SECTION 1

G.R. No. 88211, September 15, 1989

Marcos, petitioner

VS.

Manglapus, respondent (Part 1)

Facts:

Former President Ferdinand E. Marcos was deposed from the presidency via the non- violent “people power” revolution and was forced into exile. Marcos, in his deathbed, has signified his wish to return to the Philippines to die. But President Corazon Aquino, considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Marcos and his family.

Aquino barred Marcos from returning due to possible threats & following supervening events:

1. failed Manila Hotel coup in 1986 led by Marcos leaders

2. channel 7 taken over by rebels & loyalists

3. plan of Marcoses to return w/ mercenaries aboard a chartered plane of a Lebanese arms dealer. This is to prove that they can stir trouble from afar

4. Honasan’s failed coup

5. Communist insurgency movements

6. secessionist movements in Mindanao

7. devastated economy because of

1. accumulated foreign debt

2. plunder of nation by Marcos & cronies

Marcos filed for a petition of mandamus and prohibition to order the respondents to issue them their travel documents and prevent the implementation of President Aquino’s decision to bar Marcos from returning in the Philippines. Petitioner questions Aquino’s power to bar his return in the country. He also questioned the claim of the President that the decision was made in the interest of national security, public safety and health. Petitioner also claimed that the President acted outside her jurisdiction.

According to the Marcoses, such act deprives them of their right to life, liberty, property without due process and equal protection of the laws. They also said that it deprives them of their right to travel which according to Section 6, Article 3 of the constitution, may only be impaired by a court order. Issue:

1. Whether or not, in the exercise of the powers granted by the Constitution, the President may prohibit the Marcoses from returning to the Philippines.

2. Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcoses to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.

Decision:

No to both issues. Petition dismissed.

Ratio:

Separation of power dictates that each department has exclusive powers. According to Section 1, Article VII of the 1987 Philippine Constitution, “the executive power shall be vested in the President of the Philippines.” However, it does not define what is meant by “executive power” although in the same article it touches on exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to execute the laws, the appointing power to grant reprieves, commutations and pardons… (art VII secfs. 14-23). Although the constitution outlines tasks of the president, this list is not defined & exclusive. She has residual & discretionary powers not stated in the Constitution which include the power to protect the general welfare of the people. She is obliged to protect the people, promote their welfare & advance national interest. (Art. II, Sec. 4-5 of the Constitution). Residual powers, according to Theodore Roosevelt, dictate that the President can do anything which is not forbidden in the Constitution (Corwin, supra at 153), inevitable to vest discretionary powers on the President (Hyman, American President) and that the president has to maintain peace during times of emergency but also on the day-to-day operation of the State.

The rights Marcoses are invoking are not absolute. They’re flexible depending on the circumstances. The request of the Marcoses to be allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or denied.

For issue number 2, the question for the court to determine is whether or not there exist factual basis for the President to conclude that it was in the national interest to bar the return of the Marcoses in the Philippines. It is proven that there are factual bases in her decision. The supervening events that happened before her decision are factual. The President must take preemptive measures for the self-preservation of the country & protection of the people. She has to uphold the Constitution.

Fernan, Concurring 1. The president’s power is not fixed. Limits would depend on the imperatives of events and not on abstract theories of law. We are undergoing a critical time and the current problem can only be answerable by the President.

2. Threat is real. Return of the Marcoses would pose a clear & present danger. Thus, it’s the executive’s responsibility & obligation to prevent a grave & serious threat to its safety from arising.

3. We can’t sacrifice public peace, order, safety & our political & economic gains to give in to Marcos’ wish to die in the country. Compassion must give way to the other state interests.

Cruz, Dissenting

1. As a citizen of this country, it is Marcos’ right to return, live & die in his own country. It is a right guaranteed by the Consti to all individuals, whether patriot, homesick, prodigal, tyrant, etc.

2. Military representatives failed to show that Marcos’ return would pose a threat to national security. Fears were mere conjectures.

3. Residual powers – but the executive’s powers were outlined to limit her powers & not expand.

Paras, Dissenting

1. AFP has failed to prove danger which would allow State to impair Marcos’ right to return to the Philippines. .

2. Family can be put under house arrest & in the event that one dies, he/she should be buried w/in 10 days.

3. Untenable that without a legislation, right to travel is absolute & state is powerless to restrict it. It’s w/in police power of the state to restrict this right if national security, public safety/health demands that such be restricted. It can’t be absolute & unlimited all the time. It can’t be arbitrary & irrational.

4. No proof that Marcos’ return would endanger national security or public safety. Fears are speculative & military admits that it’s under control. Filipinos would know how to handle Marcos’ return.

Padilla, Dissenting

Sarmiento, Dissenting

1. President’s determination that Marcos’ return would threaten national security should be agreed upon by the court. Such threat must be clear & present.

G.R. No. 88211, October 27, 1989

Marcos, petitioner

VS. Manglapus, respondent (Part 2)

Facts:

In its decision dated September 15, 1989, the Court by a vote of eight to seven, dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family pose a threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, Marcos died in Honolulu, Hawaii.

President Corazon Aquino issued a statement saying that in the interest of the safety of those who will take the death of Marcos in widely and passionately conflicting ways, and for the tranquility and order of the state and society, she did not allow the remains of Marcos to be brought back in the Philippines.

A motion for Reconsideration was filed by the petitioners raising the following arguments:

1. Barring their return would deny them their inherent right as citizens to return to their country of birth and all other rights guaranteed by the Constitution to all Filipinos.

2. The President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily.

3. There is no basis for barring the return of the family of former President Marcos.

Issue:

Whether or not the motion for reconsideration that the Marcoses be allowed to return in the Philippines be granted.

Decision:

No. The Marcoses were not allowed to return. Motion for Reconsideration denied because of lack of merit.

Ratio:

1. Petitioners failed to show any compelling reason to warrant reconsideration.

2. Factual scenario during the time Court rendered its decision has not changed. The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. Imelda Marcos also called President Aquino “illegal” claiming that it is Ferdinand Marcos who is the legal president.

3. President has unstated residual powers implied from grant of executive power. Enumerations are merely for specifying principal articles implied in the definition; leaving the rest to flow from general grant that power, interpreted in conformity with other parts of the Constitution (Hamilton). Executive unlike Congress can exercise power from sources not enumerates so long as not forbidden by constitutional text (Myers vs. US). This does not amount to dictatorship. Amendment No. 6 expressly granted Marcos power of legislation whereas 1987 Constitution granted Aquino with implied powers.

4. It is within Aquino’s power to protect & promote interest & welfare of the people. She bound to comply w/ that duty and there is no proof that she acted arbitrarily

G.R. No. 146738 Estrada vs. Arroyo

G.R. No 146710-15 Estrada vs. Desierto

March 2, 2001

FACTS:

Estrada was inaugurated as president of the Republic of the Philippines on June 30, 1998 with Gloria Macapagal-Arroyo as his Vice President.

In October 2000, Ilocos Sur governor Luis “Chavit” Singson, a close friend of the President, alleged that he had personally given Estrada money as payoff from jueteng hidden in a bank account known as “Jose Velarde” – a grassroots-based numbers game. Singson’s allegation also caused controversy across the nation, which culminated in the House of Representatives’ filing of an impeachment case against Estrada on November 13, 2000. House Speaker Manny Villar fast-tracked the impeachment complaint. The impeachment suit was brought to the Senate and an impeachment court was formed, with Chief Justice Hilario Davide, Jr. as presiding officer. Estrada, pleaded “not guilty”.

The exposé immediately ignited reactions of rage. On January 18, a crowd continued to grow at EDSA, bolstered by students from private schools and left-wing organizations. Activists from the group Bayan and Akbayan as well as lawyers of the Integrated Bar of the Philippines and other bar associations joined in the thousands of protesters.

On January 19, The Philippine National Police and the Armed Forces of the Philippines also withdrew their support for Estrada and joined the crowd at EDSA Shrine.

At 2:00pm, Estrada appeared on television for the first time since the beginning of the protests and maintains that he will not resign. He said that he wanted the impeachment trial to continue, stressing that only a guilty verdict will remove him from office.

At 6:15pm, Estrada again appeared on television, calling for a snap presidential election to be held concurrently with congressional and local elections on May 14, 2001. He added that he will not run in this election.

OnJanuary 20, the Supreme Court declared that the seat of presidency was vacant, saying that Estrada “constructively resigned his post”. Noon of the same day, Gloria Macapagal-Arroyo took her oath of office in the presence of the crowd at EDSA, becoming the 14th president of the Philippines.

At 2:00 pm, Estrada released a letter saying he had “strong and serious doubts about the legality and constitutionality of her proclamation as president”, but saying he would give up his office to avoid being an obstacle to healing the nation. Estrada and his family later left Malacañang Palace.

A heap of cases then succeeded Estrada’s leaving the palace, which he countered by filing a peition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from “conducting any further proceedings in cases filed against him not until his term as president ends. He also prayed for judgment “confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution.”

ISSUE:

1.) Whether or not the case at bar a political or justiciable issue. If justiciable, whether or not petitioner Estrada was a president-on-leave or did he truly resign.

2.) Whether or not petitioner may invokeimmunity from suits.

HELD:

The Court defines a political issue as “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”

The Court made a distinction between the Aquino presidency and the Arroyo presidency. The Court said that while the Aquino government was a government spawned by the direct demand of the people in defiance to the 1973 Constitution, overthrowing the old government entirely, the Arroyo government on the other hand was a government exercising under the 1987 constitution, wherein only the office of the president was affected. In the former, it The question of whether the previous president (president Estrada) truly resigned subjects it to judicial review. The Court held that the issue is legal and not political.

For the president to be deemed as having resigned, there must be an intent to resign and the intent must be coupled by acts of relinquishment. It is important to follow the succession of events that struck petitioner prior his leaving the palace. Furthermore, the quoted statements extracted from the Angara diaries, detailed Estrada’s implied resignation On top of all these, the press release he issued regarding is acknowledgement of the oath-taking of Arroyo as president despite his questioning of its legality and his emphasis on leaving the presidential seat for the sake of peace. The Court held that petitioner Estrada had resigned by the use of the totality test: prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

As to the issue of the peitioner’s contention that he is immuned from suits, the Court held that petitioner is no longer entitled to absolute immunity from suit. The Court added that, given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure(the term during which the incumbent actually holds office) and not his term (time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another).

Government of the Philippine Islands vs Milton Springer FACTS:

Sometime in the 1900s, the National Coal Company (NCC) was created by the Philippine Congress. The law created it (Act No. 2822) provides that: “The voting power … shall be vested exclusively in a committee consisting of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives.”

In November 1926, the Governor-General (Leonard Wood) issued E.O. No. 37 which divested the voting rights of the Senate President and House Speaker in the NCC. The EO emphasized that the voting right should be solely lodged in the Governor-General who is the head of the government (President at that time was considered the head of state but does not manage government affairs). A copy of the said EO was furnished to the Senate President and the House Speaker.

However, in December 1926, NCC held its elections and the Senate President as well as the House Speaker, notwithstanding EO No. 37 and the objection of the Governor- General, still elected Milton Springer and four others as Board of Directors of NCC. Thereafter, a quo warranto proceeding in behalf of the government was filed against Springer et al questioning the validity of their election into the Board of NCC.

ISSUE: Whether or not the Senate President as well as the House Speaker can validly elect the Board Members of NCC.

HELD: No. E.O. No 37 is valid. It is in accordance with the doctrine of separation of powers. The Supreme Court emphasized that the legislature creates the public office but it has nothing to do with designating the persons to fill the office. Appointing persons to a public office is essentially executive. The NCC is a government owned and controlled corporation. It was created by Congress. To extend the power of Congress into allowing it, through the Senate President and the House Speaker, to appoint members of the NCC is already an invasion of executive powers. The Supreme Court however notes that indeed there are exceptions to this rule where the legislature may appoint persons to fill public office. Such exception can be found in the appointment by the legislature of persons to fill offices within the legislative branch – this exception is allowable because it does not weaken the executive branch.

