffer Sorsogon, Sorsogon;
an imprisonment of reclusion perpetua with all the
accessory provided by law and to pay the amount of 'f) Liquidation of a certain ALEJANDRINO
P50,000.00 as civil indemnity to the heirs of the victim MILITANTE for his misconducts at San Antonio,
Alfredo Arevalo, without subsidiary imprisonment in case of Donsol, Sorsogon, on 12 February 1986, in which a
insolvency and as regards Crim. Case No. 2665 and Crim. case of Murder in Criminal Case No. 2664 was filed
Case No. 2672, for failure of the prosecution to prove the against him before the Regional Trial Court, Branch
guilt of the accused beyond reasonable doubt, said Jose 52, Sorsogon, Sorsogon;
Patriarca alias Carlos Narra, Ka Django, is hereby acquitted.
70 | Executive
which a case of Murder in Criminal Case No. 2773 "Thank you for your continued support for the Peace
was filed against him before the Regional Trial Process."4
Court, Branch 52, Sorsogon, Sorsogon;
The Office of the Solicitor General, in its letter dated June
'h) Liquidation of one DOMINGO DONQUILLO, a 23, 2000 to the National Amnesty Commission, requested
barangay captain, at Barangay Tinanogan, Donsol, information as to whether or not a motion for
Sorsogon, on 20 September 1986 in which a (sic) reconsideration was filed by any party, and the action, if
Criminal Case No. 2663 was filed against him. there was any, taken by the NAC.5
'After a careful verification and evaluation on (sic) the In his reply dated June 28, 2000, NAC Chairman Tadiar
claims of the applicant, the Local Amnesty Board concluded wrote, among other things, that there has been no motion
that his activities were done in the pursuit of his political for reconsideration filed by any party.6
beliefs. It thus recommended on 20 May 1998 the grant of
his application for amnesty.
Accused-appellant Jose N. Patriarca, Jr. was granted
amnesty under Proclamation No. 724 dated May 17, 1996.
'The Commission, in its deliberation on the application on It amended Proclamation No. 347 dated March 25, 1994.
22 October 1999, resolved to approve the recommendation
of the Local Amnesty Board.
Section 1 of Proclamation No. 724 reads thus:
"4. Murder in Criminal Case No. 2773 filed before Paragraph 3 of Article 89 of the Revised Penal Code
the Regional Trial Court, Branch 52, Sorsogon, provides that criminal liability is totally extinguished by
Sorsogon. amnesty, which completely extinguishes the penalty and all
its effects.
"5. Murder in Criminal Case No. 2663 filed before
the Regional Trial Court, Branch 52, Sorsogon, In the case of People vs. Casido,9 the difference between
Sorsogon. pardon and amnesty is given:
"He is currently detained at the Provincial Jail, Sorsogon, "Pardon is granted by the Chief Executive and as such it is a
Sorsogon. private act which must be pleaded and proved by the
person pardoned, because the courts take no notice
"The purpose of this transmittal is to provide you, as the thereof; while amnesty by Proclamation of the Chief
chief prosecutor of the province, the opportunity to take Executive with the concurrence of Congress, is a public act
whatever action you may deem appropriate from receipt of of which the courts should take judicial notice. Pardon is
this note. This grant of amnesty shall become final after the granted to one after conviction; while amnesty is granted to
lapse of fifteen (15) calendar days from receipt of this classes of persons or communities who may be guilty of
Notice, unless a Motion for Reconsideration is filed with the political offenses, generally before or after the institution of
Commission by any party within said period. the criminal prosecution and sometimes after
71 | Executive
conviction. Pardon looks forward and relieves the offender On April 21, 2007, the Department of Transportation and
from the consequences of an offense of which he has been Communication (DOTC) entered into a contract with Zhong
convicted, that is, it abolishes or forgives the punishment, Xing Telecommunications Equipment (ZTE) for the supply of
and for that reason it does 'not work the restoration of the equipment and services for the National Broadband Network
rights to hold public office, or the right of suffrage, unless (NBN) Project in the amount of U.S. $ 329,481,290
such rights be expressly restored by the terms of the (approximately P16 Billion Pesos). The Project was to be
pardon,' and it 'in no case exempts the culprit from the financed by the People's Republic of China.
payment of the civil indemnity imposed upon him by the
sentence' (Article 36, Revised Penal Code). While amnesty
In connection with this NBN Project, various Resolutions
looks backward and abolishes and puts into oblivion the
were introduced in the Senate, as follows:
offense itself, it so overlooks and obliterates the offense
with which he is charged that the person released by
amnesty stands before the law precisely as though he had (1) P.S. Res. No. 127, introduced by Senator
committed no offense." Aquilino Q. Pimentel, Jr., entitled RESOLUTION
DIRECTING THE BLUE RIBBON COMMITTEE AND
THE COMMITTEE ON TRADE AND INDUSTRY TO
This Court takes judicial notice of the grant of amnesty
INVESTIGATE, IN AID OF LEGISLATION, THE
upon accused-appellant Jose N. Patriarca, Jr. Once granted,
CIRCUMSTANCES LEADING TO THE APPROVAL OF
it is binding and effective. It serves to put an end to the
THE BROADBAND CONTRACT WITH ZTE AND THE
appeal.10
ROLE PLAYED BY THE OFFICIALS CONCERNED IN
GETTING IT CONSUMMATED AND TO MAKE
WHEREFORE, IN VIEW OF THE FOREGOING, the decision RECOMMENDATIONS TO HALE TO THE COURTS OF
of the Regional Trial Court at Sorsogon, Sorsogon, Branch LAW THE PERSONS RESPONSIBLE FOR ANY
52 in Criminal Case No. 2773 is REVERSED and SET ASIDE. ANOMALY IN CONNECTION THEREWITH AND TO
Accused-appellant Jose N. Patriarca, Jr. is hereby PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW
ACQUITTED of the crime of murder. AND OTHER PERTINENT LEGISLATIONS.
Pursuant to Resolution No. D-99-8683,11 Criminal Case Nos. (2) P.S. Res. No. 144, introduced by Senator Mar
2663 and 2664, which are both filed in the Regional Trial Roxas, entitled Á RESOLUTION URGING
Court, Branch 53, Sorsogon, Sorsogon,12 are ordered PRESIDENT GLORIA MACAPAGAL ARROYO TO
DISMISSED. The release of Jose N. Patriarca who is DIRECT THE CANCELLATION OF THE ZTE
presently detained at the Provincial Jail of Sorsogon is CONTRACT
likewise ORDERED unless he is being detained for some
other legal cause.
(3) P.S. Res. No. 129, introduced by Senator
Panfilo M. Lacson, entitled RESOLUTION
The Director of Prisons is ordered to report within ten (10) DIRECTING THE COMMITTEE ON NATIONAL
days his compliance with this decision. DEFENSE AND SECURITY TO CONDUCT AN
INQUIRY IN AID OF LEGISLATION INTO THE
NATIONAL SECURITY IMPLICATIONS OF
SO ORDERED.
AWARDING THE NATIONAL BROADBAND
NETWORK CONTRACT TO THE CHINESE FIRM
ZHONG XING TELECOMMUNICATIONS EQUIPMENT
COMPANY LIMITED (ZTE CORPORATION) WITH
THE END IN VIEW OF PROVIDING REMEDIAL
EN BANC
LEGISLATION THAT WILL PROTECT OUR NATIONAL
SOVEREIGNTY, SECURITY AND TERRITORIAL
G.R. No. 180643 March 25, 2008 INTEGRITY.
At bar is a petition for certiorari under Rule 65 of the Rules 1. Senate Bill No. 1793, introduced by Senator
of Court assailing the show cause Letter1 dated November Mar Roxas, entitled AN ACT SUBJECTING
22, 2007 and contempt Order2 dated January 30, 2008 TREATIES, INTERNATIONAL OR EXECUTIVE
concurrently issued by respondent AGREEMENTS INVOLVING FUNDING IN THE
PROCUREMENT OF INFRASTRUCTURE PROJECTS,
GOODS, AND CONSULTING SERVICES TO BE
Senate Committees on Accountability of Public Officers and INCLUDED IN THE SCOPE AND APPLICATION OF
Investigations,3 Trade and Commerce,4 and National PHILIPPINE PROCUREMENT LAWS, AMENDING FOR
Defense and Security5 against petitioner Romulo L. Neri, THE PURPOSE REPUBLIC ACT NO. 9184,
former Director General of the National Economic and OTHERWISE KNOWN AS THE GOVERNMENT
Development Authority (NEDA). PROCUREMENT REFORM ACT, AND FOR OTHER
PURPOSES;
The facts, as culled from the pleadings, are as follows:
2. Senate Bill No. 1794, introduced by Senator
Mar Roxas, entitled AN ACT IMPOSING
72 | Executive
SAFEGUARDS IN CONTRACTING LOANS a) Whether the President followed up
CLASSIFIED AS OFFICIAL DEVELOPMENT the (NBN) project?
ASSISTANCE, AMENDING FOR THE PURPOSE
REPUBLIC ACT NO. 8182, AS AMENDED BY
b) Were you dictated to prioritize the
REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS
ZTE?
THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF
1996, AND FOR OTHER PURPOSES; and
c) Whether the President said to go
ahead and approve the project after
3. Senate Bill No. 1317, introduced by Senator
being told about the alleged bribe?
Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL
AGREEMENTS AND EXECUTIVE AGREEMENTS. Following the ruling in Senate v. Ermita, the
foregoing questions fall under conversations and
correspondence between the President and public
Respondent Committees initiated the investigation by
officials which are considered executive privilege
sending invitations to certain personalities and cabinet
(Almonte v. Vasquez, G.R. 95637, 23 May
officials involved in the NBN Project. Petitioner was among
1995; Chavez v. PEA, G.R. 133250, July 9, 2002).
those invited. He was summoned to appear and testify on
Maintaining the confidentiality of conversations of
September 18, 20, and 26 and October 25, 2007. However,
the President is necessary in the exercise of her
he attended only the September 26 hearing, claiming he
executive and policy decision making process. The
was "out of town" during the other dates.
expectation of a President to the confidentiality of
her conversations and correspondences, like the
In the September 18, 2007 hearing, businessman Jose de value which we accord deference for the privacy of
Venecia III testified that several high executive officials and all citizens, is the necessity for protection of the
power brokers were using their influence to push the public interest in candid, objective, and even blunt
approval of the NBN Project by the NEDA. It appeared that or harsh opinions in Presidential decision-making.
the Project was initially approved as a Build-Operate- Disclosure of conversations of the President will
Transfer (BOT) project but, on March 29, 2007, the NEDA have a chilling effect on the President, and will
acquiesced to convert it into a government-to-government hamper her in the effective discharge of her duties
project, to be financed through a loan from the Chinese and responsibilities, if she is not protected by the
Government. confidentiality of her conversations.
On September 26, 2007, petitioner testified before The context in which executive privilege is being
respondent Committees for eleven (11) hours. He disclosed invoked is that the information sought to be
that then Commission on Elections (COMELEC) Chairman disclosed might impair our diplomatic as well as
Benjamin Abalos offered him P200 Million in exchange for economic relations with the People's Republic of
his approval of the NBN Project. He further narrated that he China. Given the confidential nature in which these
informed President Arroyo about the bribery attempt and information were conveyed to the President, he
that she instructed him not to accept the bribe. However, cannot provide the Committee any further details
when probed further on what they discussed about the NBN of these conversations, without disclosing the very
Project, petitioner refused to answer, invoking "executive thing the privilege is designed to protect.
privilege". In particular, he refused to answer the questions
on (a) whether or not President Arroyo followed up the NBN
In light of the above considerations, this Office is
Project,6 (b) whether or not she directed him to prioritize
constrained to invoke the settled doctrine of
it,7 and (c) whether or not she directed him to approve.8
executive privilege as refined in Senate v. Ermita,
and has advised Secretary Neri accordingly.
Unrelenting, respondent Committees issued a Subpoena Ad
Testificandum to petitioner, requiring him to appear and
Considering that Sec. Neri has been lengthily
testify on November 20, 2007.
interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all
However, in the Letter dated November 15, 2007, Executive questions propounded to him except the foregoing
Secretary Eduardo R. Ermita requested respondent questions involving executive privilege, we
Committees to dispense with petitioner's testimony on the therefore request that his testimony on 20
ground of executive privilege. The pertinent portion of the November 2007 on the ZTE / NBN project be
letter reads: dispensed with.
With reference to the subpoena ad On November 20, 2007, petitioner did not appear before
testificandum issued to Secretary Romulo Neri to respondent Committees. Thus, on November 22, 2007, the
appear and testify again on 20 November 2007 latter issued the show cause Letter requiring him to explain
before the Joint Committees you chair, it will be why he should not be cited in contempt. The Letter reads:
recalled that Sec. Neri had already testified and
exhaustively discussed the ZTE / NBN project,
Since you have failed to appear in the said
including his conversation with the President
hearing, the Committees on Accountability of
thereon last 26 September 2007.
Public Officers and Investigations (Blue Ribbon),
Trade and Commerce and National Defense and
Asked to elaborate further on his conversation with Security require you to show cause why you should
the President, Sec. Neri asked for time to consult not be cited in contempt under Section 6, Article 6
with his superiors in line with the ruling of the of the Rules of the Committee on Accountability of
Supreme Court in Senate v. Ermita, 488 SCRA 1 Public Officers and Investigations (Blue Ribbon).
(2006).
The Senate expects your explanation on or before
Specifically, Sec. Neri sought guidance on the 2 December 2007.
possible invocation of executive privilege on the
following questions, to wit:
73 | Executive
On November 29, 2007, petitioner replied to respondent The Sergeant-At-Arms is hereby directed to carry
Committees, manifesting that it was not his intention to out and implement this Order and make a return
ignore the Senate hearing and that he thought the only hereof within twenty four (24) hours from its
remaining questions were those he claimed to be covered enforcement.
by executive privilege, thus:
SO ORDERED.
It was not my intention to snub the last Senate
hearing. In fact, I have cooperated with the task of
On the same date, petitioner moved for the reconsideration
the Senate in its inquiry in aid of legislation as
of the above Order.9 He insisted that he has not shown "any
shown by my almost 11 hours stay during the
contemptible conduct worthy of contempt and arrest." He
hearing on 26 September 2007. During said
emphasized his willingness to testify on new matters,
hearing, I answered all the questions that were
however, respondent Committees did not respond to his
asked of me, save for those which I thought was
request for advance notice of questions. He also mentioned
covered by executive privilege, and which was
the petition for certiorari he filed on December 7, 2007.
confirmed by the Executive Secretary in his Letter
According to him, this should restrain respondent
15 November 2007. In good faith, after that
Committees from enforcing the show cause Letter "through
exhaustive testimony, I thought that what
the issuance of declaration of contempt" and arrest.
remained were only the three questions, where the
Executive Secretary claimed executive privilege.
Hence, his request that my presence be dispensed In view of respondent Committees' issuance of the
with. contempt Order, petitioner filed on February 1, 2008
a Supplemental Petition for Certiorari (With Urgent
Application for TRO/Preliminary Injunction), seeking to
Be that as it may, should there be new matters
restrain the implementation of the said contempt Order.
that were not yet taken up during the 26
September 2007 hearing, may I be furnished in
advance as to what else I need to clarify, so that On February 5, 2008, the Court issued a Status Quo Ante
as a resource person, I may adequately prepare Order (a) enjoining respondent Committees from
myself. implementing their contempt Order, (b) requiring the
parties to observe the status quo prevailing prior to the
issuance of the assailed order, and (c) requiring respondent
In addition, petitioner submitted a letter prepared by his
Committees to file their comment.
counsel, Atty. Antonio R. Bautista, stating, among others
that: (1) his (petitioner) non-appearance was upon the
order of the President; and (2) his conversation with Petitioner contends that respondent Committees' show
President Arroyo dealt with delicate and sensitive national cause Letter and contempt Order were issued with grave
security and diplomatic matters relating to the impact of the abuse of discretion amounting to lack or excess of
bribery scandal involving high government officials and the jurisdiction. He stresses that his conversations with
possible loss of confidence of foreign investors and lenders President Arroyo are "candid discussions meant to
in the Philippines. The letter ended with a reiteration of explore options in making policy decisions." According
petitioner's request that he "be furnished in advance" as to to him, these discussions "dwelt on the impact of the
what else he needs to clarify so that he may adequately bribery scandal involving high government officials
prepare for the hearing. on the country's diplomatic relations and economic
and military affairs and the possible loss of
confidence of foreign investors and lenders in the
In the interim, on December 7, 2007, petitioner filed with
Philippines." He also emphasizes that his claim of
this Court the present petition for certiorari assailing the
executive privilege is upon the order of the President and
show cause Letter dated November 22, 2007.
within the parameters laid down in Senate v.
Ermita10 and United States v. Reynolds.11 Lastly, he argues
Respondent Committees found petitioner's explanations that he is precluded from disclosing communications made
unsatisfactory. Without responding to his request for
advance notice of the matters that he should still clarify,
to him in official confidence under Section 712 of Republic
they issued the Order dated January 30, 2008, citing him
Act No. 6713, otherwise known as Code of Conduct and
in contempt of respondent Committees and ordering his
Ethical Standards for Public Officials and Employees, and
arrest and detention at the Office of the Senate Sergeant-
Section 2413 (e) of Rule 130 of the Rules of Court.
At-Arms until such time that he would appear and give his
testimony. The said Order states:
Respondent Committees assert the contrary. They argue
that (1) petitioner's testimony is material and pertinent in
ORDER
the investigation conducted in aid of legislation; (2) there is
no valid justification for petitioner to claim executive
For failure to appear and testify in the Committee's privilege; (3) there is no abuse of their authority to order
hearing on Tuesday, September 18, 2007; petitioner's arrest; and (4) petitioner has not come to court
Thursday, September 20, 2007; Thursday, October with clean hands.
25, 2007; and Tuesday, November 20, 2007,
despite personal notice and Subpoenas Ad
In the oral argument held last March 4, 2008, the following
Testificandum sent to and received by him, which
issues were ventilated:
thereby delays, impedes and obstructs, as it has in
fact delayed, impeded and obstructed the inquiry
into the subject reported irregularities, AND for 1. What communications between the President
failure to explain satisfactorily why he should not and petitioner Neri are covered by the principle of
be cited for contempt (Neri letter of 29 November 'executive privilege'?
2007), herein attached) ROMULO L. NERI is
hereby cited in contempt of this (sic) 1.a Did Executive Secretary Ermita
Committees and ordered arrested and correctly invoke the principle of executive
detained in the Office of the Senate Sergeant- privilege, by order of the President, to
At-Arms until such time that he will appear cover (i) conversations of the President in
and give his testimony. the exercise of her executive and policy
74 | Executive
decision-making and (ii) information, On March 17, 2008, the Office of the Solicitor General
which might impair our diplomatic as well (OSG) filed a Motion for Leave to Intervene and to Admit
as economic relations with the People's Attached Memorandum, founded on the following
Republic of China? arguments:
1.c Will the claim of executive privilege in The Court granted the OSG's motion the next day, March
this case violate the following provisions 18, 2008.
of the Constitution:
As the foregoing facts unfold, related events transpired.
Sec. 28, Art. II (Full public
disclosure of all transactions On March 6, 2008, President Arroyo issued Memorandum
involving public interest) Circular No. 151, revoking Executive Order No. 464 and
Memorandum Circular No. 108. She advised executive
Sec. 7, Art. III (The right of the officials and employees to follow and abide by the
people to information on matters Constitution, existing laws and jurisprudence, including,
of public concern) among others, the case of Senate v. Ermita17 when they are
invited to legislative inquiries in aid of legislation.
Sec. 1, Art. XI (Public office is a
public trust) At the core of this controversy are the two (2) crucial
queries, to wit:
Sec. 17, Art. VII (The President
shall ensure that the laws be First, are the communications elicited by the
faithfully executed) subject three (3) questions covered by executive
privilege?
and the due process clause and the principle of
separation of powers? And second, did respondent Committees commit
grave abuse of discretion in issuing the
contempt Order?
2. What is the proper procedure to be followed in
invoking executive privilege?
We grant the petition.
3. Did the Senate Committees gravely abuse their
discretion in ordering the arrest of petitioner for At the outset, a glimpse at the landmark case of Senate v.
non-compliance with the subpoena? Ermita18 becomes imperative. Senate draws in bold strokes
the distinction between
the legislative and oversight powers of the Congress, as
After the oral argument, the parties were directed to
embodied under Sections 21 and 22, respectively, of Article
manifest to the Court within twenty-four (24) hours if they
VI of the Constitution, to wit:
are amenable to the Court's proposal of allowing petitioner
to immediately resume his testimony before the Senate
Committees to answer the other questions of the Senators SECTION 21. The Senate or the House of
without prejudice to the decision on the merits of this Representatives or any of its respective
pending petition. It was understood that petitioner may committees may conduct inquiries in aid of
invoke executive privilege in the course of the Senate legislation in accordance with its duly published
Committees proceedings, and if the respondent Committees rules of procedure. The rights of persons appearing
disagree thereto, the unanswered questions will be the in or affected by such inquiries shall be respected.
subject of a supplemental pleading to be resolved along
with the three (3) questions subject of the present SECTION 22. The heads of department may upon
petition.14 At the same time, respondent Committees were their own initiative, with the consent of the
directed to submit several pertinent documents.15 President, or upon the request of either House, or
as the rules of each House shall provide, appear
The Senate did not agree with the proposal for the reasons before and be heard by such House on any matter
stated in the Manifestation dated March 5, 2008. As to the pertaining to their departments. Written questions
required documents, the Senate and respondent shall be submitted to the President of the Senate
Committees manifested that they would not be able to or the Speaker of the House of Representatives at
submit the latter's "Minutes of all meetings" and the least three days before their scheduled
"Minute Book" because it has never been the "historical and appearance. Interpellations shall not be limited to
traditional legislative practice to keep them." 16 They instead written questions, but may cover matters related
submitted the Transcript of Stenographic Notes of thereto. When the security of the state or the
respondent Committees' joint public hearings. public interest so requires and the President so
75 | Executive
states in writing, the appearance shall be We start with the basic premises where the parties have
conducted in executive session. conceded.
Senate cautions that while the above provisions are closely The power of Congress to conduct inquiries in aid of
related and complementary to each other, they should not legislation is broad. This is based on the proposition that a
be considered as pertaining to the same power of Congress. legislative body cannot legislate wisely or effectively in the
Section 21 relates to the power to conduct inquiries in aid absence of information respecting the conditions which the
of legislation. Its aim is to elicit information that may be legislation is intended to affect or change. 21 Inevitably,
used for legislation. On the other hand, Section 22 pertains adjunct thereto is the compulsory process to enforce it. But,
to the power to conduct a question hour, the objective of the power, broad as it is, has limitations. To be valid, it is
which is to obtain information in pursuit of Congress' imperative that it is done in accordance with the Senate or
oversight function.19 Simply stated, while both powers allow House duly published rules of procedure and that the rights
Congress or any of its committees to conduct inquiry, of the persons appearing in or affected by such inquiries be
their objectives are different. respected.
This distinction gives birth to another distinction with regard The power extends even to executive officials and the only
to the use of compulsory process. Unlike in Section 21, way for them to be exempted is through a valid claim of
Congress cannot compel the appearance of executive executive privilege.22 This directs us to the consideration of
officials under Section 22. The Court's pronouncement the question -- is there a recognized claim of executive
in Senate v. Ermita20 is clear: privilege despite the revocation of E.O. 464?
76 | Executive
In In Re: Sealed Case,30 the U.S. Court of Appeals delved secrecy, and even when brought to a conclusion, a
deeper. It ruled that there are two (2) kinds of executive full disclosure of all the measures, demands, or
privilege; one is the presidential communications eventual concessions which may have been
privilege and, the other is the deliberative process proposed or contemplated would be extremely
privilege. The former pertains to "communications, impolitic, for this might have a pernicious influence
documents or other materials that reflect presidential on future negotiations or produce immediate
decision-making and deliberations and that the inconveniences, perhaps danger and mischief, in
President believes should remain confidential." The relation to other powers. The necessity of such
latter includes 'advisory opinions, recommendations caution and secrecy was one cogent reason for
and deliberations comprising part of a process by vesting the power of making treaties in the
which governmental decisions and policies are President, with the advice and consent of the
formulated." Senate, the principle on which the body was
formed confining it to a small number of members.
To admit, then, a right in the House of
Accordingly, they are characterized by marked
Representatives to demand and to have as a
distinctions. Presidential communications
matter of course all the papers respecting a
privilege applies to decision-making of the
negotiation with a foreign power would be to
President while, the deliberative process privilege,
establish a dangerous precedent.
to decision-making of executive officials. The first is
rooted in the constitutional principle of separation of power
and the President's unique constitutional role; Majority of the above jurisprudence have found their way in
the second on common law privilege. Unlike our jurisdiction. In Chavez v. PCGG38, this Court held that
the deliberative process privilege, the presidential there is a "governmental privilege against public disclosure
communications privilege applies to documents in with respect to state secrets regarding military, diplomatic
their entirety, and covers final and post-decisional and other security matters." In Chavez v. PEA,39 there is
materials as well as pre-deliberative ones 31 As a also a recognition of the confidentiality of Presidential
consequence, congressional or judicial negation of conversations, correspondences, and discussions in closed-
the presidential communications privilege is always door Cabinet meetings. In Senate v. Ermita, the concept
subject to greater scrutiny than denial of the deliberative of presidential communications privilege is fully
process privilege. discussed.
Turning on who are the officials covered by As may be gleaned from the above discussion, the claim of
the presidential communications privilege, In Re: executive privilege is highly recognized in cases where the
Sealed Case confines the privilege only to White House Staff subject of inquiry relates to a power textually committed by
that has "operational proximity" to direct presidential the Constitution to the President, such as the area of
decision-making. Thus, the privilege is meant to encompass military and foreign relations. Under our Constitution, the
only those functions that form the core of presidential President is the repository of the commander-in-
authority, involving what the court characterized as chief,40 appointing,41 pardoning,42 and diplomatic43 powers.
"quintessential and non-delegable Presidential power," such Consistent with the doctrine of separation of powers, the
as commander-in-chief power, appointment and removal information relating to these powers may enjoy greater
power, the power to grant pardons and reprieves, the sole- confidentiality than others.
authority to receive ambassadors and other public officers,
the power to negotiate treaties, etc.32
The above cases, especially, Nixon, In Re Sealed
Case and Judicial Watch, somehow provide the elements
The situation in Judicial Watch, Inc. v. Department of of presidential communications privilege, to wit:
Justice33 tested the In Re: Sealed Case principles. There,
while the presidential decision involved is the exercise of
1) The protected communication must relate to a
the President's pardon power, a non-delegable, core-
"quintessential and non-delegable presidential
presidential function, the Deputy Attorney General and the
power."
Pardon Attorney were deemed to be too remote from the
President and his senior White House advisors to be
protected. The Court conceded that 2) The communication must be authored or
"solicited and received" by a close advisor of the
President or the President himself. The judicial test
functionally those officials were performing a task directly
is that an advisor must be in "operational
related to the President's pardon power, but concluded that
proximity" with the President.
an organizational test was more appropriate for confining
the potentially broad sweep that would result from the In
Re: Sealed Case's functional test. The majority concluded 3) The presidential communications
that, the lesser protections of the deliberative process privilege remains a qualified privilege that may be
privilege would suffice. That privilege was, however, found overcome by a showing of adequate need, such
insufficient to justify the confidentiality of the 4,341 that the information sought "likely contains
withheld documents. important evidence" and by the unavailability of
the information elsewhere by an appropriate
investigating authority.44
But more specific classifications of communications covered
by executive privilege are made in older cases. Courts ruled
early that the Executive has a right to withhold documents In the case at bar, Executive Secretary Ermita premised his
that might reveal military or state secrets,34 identity of claim of executive privilege on the ground that the
government informers in some communications elicited by the three (3) questions "fall
circumstances,,35 and information related to pending under conversation and correspondence between the
investigations.36 An area where the privilege is highly President and public officials" necessary in "her executive
revered is in foreign relations. In United States v. and policy decision-making process" and, that "the
Curtiss-Wright Export Corp.37 the U.S. Court, citing information sought to be disclosed might impair our
President George Washington, pronounced: diplomatic as well as economic relations with the People's
Republic of China." Simply put, the bases are presidential
communications privilege and executive privilege on
The nature of foreign negotiations requires
matters relating to diplomacy or foreign relations.
caution, and their success must often depend on
77 | Executive
Using the above elements, we are convinced that, indeed, Senate v. Ermita stressed that the validity of the claim of
the communications elicited by the three (3) questions are executive privilege depends not only on the ground invoked
covered by the presidential communications but, also, on the procedural setting or the context in
privilege. First, the communications relate to a which the claim is made. Furthermore, in Nixon, the
"quintessential and non-delegable power" of the President, President did not interpose any claim of need to protect
i.e. the power to enter into an executive agreement with military, diplomatic or sensitive national security secrets. In
other countries. This authority of the President to enter the present case, Executive Secretary Ermita categorically
into executive agreements without the concurrence of the claims executive privilege on the grounds of presidential
Legislature has traditionally been recognized in Philippine communications privilege in relation to her executive
jurisprudence.45 Second, the communications are and policy decision-making process and diplomatic secrets.
"received" by a close advisor of the President. Under the
"operational proximity" test, petitioner can be considered a
The respondent Committees should cautiously tread into
close advisor, being a member of President Arroyo's
the investigation of matters which may present a conflict of
cabinet. And third, there is no adequate showing of a
interest that may provide a ground to inhibit the Senators
compelling need that would justify the limitation of the
participating in the inquiry if later on an impeachment
privilege and of the unavailability of the information
proceeding is initiated on the same subject matter of the
elsewhere by an appropriate investigating authority.
present Senate inquiry. Pertinently, in Senate Select
Committee on Presidential Campaign Activities v. Nixon,49 it
The third element deserves a lengthy discussion. was held that since an impeachment proceeding had been
initiated by a House Committee, the Senate Select
Committee's immediate oversight need for five presidential
United States v. Nixon held that a claim of executive
tapes should give way to the House Judiciary Committee
privilege is subject to balancing against other interest.
which has the constitutional authority to inquire into
In other words, confidentiality in executive privilege is not
presidential impeachment. The Court expounded on this
absolutely protected by the Constitution. The U.S. Court
issue in this wise:
held:
79 | Executive
With regard to the existence of "precise and certain Second, respondent Committees did not comply with the
reason," we find the grounds relied upon by Executive requirement laid down in Senate v. Ermita that the
Secretary Ermita specific enough so as not "to leave invitations should contain the "possible needed statute
respondent Committees in the dark on how the requested which prompted the need for the inquiry," along with "the
information could be classified as privileged." The case usual indication of the subject of inquiry and
of Senate v. Ermita only requires that an allegation be the questions relative to and in furtherance thereof."
made "whether the information demanded involves military Compliance with this requirement is imperative, both under
or diplomatic secrets, closed-door Cabinet meetings, etc." Sections 21 and 22 of Article VI of the Constitution. This
The particular ground must only be specified. The must be so to ensure that the rights of both
enumeration is not even intended to be persons appearing in or affected by such inquiry are
comprehensive."58 The following statement of grounds respected as mandated by said Section 21 and by virtue of
satisfies the requirement: the express language of Section 22. Unfortunately, despite
petitioner's repeated demands, respondent Committees did
not send him an advance list of questions.
The context in which executive privilege is being
invoked is that the information sought to be
disclosed might impair our diplomatic as well as Third, a reading of the transcript of respondent
economic relations with the People's Republic of Committees' January 30, 2008 proceeding reveals that only
China. Given the confidential nature in which these a minority of the members of the Senate Blue Ribbon
information were conveyed to the President, he Committee was present during the deliberation. 61 Section
cannot provide the Committee any further details 18 of the Rules of Procedure Governing Inquiries in Aid of
of these conversations, without disclosing the very Legislation provides that:
thing the privilege is designed to protect.
"The Committee, by a vote of majority of all its
At any rate, as held further in Senate v. Ermita, 59 the members, may punish for contempt any witness
Congress must not require the executive to state the before it who disobeys any order of the Committee
reasons for the claim with such particularity as to compel or refuses to be sworn or to testify or to answer
disclosure of the information which the privilege is meant to proper questions by the Committee or any of its
protect. This is a matter of respect to a coordinate and co- members."
equal department.
Clearly, the needed vote is a majority of all the members
II of the Committee. Apparently, members who did not
actually participate in the deliberation were made to sign
the contempt Order. Thus, there is a cloud of doubt as to
Respondent Committees Committed Grave Abuse of
the validity of the contempt Order dated January 30, 2008.