SECTION 4

SIXTO S. BRILLANTES, JR., petitioner,

JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE A. BERNAS, Petitioners- in-Intervention, vs.COMMISSION ON ELECTIONS, respondent.

Facts:

Comelec issued resolutions adopting an Automated Elections System including the assailed resolution, Resolution 6712, which provides for the electronic transmission of advanced result of “unofficial” count. Petitioners claimed that the resolution would allow the preemption and usurpation of the exclusive power of Congress to canvass the votes for President and Vice-President and would likewise encroach upon the authority of NAMFREL, as the citizens’ accredited arm, to conduct the "unofficial" quick count as provided under pertinent election laws. Comelec contended that the resolution was promulgated in the exercise of its executive and administrative power "to ensure free, orderly, honest, peaceful and credible elections” Comelec added that the issue is beyond judicial determination.

Issue:

Whether or not Comelec's promulgation of Resolution 6712 was justified.

Ruling:

The Comelec committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution 6712. The issue squarely fell within the ambit of the expanded jurisdiction of the court.

Article VII, Section 4 of the Constitution, further bolstered by RA 8436, vest upon Congress the sole and exclusive authority to officially canvass the votes for the elections of President and Vice-President. Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173, and reiterated in Section 18 of Rep. Act No. 8436, solely authorize NAMFREL, the duly-accredited citizen’s arm to conduct the “unofficial counting of votes for the national or local elections. The quick count under the guise of an “unofficial” tabulation would not only be preemptive of the authority of congress and NAMFREL, but would also be lacking constitutional and/or statutory basis. Moreover, the assailed COMELEC resolution likewise contravened the constitutional provision that "no money shall be paid out of the treasury except in pursuance of an appropriation made by law." It being “unofficial”, any disbursement of public fund would be contrary to the provisions of the Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act.

The Omnibus Election Code in providing the powers and functions of the Commission subjects the same to certain conditions with respect to the adoption of the latest technological and electronic devices, to wit: (1)consideration of the area and available funds (2) notification to all political parties and candidates. The aforementioned conditions were found to have not been substantially met.

Resolution 6712 was null and void. PORMENTO VS ESTRADA

THE FACTS

Private respondent Joseph “Erap” Ejercito Estrada was elected President of the Republic of the Philippines in the general elections held on May 11, 1998. He was however ousted [“resigned” according to the decision of the Supreme Court in Estrada vs. Arroyo, G.R. No. 146738, March 2, 2001] from office and was not able to finish his term. He sought the presidency again in the general elections held on May 10, 2010. Petitioner Atty. Evillo C. Pormento opposed Erap’s candidacy and filed a petition for the latter’s disqualification, which was however denied by the COMELEC 2nd Division. His motion for reconsideration was subsequently denied by the COMELEC en banc.

Petitioner filed the instant petition for certiorari on May 7, 2010. However, under the Rules of Court, the filing of such petition would not stay the execution of the judgment, final order or resolution of the COMELEC that is sought to be reviewed. Besides, petitioner did not even pray for the issuance of a temporary restraining order or writ of preliminary injunction. Hence, private respondent was able to participate as a candidate for the position of President in the May 10, 2010 elections where he garnered the second highest number of votes.

II. THE ISSUE

What is the proper interpretation of the following provision of Section 4, Article VII of the Constitution: “[t]he President shall not be eligible for any re-election?”

III. THE RULING

[The petition was DENIED DUE COURSE and thereby DISMISSED by the Supreme Court.]

Private respondent was not elected President the second time he ran [in the May 2010 elections]. Since the issue on the proper interpretation of the phrase “any reelection” will be premised on a person’s second (whether immediate or not) election as President, there is no case or controversy to be resolved in this case. No live conflict of legal rights exists. There is in this case no definite, concrete, real or substantial controversy that touches on the legal relations of parties having adverse legal interests. No specific relief may conclusively be decreed upon by this Court in this case that will benefit any of the parties herein. As such, one of the essential requisites for the exercise of the power of judicial review, the existence of an actual case or controversy, is sorely lacking in this case. As a rule, this Court may only adjudicate actual, ongoing controversies. The Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it becomes non-justiciable.

An action is considered “moot” when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events.

Assuming an actual case or controversy existed prior to the proclamation of a President who has been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of that elections, private respondent was not elected President for the second time. Thus, any discussion of his “reelection” will simply be hypothetical and speculative. It will serve no useful or practical purpose.

SECTION 13

DOROMAL VS. SANDIGANBAYAN, G. R. No. 85468, 07 September 1989

Topic: Prohibitions [Article VII: Sections 13]

Ponente: GRIÑO-AQUINO, J.

MATERIAL FACTS:

• Quintin S. Doromal, a public officer and being a Commissioner of the Presidential Commission on Good Government, participated in a business through the Doromal International Trading

Corporation (DITC), a family corporation of which he is the President, and which company participated in the biddings conducted by the Department of Education, Culture and Sports

(DECS) and the National Manpower & Youth Council (NMYC). • In connection with his shareholdings and position as president and director of the Doromal

International Trading Corporation which submitted bids to supply P61 million worth of electronic, electrical, automotive, mechanical and airconditioning equipment to theN THE

Department of Education, Culture and Sports and the National Manpower and Youth Council.

• An information was then filed by the “Tanodbayan” against Doromal for the said violation and a preliminary investigation was conducted.

• The petitioner then filed a petition for certiorari and prohibition questioning the jurisdiction of the “Tanodbayan” to file the information without the approval of the Ombudsman.

ISSUES:

Whether or not the act of Doromal would constitute a violation of the Constitution.

RULE:

Article VII, Section 13 (1) of the Constitution provides:

“The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

They shall strictly avoid conflict of interest in the conduct of their office. “ APPLICATION:

• The presence of a signed document bearing the signature of Doromal as part of the application to bid shows that he can rightfully be charged with having participated in a business which act is absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in which Doromal has at least an indirect interest."

• That admission allegedly belies the averment in the information that the petitioner

"participated' in the business of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3-h, RA No. 3019)

duties of PTA General Manager andVice-Chairman of its Board of Directors and had been acknowledged as such by various governmentoffices, including the Office of the President. He complains that his resignation was demanded byrespondent Garrucho as the new Secretary of Tourism.On January 4, 1990, President Aquino sent respondent Garrucho a memorandum stating that petitioner's designation is invalid since it was designated not by the President but only by the Secretaryof Tourism. Garrucho is then designated as General Manager until the President can appoint a person toserve in the said office in a permanent capacity. Garrucho took over as the General Manager of the PTAand thereafter Pres. Aquino appointed Jose A. Capistrano as General Manager of PTA.

ISSUES:

Whether or not petitioner had been removed without just cause in violation of security of tenure

HELD: No, the designation is considered only on an acting or temporary appointment which does not confer security of tenure. Petitioner was not appointed by the President of the Philippines but only designated by the Minister of Tourism. There is a clear distinction between appointment and designation that the petitioner has failed to consider. Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature.

Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain his claim that he has been illegally removed. The reason is that the decree clearly provides that the appointment of the General Manager of the Philippine Tourism Authority shall be made by the President of the Philippines, not by any other officer. Appointment involves the exercise of discretion, which because of its nature cannot be delegated. Legally speaking, it was not possible for Minister Gonzales to assume the exercise of that discretion as an alter ego of the President. The appointment (or designation) of the petitioner was not a merely mechanical or ministerial act that could be validly performed by a subordinate even if he happened as in this case to be a member of the Cabinet.

Civil Liberties Union vs Executive Secretary

194 SCRA 317 – Political Law – Ex Officio Officials – Members of the Cabinet – Singularity of Office – EO 284

FACTS:

In July 1987, then President Corazon Aquino issued Executive Order No. 284 which allowed members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions subject to limitations set therein. The Civil Liberties Union (CLU) assailed this EO averring that such law is unconstitutional. The constitutionality of EO 284 is being challenged by CLU on the principal submission that it adds exceptions to Sec 13, Article 7 of the Constitution which provides:

“Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.”

CLU avers that by virtue of the phrase “unless otherwise provided in this Constitution“, the only exceptions against holding any other office or employment in Government are those provided in the Constitution, namely: (i) The Vice-President may be appointed as a Member of the Cabinet under Sec 3, par. (2), Article 7; and (ii) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Sec 8 (1), Article 8.

ISSUE: Whether or not EO 284 is constitutional.

HELD: No, it is unconstitutional. It is clear that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution’s manifest intent and the people’s understanding thereof.

In the light of the construction given to Sec 13, Art 7 in relation to Sec 7, par. (2), Art IX-B of the 1987 Constitution, EO 284 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than 2 positions in the government and government corporations, EO 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Sec 13, Art 7 of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself

Dela Cruz vs. Commission on Audit (G.R. No. 138489, November 29, 2001)

FACTS:

This petition for certiorari assails the Decision No. 98-381 dated September 22, 1998, rendered by the Commission on Audit (COA), denying petitioners appeal from the Notice of Disallowance No. 97-011-061 issued by the NHA Resident Auditor on October 23, 1997. Such Notice disallowed payment to petitioners of their representation allowances and per diems for the period from August 19, 1991 to August 31, 1996 in the total amount of P276,600.00.

Petitioners, numbering 20, were members of the Board of Directors of the National Housing Authority (NHA) from 1991 to 1996.

On September 19, 1997, the COA issued Memorandum No. 97-038 directing all unit heads/auditors/team leaders of the national government agencies and government- owned and controlled corporations which have effected payment of any form of additional compensation or remuneration to cabinet secretaries, their deputies and assistants, or their representatives, in violation of the rule on multiple positions, to (a) immediately cause the disallowance of such additional compensation or remuneration given to and received by the concerned officials, and (b) effect the refund of the same from the time of the finality of the Supreme Court En Banc Decision in the consolidated cases of Civil Liberties Union vs. Exexcutive Secretary and Anti-Graft League of the Philippines, Inc. et al. vs. Secretary of Agrarian Reform, et al., promulgated on February 22, 1991. The COA Memorandum further stated that the said Supreme Court Decision, which became final and executory on August 19, 1991, declared Executive Order No. 284 unconstitutional insofar as it allows Cabinet members, their deputies and assistants to hold other offices, in addition to their primary offices, and to receive compensation therefor.

Accordingly, on October 23, 1997, NHA Resident Auditor Salvador J. Vasquez issued Notice of Disallowance No. 97-011-061 disallowing in audit the payment of representation allowances and per diems of "Cabinet members who were the ex- officio members of the NHA Board of Directors and/or their respective alternates who actually received the payments." The total disallowed amount of P276,600 paid as representation allowances and per diems to each of the petitioners, covering the period from August 19, 1991 to August 31, 1996.

ISSUE: Whether the COA did gravely abuse its discretion.

RULING:

The Court rule that in rendering its challenged Decision, the COA did not gravely abuse its discretion.

The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in the said position. The reason is that these services are already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining policy in monetary banking matters, which come under the jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional compensation is prohibited by the Constitution.

Since the Executive Department Secretaries, as ex-oficio members of the NHA Board, are prohibited from receiving extra (additional) compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such euphemism," it follows that petitioners who sit as their alternates cannot likewise be entitled to receive such compensation. A contrary rule would give petitioners a better right than their principals.

Funa v. Agra, G.R. No. 191644, February 19, 2013

FACTS: These prohibitions under the Constitution are at the core of this special civil action for certiorari and prohibition commenced on April 7, 2010 to assail the designation of respondent Hon. Alberto C. Agra, then the Acting Secretary of Justice, as concurrently the Acting Solicitor General.

The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal-Arroyo appointed Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010, President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity;1 that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer, commenced this suit to challenge the constitutionality of Agra’s concurrent appointments or designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution; that during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor General and commenced his duties as such on August 5, 2010.

ISSUE: Whether the designation of Agra as the Acting Secretary of Justice violate the constitutional prohibition against dual or multiple offices for the Members of the Cabinet and their deputies and assistants.