Discretion
We quote the pertinent portion of the transcript, thus:
in Issuing the Contempt Order
In United States v. American Tel. & Tel Co.,64 the court ERNESTO B. FRANCISCO, JR., petitioner,
refrained from deciding the case because of its desire to NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
avoid a resolution that might disturb the balance of power MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
between the two branches and inaccurately reflect their MEMBERS, petitioner-in-intervention,
true needs. Instead, it remanded the record to the District WORLD WAR II VETERANS LEGIONARIES OF THE
Court for further proceedings during which the parties are PHILIPPINES, INC., petitioner-in-intervention,
required to negotiate a settlement. In the subsequent case vs.
of United States v. American Tel. &Tel Co.,65 it was held THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
that "much of this spirit of compromise is reflected in the SPEAKER JOSE G. DE VENECIA, THE SENATE,
generality of language found in the Constitution." It REPRESENTED BY SENATE PRESIDENT FRANKLIN M.
proceeded to state: DRILON, REPRESENTATIVE GILBERTO C. TEODORO,
JR. AND REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
Under this view, the coordinate branches do not
JAIME N. SORIANO, respondent-in-Intervention,
exist in an exclusively adversary relationship to
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
one another when a conflict in authority arises.
intervention.
Rather each branch should take cognizance of an
implicit constitutional mandate to seek optimal
accommodation through a realistic evaluation of x---------------------------------------------------------x
the needs of the conflicting branches in the
particular fact situation.
G.R. No. 160262 November 10, 2003
82 | Executive
OF THE HOUSE OF REPRESENTATIVES, FRANKLIN M. REPRESENTATIVE GILBERTO G. TEODORO, JR.,
DRILON, IN HIS CAPACITY AS PRESIDENT OF THE REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
SENATE OF THE REPUBLIC OF THE PHILIPPINES, THE SENATE OF THE PHILIPPINES, THROUGH ITS
GILBERT TEODORO, JR., FELIX WILLIAM PRESIDENT, SENATE PRESIDENT FRANKLIN M.
FUENTEBELLA, JULIO LEDESMA IV, HENRY LANOT, DRILON, respondents,
KIM BERNARDO-LOKIN, MARCELINO LIBANAN, JAIME N. SORIANO, respondent-in-intervention,
EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SENATOR AQUILINO Q. PIMENTEL, respondent-in-
SHERWIN GATCHALIAN, LUIS BERSAMIN, JR., intervention.
NERISSA SOON-RUIZ, ERNESTO NIEVA, EDGAR
ERICE, ISMAEL MATHAY, SAMUEL DANGWA, ALFREDO
x---------------------------------------------------------x
MARAÑON, JR., CECILIA CARREON-JALOSJOS,
AGAPITO AQUINO, FAUSTO SEACHON, JR., GEORGILU
YUMUL-HERMIDA, JOSE CARLOS LACSON, MANUEL G.R. No. 160310 November 10, 2003
ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL
DE GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO DOCTOR, MELVIN MATIBAG, RAMON MIQUIBAS,
BACULIO, FAUSTINO DY III, AUGUSTO SYJUCO, RODOLFO MAGSINO, EDUARDO MALASAGA, EDUARDO
ROZZANO RUFINO BIAZON, LEOVIGILDO BANAAG, SARMIENTO, EDGARDO NAOE, LEONARDO GARCIA,
ERIC SINGSON, JACINTO PARAS, JOSE SOLIS, EDGARD SMITH, EMETERIO MENDIOLA, MARIO
RENATO MATUBO, HERMINO TEVES, AMADO ESPINO, TOREJA, GUILLERMO CASTASUS, NELSON A. LOYOLA,
JR., EMILIO MACIAS, ARTHUR PINGOY, JR., FRANCIS WILFREDO BELLO, JR., RONNIE TOQUILLO, KATE ANN
NEPOMUCENO, CONRADO ESTRELLA III, ELIAS VITAL, ANGELITA Q. GUZMAN, MONICO PABLES, JR.,
BULUT, JR., JURDIN ROMUALDO, JUAN PABLO JAIME BOAQUINA, LITA A. AQUINO, MILA P. GABITO,
BONDOC, GENEROSO TULAGAN, PERPETUO YLAGAN, JANETTE ARROYO, RIZALDY EMPIG, ERNA LAHUZ,
MICHAEL DUAVIT, JOSEPH DURANO, JESLI LAPUS, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE, JR.,
CARLOS COJUANGCO, GIORGIDI AGGABAO, FRANCIS EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ESCUDERRO, RENE VELARDE, CELSO LOBREGAT, ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
ALIPIO BADELLES, DIDAGEN DILANGALEN, ABRAHAM SENERIS, ANNA CLARISSA LOYOLA, SALVACION
MITRA, JOSEPH SANTIAGO, DARLENE ANTONIO- LOYOLA, RAINIER QUIROLGICO, JOSEPH LEANDRO
CUSTODIO, ALETA SUAREZ, RODOLF PLAZA, JV LOYOLA, ANTONIO LIBREA, FILEMON SIBULO,
BAUTISTA, GREGORIO IPONG, GILBERT REMULLA, MANUEL D. COMIA, JULITO U. SOON, VIRGILIO
ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL ZUBIRI, LUSTRE, AND NOEL ISORENA, MAU RESTRIVERA, MAX
BENASING MACARAMBON, JR., JOSEFINA JOSON, VILLAESTER, AND EDILBERTO GALLOR, petitioners,
MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO WORLD WAR II VETERANS LEGIONARIES OF THE
ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA, PHILIPPINES, INC., petitioner-in-intervention,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO vs.
ALBANO, JOAQUIN CHIPECO, JR., AND RUY ELIAS THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
LOPEZ, respondents, HON. SPEAKER JOSE C. DE VENECIA, JR., THE
JAIME N. SORIANO, respondent-in-intervention, SENATE, REPRESENTED BY HON. SENATE PRESIDENT
SENATOR AQUILINO Q. PIMENTEL, respondent-in- FRANKLIN DRILON, HON. FELIX FUENTEBELLA, ET
intervention. AL., respondents.
x---------------------------------------------------------x x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003 G.R. No. 160318 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ PUBLIC INTEREST CENTER, INC., CRISPIN T.
BUTUYAN, MA. CECILIA PAPA, NAPOLEON C. REYES, REYES, petitioners,
ANTONIO H. ABAD, JR., ALFREDO C. LIGON, JOAN P. vs.
SERRANO AND GARY S. MALLARI, petitioners, HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS,
WORLD WAR II VETERANS LEGIONARIES OF THE HOUSE OF REPRESENTATIVES, HON. SENATE
PHILIPPINES, INC., petitioner-in-intervention, PRESIDENT FRANKLIN M. DRILON, AND ALL
vs. MEMBERS, PHILIPPINE SENATE, respondents.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND
ROBERTO P. NAZARENO, IN HIS CAPACITY AS
SECRETARY GENERAL OF THE HOUSE OF x---------------------------------------------------------x
REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES, respondents, G.R. No. 160342 November 10, 2003
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-
intervention. ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS
A MEMBER OF THE INTEGRATED BAR OF THE
PHILIPPINES, MANILA III, AND ENGR. MAXIMO N.
x---------------------------------------------------------x MENEZ JR., IN HIS CAPACITY AS A TAXPAYER AND
MEMBER OF THE ENGINEERING
G.R. No. 160295 November 10, 2003 PROFESSION, petitioners,
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL THE 83 HONORABLE MEMBERS OF THE HOUSE LED BY
M. GONZALES, petitioners, HON. REPRESENTATIVE WILLIAM
WORLD WAR II VETERANS LEGIONARIES OF THE FUENTEBELLA, respondents.
PHILIPPINES, INC., petitioner-in-intervention,
vs. x---------------------------------------------------------x
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING G.R. No. 160343 November 10, 2003
OFFICER, SPEAKER JOSE G. DE VENECIA,
83 | Executive
INTEGRATED BAR OF THE PHILIPPINES, petitioner, G.R. No. 160392 November 10, 2003
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE
VENICIO S. FLORES AND HECTOR L.
SPEAKER OR ACTING SPEAKER OR PRESIDING
HOFILEÑA, petitioners,
OFFICER, SPEAKER JOSE G. DE VENECIA,
vs.
REPRESENTATIVE GILBERTO G. TEODORO, JR.,
THE HOUSE OF REPRESENTATIVES, THROUGH
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
SPEAKER JOSE G. DE VENECIA, AND THE SENATE OF
THE SENATE OF THE PHILIPPINES THROUGH ITS
THE PHILIPPINES, THROUGH SENATE PRESIDENT
PRESIDENT, SENATE PRESIDENT FRANKLIN M.
FRANKLIN DRILON, respondents.
DRILON, respondents.
x---------------------------------------------------------x
x---------------------------------------------------------x
84 | Executive
Our nation's history is replete with vivid illustrations of the SECTION 3. (1) The House of Representatives shall
often frictional, at times turbulent, dynamics of the have the exclusive power to initiate all cases of
relationship among these co-equal branches. This Court is impeachment.
confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart
(2) A verified complaint for impeachment may be
antipodal courses and not a few of our countrymen to vent
filed by any Member of the House of
cacophonous sentiments thereon.
Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which
There may indeed be some legitimacy to the shall be included in the Order of Business within
characterization that the present controversy subject of the ten session days, and referred to the proper
instant petitions – whether the filing of the second Committee within three session days thereafter.
impeachment complaint against Chief Justice Hilario G. The Committee, after hearing, and by a majority
Davide, Jr. with the House of Representatives falls within vote of all its Members, shall submit its report to
the one year bar provided in the Constitution, and whether the House within sixty session days from such
the resolution thereof is a political question – has resulted referral, together with the corresponding
in a political crisis. Perhaps even more truth to the view resolution. The resolution shall be calendared for
that it was brought upon by a political crisis of conscience. consideration by the House within ten session days
from receipt thereof.
In any event, it is with the absolute certainty that our
Constitution is sufficient to address all the issues which this (3) A vote of at least one-third of all the Members
controversy spawns that this Court unequivocally of the House shall be necessary either to affirm a
pronounces, at the first instance, that the feared resort to favorable resolution with the Articles of
extra-constitutional methods of resolving it is neither Impeachment of the Committee, or override its
necessary nor legally permissible. Both its resolution and contrary resolution. The vote of each Member shall
protection of the public interest lie in adherence to, not be recorded.
departure from, the Constitution.
(4) In case the verified complaint or resolution of
In passing over the complex issues arising from the impeachment is filed by at least one-third of all the
controversy, this Court is ever mindful of the essential truth Members of the House, the same shall constitute
that the inviolate doctrine of separation of powers among the Articles of Impeachment, and trial by the
the legislative, executive or judicial branches of government Senate shall forthwith proceed.
by no means prescribes for absolute autonomy in the
discharge by each of that part of the governmental power
(5) No impeachment
assigned to it by the sovereign people.
proceedings shall be initiated against the same
official more than once within a period of one year.
At the same time, the corollary doctrine of checks and
balances which has been carefully calibrated by the
(6) The Senate shall have the sole power to try
Constitution to temper the official acts of each of these
and decide all cases of impeachment. When sitting
three branches must be given effect without destroying
for that purpose, the Senators shall be on oath or
their indispensable co-equality.
affirmation. When the President of the Philippines
is on trial, the Chief Justice of the Supreme Court
Taken together, these two fundamental doctrines of shall preside, but shall not vote. No person shall be
republican government, intended as they are to insure that convicted without the concurrence of two-thirds of
governmental power is wielded only for the good of the all the Members of the Senate.
people, mandate a relationship of interdependence and
coordination among these branches where the delicate
(7) Judgment in cases of impeachment shall not
functions of enacting, interpreting and enforcing laws are
extend further than removal from office and
harmonized to achieve a unity of governance, guided only
disqualification to hold any office under the
by what is in the greater interest and well-being of the
Republic of the Philippines, but the party convicted
people. Verily, salus populi est suprema lex.
shall nevertheless be liable and subject to
prosecution, trial, and punishment according to
Article XI of our present 1987 Constitution provides: law.
85 | Executive
ten session days, and referred to the proper
Committee within three session days thereafter.
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF after hearing, and by a majority
The Committee,
IMPEACHMENT PROCEEDINGS
vote of all its Members, shall submit its report to
AGAINST THE SAME the OFFICIAL
House within sixty session days from such
Section 2. Mode of Initiating
referral, together with the corresponding
Impeachment. – Impeachment shall be
resolution. The resolution shall be calendared for
initiated only by a verified complaint for Section 16. –
impeachment filed by any Member of the Proceedings Deemedconsideration
Initiated. by the House within ten session days
House of Representatives or by any cases where a Member from
of thereceipt
Housethereof.
citizen upon a resolution of endorsement files a verified complaint of
by any Member thereof or by a verified impeachment The or a House
citizen Committee
files a verified
on Justice ruled on October 13, 2003
complaint or resolution of impeachment complaint thatthatis endorsed
the first by a Member complaint was "sufficient in
impeachment
filed by at least one-third (1/3) of all the of the House through
form,"9 buta resolution
voted to of dismiss the same on October 22, 2003
Members of the House. endorsement against
for being aninsufficient
impeachable in substance.10 To date, the Committee
officer, impeachment
Report to proceedings
this effect has not yet been sent to the House in
against such official
plenary arein deemed
accordance with the said Section 3(2) of Article
initiated on theXIday the Constitution.
of the Committee on
Justice finds that the verified complaint
and/or resolution against such official,
Four months and three weeks since the filing on June 2,
as the case may be, is sufficient in
2003 of the first complaint or on October 23, 2003, a day
substance, or on the date the House
after the House Committee on Justice voted to dismiss it,
votes to overturn or affirm the finding
the second impeachment complaint11 was filed with the
of the said Committee that the verified
Secretary General of the House12 by Representatives
complaint and/or resolution, as the case
Gilberto C. Teodoro, Jr. (First District, Tarlac) and Felix
may be, is not sufficient in substance.
William B. Fuentebella (Third District, Camarines Sur)
against Chief Justice Hilario G. Davide, Jr., founded on the
In cases wherealleged
a verified complaint
results or a
of the legislative inquiry initiated by above-
resolution of impeachment
mentioned House is filed or
Resolution. This second impeachment
endorsed, as the case may
complaint wasbe, by at
accompanied by a "Resolution of
least one-thirdEndorsement/Impeachment"
(1/3) of the Members of signed by at least one-third
the House, (1/3) of all the Members of the House of Representatives.13
proceedings are deemed initiated at
the time of the filing of such
Thus arose the instant petitions against the House of
verified complaint or resolution of
Representatives, et. al., most of which petitions contend
impeachment with the Secretary
that the filing of the second impeachment complaint is
General.
unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more
than once within a period of one year."
RULE V Section 17.
Impeachment Proceedings.
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco,
a period of oneJr.,(1)alleging
year from thatthe
he date
has a duty as a member of the
BAR AGAINST IMPEACHMENT
impeachment Integrated
proceedingsBar areofdeemed
the Philippines to use all available legal
initiated as provided
remedies in Section
to stop an 16 unconstitutional impeachment, that the
Section 14. Scope of Bar. – No hereof, no impeachment proceedings,
issues raised in his petition for Certiorari, Prohibition and
impeachment proceedings shall be as such, can be initiated against the
Mandamus are of transcendental importance, and that he
initiated against the same official more same official. (Italics
"himselfinwas the aoriginal;
victim of the capricious and arbitrary
than once within the period of one (1) emphasis and changes
underscoringin thesupplied)
Rules of Procedure in Impeachment
year.
Proceedings introduced by the 12th Congress,"14 posits that
his right to bring an impeachment complaint against then
Ombudsman Aniano Desierto had been violated due to the
On July 22, 2002, the House of Representatives adopted a
capricious and arbitrary changes in the House Impeachment
Resolution,2 sponsored by Representative Felix William D.
Rules adopted and approved on November 28, 2001 by the
Fuentebella, which directed the Committee on Justice "to
House of Representatives and prays that (1) Rule V,
conduct an investigation, in aid of legislation, on the
Sections 16 and 17 and Rule III, Sections 5, 6, 7, 8, and 9
manner of disbursements and expenditures by the Chief
thereof be declared unconstitutional; (2) this Court issue a
Justice of the Supreme Court of the Judiciary Development
writ of mandamus directing respondents House of
Fund (JDF)."3
Representatives et. al. to comply with Article IX, Section 3
(2), (3) and (5) of the Constitution, to return the second
On June 2, 2003, former President Joseph E. Estrada filed impeachment complaint and/or strike it off the records of
an impeachment complaint4 (first impeachment complaint) the House of Representatives, and to promulgate rules
against Chief Justice Hilario G. Davide Jr. and seven which are consistent with the Constitution; and (3) this
Associate Justices5 of this Court for "culpable violation of Court permanently enjoin respondent House of
the Constitution, betrayal of the public trust and other high Representatives from proceeding with the second
crimes."6 The complaint was endorsed by Representatives impeachment complaint.
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
Dilangalen,7 and was referred to the House Committee on
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et.
Justice on August 5, 20038 in accordance with Section 3(2)
al., as citizens and taxpayers, alleging that the issues of the
of Article XI of the Constitution which reads:
case are of transcendental importance, pray, in their
petition for Certiorari/Prohibition, the issuance of a writ
Section 3(2) A verified complaint for impeachment "perpetually" prohibiting respondent House of
may be filed by any Member of the House of Representatives from filing any Articles of Impeachment
Representatives or by any citizen upon a resolution against the Chief Justice with the Senate; and for the
of endorsement by any Member thereof, which issuance of a writ "perpetually" prohibiting respondents
shall be included in the Order of Business within Senate and Senate President Franklin Drilon from accepting
86 | Executive
any Articles of Impeachment against the Chief Justice or, in Representatives from proceeding with the second
the event that the Senate has accepted the same, from impeachment complaint.
proceeding with the impeachment trial.
In G.R. No. 160343, petitioner Integrated Bar of the
In G.R. No. 160263, petitioners Arturo M. de Castro and Philippines, alleging that it is mandated by the Code of
Soledad Cagampang, as citizens, taxpayers, lawyers and Professional Responsibility to uphold the Constitution, prays
members of the Integrated Bar of the Philippines, alleging in its petition for Certiorari and Prohibition that Sections 16
that their petition for Prohibition involves public interest as and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
it involves the use of public funds necessary to conduct the House Impeachment Rules be declared unconstitutional and
impeachment trial on the second impeachment complaint, that the House of Representatives be permanently enjoined
pray for the issuance of a writ of prohibition enjoining from proceeding with the second impeachment complaint.
Congress from conducting further proceedings on said
second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
prays in his petition for Certiorari and Prohibition that the
In G.R. No. 160277, petitioner Francisco I. Chavez, House Impeachment Rules be declared unconstitutional.
alleging that this Court has recognized that he has locus
standi to bring petitions of this nature in the cases
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Foundation Inc., et. al., in their petition for Prohibition and
Development Corporation,16 prays in his petition for
Injunction which they claim is a class suit filed in behalf of
Injunction that the second impeachment complaint be
all citizens, citing Oposa v. Factoran17 which was filed in
declared unconstitutional.
behalf of succeeding generations of Filipinos, pray for the
issuance of a writ prohibiting respondents House of
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. Representatives and the Senate from conducting further
al., as taxpayers and members of the legal profession, pray proceedings on the second impeachment complaint and that
in their petition for Prohibition for an order prohibiting this Court declare as unconstitutional the second
respondent House of Representatives from drafting, impeachment complaint and the acts of respondent House
adopting, approving and transmitting to the Senate the of Representatives in interfering with the fiscal matters of
second impeachment complaint, and respondents De the Judiciary.
Venecia and Nazareno from transmitting the Articles of
Impeachment to the Senate.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
In G.R. No. 160295, petitioners Representatives Salacnib Prohibition are of national and transcendental significance
F. Baterina and Deputy Speaker Raul M. Gonzalez, alleging and that as an official of the Philippine Judicial Academy, he
that, as members of the House of Representatives, they has a direct and substantial interest in the unhampered
have a legal interest in ensuring that only constitutional operation of the Supreme Court and its officials in
impeachment proceedings are initiated, pray in their discharging their duties in accordance with the Constitution,
petition for Certiorari/Prohibition that the second prays for the issuance of a writ prohibiting the House of
impeachment complaint and any act proceeding therefrom Representatives from transmitting the Articles of
be declared null and void. Impeachment to the Senate and the Senate from receiving
the same or giving the impeachment complaint due course.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et
al., claiming that they have a right to be protected against In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
all forms of senseless spending of taxpayers' money and taxpayer, alleges in his petition for Prohibition that
that they have an obligation to protect the Supreme Court, respondents Fuentebella and Teodoro at the time they filed
the Chief Justice, and the integrity of the Judiciary, allege in the second impeachment complaint, were "absolutely
their petition for Certiorari and Prohibition that it is without any legal power to do so, as they acted without
instituted as "a class suit" and pray that (1) the House jurisdiction as far as the Articles of Impeachment assail the
Resolution endorsing the second impeachment complaint as alleged abuse of powers of the Chief Justice to disburse the
well as all issuances emanating therefrom be declared null (JDF)."
and void; and (2) this Court enjoin the Senate and the
Senate President from taking cognizance of, hearing, trying
In G.R. No. 160392, petitioners Attorneys Venicio S.
and deciding the second impeachment complaint, and issue
Flores and Hector L. Hofileña, alleging that as professors of
a writ of prohibition commanding the Senate, its
law they have an abiding interest in the subject matter of
prosecutors and agents to desist from conducting any
their petition for Certiorari and Prohibition as it pertains to a
proceedings or to act on the impeachment complaint.
constitutional issue "which they are trying to inculcate in
the minds of their students," pray that the House of
In G.R. No. 160318, petitioner Public Interest Center, Inc., Representatives be enjoined from endorsing and the Senate
whose members are citizens and taxpayers, and its co- from trying the Articles of Impeachment and that the
petitioner Crispin T. Reyes, a citizen, taxpayer and a second impeachment complaint be declared null and void.
member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
second impeachment complaint involves paramount public
without alleging his locus standi, but alleging that the
interest and pray that Sections 16 and 17 of the House
second impeachment complaint is founded on the issue of
Impeachment Rules and the second impeachment
whether or not the Judicial Development Fund (JDF) was
complaint/Articles of Impeachment be declared null and
spent in accordance with law and that the House of
void.
Representatives does not have exclusive jurisdiction in the
examination and audit thereof, prays in his petition "To
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, Declare Complaint Null and Void for Lack of Cause of Action
as a citizen and a member of the Philippine Bar Association and Jurisdiction" that the second impeachment complaint
and of the Integrated Bar of the Philippines, and petitioner be declared null and void.
Engr. Maximo N. Menez, Jr., as a taxpayer, pray in their
petition for the issuance of a Temporary Restraining Order
In G.R. No. 160403, petitioner Philippine Bar Association,
and Permanent Injunction to enjoin the House of
alleging that the issues raised in the filing of the second
impeachment complaint involve matters of transcendental
87 | Executive
importance, prays in its petition for Certiorari/Prohibition jurisdiction to hear, much less prohibit or enjoin the House
that (1) the second impeachment complaint and all of Representatives, which is an independent and co-equal
proceedings arising therefrom be declared null and void; (2) branch of government under the Constitution, from the
respondent House of Representatives be prohibited from performance of its constitutionally mandated duty to initiate
transmitting the Articles of Impeachment to the Senate; impeachment cases. On even date, Senator Aquilino Q.
and (3) respondent Senate be prohibited from accepting the Pimentel, Jr., in his own behalf, filed a Motion to Intervene
Articles of Impeachment and from conducting any (Ex Abudante Cautela)21 and Comment, praying that "the
proceedings thereon. consolidated petitions be dismissed for lack of jurisdiction of
the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and
In G.R. No. 160405, petitioners Democrit C. Barcenas et.
jurisdiction of the Senate as the impeachment court to try
al., as citizens and taxpayers, pray in their petition for
and decide impeachment cases, including the one where the
Certiorari/Prohibition that (1) the second impeachment
Chief Justice is the respondent, be recognized and upheld
complaint as well as the resolution of endorsement and
pursuant to the provisions of Article XI of the
impeachment by the respondent House of Representatives
Constitution."22
be declared null and void and (2) respondents Senate and
Senate President Franklin Drilon be prohibited from
accepting any Articles of Impeachment against the Chief Acting on the other petitions which were subsequently filed,
Justice or, in the event that they have accepted the same, this Court resolved to (a) consolidate them with the earlier
that they be prohibited from proceeding with the consolidated petitions; (b) require respondents to file their
impeachment trial. comment not later than 4:30 p.m. of November 3, 2003;
and (c) include them for oral arguments on November 5,
2003.
Petitions bearing docket numbers G.R. Nos. 160261,
160262 and 160263, the first three of the eighteen which
were filed before this Court,18 prayed for the issuance of a On October 29, 2003, the Senate of the Philippines, through
Temporary Restraining Order and/or preliminary injunction Senate President Franklin M. Drilon, filed a Manifestation
to prevent the House of Representatives from transmitting stating that insofar as it is concerned, the petitions are
the Articles of Impeachment arising from the second plainly premature and have no basis in law or in fact,
impeachment complaint to the Senate. Petition bearing adding that as of the time of the filing of the petitions, no
docket number G.R. No. 160261 likewise prayed for the justiciable issue was presented before it since (1) its
declaration of the November 28, 2001 House Impeachment constitutional duty to constitute itself as an impeachment
Rules as null and void for being unconstitutional. court commences only upon its receipt of the Articles of
Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the
Petitions bearing docket numbers G.R. Nos. 160277,
proceedings in the House of Representatives.
160292 and 160295, which were filed on October 28, 2003,
sought similar relief. In addition, petition bearing docket
number G.R. No. 160292 alleged that House Resolution No. On October 30, 2003, Atty. Jaime Soriano filed a "Petition
260 (calling for a legislative inquiry into the administration for Leave to Intervene" in G.R. Nos. 160261, 160262,
by the Chief Justice of the JDF) infringes on the 160263, 160277, 160292, and 160295, questioning
constitutional doctrine of separation of powers and is a the status quo Resolution issued by this Court on October
direct violation of the constitutional principle of fiscal 28, 2003 on the ground that it would unnecessarily put
autonomy of the judiciary. Congress and this Court in a "constitutional deadlock" and
praying for the dismissal of all the petitions as the matter in
question is not yet ripe for judicial determination.
On October 28, 2003, during the plenary session of the
House of Representatives, a motion was put forth that the
second impeachment complaint be formally transmitted to On November 3, 2003, Attorneys Romulo B. Macalintal and
the Senate, but it was not carried because the House of Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for
Representatives adjourned for lack of quorum,19 and as Leave of Court to Intervene and to Admit the Herein
reflected above, to date, the Articles of Impeachment have Incorporated Petition in Intervention."
yet to be forwarded to the Senate.
On November 4, 2003, Nagmamalasakit na mga
Before acting on the petitions with prayers for temporary Manananggol ng mga Manggagawang Pilipino, Inc. filed a
restraining order and/or writ of preliminary injunction which Motion for Intervention in G.R. No. 160261. On November
were filed on or before October 28, 2003, Justices Puno and 5, 2003, World War II Veterans Legionnaires of the
Vitug offered to recuse themselves, but the Court rejected Philippines, Inc. also filed a "Petition-in-Intervention with
their offer. Justice Panganiban inhibited himself, but the Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
Court directed him to participate. 160277, 160292, 160295, and 160310.
Without necessarily giving the petitions due course, this The motions for intervention were granted and both
Court in its Resolution of October 28, 2003, resolved to (a) Senator Pimentel's Comment and Attorneys Macalintal and
consolidate the petitions; (b) require respondent House of Quadra's Petition in Intervention were admitted.
Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30
On November 5-6, 2003, this Court heard the views of
p.m. of November 3, 2003; (c) set the petitions for oral
the amici curiae and the arguments of petitioners,
arguments on November 5, 2003, at 10:00 a.m.; and (d)
intervenors Senator Pimentel and Attorney Makalintal, and
appointed distinguished legal experts as amici curiae.20 In
Solicitor General Alfredo Benipayo on the principal issues
addition, this Court called on petitioners and respondents to
outlined in an Advisory issued by this Court on November 3,
maintain the status quo, enjoining all the parties and others
2003, to wit:
acting for and in their behalf to refrain from committing acts
that would render the petitions moot.
Whether the certiorari jurisdiction of the Supreme
Court may be invoked; who can invoke it; on what
Also on October 28, 2003, when respondent House of
issues and at what time; and whether it should be
Representatives through Speaker Jose C. De Venecia, Jr.
exercised by this Court at this time.
and/or its co-respondents, by way of special appearance,
submitted a Manifestation asserting that this Court has no
88 | Executive
In discussing these issues, the following may be several departments and among the integral
taken up: or constituent units thereof.
Thus, the particular phraseology of the To ensure the potency of the power of judicial review to
constitution of the United States confirms and curb grave abuse of discretion by "any branch or
strengthens the principle, supposed to be instrumentalities of government," the afore-quoted
essential to all written constitutions, that a Section 1, Article VIII of the Constitution engraves, for the
law repugnant to the constitution is void; and first time into its history, into block letter law the so-called
that courts, as well as other departments, are "expanded certiorari jurisdiction" of this Court, the nature
bound by that instrument.28 (Italics in the of and rationale for which are mirrored in the following
original; emphasis supplied) excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto
In our own jurisdiction, as early as 1902, decades before its Concepcion:
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate xxx
constitutionally infirm acts.29 And as pointed out by noted
political law professor and former Supreme Court Justice
The first section starts with a sentence copied from former
Vicente V. Mendoza,30 the executive and legislative
Constitutions. It says:
branches of our government in fact effectively
acknowledged this power of judicial review in Article 7 of
the Civil Code, to wit: The judicial power shall be vested in one Supreme
Court and in such lower courts as may be
established by law.
Article 7. Laws are repealed only by subsequent
ones, and their violation or non-observance shall
not be excused by disuse, or custom or practice to I suppose nobody can question it.
the contrary.
The next provision is new in our constitutional law.
When the courts declare a law to be I will read it first and explain.
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Judicial power includes the duty of courts of justice
to settle actual controversies involving rights which
Administrative or executive acts, orders and are legally demandable and enforceable and to
regulations shall be valid only when they are determine whether or not there has been a grave
not contrary to the laws or the abuse of discretion amounting to lack or excess of
Constitution. (Emphasis supplied) jurisdiction on the part or instrumentality of the
government.
As indicated in Angara v. Electoral Commission,31 judicial
review is indeed an integral component of the delicate Fellow Members of this Commission, this is
system of checks and balances which, together with the actually a product of our experience during
corollary principle of separation of powers, forms the martial law. As a matter of fact, it has some
bedrock of our republican form of government and insures antecedents in the past, but the role of the
that its vast powers are utilized only for the benefit of the judiciary during the deposed regime was
people for which it serves. marred considerably by the circumstance that
in a number of cases against the government,
which then had no legal defense at all, the
The separation of powers is a fundamental
solicitor general set up the defense of
principle in our system of government. It
political questions and got away with it. As a
obtains not through express provision but by
consequence, certain principles concerning
actual division in our Constitution. Each
particularly the writ of habeas corpus, that is, the
department of the government has exclusive
90 | Executive
authority of courts to order the release of political Second, where there is ambiguity, ratio legis est anima. The
detainees, and other matters related to the words of the Constitution should be interpreted in
operation and effect of martial law failed because accordance with the intent of its framers. And so did this
the government set up the defense of political Court apply this principle in Civil Liberties Union v.
question. And the Supreme Court said: "Well, since Executive Secretary38 in this wise:
it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that
A foolproof yardstick in constitutional construction
this was not a proper solution of the
is the intention underlying the provision under
questions involved. It did not merely request
consideration. Thus, it has been held that the
an encroachment upon the rights of the
Court in construing a Constitution should bear in
people, but it, in effect, encouraged further
mind the object sought to be accomplished by its
violations thereof during the martial law
adoption, and the evils, if any, sought to be
regime. x x x
prevented or remedied. A doubtful provision will be
examined in the light of the history of the times,
xxx and the condition and circumstances under which
the Constitution was framed. The object is to
ascertain the reason which induced the
Briefly stated, courts of justice determine the
framers of the Constitution to enact the
limits of power of the agencies and offices of
particular provision and the purpose sought
the government as well as those of its
to be accomplished thereby, in order to
officers. In other words, the judiciary is the
construe the whole as to make the words
final arbiter on the question whether or not a
consonant to that reason and calculated to
branch of government or any of its officials
effect that purpose.39 (Emphasis and
has acted without jurisdiction or in excess of
underscoring supplied)
jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting
to excess of jurisdiction or lack of As it did in Nitafan v. Commissioner on Internal
jurisdiction. This is not only a judicial power Revenue40 where, speaking through Madame Justice
but a duty to pass judgment on matters of Amuerfina A. Melencio-Herrera, it declared:
this nature.
x x x The ascertainment of that intent is but in
This is the background of paragraph 2 of Section 1, keeping with the fundamental principle of
which means that the courts cannot hereafter constitutional construction that the intent of
evade the duty to settle matters of this the framers of the organic law and of the
nature, by claiming that such matters people adopting it should be given effect. The
constitute a political question.35 (Italics in the primary task in constitutional construction is to
original; emphasis and underscoring supplied) ascertain and thereafter assure the realization of
the purpose of the framers and of the people in the
adoption of the Constitution. It may also be
To determine the merits of the issues raised in the instant
safely assumed that the people in ratifying
petitions, this Court must necessarily turn to the
the Constitution were guided mainly by the
Constitution itself which employs the well-settled principles
explanation offered by the
of constitutional construction.
framers.41 (Emphasis and underscoring supplied)
91 | Executive
whole purpose of the Constitution and one intent to isolate judicial power of review in cases of
section is not to be allowed to defeat another, impeachment.
if by any reasonable construction, the two
can be made to stand together.