RULING:

In order to be clear, therefore, the Court holds that all official actions of Agra as a de facto Acting Secretary of Justice, assuming that was his later designation, were presumed valid, binding and effective as if he was the officer legally appointed and qualified for the office. 54 This clarification is necessary in order to protect the sanctity of the dealings by the public with persons whose ostensible authority emanates from the State. 55 Agra's official actions covered by this claritlcation extend to but are not limited to the promulgation of resolutions on petitions for review filed in the Department of Justice, and the issuance of department orders, memoranda and circulars relative to the prosecution of criminal cases.

Accordingly, the Court grants the petition for certiorari and prohibition; annuls and voids the designation of Hon. Alberto C. Agra as the Acting Secretary of Justice in a concurrent capacity with his position as the Acting Solicitor General for being unconstitutional and violative of Section 13, Article VII of the 1987 Constitution; and declares that l-Ion. Alberto C. Agra was a de facto officer during his tenure as Acting Secretary of Justice.

AYTONA VS CASTILLO

FACTS:

On December 29, 1961, Outgoing President Carlos Garcia appointed petitioner Dominador Aytona as ad interim Governor of the Central Bank. Aytona took the corresponding oath. On the same day, at noon, President-elect Diosdado Macapagal assumed office; and on the next day, he issued administrative order no. 2 recalling, withdrawing, and cancelling all ad interim appointments made by former President Garcia. There were all-in all, 350 midnight or last minute appointments made by the former President Garcia. On January 1, President Macapagal appointed Andres Castillo as ad interim Governor of the Central Bank. Aytona instituted a case (quo warranto) against Castillo, contending that he was validly appointed, thus the subsequent appointment to Castillo by the new President, should be considered void.

ISSUE:

Whether or not the 350 midnight appointments of former President Garcia were valid.

RULING:

No. After the proclamation of the election of President Macapagal, previous President Garcia administration was no more than a care-taker administration. He was duty bound to prepare for the orderly transfer of authority the incoming President, and he should not do acts which he ought to know, would embarrass or obstruct the policies of his successor. It was not for him to use powers as incumbent President to continue the political warfare that had ended or to avail himself of presidential prerogatives to serve partisan purposes. The filling up vacancies in important positions, if few, and so spaced to afford some assurance of deliberate action and careful consideration of the need for the appointment and the appointee's qualifications may undoubtedly be permitted. But the issuance of 350 appointments in one night and planned induction of almost all of them a few hours before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions irrespective of fitness and other conditions, and thereby deprive the new administration of an opportunity to make the corresponding appointments.

In re: Valenzuela

Facts:

On March 30, 1998, The President signed appointments of Hon. Mateo Valenzuela and Hon. Placido Vallarta as Judges of RTC-Bago City and Cabanatuan City, respectively. These appointments were deliberated, as it seemed to be expressly prohibited by Art 7 Sec 15 of the Constitution:

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.” A meeting was held on March 9, 1998 by the Judicial and Bar Council to discuss the constitutionality of appointments to the Court of Appeals (CA) in light of the forthcoming 1998 Presidential elections. Senior Associate Justice Florenz Regalado, Consultant of the Council and Member of the 1986 Constitutional Commission, was in the position that “election ban had no application to the CA based on the Commission’s records”. This hypothesis was then submitted to the President for consideration together with the Council’s nominations for 8 vacancies in the CA.

The Chief Justice (CJ) received on April 6, 1998, an official communication from the Executive Secretary transmitting the appointments of 8 Associate Justices of CA duly signed on March 11, 1998 (day immediately before the commencement of the ban on appointments), which implies that the President’s Office did not agree with the hypothesis.

The President, addressed to the JBC, requested on May 4, 1998 the transmission of the “list of final nominees” for the vacancy in view of the 90 days imposed by the Constitution (from Feb 13, date present vacancy occurred). In behalf of the JBC, CJ sent the reply on May 6 that no session has been scheduled after the May elections for the reason that they apparently did not share the same view (hypothesis) proposed by the JBC shown by the uniformly dated March 11, 1998 appointments. However, it appeared that the Justice Secretary and the other members of the Council took action without waiting for the CJ reply. This prompted CJ to call for a meeting on May 7. On this day, CJ received a letter from the President in reply of the May 6 letter where the President expressed his view that Article 7 Sec 15 only applied to executive appointments, the whole article being entitled “EXECUTIVE DEPT”. He posited that appointments in the Judiciary have special and specific provisions, as follows:

Article 8 Sec 4

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

Article 8 Sec 9

“The Members of the Supreme Court and judges in lower courts shall be appointed by the President from the list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Such appointments need no confirmation.

On May 12, CJ received from Malacañang, the appointments of the 2 Judges of the RTC mentioned. Considering the pending proceedings and deliberations on this matter, the Court resolved by refraining the appointees from taking their oaths. However, Judge Valenzuela took oath in May 14, 1998 claiming he did so without knowledge on the on-going deliberations. It should be noted that the originals of the appointments for both judges had been sent to and received by the CJ on May 12 and is still in the latter’s office and had not been transmitted yet. According to Judge Valenzuela, he did so because of the May 7 Malacañang copy of his appointment.

In construing Article 7 and 8: when there are no presidential elections, Art. 8 shall apply where vacancies in SC shall be filled within 90 days otherwise prohibition in Art. 7 must be considered where the President shall not make any appointments. According to Fr. Bernas, the reason for prohibition is in order not to tie the hands of the incoming Pres through midnight appointments.

Issue:

whether, during the period of the ban on appointments imposed by Section 15, Article VII of the, Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of Sections 4(1) and 9 of Article VIII; whether he can make appointments to the judiciary during the period of the ban in the interest of public service.

Held:

The provisions of the Constitution material to the inquiry at bar read as follows: 3

Sec. 15, Article VII:

Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments,except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

Sec. 4 (1), Article VIII : The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in divisions of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

Sec. 9, Article VIII :

The members of the Supreme Court and judges in lower courts shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for, every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments within ninety days from the submission of the list.

During the period stated in Section 15. Article VII of the Constitution — “(t)wo months immediately before the next presidential elections and up to the end his term” — the President is neither required to make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article VIII simply mean that the President is required to fill vacancies in the courts within the time frames provided therein unless prohibited by Section 15 of Article VII. It is not noteworthy that the prohibition on appointments comes into effect only once every six years.

Section 15, Article VI is directed against two types of appointments: (1) those made for buying votes and (2) those made for partisan considerations. The first refers to those appointments made within the two months preceding a Presidential election and are similar to those which are declared elections offenses in the Omnibus Election Code, viz.:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense:

 Vote-buying and vote-selling. — (1) Any person who gives, offer or promises money or anything of value gives or promises any office or employment, franchise or grant, public or private, or makes or offers to make an expenditure, directly or indirectly, or cause an expenditure to be made to any person, association, corporation, entity, or community in order to induce anyone or the public in general to vote for or against any candidate or withhold his vote in the election, or to vote for or against any aspirant for thenomination or choice of a candidate in a convention or similar selection process of a political parties. 140 SCRA 153 – Political Law – Congress – Singularity of Office/Position

Cicero Punsalan and Estelito Mendoza were the vice governor and the governor of Pampanga respectively. Both belong to KBL. On 17 May 1984, Mendoza tendered his resignation as the governor but the same should only be “effective at the President’s pleasure.” On 30 June 1984, Mendoza was appointed as the Minister of Justice by the president. On 14 July 1984, he was concurrently appointed as a member of the Batasan Pambansa. On 16 July 1984, he filed a request to the Minister of Local Government (MLG) to consider him as the governor-on-leave of Pampanga while the President was considering his resignation. The request was subsequently approved by the MLG. Mendoza advised Punsalan to take the governorship temporarily while his resignation is being considered. Punsalan subsequently took his oath of office not as the acting governor but as the governor and thereafter assumed office. About 6 months later however, Mendoza resigned from his Batasan Membership and upon the result of the KBL’s caucus, he returned to Pampanga to assume his governorship. Punsalan denounced Mendoza’s return claiming that he has already vacated his office by virtue of his resignation which was impliedly approved by the President. Punsalan also pointed out that when Mendoza was a member of the Batasan, he was barred from holding governorship because there is an inhibition against Batasan Members from holding two elective positions; this is a constitutional provision which cannot be compromised. Further, Punsalan claimed that Mendoza had forfeited his right and title to the office when he accepted his appointment as Minister of Justice and that of “appointive” Batasan Member because of the incompatibility” of the positions with the Governor’s office.

ISSUE: Whether or not Mendoza can still return to his governorship.

HELD: Section 10, Article 8 of the 1973 Constitution provides:

“A Member of the Batasang Pambansa shall not hold any other office or employment in the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, during his tenure except that of Prime Minister, Member of the Cabinet or Deputy Minister. Neither shall he, during the term for which he was elected, be appointed to any civil office which may have been created or emoluments thereof increased while he was a Member of the Batasang Pambansa.”

Punsalan anchored his contention upon the above provision but he failed to ascertain that the Constitution made a distinction. The Constitution itself divided the Batasan membership into three categories: The elective provincial/city/district representative; the sectoral representatives who are either “elected or selected as may be provided by law”; and those “chosen” from Members of the Cabinet. It is the SC’s opinion that the prohibition in question does not extend to the third group of members, those chosen from the Cabinet. The prohibitions, undoubtedly, deal with “a Member” who enters the Batasan primarily as a legislator voted into office by the electorate of his constituency, the “elected” provincial or city or district representative with a “fixed term” (6 years) of office i.e an elected governor who, while in office, was elected as a member of the Batasan cannot concurrently hold those two elective positions. Mendoza was elected as the governor but was not elected as a member of the Batasan; he was appointed. Punsalan’s contention that Mendoza’s resignation was impliedly approved by the president is not tenable. The president in fact needed more time to consider the validity of the resignation and upon the KBL’s recommendation, he instead chose to approve Mendoza’s return to his governorship.

Adaza v. Pacana

135 SCRA 431

FACTS:

Adaza is the governor of Misamis Oriental and Pacana is the vice-governor. Their respective term of office expires on March 3, 1986. Both parties ran in the Batasang Pambansa (BP) elections in 1984 and respondent lost to petitioner. On July 23, 1984, Pacana took his oath of office as the governor. Petitioner has brought this petition to exclude respondent therefrom, claiming to be the lawful occupant of the position.

ISSUE:

1) Whether or not a provincial governor who was elected as Mababatas Pambansa (MP) can exercise the functions of both simultaneously; and 2) whether or not a vice-governor who ran for the position of MP but lost, can continue serving as vice governor and subsequently succeed to the office of governor if said office is vacated.

HELD:

Section 10, Article VIII of the Constitution is clear and unambiguous. A member of the BP may not hold any other office in the government. A public office is a public trust. A holder thereof is subject to regulations and conditions as the law may impose and he cannot complain of any restrictions on his holding of more than one office. The contention that Pacana, as a mere private citizen, runs afoul of BP Blg. 697 which provides that governors, or members of sangguniang or barangay officials, upon filing a certificate of candidacy be considered on forced leave of absence from office. When respondent reassumed the position of vice-governor after the BP elections, he was acting within the law. Thus, the instant petition is denied. SECTION 16

ATTY. ELPIDIO SORIANO III VS. REUBEN LISTA, ET AL.

G.R. No. 153881. March 24, 2003

Facts: Eight officers of the Philippine Coast Guard (PCG) were promoted by the President to Vice Admiral, Rear Admiral, Commodore, Naval Captain, and they assumed office without confirmation by the Commission on Appointments (COA). Petitioner, as a taxpayer, filed a petition with the Supreme Court questioning the constitutionality of their assumption of office, which requires confirmation of the COA.

Held: Petitioner has no locus standi. A party bringing a suit challenging the constitutionality of an act or statute must show not only that the law or act is invalid, but also that he has sustained, or is in immediate or imminent danger of sustaining some direct injury as a result of its enforcement and not merely that he suffers thereby in some indefinite way. The instant petition cannot even be classified as a taxpayer’s suit because petitioner has no interest as such and this case does not involve the exercise by Congress of its taxing power.

Pursuant to Executive Order of President Ramos, the PCG was transferred from the Department of National Defense to the Office of the President, and later to the Department of Transportation and Communication (DOTC).