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
In other words, the court must harmonize them, if authorities cannot be credited to support the proposition
practicable, and must lean in favor of a that the Senate's "sole power to try and decide
construction which will render every word impeachment cases," as provided for under Art. XI, Sec.
operative, rather than one which may make the 3(6) of the Constitution, is a textually demonstrable
words idle and nugatory.45 (Emphasis supplied) constitutional commitment of all issues pertaining to
impeachment to the legislature, to the total exclusion of the
power of judicial review to check and restrain any grave
If, however, the plain meaning of the word is not found to
abuse of the impeachment process. Nor can it reasonably
be clear, resort to other aids is available. In still the same
support the interpretation that it necessarily confers upon
case of Civil Liberties Union v. Executive Secretary, this
the Senate the inherently judicial power to determine
Court expounded:
constitutional questions incident to impeachment
proceedings.
While it is permissible in this jurisdiction to consult
the debates and proceedings of the
Said American jurisprudence and authorities, much less the
constitutional convention in order to arrive at the
American Constitution, are of dubious application for these
reason and purpose of the resulting
are no longer controlling within our jurisdiction and have
Constitution, resort thereto may be had only
only limited persuasive merit insofar as Philippine
when other guides fail as said proceedings
constitutional law is concerned. As held in the case
are powerless to vary the terms of the
of Garcia vs. COMELEC,52 "[i]n resolving constitutional
Constitution when the meaning is clear.
disputes, [this Court] should not be beguiled by foreign
Debates in the constitutional convention "are of
jurisprudence some of which are hardly applicable because
value as showing the views of the individual
they have been dictated by different constitutional settings
members, and as indicating the reasons for their
and needs."53 Indeed, although the Philippine Constitution
votes, but they give us no light as to the views of
can trace its origins to that of the United States, their paths
the large majority who did not talk, much less of
of development have long since diverged. In the colorful
the mass of our fellow citizens whose votes at the
words of Father Bernas, "[w]e have cut the umbilical cord."
polls gave that instrument the force of
fundamental law. We think it safer to construe
the constitution from what appears upon its The major difference between the judicial power of the
face." The proper interpretation therefore Philippine Supreme Court and that of the U.S. Supreme
depends more on how it was understood by Court is that while the power of judicial review is
the people adopting it than in the framers's only impliedly granted to the U.S. Supreme Court and is
understanding thereof.46 (Emphasis and discretionary in nature, that granted to the Philippine
underscoring supplied) Supreme Court and lower courts, as expressly provided for
in the Constitution, is not just a power but also a duty, and
it was given an expanded definition to include the power
It is in the context of the foregoing backdrop of
to correct any grave abuse of discretion on the part of any
constitutional refinement and jurisprudential application of
government branch or instrumentality.
the power of judicial review that respondents Speaker De
Venecia, et. al. and intervenor Senator Pimentel raise the
novel argument that the Constitution has excluded There are also glaring distinctions between the U.S.
impeachment proceedings from the coverage of judicial Constitution and the Philippine Constitution with respect to
review. the power of the House of Representatives over
impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of
Briefly stated, it is the position of respondents Speaker De
Representatives without limitation,54 our Constitution,
Venecia et. al. that impeachment is a political action which
though vesting in the House of Representatives the
cannot assume a judicial character. Hence, any question,
exclusive power to initiate impeachment cases, 55 provides
issue or incident arising at any stage of the impeachment
for several limitations to the exercise of such power as
proceeding is beyond the reach of judicial review.47
embodied in Section 3(2), (3), (4) and (5), Article XI
thereof. These limitations include the manner of filing,
For his part, intervenor Senator Pimentel contends that the required vote to impeach, and the one year bar on the
Senate's "sole power to try" impeachment cases48 (1) impeachment of one and the same official.
entirely excludes the application of judicial review over it;
and (2) necessarily includes the Senate's power to
Respondents are also of the view that judicial review of
determine constitutional questions relative to impeachment
impeachments undermines their finality and may also lead
proceedings.49
to conflicts between Congress and the judiciary. Thus, they
call upon this Court to exercise judicial statesmanship on
In furthering their arguments on the proposition that the principle that "whenever possible, the Court should
impeachment proceedings are outside the scope of judicial defer to the judgment of the people expressed legislatively,
review, respondents Speaker De Venecia, et. al. and recognizing full well the perils of judicial willfulness and
intervenor Senator Pimentel rely heavily on American pride."56
authorities, principally the majority opinion in the case
of Nixon v. United States.50 Thus, they contend that the
But did not the people also express their will when they
exercise of judicial review over impeachment proceedings is
instituted the above-mentioned safeguards in the
inappropriate since it runs counter to the framers' decision
Constitution? This shows that the Constitution did not
to allocate to different fora the powers to try impeachments
intend to leave the matter of impeachment to the sole
and to try crimes; it disturbs the system of checks and
discretion of Congress. Instead, it provided for certain well-
balances, under which impeachment is the only legislative
defined limits, or in the language of Baker v.
check on the judiciary; and it would create a lack of finality
Carr,57 "judicially discoverable standards" for determining
and difficulty in fashioning relief.51 Respondents likewise
the validity of the exercise of such discretion, through the
point to deliberations on the US Constitution to show the
power of judicial review.
92 | Executive
The cases of Romulo v. Yniguez58 and Alejandrino v. Any attempt at abstraction could only lead to
Quezon,59 cited by respondents in support of the argument dialectics and barren legal questions and to sterile
that the impeachment power is beyond the scope of judicial conclusions unrelated to actualities. Narrowed as
review, are not in point. These cases concern the denial of its function is in this manner, the judiciary does
petitions for writs of mandamus to compel the legislature to not pass upon questions of wisdom, justice or
perform non-ministerial acts, and do not concern the expediency of legislation. More than that, courts
exercise of the power of judicial review. accord the presumption of constitutionality to
legislative enactments, not only because the
legislature is presumed to abide by the
There is indeed a plethora of cases in which this Court
Constitution but also because the judiciary in the
exercised the power of judicial review over congressional
determination of actual cases and controversies
action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled
must reflect the wisdom and justice of the people
that it is well within the power and jurisdiction of the Court
as expressed through their representatives in the
to inquire whether the Senate or its officials committed a
executive and legislative departments of the
violation of the Constitution or grave abuse of discretion in
government.68 (Italics in the original)
the exercise of their functions and prerogatives. In Tanada
v. Angara,61 in seeking to nullify an act of the Philippine
Senate on the ground that it contravened the Constitution, Standing
it held that the petition raises a justiciable controversy and
that when an action of the legislative branch is seriously
Locus standi or legal standing or has been defined as a
alleged to have infringed the Constitution, it becomes not
personal and substantial interest in the case such that the
only the right but in fact the duty of the judiciary to settle
party has sustained or will sustain direct injury as a result
the dispute. In Bondoc v. Pineda,62 this Court declared null
of the governmental act that is being challenged. The gist of
and void a resolution of the House of Representatives
the question of standing is whether a party alleges such
withdrawing the nomination, and rescinding the election, of
personal stake in the outcome of the controversy as to
a congressman as a member of the House Electoral Tribunal
assure that concrete adverseness which sharpens the
for being violative of Section 17, Article VI of the
presentation of issues upon which the court depends for
Constitution. In Coseteng v. Mitra,63 it held that the
illumination of difficult constitutional questions.69
resolution of whether the House representation in the
Commission on Appointments was based on proportional
representation of the political parties as provided in Section Intervenor Soriano, in praying for the dismissal of the
18, Article VI of the Constitution is subject to judicial petitions, contends that petitioners do not have standing
review. In Daza v. Singson,64 it held that the act of the since only the Chief Justice has sustained and will sustain
House of Representatives in removing the petitioner from direct personal injury. Amicus curiae former Justice Minister
the Commission on Appointments is subject to judicial and Solicitor General Estelito Mendoza similarly contends.
review. In Tanada v. Cuenco,65 it held that although under
the Constitution, the legislative power is vested exclusively Upon the other hand, the Solicitor General asserts that
in Congress, this does not detract from the power of the petitioners have standing since this Court had, in the past,
courts to pass upon the constitutionality of acts of accorded standing to taxpayers, voters, concerned citizens,
Congress. In Angara v. Electoral Commission,66 it ruled that legislators in cases involving paramount public
confirmation by the National Assembly of the election of any interest70 and transcendental importance,71 and that
member, irrespective of whether his election is contested, is procedural matters are subordinate to the need to
not essential before such member-elect may discharge the determine whether or not the other branches of the
duties and enjoy the privileges of a member of the National government have kept themselves within the limits of the
Assembly. Constitution and the laws and that they have not abused
the discretion given to them.72 Amicus curiae Dean Raul
Finally, there exists no constitutional basis for the Pangalangan of the U.P. College of Law is of the same
contention that the exercise of judicial review over opinion, citing transcendental importance and the well-
impeachment proceedings would upset the system of entrenched rule exception that, when the real party in
checks and balances. Verily, the Constitution is to be interest is unable to vindicate his rights by seeking the
interpreted as a whole and "one section is not to be allowed same remedies, as in the case of the Chief Justice who, for
to defeat another."67 Both are integral components of the ethical reasons, cannot himself invoke the jurisdiction of
calibrated system of independence and interdependence this Court, the courts will grant petitioners standing.
that insures that no branch of government act beyond the
powers assigned to it by the Constitution. There is, however, a difference between the rule on real-
party-in-interest and the rule on standing, for the former is
Essential Requisites for Judicial Review a concept of civil procedure73 while the latter has
constitutional underpinnings.74 In view of the arguments set
forth regarding standing, it behooves the Court to reiterate
As clearly stated in Angara v. Electoral Commission, the
the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is
courts' power of judicial review, like almost all powers
meant by locus standi and to distinguish it from real party-
conferred by the Constitution, is subject to several
in-interest.
limitations, namely: (1) an actual case or controversy
calling for the exercise of judicial power; (2) the person
challenging the act must have "standing" to challenge; he The difference between the rule on standing and
must have a personal and substantial interest in the case real party in interest has been noted by authorities
such that he has sustained, or will sustain, direct injury as a thus: "It is important to note . . . that standing
result of its enforcement; (3) the question of because of its constitutional and public policy
constitutionality must be raised at the earliest possible underpinnings, is very different from questions
opportunity; and (4) the issue of constitutionality must be relating to whether a particular plaintiff is the real
the very lis mota of the case. party in interest or has capacity to sue. Although
all three requirements are directed towards
ensuring that only certain parties can maintain an
x x x Even then, this power of judicial review is
action, standing restrictions require a partial
limited to actual cases and controversies to be
consideration of the merits, as well as broader
exercised after full opportunity of argument by the
policy concerns relating to the proper role of the
parties, and limited further to the constitutional
judiciary in certain areas.
question raised or the very lis mota presented.
93 | Executive
Standing is a special concern in constitutional law prerogatives as a legislator.82 Indeed, a member of the
because in some cases suits are brought not by House of Representatives has standing to maintain inviolate
parties who have been personally injured by the the prerogatives, powers and privileges vested by the
operation of a law or by official action taken, but Constitution in his office.83
by concerned citizens, taxpayers or voters who
actually sue in the public interest. Hence the
While an association has legal personality to represent its
question in standing is whether such parties have
members,84 especially when it is composed of substantial
"alleged such a personal stake in the outcome of
taxpayers and the outcome will affect their vital
the controversy as to assure that concrete
interests,85 the mere invocation by the Integrated Bar of
adverseness which sharpens the presentation of
the Philippines or any member of the legal profession of the
issues upon which the court so largely depends for
duty to preserve the rule of law and nothing more, although
illumination of difficult constitutional questions."
undoubtedly true, does not suffice to clothe it with
standing. Its interest is too general. It is shared by other
xxx groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues
which deserve the attention of this Court in view of their
On the other hand, the question as to "real party
seriousness, novelty and weight as precedents. 86 It,
in interest" is whether he is "the party who would
therefore, behooves this Court to relax the rules on
be benefited or injured by the judgment, or the
standing and to resolve the issues presented by it.
'party entitled to the avails of the
suit.'"76 (Citations omitted)
In the same vein, when dealing with class suits filed in
behalf of all citizens, persons intervening must be
While rights personal to the Chief Justice may have been
sufficiently numerous to fully protect the interests of all
injured by the alleged unconstitutional acts of the House of
concerned87 to enable the court to deal properly with all
Representatives, none of the petitioners before us asserts a
interests involved in the suit,88 for a judgment in a class
violation of the personal rights of the Chief Justice. On the
suit, whether favorable or unfavorable to the class, is,
contrary, they invariably invoke the vindication of their own
under the res judicata principle, binding on all members of
rights – as taxpayers; members of Congress; citizens,
the class whether or not they were before the
individually or in a class suit; and members of the bar and
court.89 Where it clearly appears that not all interests can
of the legal profession – which were supposedly violated by
be sufficiently represented as shown by the divergent issues
the alleged unconstitutional acts of the House of
raised in the numerous petitions before this Court, G.R. No.
Representatives.
160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and
In a long line of cases, however, concerned citizens, taxpayers, however, their petition will stand.
taxpayers and legislators when specific requirements have
been met have been given standing by this Court.
The Philippine Bar Association, in G.R. No. 160403, invokes
the sole ground of transcendental importance, while Atty.
When suing as a citizen, the interest of the petitioner Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his
assailing the constitutionality of a statute must be direct standing.
and personal. He must be able to show, not only that the
law or any government act is invalid, but also that he
There being no doctrinal definition of transcendental
sustained or is in imminent danger of sustaining some
importance, the following instructive determinants
direct injury as a result of its enforcement, and not merely
formulated by former Supreme Court Justice Florentino P.
that he suffers thereby in some indefinite way. It must
Feliciano are instructive: (1) the character of the funds or
appear that the person complaining has been or is about to
other assets involved in the case; (2) the presence of a
be denied some right or privilege to which he is lawfully
clear case of disregard of a constitutional or statutory
entitled or that he is about to be subjected to some burdens
prohibition by the public respondent agency or
or penalties by reason of the statute or act complained
instrumentality of the government; and (3) the lack of any
of.77 In fine, when the proceeding involves the assertion of
other party with a more direct and specific interest in
a public right,78 the mere fact that he is a citizen satisfies
raising the questions being raised.90 Applying these
the requirement of personal interest.
determinants, this Court is satisfied that the issues raised
herein are indeed of transcendental importance.
In the case of a taxpayer, he is allowed to sue where there
is a claim that public funds are illegally disbursed, or that
In not a few cases, this Court has in fact adopted a liberal
public money is being deflected to any improper purpose, or
attitude on the locus standi of a petitioner where the
that there is a wastage of public funds through the
petitioner is able to craft an issue of transcendental
enforcement of an invalid or unconstitutional law.79 Before
significance to the people, as when the issues raised are of
he can invoke the power of judicial review, however, he
paramount importance to the public.91 Such liberality does
must specifically prove that he has sufficient interest in
not, however, mean that the requirement that a party
preventing the illegal expenditure of money raised by
should have an interest in the matter is totally eliminated. A
taxation and that he would sustain a direct injury as a
party must, at the very least, still plead the existence of
result of the enforcement of the questioned statute or
such interest, it not being one of which courts can take
contract. It is not sufficient that he has merely a general
judicial notice. In petitioner Vallejos' case, he failed to
interest common to all members of the public. 80
allege any interest in the case. He does not thus have
standing.
At all events, courts are vested with discretion as to
whether or not a taxpayer's suit should be
With respect to the motions for intervention, Rule 19,
entertained.81 This Court opts to grant standing to most of
Section 2 of the Rules of Court requires an intervenor to
the petitioners, given their allegation that any impending
possess a legal interest in the matter in litigation, or in the
transmittal to the Senate of the Articles of Impeachment
success of either of the parties, or an interest against both,
and the ensuing trial of the Chief Justice will necessarily
or is so situated as to be adversely affected by a
involve the expenditure of public funds.
distribution or other disposition of property in the custody
of the court or of an officer thereof. While intervention is
As for a legislator, he is allowed to sue to question the not a matter of right, it may be permitted by the courts
validity of any official action which he claims infringes his
94 | Executive
when the applicant shows facts which satisfy the interest as a member of the Bar does not suffice to clothe
requirements of the law authorizing intervention.92 him with standing.
Senator Aquilino Pimentel, on the other hand, sought to Taking a similar stand is Dean Raul Pangalangan of the U.P.
intervene for the limited purpose of making of record and College of Law who suggests to this Court to take judicial
arguing a point of view that differs with Senate President notice of on-going attempts to encourage signatories to the
Drilon's. He alleges that submitting to this Court's second impeachment complaint to withdraw their signatures
jurisdiction as the Senate President does will undermine the and opines that the House Impeachment Rules provide for
independence of the Senate which will sit as an an opportunity for members to raise constitutional
impeachment court once the Articles of Impeachment are questions themselves when the Articles of Impeachment
transmitted to it from the House of Representatives. are presented on a motion to transmit to the same to the
Clearly, Senator Pimentel possesses a legal interest in the Senate. The dean maintains that even assuming that the
matter in litigation, he being a member of Congress against Articles are transmitted to the Senate, the Chief Justice can
which the herein petitions are directed. For this reason, and raise the issue of their constitutional infirmity by way of a
to fully ventilate all substantial issues relating to the matter motion to dismiss.
at hand, his Motion to Intervene was granted and he was,
as earlier stated, allowed to argue.
The dean's position does not persuade. First, the withdrawal
by the Representatives of their signatures would not, by
Lastly, as to Jaime N. Soriano's motion to intervene, the itself, cure the House Impeachment Rules of their
same must be denied for, while he asserts an interest as a constitutional infirmity. Neither would such a withdrawal, by
taxpayer, he failed to meet the standing requirement for itself, obliterate the questioned second impeachment
bringing taxpayer's suits as set forth in Dumlao v. complaint since it would only place it under the ambit of
Comelec,93 to wit: Sections 3(2) and (3) of Article XI of the Constitution 97 and,
therefore, petitioners would continue to suffer their injuries.
x x x While, concededly, the elections to be held
involve the expenditure of public moneys, nowhere Second and most importantly, the futility of seeking
in their Petition do said petitioners allege that their remedies from either or both Houses of Congress before
tax money is "being extracted and spent in coming to this Court is shown by the fact that, as previously
violation of specific constitutional protection discussed, neither the House of Representatives nor the
against abuses of legislative power," or that there Senate is clothed with the power to rule with definitiveness
is a misapplication of such funds by respondent on the issue of constitutionality, whether concerning
COMELEC, or that public money is being deflected impeachment proceedings or otherwise, as said power is
to any improper purpose. Neither do petitioners exclusively vested in the judiciary by the earlier quoted
seek to restrain respondent from wasting public Section I, Article VIII of the Constitution. Remedy cannot be
funds through the enforcement of an invalid or sought from a body which is bereft of power to grant it.
unconstitutional law.94 (Citations omitted)
Justiciability
In praying for the dismissal of the petitions, Soriano failed
even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
95 | Executive
In the leading case of Tanada v. Cuenco,98 Chief Justice determine whether or not there has been a grave
Roberto Concepcion defined the term "political abuse of discretion amounting to lack or excess of
question," viz: jurisdiction on the part or instrumentality of the
government.
[T]he term "political question" connotes, in legal
parlance, what it means in ordinary parlance, Fellow Members of this Commission, this is actually
namely, a question of policy. In other words, in the a product of our experience during martial law. As
language of Corpus Juris Secundum, it refers to a matter of fact, it has some antecedents in the
"those questions which, under the Constitution, are past, but the role of the judiciary during the
to be decided by the people in their sovereign deposed regime was marred considerably by
capacity, or in regard to which full discretionary the circumstance that in a number of cases
authority has been delegated to the Legislature or against the government, which then had no
executive branch of the Government." It is legal defense at all, the solicitor general set
concerned with issues dependent upon up the defense of political questions and got
the wisdom, not legality, of a particular away with it. As a consequence, certain
measure.99 (Italics in the original) principles concerning particularly the writ
of habeas corpus, that is, the authority of
courts to order the release of political
Prior to the 1973 Constitution, without consistency and
detainees, and other matters related to the
seemingly without any rhyme or reason, this Court
operation and effect of martial law failed
vacillated on its stance of taking cognizance of cases which
because the government set up the defense
involved political questions. In some cases, this Court hid
of political question. And the Supreme Court
behind the cover of the political question doctrine and
said: "Well, since it is political, we have no
refused to exercise its power of judicial review. 100 In other
authority to pass upon it." The Committee on the
cases, however, despite the seeming political nature of the
Judiciary feels that this was not a proper
therein issues involved, this Court assumed jurisdiction
solution of the questions involved. It did not
whenever it found constitutionally imposed limits on powers
merely request an encroachment upon the
or functions conferred upon political bodies.101 Even in the
rights of the people, but it, in effect,
landmark 1988 case of Javellana v. Executive
encouraged further violations thereof during
Secretary102 which raised the issue of whether the 1973
the martial law regime. I am sure the members
Constitution was ratified, hence, in force, this Court shunted
of the Bar are familiar with this situation. But for
the political question doctrine and took cognizance thereof.
the benefit of the Members of the Commission who
Ratification by the people of a Constitution is a political
are not lawyers, allow me to explain. I will start
question, it being a question decided by the people in their
with a decision of the Supreme Court in 1973 on
sovereign capacity.
the case of Javellana vs. the Secretary of Justice, if
I am not mistaken. Martial law was announced on
The frequency with which this Court invoked the political September 22, although the proclamation was
question doctrine to refuse to take jurisdiction over certain dated September 21. The obvious reason for the
cases during the Marcos regime motivated Chief Justice delay in its publication was that the administration
Concepcion, when he became a Constitutional had apprehended and detained prominent
Commissioner, to clarify this Court's power of judicial newsmen on September 21. So that when martial
review and its application on issues involving political law was announced on September 22, the media
questions, viz: hardly published anything about it. In fact, the
media could not publish any story not only because
MR. CONCEPCION. Thank you, Mr. Presiding our main writers were already incarcerated, but
Officer. also because those who succeeded them in their
jobs were under mortal threat of being the object
of wrath of the ruling party. The 1971
I will speak on the judiciary. Practically, everybody has Constitutional Convention had begun on June 1,
made, I suppose, the usual comment that the judiciary is 1971 and by September 21 or 22 had not finished
the weakest among the three major branches of the the Constitution; it had barely agreed in the
service. Since the legislature holds the purse and the fundamentals of the Constitution. I forgot to say
executive the sword, the judiciary has nothing with which to that upon the proclamation of martial law, some
enforce its decisions or commands except the power of delegates to that 1971 Constitutional Convention,
reason and appeal to conscience which, after all, reflects dozens of them, were picked up. One of them was
the will of God, and is the most powerful of all other powers our very own colleague, Commissioner Calderon.
without exception. x x x And so, with the body's indulgence, So, the unfinished draft of the Constitution was
I will proceed to read the provisions drafted by the taken over by representatives of Malacañang. In
Committee on the Judiciary. 17 days, they finished what the delegates to the
1971 Constitutional Convention had been unable to
The first section starts with a sentence copied from former accomplish for about 14 months. The draft of the
Constitutions. It says: 1973 Constitution was presented to the President
around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which
The judicial power shall be vested in one Supreme suspended the operation of some provisions in the
Court and in such lower courts as may be martial law decree which prohibited discussions,
established by law. much less public discussions of certain matters of
public concern. The purpose was presumably to
I suppose nobody can question it. allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held
sometime in January 1973. If I may use a word
The next provision is new in our constitutional law.
famous by our colleague, Commissioner Ople,
I will read it first and explain.
during the interregnum, however, the draft of the
Constitution was analyzed and criticized with such
Judicial power includes the duty of courts of justice a telling effect that Malacañang felt the danger of
to settle actual controversies involving rights which its approval. So, the President suspended
are legally demandable and enforceable and to indefinitely the holding of the plebiscite and
96 | Executive
announced that he would consult the people in a The Supreme Court, like all other courts, has one
referendum to be held from January 10 to January main function: to settle actual controversies
15. But the questions to be submitted in the involving conflicts of rights which are demandable
referendum were not announced until the eve of its and enforceable. There are rights which are
scheduled beginning, under the supposed guaranteed by law but cannot be enforced by a
supervision not of the Commission on Elections, judiciary party. In a decided case, a husband
but of what was then designated as "citizens complained that his wife was unwilling to perform
assemblies or barangays." Thus the barangays her duties as a wife. The Court said: "We can tell
came into existence. The questions to be your wife what her duties as such are and that she
propounded were released with proposed answers is bound to comply with them, but we cannot force
thereto, suggesting that it was unnecessary to hold her physically to discharge her main marital duty
a plebiscite because the answers given in the to her husband. There are some rights guaranteed
referendum should be regarded as the votes cast by law, but they are so personal that to enforce
in the plebiscite. Thereupon, a motion was filed them by actual compulsion would be highly
with the Supreme Court praying that the holding of derogatory to human dignity."
the referendum be suspended. When the motion
was being heard before the Supreme Court, the
This is why the first part of the second paragraph of Section
Minister of Justice delivered to the Court a
I provides that:
proclamation of the President declaring that the
new Constitution was already in force because the
overwhelming majority of the votes cast in the Judicial power includes the duty of courts to settle
referendum favored the Constitution. Immediately actual controversies involving rights which are
after the departure of the Minister of Justice, I legally demandable or enforceable . . .
proceeded to the session room where the case was
being heard. I then informed the Court and the The courts, therefore, cannot entertain, much less
parties the presidential proclamation declaring that decide, hypothetical questions. In a presidential
the 1973 Constitution had been ratified by the system of government, the Supreme Court
people and is now in force. has, also another important function. The
powers of government are generally
A number of other cases were filed to declare the considered divided into three branches: the
presidential proclamation null and void. The main Legislative, the Executive and the Judiciary.
defense put up by the government was that the Each one is supreme within its own sphere
issue was a political question and that the court and independent of the others. Because of
had no jurisdiction to entertain the case. that supremacy power to determine whether
a given law is valid or not is vested in courts
of justice.
xxx
97 | Executive
MR. NOLLEDO. And so, is this only an Truly political questions are thus beyond judicial review, the
example? reason for respect of the doctrine of separation of powers to
be maintained. On the other hand, by virtue of Section 1,
Article VIII of the Constitution, courts can review questions
MR. CONCEPCION. No, I know this is not. The
which are not truly political in nature.
Gentleman seems to identify political
questions with jurisdictional questions. But
there is a difference. As pointed out by amicus curiae former dean Pacifico
Agabin of the UP College of Law, this Court has in fact in a
number of cases taken jurisdiction over questions which are
MR. NOLLEDO. Because of the expression
not truly political following the effectivity of the present
"judicial power"?
Constitution.
98 | Executive
departments on one question.112 (Underscoring the framers could find no better way to approximate the
supplied) boundaries of betrayal of public trust and other high crimes
than by alluding to both positive and negative examples of
both, without arriving at their clear cut definition or even a
Of these standards, the more reliable have been the first
standard therefor.114 Clearly, the issue calls upon this court
three: (1) a textually demonstrable constitutional
to decide a non-justiciable political question which is
commitment of the issue to a coordinate political
beyond the scope of its judicial power under Section 1,
department; (2) the lack of judicially discoverable and
Article VIII.
manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. Lis Mota
These standards are not separate and distinct concepts but
are interrelated to each in that the presence of one
It is a well-settled maxim of adjudication that an issue
strengthens the conclusion that the others are also present.
assailing the constitutionality of a governmental act should
be avoided whenever possible. Thus, in the case of Sotto v.
The problem in applying the foregoing standards is that the Commission on Elections,115 this Court held:
American concept of judicial review is radically different
from our current concept, for Section 1, Article VIII of the
x x x It is a well-established rule that a court
Constitution provides our courts with far less discretion in
should not pass upon a constitutional question and
determining whether they should pass upon a constitutional
decide a law to be unconstitutional or invalid,
issue.
unless such question is raised by the parties and
that when it is raised, if the record also
In our jurisdiction, the determination of a truly political presents some other ground upon which the
question from a non-justiciable political question lies in the court may rest its judgment, that course will
answer to the question of whether there are constitutionally be adopted and the constitutional question
imposed limits on powers or functions conferred upon will be left for consideration until a case
political bodies. If there are, then our courts are duty-bound arises in which a decision upon such question
to examine whether the branch or instrumentality of the will be unavoidable.116 [Emphasis and
government properly acted within such limits. This Court underscoring supplied]
shall thus now apply this standard to the present
controversy.
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13
These petitions raise five substantial issues: and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
I. Whether the offenses alleged in the Second
impeachment complaint constitute valid It has been established that this Court will
impeachable offenses under the Constitution. assume jurisdiction over a constitutional
question only if it is shown that the essential
requisites of a judicial inquiry into such a
II. Whether the second impeachment complaint
question are first satisfied. Thus, there must be
was filed in accordance with Section 3(4), Article
an actual case or controversy involving a conflict of
XI of the Constitution.
legal rights susceptible of judicial determination,
the constitutional question must have been
III. Whether the legislative inquiry by the House opportunely raised by the proper party, and the
Committee on Justice into the Judicial resolution of the question is unavoidably
Development Fund is an unconstitutional necessary to the decision of the case
infringement of the constitutionally mandated fiscal itself.118 [Emphasis supplied]
autonomy of the judiciary.
Succinctly put, courts will not touch the issue of
IV. Whether Sections 15 and 16 of Rule V of the constitutionality unless it is truly unavoidable and is the
Rules on Impeachment adopted by the 12th very lis mota or crux of the controversy.
Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the
As noted earlier, the instant consolidated petitions, while all
Constitution.
seeking the invalidity of the second impeachment
complaint, collectively raise several constitutional issues
V. Whether the second impeachment complaint is upon which the outcome of this controversy could possibly
barred under Section 3(5) of Article XI of the be made to rest. In determining whether one, some or all of
Constitution. the remaining substantial issues should be passed upon,
this Court is guided by the related cannon of adjudication
The first issue goes into the merits of the second that "the court should not form a rule of constitutional law
impeachment complaint over which this Court has broader than is required by the precise facts to which it is
no jurisdiction. More importantly, any discussion of applied."119
this issue would require this Court to make a
determination of what constitutes an impeachable In G.R. No. 160310, petitioners Leonilo R. Alfonso, et
offense. Such a determination is a purely political al. argue that, among other reasons, the second
question which the Constitution has left to the impeachment complaint is invalid since it directly resulted
sound discretion of the legislation. Such an intent from a Resolution120 calling for a legislative inquiry into the
is clear from the deliberations of the Constitutional JDF, which Resolution and legislative inquiry petitioners
Commission.113 claim to likewise be unconstitutional for being: (a) a
violation of the rules and jurisprudence on investigations in
Although Section 2 of Article XI of the Constitution aid of legislation; (b) an open breach of the doctrine of
enumerates six grounds for impeachment, two of these, separation of powers; (c) a violation of the constitutionally
namely, other high crimes and betrayal of public trust, mandated fiscal autonomy of the judiciary; and (d) an
elude a precise definition. In fact, an examination of the assault on the independence of the judiciary. 121
records of the 1986 Constitutional Commission shows that
99 | Executive
Without going into the merits of petitioners Alfonso, et. al.'s "We are the proponents/sponsors of the Resolution
claims, it is the studied opinion of this Court that the issue of Endorsement of the abovementioned Complaint
of the constitutionality of the said Resolution and resulting of Representatives Gilberto Teodoro and Felix
legislative inquiry is too far removed from the issue of the William B. Fuentebella x x x" 124
validity of the second impeachment complaint. Moreover,
the resolution of said issue would, in the Court's opinion,
Intervenors Macalintal and Quadra further claim that what
require it to form a rule of constitutional law touching on
the Constitution requires in order for said second
the separate and distinct matter of legislative inquiries in
impeachment complaint to automatically become the
general, which would thus be broader than is required by
Articles of Impeachment and for trial in the Senate to begin
the facts of these consolidated cases. This opinion is further
"forthwith," is that the verified complaint be "filed," not
strengthened by the fact that said petitioners have raised
merely endorsed, by at least one-third of the Members of
other grounds in support of their petition which would not
the House of Representatives. Not having complied with this
be adversely affected by the Court's ruling.
requirement, they concede that the second impeachment
complaint should have been calendared and referred to the
En passant, this Court notes that a standard for the conduct House Committee on Justice under Section 3(2), Article XI
of legislative inquiries has already been enunciated by this of the Constitution, viz:
Court in Bengzon, Jr. v. Senate Blue Ribbon
Commttee,122 viz:
Section 3(2) A verified complaint for impeachment
may be filed by any Member of the House of
The 1987 Constitution expressly recognizes the Representatives or by any citizen upon a resolution
power of both houses of Congress to conduct of endorsement by any Member thereof, which
inquiries in aid of legislation. Thus, Section 21, shall be included in the Order of Business within
Article VI thereof provides: ten session days, and referred to the proper
Committee within three session days thereafter.