Pobre vs. Mendieta [G.R. No. 106677, July 23, 1993]

Facts: These consolidated petitions under Rules 45 and 65 of the Rules of Court were filed by Hermogenes Pobre to set aside the decision dated August 5, 1992 and writ of prohibitory injunction dated August 19, 1992 issued by Judge (now Court of Appeals Justice) Corona Ibay-Somera, in Civil Case No. 92-60272 entitled, "Mariano A. Mendieta, petitioner v. Hermogenes P. Pobre, respondent," annulling the appointment extended by President Corazon C. Aquino to the petitioner, Hermogenes Pobre, as Commissioner/Chairman of the Professional Regulation Commission (hereafter PRC for brevity) and enjoining him from discharging the duties and functions of that office.

The controversy began on January 2, 1992, when the term of office of Honorable Julio B. Francia as PRC Commissioner/Chairman expired. At that time, Mariano A. Mendieta was the senior Associate Commissioner and Hermogenes P. Pobre was the second Associate Commissioner of the PRC.

Issue: Whether the president may appoint as Commissioner/Chairman of the PRC another Associate Commissioner or any person other than the Senior Associate Commissioner.

Held:

THE POWER OF APPOINTMENT CANNOT BE RESTRICTED TO THE POINT THAT THE OFFICER LOSES THE DISCRETION. The Court finds unacceptable the view that every vacancy in the Commission (except the position of "junior" Associate Commissioner) shall be filled by "succession" or by "operation of law" for that would deprive the President of his power to appoint a new PRC Commissioner and Associate Commissioners — "all to be appointed by the President" under P.D. No. 223. The absurd result would be that the only occasion for the President to exercise his appointing power would be when the position of junior (or second) Associate Commissioner becomes vacant. We may not presume that when the President issued P.D. No. 223, he deliberately clipped his prerogative to choose and appoint the head of the PRC and limited himself to the selection and appointment of only the associate commissioner occupying the lowest rung of the ladder in that agency. Since such an absurdity may not be presumed, the Court should so construe the law as to avoid it.

"The duty devolves on the court to ascertain the true meaning where the language of a statute is of doubtful meaning, or where an adherence to the strict letter would lead to injustice, absurdity, or contradictory provisions, since an ambiguity calling for construction may arise when the consequence of a literal interpretation of the language is an unjust, absurd, unreasonable, or mischievous result, or one at variance with the policy of the legislation as a whole; and the real meaning of the statute is to be ascertained and declared, even though it seems to conflict with the words of the statute." (82 CJS 589-590; Emphasis supplied.)

Flores v Drilon (223 SCRA 568)

FACTS:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is challenged with prayer for prohibition, preliminary injunction and temporary restraining order. Said provision provides the President the power to appoint an administrator of the SBMA provided that in the first year of its operation, the Olongapo mayor shall be appointed as chairman and chief of executive of the Subic Authority. Petitioners maintain that such infringes to the constitutional provision of Sec. 7, first par., Art. IX-B, of the Constitution, which states that "no elective official shall be eligible for appointment or designation in any capacity to any public officer or position during his tenure," The petitioners also contend that Congress encroaches upon the discretionary power of the President to appoint.

ISSUE: Whether or not said provision of the RA 7227 violates the constitutional prescription against appointment or designation of elective officials to other government posts.

RULING:

The court held the Constitution seeks to prevent a public officer to hold multiple functions since they are accorded with a public office that is a full time job to let them function without the distraction of other governmental duties.

The Congress gives the President the appointing authority which it cannot limit by providing the condition that in the first year of the operation the Mayor of Olongapo City shall assume the Chairmanship. The court points out that the appointing authority the congress gives to the President is no power at all as it curtails the right of the President to exercise discretion of whom to appoint by limiting his choice.

Luego v. Civil Service Commission (G. R. No. L-69137)

FACTS: Petitioner was appointed Administrative Officer II, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on 18 February 1983. The appointment was described as “permanent” but the Civil Service Commission approved it as “temporary.” On 22 March 1984, the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and accordingly directed herein private respondent in place of petitioner’s position. The private respondent was so appointed on 28 June 1984, by the new mayor; Mayor Ronald Duterte. The petitioner is now invoking his earlier permanent appointment as well as to question the Civil Service Commission’s order and the private respondent’s title.

ISSUE: Whether or not the Civil Service Commission is authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

HELD: The Supreme Court ruled in the negative. The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When the appointee is qualified and the other legal requirements are satisfied, the Commission has no choice but to attest to the appointment in accordance with the Civil Service Laws. Hence, the Civil Service Commission’s resolution is set aside.

MATIBAG VS. BENIPAYOG.R. No. 149036, April 2, 2002FACTS:

On February 1999, petitioner Matibag was appointed Acting Director IV of the Comelec’sEID by then Comelec Chairperson Harriet Demetriou in a temporary capacity. OnMarch 2001, respondent Benipayo was appointed Comelec Chairman together withother commissioners in an ad interim appointment. While on such ad interimappointment, respondent Benipayo in his capacity as Chairman issued a Memorandumaddress transferring petitioner to the Law Department. Petitioner requested Benipayo toreconsider her relief as Director IV of the EID and her reassignment to the LawDepartment. She cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of government offices that "transfer and detail of employees are prohibited during the election period. Benipayo denied her request for reconsideration on April 18, 2001, citing COMELEC Resolution No. 3300 datedNovember 6, 2000, exempting Comelec from the coverage of the said Memo Circular.Petitioner appealed the denial of her request for reconsideration to the COMELEC enbanc.

She also filed an administrative and criminal complaint

16

with the LawDepartment

17 against Benipayo, alleging that her reassignment violated Section 261 (h)of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil ServiceMemorandum Circular No. 07, s. 001, and other pertinent administrative and civil servicelaws, rules and regulations.During the pendency of her complaint before the Law Department, petitioner filed theinstant petition questioning the appointment and the right to remain in office of Benipayo,Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively.Petitioner claims that the ad interim appointments of Benipayo, Borra and Tuason violatethe constitutional provisions on the independence of the COMELEC.

ISSUES:

Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by the President amounts to a temporaryappointment prohibited by Section 1 (2), Article IX-C of the Constitution.

RULING:

We find petitioner’s argument without merit. An ad interim appointment is a permanent appointment because it takes effectimmediately and can no longer be withdrawn by the President once the appointee hasqualified into office. The fact that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makesan ad interim appointment permanent in character by making it effective untildisapproved by the Commission on Appointments or until the next adjournment of Congress.

472 SCRA 587 – Political Law – Commission on Appointment – Ad Interim Appointments vs Appointments in an Acting Capacity

Law on Public Officers – Modes and Kinds of Appointment

While Congress was in session, due to vacancies in the cabinet, then president Gloria Macapagal-Arroyo (GMA) appointed Arthur Yap et al as secretaries of their respective departments. They were appointed in an acting capacity only. Senator Aquilino Pimentel together with 7 other senators filed a complaint against the appointment of Yap et al. Pimentel averred that GMA cannot make such appointment without the consent of the Commission on Appointment; that, in accordance with Section 10, Chapter 2, Book IV of Executive Order No. 292, only the undersecretary of the respective departments should be designated in an acting capacity and not anyone else.

On the contrary, then Executive Secretary Eduardo Ermita averred that the president is empowered by Section 16, Article VII of the 1987 Constitution to issue appointments in an acting capacity to department secretaries without the consent of the Commission on Appointments even while Congress is in session. Further, EO 292 itself allows the president to issue temporary designation to an officer in the civil service provided that the temporary designation shall not exceed one year.

During the pendency of said case, Congress adjourned and GMA issued ad interim appointments re-appointing those previously appointed in acting capacity.

ISSUE: Whether or not the appointments made by ex PGMA is valid.

HELD: Yes. The argument raised by Ermita is correct. Further, EO 292 itself provided the safeguard so that such power will not be abused hence the provision that the temporary designation shall not exceed one year. In this case, in less than a year after the initial appointments made by GMA, and when the Congress was in recess, GMA issued the ad interim appointments – this also proves that the president was in good faith.

It must also be noted that cabinet secretaries are the alter egos of the president. The choice is the president’s to make and the president normally appoints those whom he/she can trust. She cannot be constrained to choose the undersecretary. She has the option to choose. An alter ego, whether temporary or permanent, holds a position of great trust and confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who her alter ego should be.

The office of a department secretary may become vacant while Congress is in session. Since a department secretary is the alter ego of the President, the acting appointee to the office must necessarily have the President’s confidence. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee.

Anent the issue that GMA appointed “outsiders”, such is allowed. EO 292 also provides that the president “may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch.” Thus, the President may even appoint in an acting capacity a person not yet in the government service, as long as the President deems that person competent.

Calderon v Carale

Gr No. 91636 April 23, 1992

Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.cralaw

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.

PADILLA, J:

FACTS:

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

The Chairman, the Division Presiding Commissioners and other Commissioners shall all be appointed by the President, subject to confirmation by the Commission on Appointments. Appointments to any vacancy shall come from the nominees of the sector which nominated the predecessor. The Executive Labor Arbiters and

Labor Arbiters shall also be appointed by the President, upon recommendation of the Secretary of Labor and

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

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

ISSUE:

Whether or not Congress may, by law, require confirmation by the Commission on Appointments of appointments extended by the president to governmentofficers additional to those expressly mentioned in the first sentence of Sec. 16, Art. VII of the Constitution whoseappointments require confirmation by the Commission on Appointments.

HELD:

WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA 6715 insofar as it requires the confirmation of the Commission on Appointments of appointments of the Chairman and Members of the National Labor Relations Commission (NLRC) is hereby declared unconstitutional and of no legal force and effect.

RATIO:

(1) To the extent that RA 6715 requires confirmation by the Commission on Appointments of the appointments of respondents Chairman and Members of the National Labor Relations Commission, it is unconstitutional because:

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

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

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

Tarrosa vs. Singson

Facts:

Gabriel C. Singson was appointed Governor of the Bangko Sentral by President Fidel V. Ramos in 1993. Jesus Armando Tarrosa, as a "taxpayer", filed a petition for prohibition questioning the appointment of Singson for not having been confirmed by the Commission on Appointments as required by the provisions of Section 6 of R.A. No. 7653, which established the Bangko Sentral as the Central Monetary Authority of the Philippines. The Secretary of Budget and Management was impleaded for disbursing public funds in payment of the salaries and emoluments of respondent Singson. In their comment, respondents claim that Congress exceeded its legislative powers in requiring the confirmation by the CA of the appointment of the Governor of the Bangko Sentral. They contend that an appointment to the said position is not among the appointments which have to be confirmed by the CA, citing Section 16 of Article VI of the Constitution.

Issue:

Whether or not the Governor of the BSP is subject to COA’s confirmation.

Held:

No. Congress exceeded its legislative powers in requiring the confirmation by the COA of the appointment of the Governor of the BSP. An appointment to the said position is not among the appointments which have to be confirmed by the COA under Section 16 of Article 7 of the Constitution. Congress cannot by law expand the confirmation powers of the Commission on Appointments and require confirmation of appointment of other government officials not expressly mentioned in the first sentence of Section 16 of Article 7 of the Constitution. (Tarrosa vs. Singson, G.R. No. 111243, May 25, 1994)

Sarmiento v Mison

FACTS:

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

ISSUE:

Whether or not the appointment is valid.

RULING:

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

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

1st, appointment of executive departments and bureaus heads, ambassadors, other public ministers, consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers with the consent and confirmation of the CoA.

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

3rd those whom the President may be authorized by the law to appoint;

4th, low-ranking officers whose appointments the Congress may by law vest in the President alone.

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

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

NOTE: the case assigned to me : ZaldyAmpatuan vs. Secretary Puno (G.R. No. 171396, May 3, 2006) has different GR No. and date,

Please check this instead: Ampatuan vs Puno G.R. No. 190259, June 7, 2011

SECTION 17

Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. v. Dominguez

Facts:

Petitioners questopn the validity of the order of then Secretary of Agriculture Hon. Carlos G. Dominguez which ordered: (1) the take-over by the Department of Agriculture of the management of the petitioner Kilusang Bayan sa Paglilingkod Ng Mga Magtitinda ng Bagong Pamilihang Bayan ng Muntilupa, Inc. (KBMBPM) pursuant to the Department’s regulatory and supervisory powers under Section 8 of P.D. No. 175, as amended, and Section 4 of Executive Order No. 13, (2) the creation of a Management Committee which shall assume the management of KBMBPM upon receipt of the order, (3) the disbandment of the Board of Directors, and (4) the turn over of all assets, properties and records of the KBMBPM the Management Committee.