The Committee, after hearing, and by a majority
The Senate or the House of Representatives or any
vote of all its Members, shall submit its report to
of its respective committees may conduct inquiries
the House within sixty session days from such
in aid of legislation in accordance with its duly
referral, together with the corresponding
published rules of procedure. The rights of persons
resolution. The resolution shall be calendared for
appearing in or affected by such inquiries shall be
consideration by the House within ten session days
respected.
from receipt thereof.
They assert that while at least 81 members of the House of Again, the decision to discard the resolution of this issue as
Representatives signed a Resolution of unnecessary for the determination of the instant cases is
Endorsement/Impeachment, the same did not satisfy the made easier by the fact that said intervenors Macalintal and
requisites for the application of the afore-mentioned section Quadra have joined in the petition of Candelaria, et.
in that the "verified complaint or resolution of al., adopting the latter's arguments and issues as their own.
impeachment" was not filed "by at least one-third of all the Consequently, they are not unduly prejudiced by this
Members of the House." With the exception of Court's decision.
Representatives Teodoro and Fuentebella, the signatories to
said Resolution are alleged to have verified the same
In sum, this Court holds that the two remaining issues,
merely as a "Resolution of Endorsement." Intervenors point
inextricably linked as they are, constitute the very lis mota
to the "Verification" of the Resolution of Endorsement which
of the instant controversy: (1) whether Sections 15 and 16
states that:
of Rule V of the House Impeachment Rules adopted by the
12th Congress are unconstitutional for violating the
provisions of Section 3, Article XI of the Constitution; and
100 | Executive
(2) whether, as a result thereof, the second impeachment which it cannot lawfully discharge if shorn of the
complaint is barred under Section 3(5) of Article XI of the participation of its entire membership of Senators.
Constitution.
To our mind, this is the overriding consideration —
Judicial Restraint that the Tribunal be not prevented from
discharging a duty which it alone has the power to
perform, the performance of which is in the
Senator Pimentel urges this Court to exercise judicial
highest public interest as evidenced by its being
restraint on the ground that the Senate, sitting as an
expressly imposed by no less than the fundamental
impeachment court, has the sole power to try and decide all
law.
cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over
justiciable issues in impeachment proceedings. It is aptly noted in the first of the questioned
Resolutions that the framers of the Constitution
could not have been unaware of the possibility of
On the other hand, respondents Speaker De Venecia et. al.
an election contest that would involve all Senators
argue that "[t]here is a moral compulsion for the Court to
—elect, six of whom would inevitably have to sit in
not assume jurisdiction over the impeachment because all
judgment thereon. Indeed, such possibility might
the Members thereof are subject to impeachment." 125 But
surface again in the wake of the 1992 elections
this argument is very much like saying the Legislature has a
when once more, but for the last time, all 24 seats
moral compulsion not to pass laws with penalty clauses
in the Senate will be at stake. Yet the Constitution
because Members of the House of Representatives are
provides no scheme or mode for settling such
subject to them.
unusual situations or for the substitution of
Senators designated to the Tribunal whose
The exercise of judicial restraint over justiciable issues is disqualification may be sought. Litigants in such
not an option before this Court. Adjudication may not be situations must simply place their trust and hopes
declined, because this Court is not legally disqualified. Nor of vindication in the fairness and sense of justice of
can jurisdiction be renounced as there is no other tribunal the Members of the Tribunal. Justices and
to which the controversy may be referred."126 Otherwise, Senators, singly and collectively.
this Court would be shirking from its duty vested under Art.
VIII, Sec. 1(2) of the Constitution. More than being clothed
Let us not be misunderstood as saying that no
with authority thus, this Court is duty-bound to take
Senator-Member of the Senate Electoral Tribunal
cognizance of the instant petitions.127 In the august words
may inhibit or disqualify himself from sitting in
of amicus curiae Father Bernas, "jurisdiction is not just a
judgment on any case before said Tribunal.
power; it is a solemn duty which may not be renounced. To
Every Member of the Tribunal may, as his
renounce it, even if it is vexatious, would be a dereliction of
conscience dictates, refrain from participating in
duty."
the resolution of a case where he sincerely feels
that his personal interests or biases would stand in
Even in cases where it is an interested party, the Court the way of an objective and impartial judgment.
under our system of government cannot inhibit itself and What we are merely saying is that in the light of
must rule upon the challenge because no other office has the Constitution, the Senate Electoral Tribunal
the authority to do so.128 On the occasion that this Court cannot legally function as such, absent its entire
had been an interested party to the controversy before it, it membership of Senators and that no amendment
has acted upon the matter "not with officiousness but in the of its Rules can confer on the three Justices-
discharge of an unavoidable duty and, as always, with Members alone the power of valid adjudication of a
detachment and fairness."129 After all, "by [his] appointment senatorial election contest.
to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally
More recently in the case of Estrada v. Desierto,132 it was
fit to pass upon the merits of their varied contentions. For
held that:
this reason, they expect [him] to be fearless in [his] pursuit
to render justice, to be unafraid to displease any person,
interest or power and to be equipped with a moral fiber Moreover, to disqualify any of the members of the
strong enough to resist the temptations lurking in [his] Court, particularly a majority of them, is nothing
office."130 short of pro tanto depriving the Court itself of its
jurisdiction as established by the fundamental law.
Disqualification of a judge is a deprivation of his
The duty to exercise the power of adjudication regardless of
judicial power. And if that judge is the one
interest had already been settled in the case of Abbas v.
designated by the Constitution to exercise the
Senate Electoral Tribunal.131 In that case, the petitioners
jurisdiction of his court, as is the case with the
filed with the respondent Senate Electoral Tribunal a Motion
Justices of this Court, the deprivation of his or
for Disqualification or Inhibition of the Senators-Members
their judicial power is equivalent to the deprivation
thereof from the hearing and resolution of SET Case No.
of the judicial power of the court itself. It affects
002-87 on the ground that all of them were interested
the very heart of judicial independence. The
parties to said case as respondents therein. This would
proposed mass disqualification, if sanctioned and
have reduced the Tribunal's membership to only its three
ordered, would leave the Court no alternative but
Justices-Members whose disqualification was not sought,
to abandon a duty which it cannot lawfully
leaving them to decide the matter. This Court held:
discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Where, as here, a situation is created which
precludes the substitution of any Senator sitting in
Besides, there are specific safeguards already laid down by
the Tribunal by any of his other colleagues in the
the Court when it exercises its power of judicial review.
Senate without inviting the same objections to the
substitute's competence, the proposed mass
disqualification, if sanctioned and ordered, would In Demetria v. Alba,134 this Court, through Justice Marcelo
leave the Tribunal no alternative but to abandon a Fernan cited the "seven pillars" of limitations of the power
duty that no other court or body can perform, but of judicial review, enunciated by US Supreme Court Justice
Brandeis in Ashwander v. TVA135 as follows:
101 | Executive
1. The Court will not pass upon the 2. that rules of constitutional law shall be
constitutionality of legislation in a friendly, non- formulated only as required by the facts of the
adversary proceeding, declining because to decide case
such questions 'is legitimate only in the last resort,
and as a necessity in the determination of real,
3. that judgment may not be sustained on some
earnest and vital controversy between individuals.
other ground
It never was the thought that, by means of a
friendly suit, a party beaten in the legislature could
transfer to the courts an inquiry as to the 4. that there be actual injury sustained by the
constitutionality of the legislative act.' party by reason of the operation of the statute
2. The Court will not 'anticipate a question of 5. that the parties are not in estoppel
constitutional law in advance of the necessity of
deciding it.' . . . 'It is not the habit of the Court to 6. that the Court upholds the presumption of
decide questions of a constitutional nature unless constitutionality.
absolutely necessary to a decision of the case.'
6. The Court will not pass upon the Such an argument, however, is specious, to say the least.
constitutionality of a statute at the instance of one As correctly stated by the Solicitor General, the possibility
who has availed himself of its benefits. of the occurrence of a constitutional crisis is not a reason
for this Court to refrain from upholding the Constitution in
all impeachment cases. Justices cannot abandon their
7. When the validity of an act of the Congress is constitutional duties just because their action may start, if
drawn in question, and even if a serious doubt of not precipitate, a crisis.
constitutionality is raised, it is a cardinal principle
that this Court will first ascertain whether a
construction of the statute is fairly possible by Justice Feliciano warned against the dangers when this
which the question may be avoided (citations Court refuses to act.
omitted).
x x x Frequently, the fight over a controversial
The foregoing "pillars" of limitation of judicial review, legislative or executive act is not regarded as
summarized in Ashwander v. TVA from different decisions settled until the Supreme Court has passed upon
of the United States Supreme Court, can be encapsulated the constitutionality of the act involved, the
into the following categories: judgment has not only juridical effects but also
political consequences. Those political
consequences may follow even where the Court
1. that there be absolute necessity of deciding a fails to grant the petitioner's prayer to nullify an
case act for lack of the necessary number of votes.
Frequently, failure to act explicitly, one way or the
other, itself constitutes a decision for the
respondent and validation, or at least quasi-
validation, follows." 138
102 | Executive
Thus, in Javellana v. Executive Secretary139 where this Court "initiating" included the act of taking initial action on the
was split and "in the end there were not enough votes complaint, dissipates any doubt that indeed the word
either to grant the petitions, or to sustain respondent's "initiate" as it twice appears in Article XI (3) and (5) of the
claims,"140 the pre-existing constitutional order was Constitution means to file the complaint and take initial
disrupted which paved the way for the establishment of the action on it.
martial law regime.
"Initiate" of course is understood by ordinary men to mean,
Such an argument by respondents and intervenor also as dictionaries do, to begin, to commence, or set going. As
presumes that the coordinate branches of the government Webster's Third New International Dictionary of the English
would behave in a lawless manner and not do their duty Language concisely puts it, it means "to perform
under the law to uphold the Constitution and obey the laws or facilitate the first action," which jibes with Justice
of the land. Yet there is no reason to believe that any of the Regalado's position, and that of Father Bernas, who
branches of government will behave in a precipitate manner elucidated during the oral arguments of the instant petitions
and risk social upheaval, violence, chaos and anarchy by on November 5, 2003 in this wise:
encouraging disrespect for the fundamental law of the land.
Briefly then, an impeachment proceeding is not a
Substituting the word public officers for judges, this Court is single act. It is a comlexus of acts consisting of a
well guided by the doctrine in People v. Veneracion, beginning, a middle and an end. The end is the
to wit:141 transmittal of the articles of impeachment to the
Senate. The middle consists of those deliberative
moments leading to the formulation of the articles
Obedience to the rule of law forms the bedrock of
of impeachment. The beginning or the initiation is
our system of justice. If [public officers], under the
the filing of the complaint and its referral to the
guise of religious or political beliefs were allowed
Committee on Justice.
to roam unrestricted beyond boundaries within
which they are required by law to exercise the
duties of their office, then law becomes Finally, it should be noted that the House Rule
meaningless. A government of laws, not of men relied upon by Representatives Cojuangco and
excludes the exercise of broad discretionary Fuentebella says that impeachment is "deemed
powers by those acting under its authority. Under initiated" when the Justice Committee votes in
this system, [public officers] are guided by the favor of impeachment or when the House reverses
Rule of Law, and ought "to protect and enforce it a contrary vote of the Committee. Note that the
without fear or favor," resist encroachments by Rule does not say "impeachment proceedings" are
governments, political parties, or even the initiated but rather are "deemed initiated." The
interference of their own personal beliefs.142 language is recognition that initiation happened
earlier, but by legal fiction there is an attempt to
postpone it to a time after actual initiation.
Constitutionality of the Rules of Procedure
(Emphasis and underscoring supplied)
for Impeachment Proceedings
adopted by the 12th Congress
As stated earlier, one of the means of interpreting the
Constitution is looking into the intent of the law.
Respondent House of Representatives, through Speaker De
Fortunately, the intent of the framers of the 1987
Venecia, argues that Sections 16 and 17 of Rule V of the
Constitution can be pried from its records:
House Impeachment Rules do not violate Section 3 (5) of
Article XI of our present Constitution, contending that the
term "initiate" does not mean "to file;" that Section 3 (1) is MR. MAAMBONG. With reference to Section 3,
clear in that it is the House of Representatives, as a regarding the procedure and the substantive
collective body, which has the exclusive power to initiate all provisions on impeachment, I understand there
cases of impeachment; that initiate could not possibly mean have been many proposals and, I think, these
"to file" because filing can, as Section 3 (2), Article XI of would need some time for Committee action.
the Constitution provides, only be accomplished in 3 ways,
to wit: (1) by a verified complaint for impeachment by any
However, I would just like to indicate that I
member of the House of Representatives; or (2) by any
submitted to the Committee a resolution on
citizen upon a resolution of endorsement by any member;
impeachment proceedings, copies of which have
or (3) by at least 1/3 of all the members of the House.
been furnished the Members of this body. This is
Respondent House of Representatives concludes that the
borne out of my experience as a member of the
one year bar prohibiting the initiation of impeachment
Committee on Justice, Human Rights and Good
proceedings against the same officials could not have been
Government which took charge of the last
violated as the impeachment complaint against Chief Justice
impeachment resolution filed before the First
Davide and seven Associate Justices had not been initiated
Batasang Pambansa. For the information of the
as the House of Representatives, acting as the collective
Committee, the resolution covers several
body, has yet to act on it.
steps in the impeachment
proceedings starting with initiation, action of
The resolution of this issue thus hinges on the the Speaker committee action, calendaring of
interpretation of the term "initiate." Resort to statutory report, voting on the report, transmittal
construction is, therefore, in order. referral to the Senate, trial and judgment by
the Senate.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who xxx
eventually became an Associate Justice of this Court,
agreed on the meaning of "initiate" as "to file," as proffered
MR. MAAMBONG. Mr. Presiding Officer, I am not
and explained by Constitutional Commissioner Maambong
moving for a reconsideration of the approval of the
during the Constitutional Commission proceedings, which he
amendment submitted by Commissioner Regalado,
(Commissioner Regalado) as amicus curiae affirmed during
but I will just make of record my thinking that we
the oral arguments on the instant petitions held on
do not really initiate the filing of the Articles of
November 5, 2003 at which he added that the act of
Impeachment on the floor. The procedure, as I
103 | Executive
have pointed out earlier, was that the It is thus clear that the framers intended "initiation" to start
initiation starts with the filing of the with the filing of the complaint. In his amicus curiae brief,
complaint. And what is actually done on the Commissioner Maambong explained that "the obvious
floor is that the committee resolution reason in deleting the phrase "to initiate impeachment
containing the Articles of Impeachment is the proceedings" as contained in the text of the provision of
one approved by the body. Section 3 (3) was to settle and make it understood
once and for all that the initiation of impeachment
proceedings starts with the filing of the
As the phraseology now runs, which may be
complaint, and the vote of one-third of the House in a
corrected by the Committee on Style, it appears
resolution of impeachment does not initiate the
that the initiation starts on the floor. If we only
impeachment proceedings which was already initiated
have time, I could cite examples in the case of the
by the filing of a verified complaint under Section 3,
impeachment proceedings of President Richard
paragraph (2), Article XI of the Constitution."145
Nixon wherein the Committee on the Judiciary
submitted the recommendation, the resolution,
and the Articles of Impeachment to the body, and Amicus curiae Constitutional Commissioner Regalado is of
it was the body who approved the resolution. It is the same view as is Father Bernas, who was also a member
not the body which initiates it. It only of the 1986 Constitutional Commission, that the word
approves or disapproves the resolution. So, on "initiate" as used in Article XI, Section 3(5) means to file,
that score, probably the Committee on Style could both adding, however, that the filing must be accompanied
help in rearranging these words because we have by an action to set the complaint moving.
to be very technical about this. I have been
bringing with me The Rules of the House of
During the oral arguments before this Court, Father Bernas
Representatives of the U.S. Congress. The Senate
clarified that the word "initiate," appearing in the
Rules are with me. The proceedings on the case of
constitutional provision on impeachment, viz:
Richard Nixon are with me. I have submitted my
proposal, but the Committee has already decided.