The exordium of said Order unerringly indicates that its basis is the alleged petition of the general membership of the KBMBPM requesting the Department for assistance in the removal of the members of the Board of Directors who were not elected by the general membership” of the cooperative and that the ongoing financial and management audit of the Department of Agriculture auditors shows that the management of the KBMBPM is not operating that cooperative in accordance with P.D. 175, LOI 23, the Circulars issued by DA/BACOD and the provisions and by-laws of KBMBPM. It is also professed therein that the Order was issued by the Department “in the exercise of its regulatory and supervisory powers under Section 8 of P.D. 175, as amended, and Section 4 of Executive Order No. 113.

Issue:

whether or not the Order issued by the Secretary of Agriculture is illegal

Held:

Regulation 34 of Letter of Implementation No. 23 (implementing P.D. No. 175) provides the procedure for the removal of directors or officers of cooperatives, thus:

An elected officer, director or committee member may be removed by a vote of majority of the members entitled to vote at an annual or special general assembly. The person involved shall have an opportunity to be heard.

BIRAOGO V. PHILIPPINE TRUTH COMMISSION 2010, G. R. No. 192935. December 7, 2010

TOPIC: POWERS OF THE EXECUTIVE

FACT:

E.O No. 1 establishing the Philippine Truth Commission (PTC) of 2010 was signed by President Aquino. The said PTC is a mere branch formed under the Office of the President tasked to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the previous administration and submit their findings and recommendations to the President, Congress and the Ombudsman. However, PTC is not a quasi-judicial body, it cannot adjudicate, arbitrate, resolve, settle or render awards in disputes between parties. Its job is to investigate, collect and asses evidences gathered and make recommendations. It has subpoena powers but it has no power to cite people in contempt or even arrest. It cannot determine for such facts if probable cause exist as to warrant the filing of an information in our courts of law.

Petitioners contends the Constitutionality of the E.O. on the grounds that. It violates separation of powers as it arrogates the power of Congress to create a public office and appropriate funds for its operation;

The provisions of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the President to achieve economy, simplicity, and efficiency does not include the power to create an entirely new office was inexistent like the Truth Commission;

The E.O illegally amended the Constitution when it made the Truth Commission and vesting it the power duplicating and even exceeding those of the Office of the Ombudsman and the DOJ.

It violates the equal protection clause

ISSUE:

WHETHER OR NOT the said E.O is unconstitutional.

RULING:

Yes, E.O No. 1 should be struck down as it is violative of the equal protection clause. The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having been constitutionally granted full control of the Executive Department, to which respondents belong, the President has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298 as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of the latter in conducting the inquiry.

Constitutional Law 1Sec. 17 – The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.Isidro C. Ang- Angco, petitioner, vs. Hon. Natalio P. Castillo, Et. Al., respondentsNo. L-17169. November 30,1963 (9 SCRA 619)

Facts :

February 12, 1960- Collector of Customs Isidro Ang-Angco was “resigned effective on the date of notice, with prejudice to reinstatement in the Bureau of Customs,being found guilty of conduct prejudicial to the best interest of the service” byExecutive Secretary Natalio P. Castillo, by authority of the President.Upon learning of the decision through the newpapers, Ang-Angco requested for reconsideration : calling attention to the fact that the action taken by SecretaryCastillo in removing him from office had the effect of depriving him of his statutory right to have his case originally decided by the Commissioner of Civil Service, as well as his right to appeal to the Civil service Board of Appeals, whose decision under Republic Act No. 2260 is final, besides the fact that such decisions is in violation of the guaranty vouchsafed by the Constitution to officers or employees in the civil service against removal or suspension except for cause in the manner provided by law.Secretary Castillo, on authority of President Garcia denied the appeal; he asserted that the President by virtue of his power of control over all executive departments, bureaus and offices, can take direct action and dispose of the administrative case in question inasmuch as the provisions of law that would seem to vest final authority in subordinate officers of the executive branch of the government over administrative matters falling under their jurisdiction cannot divestthe President of his power of control nor diminish the same.After exhausting all administrative remedies available for Ang-Angco to secure his reinstatement to the office from which he was removed without valid cause orin violation of his right to due process of law, he filed before the Supreme Court, a petition for certiorari, prohibition and mandamus with a petition for theissuance of a preliminary mandatory injunction.Citing that Secretary Castillo violated : Sec. 16 (i) of the Civil Service Act of 1959 which vests in the Commissioner of Civil Service the original and exclusive jurisdiction to decide administrative cases against officers and employees inthe classified service; deprived him of his right to appeal under Section 18 (b) of the same Act of the Civil Service Board of Appeals whose decision on the matter is final, and removed him from the service without due process in violationof Section 32 of the same Act, and of Section 4, Article XII of the Constitution, which provides “ No officer or employee in the civil service shall be removed except for cause as provided for by law.” Petitioner is an officer who belongs to the classified civil service and is not a presidential appointee, but one appointed by the Secretary of Finance under the Revised Administrative Code, he cannotbe removed from the service in utter disregard of the provisions of the Civil Service Act of 1959.Respondent contended that whether the officers or employees concerned are presidential appointees or belong to the classified civil service, if they are officers and employees in the executive department, they all come under the control ofthe President and therefore, his power of removal may be exercised over them directly without distinction. They held, as in the case of Negado v. Castro, 55 OG., 10534, the President may modify or set aside a decision of the Civil Service Board of Appeals at the instance of the office concerned, or the employee, or mayeven do so motu proprio, there would be in the final analysis no logical difference between removing petitioner by direct action of the President and separating him from the service by ultimate action by the President should an appeal be taken from the decision of the Civil Service Board of Appeals to him, or if in his discretion he may motu proprio consider it necessary to review the Board’s decision.

Issue :

Whether or not the President has the power to take direct action on the case ofpetitioner even if he belongs to the classified services, in spite of provisionsnow in force in the Civil Service Act of 1959.

Held :

No, Section 16 9i) of the Civil Service Act of 1959, it is the Commissioner of the Civil Service who has the original and exclusive jurisdiction to decide administrative cases of all officers an employees in the classified service. The only limitation to this power is that the decision of the Commissioner may be appealedto the Civil Service Board of Appeals, in which case said Board shall have decided within a period of 90 days, whose decision in such case shall be final (Section 18, Republic Act 2260).The only law that can be cited for the President to be empowered to remove officers and employees in the classified civil service is Section 64 (b) of the revised Administrative Code; but the phrase “conformably to law” is significant. It shows that the president does not have blanket authority to remove any officer or employee of the government but that his power is still subject to the law that maybe passed by the legislative body particularly with regard to the procedure, cause and finality of the removal of the persons who may be subject to the disciplinary action. The power of the President merely applies to the exercise of control over the acts of the subordinate and not over the actor or agent himself of the act. It means that the President may set aside the judgment or action taken by a subordinate in the performance of his duties.It is still the Department Head, pursuant to Section 79 (C ) who is given the direct control of all bureaus and offices under his department by virtue of whichhe may “repeal” or modify decisions of the chiefs of said bureaus or offices, and under section 74 of the same Code, the President’s control over the executive department refers to matters of general policy.The Civil Service system has the beneficient purpose of giving stability to thetenure of office of those who belong to the classified service.In conclusion, the direct action taken by Secretary Castillo with authority of the President on the administrative case of the petitioner, without submitting the same to the Commissioner of Civil Service is contrary to law and should be setaside. The petitioner was reinstated to service, without prejudice to submitting his case to the Commissioner of Civil Service to be dealt according to law.Note :Section 32 of the Civil Service law of 1959 echoes the constitutionally protected security of tenure: “ no officer or employee in the civil service shall be removed or suspended except for cause as provided by law”. “ Shall be entitled to a formal investigation if he so desires”. A civil service employee should be heard beforehe is condemned. Jurisprudence has clung to this rule with such unrelentless grasp that by now it would appear trite to make citation thereof (Perez v. Subido,et al., L 26791, June 22, 1968, 28 CSRA 1074).

Drilon vs Lim

Facts: The Secretary of Justice (on appeal to him of four oil companies and a taxpayer) declared Ordinance No. 7794 (Manila Revenue Code) null and void for non-compliance with the procedure in the enactment of tax ordinances and for containing certain provisions contrary to law and public policy. The RTC revoked the Secretary’s resolution and sustained the ordinance. It declared Sec 187 of the LGC as unconstitutional because it vests on the Secretary the power of control over LGUs in violation of the policy of local autonomy mandated in the Constitution. The Secretary argues that the annulled Section 187 is constitutional and that the procedural requirements for the enactment of tax ordinances as specified in the Local Government Code had indeed not been observed. (Petition originally dismissed by the Court due to failure to submit certified true copy of the decision, but reinstated it anyway.)Issue: WON the lower court has jurisdiction to consider the constitutionality of Sec 187 of the LGCHeld:Yes. BP 129 vests in the regional trial courts jurisdiction over all civil cases in which the subject ofthe litigation is incapable of pecuniary estimation. Moreover, Article X, Section 5(2), of the Constitution vests in the Supreme Court appellate jurisdiction over final judgments and orders of lower courts in all cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.In the exercise of this jurisdiction, lower courts are advised to act with the utmost circumspection, bearing in mind the consequences of a declaration of unconstitutionality upon the stability of laws, no lessthan on the doctrine of separation of powers. It is also emphasized that every court, including this Court, is charged with the duty of a purposeful hesitation before declaring a law unconstitutional, on the theory that the measure was first carefully studied by the executive and the legislative departments and determined by them to be in accordance with the fundamental law before it was finally approved. To doubtis to sustain. The presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution

VILLENA VS SECRETARY OF THE INTERIOR

G.R. No. L-46570 April 21 1939

FACTS:

Division of Investigation of the DOJ, upon the request of the Secretary of the Interior, conducted an inquiry into the conduct of the Villena, mayor of Makati, Rizal, as a result of which the latter was found to have committed bribery, extortion, malicious abuse of authority ad unauthorized practice of the law profession. The respondent recommended the suspension of Villena to the President of the Philippines, in which it was verbally granted. The Secretary then suspended Villena from office. Villena filed a petition for preliminary injunction against the Sec. to restrain him and his agents from proceeding with the investigation.

ISSUE:

Whether or not the Secretary of the Interior has jurisdiction or authority to suspend and order investigation over Villena.

RULING:

The Secretary of Interior has the power to order investigation and to suspend Mayor Villena. As to the power to order investigation, it was provided in Section 79 (C) of RAC that Department of Interior was given the authority to supervise bureaus and offices under its jurisdiction. This was interpreted in relation to Section 86 of the same Code which granted the said Department of executive supervision over administration of provinces, municipalities and other political subdivisions. This supervision covers the power to order investigation because supervision “implies authority to inquire into facts and conditions in order to render power real and effective.”However, unlike this power to order investigation, the power to suspend a mayor was not provided in any law. There was no express grant of authority to the Secretary of Interior to suspend a Mayor. Nevertheless, Section 2188 of the Administrative Code granted the provincial governor the power of suspension. Yet this did not mean that the grant precluded the Secretary of Interior. The Doctrine of Qualified Political Agency which provides that “the acts of the department secretaries, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the President, presumptively the acts of the President.” The power to suspend may be exercised by the President. It follows that the heads of the Department under her may also exercise the same, unless the law required the President to act personally or that situation demanded him so, because the heads of the departments are assistants and agents of the President.

Lacson-Magallanes Co., Inc. vs. Jose Paño, et. al.

G.R. No. L-27811 :: 27 November 1967

Sanchez, J.

FACTS:

In 1932, Jose Magallanes was a permittee and actual occupant of a 1,103-hectare pasture land situated in Davao. On 1953, Magallanes ceded his rights and interests to a portion of the above public land to the plaintiff. On 1954, the same was officially released from the forest zone as pasture land and declared agricultural land. On 1955, Jose Paño and nineteen other claimants applied for the purchase of 90 hectares of the released area. Plaintiff in turn filed its own sales application covering the entire released area. The Director of Lands, following an investigation of the conflict, rendered a decision on 1956 giving due course to the application of plaintiff corporation. When the case was elevated to the President of the Philippines, Executive Secretary Juan Pajo, by authority of the president, declared that it would be for public interest that appellants, who are mostly landless farmers, be allocated that portion on which the petitioner have made improvements.

ISSUES:

May the Executive Secretary, acting by authority of the President, reverse a decision of the Director of Lands that had been affirmed by the Executive Secretary of Agriculture and Natural Resources?

HELD:

YES. The President’s duty to execute the law and control of all executive departments are of constitutional origin. Naturally, he controls and directs their acts. Implicit then is his authority to go over, confirm, modify or reverse the action taken by his department secretaries. It may also be stated that the right to appeal to the President reposes upon the President’s power of control over the executive departments. He may delegate to his Executive Secretary acts which the Constitution does not command that he perform in person. As the Executive Secretary acts by authority of the President, his decision is that of the President’s. Such decision is to be given full faith and credit by our courts, unless disapproved or reprobated by the Chief Executive.

Gascon v Arroyo

GR No. 78389, October 16, 1989

FACTS:

The Lopez family owned 2 television stations. When martial law was declared, the stations were seized. After the Marcos regime was toppled, the Presidential Committee on Good Governance (PCGG) sequestered said stations. Mr Lopez requested the return of the stations. An agreement to arbitrate was entered into regarding this matter. Thereupon, petitioners as taxpayers sought to set aside the agreement to arbitrate.

ISSUE:

Whether petitioners as taxpayers have legal standing to sue

RULING:

No. Petitioners have not shown that they have a legal interest in the TV stations and that they would be adversely affected if and when the station is returned to the Lopez family. The present case is not an action to question the constitutionality or validity of a law.

97 Phil. 143 – Political Law – Control Power – Revised Administrative Code – Supervision

Jose Mondano was the mayor of Mainit, Surigao. A complaint was filed against him for rape and concubinage. The information reached the Assistant Executive Secretary who ordered the governor to investigate the matter. Consequently, Governor Fernando Silvosa then summoned Mondano and the latter appeared before him. Thereafter Silvosa suspended Mondano. Mondano filed a petition for prohibition enjoining the governor from further proceeding. In his defense, Silvosa invoked the Revised Administrative Code which provided that he, as part of the executive and by virtue o the order given by the Assistant Executive Secretary, is with “direct control, direction, and supervision over all bureaus and offices under his jurisdiction . . .” and to that end “may order the investigation of any act or conduct of any person in the service of any bureau or office under his Department and in connection therewith may appoint a committee or designate an official or person who shall conduct such investigations.

ISSUE: Whether or not the Governor, as agent of the Executive, can exercise the power of control over a mayor.

HELD: No. (Note that Silvosa was asking as the agent of the Assistant Executive Secretary who ordered him to investigate Mondano).

The Constitution provides:

“The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision over all local governments as may be provided by law, and take care that the laws be faithfully executed.”

Under this constitutional provision the President has been invested with the power of control of all the executive departments, bureaus, or offices, but not of all local governments over which he has been granted only the power of general supervision as may be provided by law. The Department head as agent of the President has direct control and supervision over all bureaus and offices under his jurisdiction as provided for in section 79(c) of the Revised Administrative Code, but he does not have the same control of local governments as that exercised by him over bureaus and offices under his jurisdiction.

Likewise, his authority to order the investigation of any act or conduct of any person in the service of any bureau or office under his department is confined to bureaus or offices under his jurisdiction and does not extend to local governments over which, as already stated, the President exercises only general supervision as may be provided by law.

If the provisions of section 79 (c) of the Revised Administrative Code are to be construed as conferring upon the corresponding department head direct control, direction, and supervision over all local governments and that for that reason he may order the investigation of an official of a local government for malfeasance in office, such interpretation would be contrary to the provisions of par 1, sec 10, Article 7, of the 1935 Constitution.

In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties.

Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter.

The Congress has expressly and specifically lodged the provincial supervision over municipal officials in the provincial governor who is authorized to “receive and investigate complaints made under oath against municipal officers for neglect of duty, oppression, corruption or other form of maladministration of office, and conviction by final judgment of any crime involving moral turpitude.” And if the charges are serious, “he shall submit written charges touching the matter to the provincial board, furnishing a copy of such charges to the accused either personally or by registered mail, and he may in such case suspend the officer (not being the municipal treasurer) pending action by the board, if in his opinion the charge be one affecting the official integrity of the officer in question.” Sec 86 of the Revised Administrative Code adds nothing to the power of supervision to be exercised by the Department Head over the administration of municipalities.

In this case, the governor can only investigate Mondano for crimes relating to Mondano’s office. If the issue is not related to his office but involves a rime of moral turpitude (such as rape or concubinage as in this case), there must first be a final conviction before a suspension may be issued. The point is, the governor must suspend a mayor not because he’s acting as an agent of the Executive but because of the power granted him by the Revised Administrative Code.

Philip Sigfrid Fortun v. Gloria Macapagal-Arroyo, et al., G.R. No. 190293, March 20, 2012 (and other consolidated cases)

SECTION 18

DAVIS VS MACAPAGAL - ARROYO

G.R. No. 171396, May 3 2006 [Legislative Department - Power to Declare War and Delegate Emergency Power] FACTS:

On February 24, 2006, President Arroyo issued PP No. 1017 declaring a state of emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, [calling-out power] by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: “The President. . . whenever it becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . .,â€ and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion ["take care" power] and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and [power to take over] as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

On the same day, PGMA issued G.O. No. 5 implementing PP1017, directing the members of the AFP and PNP "to immediately carry out the necessary and appropriate actions and measures to suppress and prevent acts of terrorism and lawless violence."

David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly. They alleged “direct injury” resulting from “illegal arrest” and “unlawful search” committed by police operatives pursuant to PP 1017.

During the hearing, the Solicitor General argued that the issuance of PP 1017 and GO 5 have factual basis, and contended that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the armed forces. The petitioners did not contend the facts stated b the Solicitor General.

ISSUE:

Whether or not the PP 1017 and G.O. No. 5 is constitutional.

RULING:

The operative portion of PP 1017 may be divided into three important provisions, thus: First provision: “by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion”

Second provision: “and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction;”

Third provision: “as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency.”

PP 1017 is partially constitutional insofar as provided by the first provision of the decree.

First Provision: Calling Out Power.

The only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.” (Integrated Bar of the Philippines v. Zamora)

President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a status or condition of public moment or interest, a declaration allowed under Section 4, Chap 2, Bk II of the Revised Administration Code. Such declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed harmless.

To clarify, PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Second Provision: The "Take Care" Power.

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is based on Section 17, Article VII which reads:

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

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority to promulgate “decrees.” Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI categorically states that “[t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives.” To be sure, neither Martial Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power by issuing decrees.

Third Provision: The Power to Take Over

Distinction must be drawn between the President’s authority to declare “a state of national emergency” and to exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues arise.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation of any privately owned public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without legislation, he has no power to take over privately-owned public utility or business affected with public interest. Nor can he determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress. As of G.O. No. 5, it is constitutional since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is “necessary and appropriate actions and measures to suppress and prevent acts of lawless violence.” Considering that “acts of terrorism” have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared unconstitutional.

D E C I S I O N

ZALDY

I. THE FACTS

On November 23, 2009, heavily armed men believed led by the ruling Ampatuan family of Maguindanao gunned down and buried under shoveled dirt 57 innocent civilians. In response to this carnage, President Arroyo issued on November 24, 2009 PP 1946 declaring a state of emergency in Maguindanao, Sultan Kudarat, and Cotabato City.

On December 4, 2009, President Arroyo issued PP 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in Maguindanao except for identified areas of the Moro Islamic Liberation Front. On December 6, 2009, President Arroyo submitted her report to Congress. On December 9, 2009, Congress convened in joint session to review the validity of the President’s action. But two days later, or on December 12, 2009, before Congress could act, the President issued PP 1963, lifting martial law and restoring the privilege of the writ of habeas corpus.

II. THE ISSUES

Did the issuance of PP 1963, lifting martial law and restoring the [privilege of the] writ in Maguindanao, render the issues moot and academic?

III. THE RULING

[The Court DISMISSED the consolidated petitions on the ground that they have become MOOT and ACADEMIC.] YES, the issuance of PP 1963, lifting martial law and restoring the [privilege of the] writ in Maguindanao, rendered the issues moot and academic

Prudence and respect for the co-equal departments of the government dictate that the Court should be cautious in entertaining actions that assail the constitutionality of the acts of the Executive or the Legislative department. The issue of constitutionality, said the Court in Biraogo v. Philippine Truth Commission of 2010, must be the very issue of the case, that the resolution of such issue is unavoidable.

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the same. xxx.

xxx xxx xxx

[U]nder the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have.

Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.

xxx xxx xxx

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact convened, could act on the same. Consequently, the petitions in these cases have become moot and the Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable controversy.

Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The point is that the President intended by her action to address an uprising in a relatively small and sparsely populated province. In her judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed government presence.

xxx xxx xxx

xxx. In a real sense, the proclamation and the suspension never took off. The Congress itself adjourned without touching the matter, it having become moot and academic.

IBP vs Zamora (G.R. No. 171396, August 15, 2000)

FACTS:

Invoking his powers as Commander-in-Chief under Sec 18, Art. VII of the Constitution, President Estrada, in verbal directive, directed the AFP Chief of Staff and PNP Chief to coordinate with each other for the proper deployment and campaign for a temporary period only. The IBP questioned the validity of the deployment and utilization of the Marines to assist the PNP in law enforcement.

ISSUES:

1. The President's factual determination of the necessity of calling the armed forces is subject to judicial review.

2. The calling of AFP to assist the PNP in joint visibility patrols violate the constitutional provisions on civilian supremacy over the military. RULING:

1. The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question is the lis mota of the case.

2. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. It is their responsibility to direct and manage the deployment of the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these soldiers. In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. Neither does it amount to an “insidious incursion” of the military in the task of law enforcement in violation of Section 5(4), Article XVI of the Constitution.

SANLAKAS VS. REYES

[G.R. No. 159085. February 3, 2004]

Facts: In the wee hours of 27 July 203 some 300 junior officers and enlisted men of AFP, heavily armed stormed the Oakwood Premiere in Makati demanding for the resignation of the President, Secretary of Defence and Chief of the PNP. By virtue of Proclamation 427 dated 27 July 2003, state of rebellion was declared and General Order No 4 of the same date, the Armed Forces of the Philippines and the Philippine National Police were directed to suppress and quell the rebellion pursuant to Section 18 Article VII of the Constitution. The soldiers returned to barracks on the same night and the declaration of state of rebellion was lifted on 1 August 2003 by virtue of Proclamation No 435. In the interim, several petitions were filed before the Court challenging the validity of Proclamation No. 427 and General Order No. 4. Sanlakas contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armed forces. Because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the proclamation by the President of a state of rebellion for an indefinite period. Solicitor General argues that the petitions have been rendered moot by the lifting of the declaration.

Issue: Whether or not declaring state of rebellion is needed to declare General order No 4?

Decision: Petitions dismissed. The state of rebellion has ceased to exist and has rendered the case moot.

Nevertheless, courts will decide a question, otherwise moot, if it is capable of repetition yet evading review. The case at bar is one such case. The mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights. Indeed, if a state of martial law does not suspend the operation of the Constitution or automatically suspend the privilege of the writ of habeas corpus, then it is with more reason that a simple declaration of a state of rebellion could not bring about these conditions. The presidential issuances themselves call for the suppression of the rebellion with due regard to constitutional rights.