Nevertheless, I just want to indicate this on record. Section 3 (1) The House of Representatives shall
have the exclusive power to initiate all cases of
impeachment.
xxx
xxx
MR. MAAMBONG. I would just like to move for a
reconsideration of the approval of Section 3 (3).
My reconsideration will not at all affect the (5) No impeachment proceedings shall be initiated
substance, but it is only in keeping with the exact against the same official more than once within a
formulation of the Rules of the House of period of one year, (Emphasis supplied)
Representatives of the United States regarding
impeachment. refers to two objects, "impeachment case" and
"impeachment proceeding."
I am proposing, Madam President, without doing
damage to any of this provision, that on page 2, Father Bernas explains that in these two provisions, the
Section 3 (3), from lines 17 to 18, we delete the common verb is "to initiate." The object in the first
words which read: "to initiate impeachment sentence is "impeachment case." The object in the second
proceedings" and the comma (,) and insert on sentence is "impeachment proceeding." Following the
line 19 after the word "resolution" the phrase principle of reddendo singuala sinuilis, the term "cases"
WITH THE ARTICLES, and then capitalize the letter must be distinguished from the term "proceedings." An
"i" in "impeachment" and replace the word "by" impeachment case is the legal controversy that must be
with OF, so that the whole section will now read: decided by the Senate. Above-quoted first provision
"A vote of at least one-third of all the Members of provides that the House, by a vote of one-third of all its
the House shall be necessary either to affirm a members, can bring a case to the Senate. It is in that sense
resolution WITH THE ARTICLES of Impeachment that the House has "exclusive power" to initiate all cases of
OF the Committee or to override its contrary impeachment. No other body can do it. However, before a
resolution. The vote of each Member shall be decision is made to initiate a case in the Senate, a
recorded." "proceeding" must be followed to arrive at a conclusion. A
proceeding must be "initiated." To initiate, which comes
I already mentioned earlier yesterday that from the Latin word initium, means to begin. On the other
the initiation, as far as the House of hand, proceeding is a progressive noun. It has a beginning,
Representatives of the United States is a middle, and an end. It takes place not in the Senate but
concerned, really starts from the filing of the in the House and consists of several steps: (1) there is the
verified complaint and every resolution to filing of a verified complaint either by a Member of the
impeach always carries with it the Articles of House of Representatives or by a private citizen endorsed
Impeachment. As a matter of fact, the words by a Member of the House of the Representatives; (2) there
"Articles of Impeachment" are mentioned on line is the processing of this complaint by the proper Committee
25 in the case of the direct filing of a verified which may either reject the complaint or uphold it; (3)
compliant of one-third of all the Members of the whether the resolution of the Committee rejects or upholds
House. I will mention again, Madam President, that the complaint, the resolution must be forwarded to the
my amendment will not vary the substance in any House for further processing; and (4) there is the
way. It is only in keeping with the uniform processing of the same complaint by the House of
procedure of the House of Representatives of the Representatives which either affirms a favorable resolution
United States Congress. Thank you, Madam of the Committee or overrides a contrary resolution by a
President.143 (Italics in the original; emphasis and vote of one-third of all the members. If at least one third of
udnerscoring supplied) all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate.
It is at this point that the House "initiates an
This amendment proposed by Commissioner Maambong
impeachment case." It is at this point that an impeachable
was clarified and accepted by the Committee on the
public official is successfully impeached. That is, he or she is
Accountability of Public Officers.144
104 | Executive
successfully charged with an impeachment "case" before Secretary-General of the House of Representatives of a
the Senate as impeachment court. verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give
Father Bernas further explains: The "impeachment
the term "initiate" a meaning different meaning from filing
proceeding" is not initiated when the complaint is
and referral.
transmitted to the Senate for trial because that is the end
of the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment In his amicus curiae brief, Justice Hugo Gutierrez posits that
proceeding" initiated when the House deliberates on the this Court could not use contemporaneous construction as
resolution passed on to it by the Committee, because an aid in the interpretation of Sec.3 (5) of Article XI,
something prior to that has already been done. The action citing Vera v. Avelino147 wherein this Court stated that
of the House is already a further step in the proceeding, not "their personal opinions (referring to Justices who were
its initiation or beginning. Rather, the proceeding is initiated delegates to the Constitution Convention) on the matter at
or begins, when a verified complaint is filed and referred to issue expressed during this Court's our deliberations stand
the Committee on Justice for action. This is the initiating on a different footing from the properly recorded utterances
step which triggers the series of steps that follow. of debates and proceedings." Further citing said case, he
states that this Court likened the former members of the
Constitutional Convention to actors who are so absorbed in
The framers of the Constitution also understood initiation in
their emotional roles that intelligent spectators may know
its ordinary meaning. Thus when a proposal reached the
more about the real meaning because of the latter's
floor proposing that "A vote of at least one-third of all the
balanced perspectives and disinterestedness.148
Members of the House shall be necessary… to initiate
impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House Justice Gutierrez's statements have no application in the
does not initiate impeachment proceeding but rather the present petitions. There are at present only two members
filing of a complaint does.146 Thus the line was deleted and of this Court who participated in the 1986 Constitutional
is not found in the present Constitution. Commission – Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these
proceedings for obvious reasons. Moreover, this Court has
Father Bernas concludes that when Section 3 (5) says, "No
not simply relied on the personal opinions now given by
impeachment proceeding shall be initiated against the same
members of the Constitutional Commission, but has
official more than once within a period of one year," it
examined the records of the deliberations and proceedings
means that no second verified complaint may be accepted
thereof.
and referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means Respondent House of Representatives counters that under
to begin. He reminds that the Constitution is ratified by the Section 3 (8) of Article XI, it is clear and unequivocal that it
people, both ordinary and sophisticated, as they understand and only it has the power to make and interpret its rules
it; and that ordinary people read ordinary meaning into governing impeachment. Its argument is premised on the
ordinary words and not abstruse meaning, they ratify words assumption that Congress has absolute power to
as they understand it and not as sophisticated lawyers promulgate its rules. This assumption, however, is
confuse it. misplaced.
To the argument that only the House of Representatives as Section 3 (8) of Article XI provides that "The Congress shall
a body can initiate impeachment proceedings because promulgate its rules on impeachment to effectively carry
Section 3 (1) says "The House of Representatives shall have out the purpose of this section." Clearly, its power to
the exclusive power to initiate all cases of impeachment," promulgate its rules on impeachment is limited by the
This is a misreading of said provision and is contrary to the phrase "to effectively carry out the purpose of this section."
principle of reddendo singula singulis by equating Hence, these rules cannot contravene the very purpose of
"impeachment cases" with "impeachment proceeding." the Constitution which said rules were intended to
effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to
From the records of the Constitutional Commission, to
make rules, viz:
the amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to
initiate" refers to the filing of the impeachment complaint Section 3. (1) x x x
coupled with Congress' taking initial action of said
complaint.
(2) A verified complaint for impeachment may be
filed by any Member of the House of
Having concluded that the initiation takes place by the act Representatives or by any citizen upon a resolution
of filing and referral or endorsement of the impeachment of endorsement by any Member thereof, which
complaint to the House Committee on Justice or, by the shall be included in the Order of Business within
filing by at least one-third of the members of the House of ten session days, and referred to the proper
Representatives with the Secretary General of the House, Committee within three session days thereafter.
the meaning of Section 3 (5) of Article XI becomes clear. The Committee, after hearing, and by a majority
Once an impeachment complaint has been initiated, another vote of all its Members, shall submit its report to
impeachment complaint may not be filed against the same the House within sixty session days from such
official within a one year period. referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session days
Under Sections 16 and 17 of Rule V of the House
from receipt thereof.
Impeachment Rules, impeachment proceedings are deemed
initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is (3) A vote of at least one-third of all the Members
sufficient in substance, or (2) once the House itself affirms of the House shall be necessary to either affirm a
or overturns the finding of the Committee on Justice that favorable resolution with the Articles of
the verified complaint and/or resolution is not sufficient in Impeachment of the Committee, or override its
substance or (3) by the filing or endorsement before the
105 | Executive
contrary resolution. The vote of each Member shall 3. On the demand of any member, or at the
be recorded. suggestion of the Speaker, the names of members
sufficient to make a quorum in the hall of the
House who do not vote shall be noted by the clerk
(4) In case the verified complaint or resolution of
and recorded in the journal, and reported to the
impeachment is filed by at least one-third of all the
Speaker with the names of the members voting,
Members of the House, the same shall constitute
and be counted and announced in determining the
the Articles of Impeachment, and trial by the
presence of a quorum to do business. (House
Senate shall forthwith proceed.
Journal, 230, Feb. 14, 1890)
In sum, I submit that in imposing to this Court the Validity of the Second Impeachment Complaint
duty to annul acts of government committed with
grave abuse of discretion, the new Constitution
Having concluded that the initiation takes place by the act
transformed this Court from passivity to activism.
of filing of the impeachment complaint and referral to the
This transformation, dictated by our distinct
House Committee on Justice, the initial action taken
experience as nation, is not merely evolutionary
thereon, the meaning of Section 3 (5) of Article XI becomes
but revolutionary. Under the 1935 and the 1973
clear. Once an impeachment complaint has been initiated in
Constitutions, this Court approached constitutional
the foregoing manner, another may not be filed against the
violations by initially determining what it cannot
same official within a one year period following Article XI,
do; under the 1987 Constitution, there is a
Section 3(5) of the Constitution.
shift in stress – this Court is mandated to
approach constitutional violations not by
finding out what it should not do but what In fine, considering that the first impeachment complaint,
it must do. The Court must discharge this solemn was filed by former President Estrada against Chief Justice
duty by not resuscitating a past that petrifies the Hilario G. Davide, Jr., along with seven associate justices of
present. this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C.
I urge my brethren in the Court to give due and
Teodoro, Jr. and Felix William Fuentebella against the Chief
serious consideration to this new constitutional
Justice on October 23, 2003 violates the constitutional
provision as the case at bar once more calls us to
prohibition against the initiation of impeachment
define the parameters of our power to review
proceedings against the same impeachable officer within a
violations of the rules of the House. We will not
one-year period.
be true to our trust as the last bulwark
against government abuses if we refuse to
exercise this new power or if we wield it with Conclusion
timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that
If there is anything constant about this country, it is that
has increasingly emboldened other branches
there is always a phenomenon that takes the center stage
of government to denigrate, if not defy,
of our individual and collective consciousness as a people
orders of our courts. In Tolentino, I endorsed
with our characteristic flair for human drama, conflict or
the view of former Senator Salonga that this novel
tragedy. Of course this is not to demean the seriousness of
provision stretching the latitude of judicial power is
the controversy over the Davide impeachment. For many of
distinctly Filipino and its interpretation should not
us, the past two weeks have proven to be an exasperating,
be depreciated by undue reliance on inapplicable
mentally and emotionally exhausting experience. Both sides
107 | Executive
have fought bitterly a dialectical struggle to articulate what judicial power to resolve conflicting legal rights regardless
they respectively believe to be the correct position or view of the personalities involved in the suits or actions. This
on the issues involved. Passions had ran high as Court has dispensed justice over the course of time,
demonstrators, whether for or against the impeachment of unaffected by whomsoever stood to benefit or suffer
the Chief Justice, took to the streets armed with their therefrom, unfraid by whatever imputations or speculations
familiar slogans and chants to air their voice on the matter. could be made to it, so long as it rendered judgment
Various sectors of society - from the business, retired according to the law and the facts. Why can it not now be
military, to the academe and denominations of faith – trusted to wield judicial power in these petitions just
offered suggestions for a return to a state of normalcy in because it is the highest ranking magistrate who is involved
the official relations of the governmental branches affected when it is an incontrovertible fact that the fundamental
to obviate any perceived resulting instability upon areas of issue is not him but the validity of a government branch's
national life. official act as tested by the limits set by the Constitution?
Of course, there are rules on the inhibition of any member
of the judiciary from taking part in a case in specified
Through all these and as early as the time when the Articles
instances. But to disqualify this entire institution now from
of Impeachment had been constituted, this Court was
the suit at bar is to regard the Supreme Court as likely
specifically asked, told, urged and argued to take no action
incapable of impartiality when one of its members is a party
of any kind and form with respect to the prosecution by the
to a case, which is simply a non sequitur.
House of Representatives of the impeachment complaint
against the subject respondent public official. When the
present petitions were knocking so to speak at the No one is above the law or the Constitution. This is a basic
doorsteps of this Court, the same clamor for non- precept in any legal system which recognizes equality of all
interference was made through what are now the men before the law as essential to the law's moral authority
arguments of "lack of jurisdiction," "non-justiciability," and and that of its agents to secure respect for and obedience
"judicial self-restraint" aimed at halting the Court from any to its commands. Perhaps, there is no other government
move that may have a bearing on the impeachment branch or instrumentality that is most zealous in protecting
proceedings. that principle of legal equality other than the Supreme
Court which has discerned its real meaning and
ramifications through its application to numerous cases
This Court did not heed the call to adopt a hands-off stance
especially of the high-profile kind in the annals of
as far as the question of the constitutionality of initiating
jurisprudence. The Chief Justice is not above the law and
the impeachment complaint against Chief Justice Davide is
neither is any other member of this Court. But just because
concerned. To reiterate what has been already explained,
he is the Chief Justice does not imply that he gets to have
the Court found the existence in full of all the requisite
less in law than anybody else. The law is solicitous of every
conditions for its exercise of its constitutionally vested
individual's rights irrespective of his station in life.
power and duty of judicial review over an issue whose
resolution precisely called for the construction or
interpretation of a provision of the fundamental law of the The Filipino nation and its democratic institutions have no
land. What lies in here is an issue of a genuine doubt been put to test once again by this impeachment
constitutional material which only this Court can properly case against Chief Justice Hilario Davide. Accordingly, this
and competently address and adjudicate in accordance with Court has resorted to no other than the Constitution in
the clear-cut allocation of powers under our system of search for a solution to what many feared would ripen to a
government. Face-to-face thus with a matter or problem crisis in government. But though it is indeed immensely a
that squarely falls under the Court's jurisdiction, no other blessing for this Court to have found answers in our
course of action can be had but for it to pass upon that bedrock of legal principles, it is equally important that it
problem head on. went through this crucible of a democratic process, if only
to discover that it can resolve differences without the use of
force and aggression upon each other.
The claim, therefore, that this Court by judicially entangling
itself with the process of impeachment has effectively set
up a regime of judicial supremacy, is patently without basis WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
in fact and in law. Procedure in Impeachment Proceedings which were
approved by the House of Representatives on November
28, 2001 are unconstitutional. Consequently, the second
This Court in the present petitions subjected to judicial
impeachment complaint against Chief Justice Hilario G.
scrutiny and resolved on the merits only the main issue of
Davide, Jr. which was filed by Representatives Gilberto C.
whether the impeachment proceedings initiated against the
Teodoro, Jr. and Felix William B. Fuentebella with the Office
Chief Justice transgressed the constitutionally imposed one-
of the Secretary General of the House of Representatives on
year time bar rule. Beyond this, it did not go about
October 23, 2003 is barred under paragraph 5, section 3 of
assuming jurisdiction where it had none, nor
Article XI of the Constitution.
indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of
this Court to assert judicial dominance over the other two SO ORDERED.
great branches of the government. Rather, the raison d'etre
of the judiciary is to complement the discharge by the
executive and legislative of their own powers to bring about
ultimately the beneficent effects of having founded and
ordered our society upon the rule of law.