Olaguer vs Military Commission

FACTS: Petitioners, as civilians, have been charged the crime of subversion. Consequently, the Chief-of-Staff of the AFP created a military tribunal, named Military Commission No. 34, to try criminal case against petitioners. Petitioners were then convicted and have been imposed a penalty of death penalty. Thereafter, petitioners filed a petition to enjoin the military tribunal from taking further action on their case for the tribunal should be considered null and void. Respondents invoked that the creation of Military Commission is constitutional as ruled upon in a previous case – Aquino v. Military Commission No. 2.- as decided upon by the Supreme Court. However, petitioners contend that such ruling must be overturned because the ruling is now inapplicable since Martial Law has already been lifted.

ISSUE: Whether or not the ruling in Aquino v. Military Commission be abandoned and/or modified in so far as the case at bar is concerned?

HELD: Yes. First, the Court considered that since the martial law has been lifted during the case is still pending, military tibunals, which were created for the purpose of martial law, shall be held void already since the law itself is lifted. Second, the Court relied on the dissenting views of some justices in AQUINO V. MILCOMM, stating that ‘…Civilians like the petitioner placed on tiral for civil offenses under general law are entited o trial by judicial process, not by executive or military process…xxx..Judicial power exist only in courts’.1Moreover, the Court emphasized that“Reverence for precedent, simply as precedent, cannot prevail when constitutionalism and the public interest demand otherwise. Thus, a doctrine which should be abandoned or modified should be abandoned or modified accordingly. after all, more important than anything else is that this Court should be right.

Ruffy vs Chief of Staff

FACTS: During the Japanese insurrection in the Philippines, military men were assigned at designated camps or military bases all over the country. Japanese forces went to Mindoro thus forcing petitioner and his band move up the mountains and organize a guerilla outfit and call it the "Bolo area". A certain Capt. Beloncio relieved Ruffy and fellow petitioners of their position and duties in the "Bolo area" by the new authority vested upon him because of the recent change of command. Capt. Beloncio was thus allegedly slain by Ruffy and his fellow petitioners.

ISSUE: Whether or not the petitioners were subject to military law at the time the offense was committed, which was at the time of war and the Japanese occupancy.

HELD: The Court held that the petitioners were still subject to military law since members of the Armed Forces were still covered by the National Defense Act, Articles of War and other laws even during an occupation. The act of unbecoming of an officer and a gentleman is considered as a defiance of 95th Article of War held petitioners liable to military jurisdiction and trial. Moreover, they were operating officers, which makes them even more eligible for the military court's jurisdiction.

Quillona vs General Court Martial

The petitioner, a policeman, was charged before respondent General Court Martial with the crime of murder on two (2) counts, under Article 248 of the Revised Penal Code.

On 14 December 1990, petitioner, through counsel, wrote a letter President Corazon C. Aquino, expressing his desire to be tried by a civilian court and sought a waiver of a military jurisdiction, for the reason, among others, that the "enactment of the Philippine National Police Law creates his honest belief that he should now be under the actual and real jurisdiction of a civilian court.

Petitioner has filed this petition for certiorari and prohibition with preliminary injunction and/or restraining order, alleging that respondent court acted with grave abuse of discretion in denying his motion for inhibition and that there is no appeal, nor any other plain, speedy and adequate remedy in the ordinary course of law except thru the present petition.

Acting on the petition as well as the comment of the Solicitor General, the Court resolved to (1) treat the respondents' comment as answer to the petition; (2) give due course to the petition; and (3) consider this case calendared for deliberation. Hence, this decision. The petition is meritorious.

Issue: Whether or not the petition should be granted. Held: yes, petition should be granted.Clearly, under the circumstances obtaining in the present case, respondent court martial acted with grave abuse of discretion amounting to or excess of jurisdiction in proceeding with the arraignment of the petitioner on 28 December 1990.

Gudani vs. Senga

G.R. No. 170165, August 15, 2006

(Political Law, Constitutional Law, E.O. 464)

FACTS

Petitioners Gen. Gudani and Lieutenant Colonel Balutan are high-ranking officers of Philippine Marines assigned to the Philippine Military Academy (PMA) in Baguio City. Senator Biazon invited several senior officers of the military to appear at a public hearing before a Senate Committee to clarify allegations of massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation between the President and then Commission on Elections Commissioner Garcillano. At the time of the 2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of “Joint Task Force Ranao” by the AFP Southern Command. Armed Forces of the Philippines (AFP) Chief of Staff Lt . Gen. Senga were among the several AFP officers also received a letter invitation from Sen. Biazon to attend the hearing. But only Gen. Gudani, and Col. Balutan attended the invitation from Sen. Biazon.

Thereafter, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to Gen. Baloing. It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate Committee hearing, the Memorandum directed the two officers to attend the hearing. Conformably, Gen. Gudani and Col. Balutan filed their respective requests for travel authority addressed to the PMA Superintendent.

However, Gen. Senga did not attend to the requested hearing as per instruction from the President that NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. `

While Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga issued a statement which noted that the two had appeared before the Senate Committee “in spite of the fact that a guidance has been given that a Presidential approval should be sought prior to such an appearance;” that such directive was “in keeping with the time[-]honored principle of the Chain of Command;” and that the two officers “disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings x x x” Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then.

On the very day of the hearing, the President issued Executive Order (E.O.) 464. The Office of the Solicitor General notes that the E.O. “enjoined officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval.

Now, petitioners seek the annulment of a directive from the President enjoining them and other military officers from testifying before Congress without the President’s consent. Petitioners also pray for injunctive relief against a pending preliminary investigation against them, in preparation for possible court-martial proceedings, initiated within the military justice system in connection with petitioners’ violation of the aforementioned directive.

The Court has to resolve whether petitioners may be subjected to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.

ISSUE

Whether or not E.O. 464 which provides among others that NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL is unconstitutional?

RULING

The Petition is dismissed.

Is EO 464 constitutional or not, or may the President prevent a member of the armed forces from testifying before a legislative inquiry?

Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before appearing before Congress, the notion of executive control also comes into consideration. The impression is wrong. The ability of the President to require a military official to secure prior consent before appearing in Congress pertains to wholly different and independent specie of presidential authority—the commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief powers of the President are not encumbered by the same degree of restriction as that which may attach to executive privilege or executive control.

We hold that the President has constitutional authority to do so, by virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such injunction is liable under military justice. At the same time, we also hold that any chamber of Congress which seeks to appear before it a military officer against the consent of the President has adequate remedies under law to compel such attendance. Any military official whom Congress summons to testify before it may be compelled to do so by the President. If the President is not so inclined, the President may be commanded by judicial order to compel the attendance of the military officer. Final judicial orders have the force of the law of the land which the President has the duty to faithfully execute.

Again, let it be emphasized that the ability of the President to prevent military officers from testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-in-chief to control the actions and speech of members of the armed forces. The President’s prerogatives as commander-in-chief are not hampered by the same limitations as in executive privilege. The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins with the simple declaration that “[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines x x x Outside explicit constitutional limitations, such as those found in Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict the travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law.

Reference to Kapunan, Jr. v. De Villa is useful in this regard. Lt. Col. Kapunan was ordered confined under “house arrest” by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any press statements or give any press conference during his period of detention. The Court unanimously upheld such restrictions, noting:

“… to a certain degree, individual rights may be curtailed, because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be considered.”

As a general rule, it is integral to military discipline that the soldier’s speech be with the consent and approval of the military commander. The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier desires to speak freely on political matters. For there is no constitutional provision or military indoctrination will eliminate a soldier’s ability to form a personal political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a potential source of discord among people, and a military torn by political strife is incapable of fulfilling its constitutional function as protectors of the people and of the State. For another, it is ruinous to military discipline to foment an atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust. Even petitioners are well aware that it was necessary for them to obtain permission from their superiors before they could travel to Manila to attend the Senate Hearing.

Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the President’s ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.

Judicial relief as remedy:

The refusal of the President to allow members of the military to appear before Congress is not absolute. Inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the presidential prohibition. The remedy lies with the courts.

Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and limitations on the constitutional power of congressional inquiry. Thus, the power of inquiry, “with process to enforce it,” is grounded on the necessity of information in the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel the disclosure thereof.

It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution. To avoid conflict, Congress must indicate in its invitations to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need for the inquiry. Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or House’s duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.

In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive officials from testifying before Congress without the President’s consent notwithstanding the invocation of executive privilege to justify such prohibition. Should neither branch yield to the other branch’s assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.

Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the legislative and executive branches of government on the proper constitutional parameters of power. By this and, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disagreed with the notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the courts.

Lastly, General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military law as, among others, “all officers and soldiers in the active service of the [AFP],” and points out that he is no longer in the active service. However, an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated.

Ampatuan vs Puno

G.R. No. 190259, June 7, 2011

FACTS:

On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Arroyo issued Proclamation 1946, placing “the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency.” She directed the AFP and the PNP “to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence” in the named places. Three days later, she also issued AO 273 “transferring” supervision of the ARMM from the Office of the President to the DILG. She subsequently issued AO 273-A, which amended the former AO (the term “transfer” used in AO 273 was amended to “delegate”, referring to the supervision of the ARMM by the DILG).

Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali-Generale, all ARMM officials, filed this petition for prohibition under Rule 65. They alleged that the President’s proclamation and orders encroached on the ARMM’s autonomy as these issuances empowered the DILG Secretary to take over ARMM’s operations and to seize the regional government’s powers. They also claimed that the President had no factual basis for declaring a state of emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred and that the deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the President’s emergency powers. Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional.

ISSUES:

1. Whether Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under the Constitution and The Expanded ARMM Act

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City

3. Whether or not the President had factual bases for her actions

HELD:

1The principle of local autonomy was not violated. DILG Secretary did not take over control of the powers of the ARMM. After law enforcement agents took the respondent Governor of ARMM into custody for alleged complicity in the Maguindanao Massacre, the ARMM Vice‐Governor, petitioner Adiong, assumed the vacated post on 10 Dec. 2009 pursuant to the rule on succession found in Sec. 12 Art.VII of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali‐Generale, Acting ARMM Vice-Governor. The DILG Secretary therefore did not take over the administration or the operations of the ARMM.

2The deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which provides:

SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The President did not proclaim a national emergency, only a state of emergency in the three places mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same.

The President’s call on the armed forces to prevent or suppress lawless violence springs from the power vested in her under Section 18, Article VII of the Constitution, which provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x

3While it is true that the Court may inquire into the factual bases for the President’s exercise of the above power, it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora, it is clearly to the President that the Constitution entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless violence. Unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President’s judgment. Thus, the Court said:

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. x x x.

Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the President’s exercise of the “calling out” power had no factual basis. They simply alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the takeover of the entire ARMM by the DILG Secretary had no basis too.

The imminence of violence and anarchy at the time the President issued Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned. Progress reports also indicated that there was movement in these places of both high-powered firearms and armed men sympathetic to the two clans. Thus, to pacify the people’s fears and stabilize the situation, the President had to take preventive action. She called out the armed forces to control the proliferation of loose firearms and dismantle the armed groups that continuously threatened the peace and security in the affected places.

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President’s actions (Ampatuan vs Puno, G.R. No. 190259, June 7, 2011).

Legazpi vs Minister

Legaspi, incumbent member of the interim Batasang Pambansa, petitioned to declare Presidential Decree 1840 “granting tax amnesty and filing of statement of assets and liabilities and some other purposes” unconstitutional. He argued that said decree was promulgated despite the fact that under the Constitution “The Legislative power shall be vested in a Batasang Pambansa” (Sec. 1, Article VIII) and the President may grant amnesty only ‘with concurrence of the Batasang Pambansa.

ISSUE: Whether or not the President (PM) can issue such decrees.

HELD: It is to be observed that the original text mentions President (Prime Minister). This is so because ‘. . . The incumbent President of the Philippines shall be the Prime Minister and he shall continue to exercise all his powers even after the interim Batasang Pambansa is organized and ready to discharge its functions, and likewise he shall continue to exercise his powers and prerogatives under the 1935 Constitution and the powers vested in the President and the Prime Minister under this Constitution.’

Parenthetically, the term “Incumbent President’ employed in the transitory provisions could only refer to President Ferdinand E. Marcos (Aquino vs. Commission on Elections, 62 SCRA 275). “After the April 7 amendments there exists no longer ‘a President (Prime Minister)’ but ‘A President’ and ‘A Prime Minister.’ They are now two different offices which cannot be held by a single person – not a transitory one but a regular one provided for and governed by the main provisions of the newly amended Constitution. Subsequent events accept the reality that we are no longer governed by the transitory provisions of the Constitution.” This form of government is essentially parliamentary with presidential features.

Aquino v. Enrile

59 SCRA 183

FACTS:

The cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by virtue of Proclamation 1081. The petitioners were arrested and held pursuant to General Order No.2 of the President "for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the Government by force..." General Order No. 2 was issued by the President in the exercise of the power he assumed by virtue of Proclamation 1081 placing the entire country under martial law.

ISSUES:

1) Is the existence of conditions claimed to justify the exercise of the power to declare martial law subject to judicial inquiry?; and

2) Is the detention of the petitioners legal in accordance to the declaration of martial law?

HELD:

5 Justices held that the issue is a political question, hence, not subject to judicial inquiry, while 4 Justices held that the issue is a justiciable one. However, any inquiry by this Court in the present cases into the constitutional sufficiency of the factual bases for the proclamation of martial law has become moot and academic. Implicit in the state of martial law is the suspension of the privilege of writ of habeas corpus with respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress invasion, insurrection or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of society and national survival takes precedence. The proclamation of martial law automatically suspends the privilege of the writ as to the persons referred to in this case.

LANSANG VS. GARCIA [42 SCRA 448; L-33964; 11 Dec 1971] Facts: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two hand grenades were thrown at the platform where said candidates and other persons were. Eight persons were killed and many more injured. Proclamation 889 was issued by the President suspending privilege of writ of habeas corpus stating that there is a conspiracy of rebellion and insurrection in order to forcibly seize political power. Petitions for writ of habeas corpus were filed by persons (13) who have been arrested without a warrant.

It was stated that one of the safeguards of the proclamation was that it is to be applied to persons caught in flagrante delicto. Incidentally, Proc. 889-A was issued as an amendment, inserting the word “actually staging”. Proc. 889-B was also issued lifting the suspension of privilege in 27 provinces, 3 sub-provinces and 26 cities. Proc. 889-C was issued restoring the suspension in 13 provinces and cities(mostly in Mindanao). Proc. 889-D further lifted the suspension in 7 provinces and 4 cities. Only 18 provinces and sub-provinces and 2 cities whose privilege was suspended. Petitioners maintained that Proclamation No. 889 did not declare the existence of actual "invasion insurrection or rebellion or imminent danger thereof, however it became moot and academic since it was amended. Petitioners further contend that public safety did not require the issuance of proclamations stating: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally, as were the courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas corpus.

A resolution was issued by majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the proclamations. Now the Court resolves after conclusive decision reached by majority.

Issues:

(1) Whether or Not the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his decision is final and conclusive upon the courts and upon all other persons.

(2) Whether or Not public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation No. 889-A. Held: The President has authority however it is subject to judicial review. Two conditions must concur for the valid exercise of the authority to suspend the privilege to the writ (a) there must be "invasion, insurrection, or rebellion" or "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. President has three (3) courses of action: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh.

Petitioners contention that CPP-NPA has no ability, is negatived by the killing of 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970. CPP has managed to infiltrate or establish and control nine major labor organizations; has exploited the (11) major student or youth organizations; about thirty (30) mass organizations actively advancing the CPP.

LANSANG VS. GARCIA [42 SCRA 448; L-33964; 11 Dec 1971]

Facts: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two hand grenades were thrown at the platform where said candidates and other persons were. Eight persons were killed and many more injured. Proclamation 889 was issued by the President suspending privilege of writ of habeas corpus stating that there is a conspiracy of rebellion and insurrection in order to forcibly seize political power. Petitions for writ of habeas corpus were filed by persons (13) who have been arrested without a warrant.

It was stated that one of the safeguards of the proclamation was that it is to be applied to persons caught in flagrante delicto. Incidentally, Proc. 889-A was issued as an amendment, inserting the word “actually staging”. Proc. 889-B was also issued lifting the suspension of privilege in 27 provinces, 3 sub-provinces and 26 cities. Proc. 889-C was issued restoring the suspension in 13 provinces and cities(mostly in Mindanao). Proc. 889-D further lifted the suspension in 7 provinces and 4 cities. Only 18 provinces and sub-provinces and 2 cities whose privilege was suspended. Petitioners maintained that Proclamation No. 889 did not declare the existence of actual "invasion insurrection or rebellion or imminent danger thereof, however it became moot and academic since it was amended. Petitioners further contend that public safety did not require the issuance of proclamations stating: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally, as were the courts; (c) that no untoward incident, confirmatory of an alleged July-August Plan, has actually taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is non-existent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas corpus.

A resolution was issued by majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the proclamations. Now the Court resolves after conclusive decision reached by majority.

Issues:

(1) Whether or Not the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his decision is final and conclusive upon the courts and upon all other persons.

(2) Whether or Not public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation No. 889-A.

Held: The President has authority however it is subject to judicial review. Two conditions must concur for the valid exercise of the authority to suspend the privilege to the writ (a) there must be "invasion, insurrection, or rebellion" or "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. President has three (3) courses of action: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh.

Petitioners contention that CPP-NPA has no ability, is negatived by the killing of 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970. CPP has managed to infiltrate or establish and control nine major labor organizations; has exploited the (11) major student or youth organizations; about thirty (30) mass organizations actively advancing the CPP.

SECTION 19 LLAMAS v. EXEC. SEC. ORBOS, OCAMPO III

October 15, 1991 (G.R. No. 99031)

PARTIES:

Petitioner: RODOLFO D. LLAMAS

Respondent: EXECUTIVE SECRETARY OSCAR ORBOS and MARIANO UN OCAMPO III

FACTS:

Ocampo III was the governor of Tarlac Province. Llamas together with some other complainants filed an administrative case against Ocampo III for alleged acts constituting graft and corruption. Ocampo III was found guilty. He was suspended for office for 90 days hence his vice governor, Llamas, assumed office. In not less than 30 days however, Ocampo III returned with an AO showing that he was pardoned hence he can resume office without completing the 90 day suspension imposed upon him.

The petitioner argues that President may grant executive clemency only in criminal cases. They say that the qualifying phrase “after conviction by final judgment” applies solely to criminal cases, and no other law allows the grant of executive clemency or pardon to anyone who has been “convicted in an administrative case, allegedly because the word “conviction” refers only to criminal cases.

SSUE: WON the President of the Philippines has the power to grant executive clemency in administrative cases.

HELD:

Yes. It is not specified in the constitution whether it may be considered under criminal or administrative cases. , if the law does not distinguish, so we must not distinguish. The Constitution does not distinguish between which cases executive clemency may be exercised by the President, with the sole exclusion of impeachment cases. By the same token, if executive clemency may be exercised only in criminal cases, it would indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of Article VII, Section 19 of the Constitution. Cases of impeachment are automatically excluded inasmuch as the same do not necessarily involve criminal offenses.

The do not clearly see any valid and convincing reason why the President cannot grant executive clemency in administrative cases. It is the court’s considered view that if the President can grant reprieves, commutations and pardons, and remit fines and forfeitures in criminal cases, with much more reason can she grant executive clemency in administrative cases, which are clearly less serious than criminal offenses.

The court stressed, however, that when we say the President can grant executive clemency in administrative cases, we refer only to all administrative cases in the Executive branch, not in the Judicial or Legislative branches of the government.

In criminal cases, the quantum of evidence required to convict an individual is proof beyond reasonable doubt. On the other hand, in administrative cases, the quantum of evidence required is mere substantial evidence to support a decision.

PEOPLE VS SALLE, JR.

FACTS:

Francisco Salle, Jr. and Ricky Mengote were found guilty beyond reasonable doubt and each issentenced to suffer the penalty of reclusion perpetua and to pay an indemnity. The appellantsseasonably filed their Notice of Appeal. On 24 March 1993, the Court accepted the appeal. On 6 January1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion to Withdraw Appeal. They weregranted a conditional pardon that with their acceptance of the conditional pardon, the appellants will bereleased from confinement, the appellants impliedly admitted their guilt and accepted their sentence,and hence, the appeal should be dismissed. They were discharged from the New Bilibid Prison on 28

December 1993. Atty. La’o further in formed the Court that appellant Ricky Mengote left for his provincewithout consulting her. She then prays that the Court grant Salle's motion to withdraw his appeal andconsider it withdrawn upon his acceptance of the conditional pardon. Mengote has not filed a motion towithdraw his appeal.

ISSUE:

Whether or not Mengote’s conditional pardon is valid?

RULING:

No. Since pardon is given only to one whose conviction is final, pardon has no effect until theperson withdraws his appeal and thereby allows his conviction to be final and Mengote has not filed amotion to withdraw his appeal.

–

“

WHEREFORE, counsel for accused-appellant Ricky Mengote y Cuntadois hereby given thirty (30) days from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court. The conditional pardon granted the said appellant shall bedeemed to take effect only upon the grant of such withdrawal. In case of non-compliance with thisResolution, the Director of the Bureau of Corrections must exert every possible effort to take back into hiscustody the said appellant, for which purpose he may seek the assistance of the Philippine National Police or the National Bureau of Investigation.

MONSANTO v. FACTORAN

February 9, 1989 (G.R. No. 78239)

PARTIES:

Petitioner: SALVACION A. MONSANTO

Respondent: FULGENCIO S., JR.

FACTS:

• In a decision by the Sandiganbayan convicted petitioner Salvacion A. Monsanto was accused of the crime of estafa thru falsification of public documents and sentenced them to imprisonment and to indemnify the government in the sum of P4,892.50 representing the balance of the amount defrauded and to pay the costs proportionately.

• She was given an absolute pardon by President Marcos which she accepted.

• Petitioner requested that she be restored to her former post as assistant city treasurer since the same was still vacant, she also asked for the backpay for the entire period of her suspension.

• Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a new appointment

• The Office of the President said that that acquittal, not absolute pardon, of a former public officer is the only ground for reinstatement to his former position and entitlement to payment of his salaries, benefits and emoluments due to him during the period of his suspension pendente lite.

• In fact, in such a situation, the former public official must secure a reappointment before he can reassume his former position. And a pardon shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the sentence.

• Petitioner argued that general rules on pardon cannot apply to her case by reason of the fact that she was extended executive clemency while her conviction was still pending appeal in this Court. There having been no final judgment of conviction, her employment therefore as assistant city treasurer could not be said to have been terminated or forfeited.

• The court viewed that is not material when the pardon was bestowed, whether before or after conviction, for the result would still be the same

ISSUE: (1) Effects of a full and absolute pardon

(2) WON a public officer, who has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her former position without need of a new appointment.

HELD:

(1) A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. But unless expressly grounded on the person’s innocence (which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing.

A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered.

(2) No. To insist on automatic reinstatement because of a mistaken notion that the pardon virtually acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.

The absolute disqualification or ineligibility from public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru falsification of public documents.

The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment.

ATTY. ALICIA RISOS-VIDAL, ALFREDO S. LIM PETITIONER-INTERVENOR,

VS. COMMISSION ON ELECTIONS AND JOSEPH EJERCITO ESTRADA

LEONARDO-DE CASTRO, J.: NATURE:

These are petitions including:

1) a Petition for Certiorari filed by Atty. Alicia Risos-Vidal, which essentially prays for the issuance of the writ of certiorari annulling and setting aside the April 1, 2013 and April 23, 2013 Resolutions of the Commission on Elections (COMELEC), Second Division and En banc, respectively.

(2) a Petition-in-Intervention[ filed by Alfredo S. Lim praying to be declared the 2013 winning candidate for Mayor of the City of Manila in view of private respondent former President Joseph Ejercito Estrada’s) disqualification to run for and hold public office

FACTS:

On September 12, 2007, the Sandiganbayan convicted former President Estrada, a former President of the Republic of the Philippines, for the crime of plunder and was sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification.

On October 25, 2007, however, former President Gloria Macapagal Arroyo extended executive clemency, by way of pardon, to former President Estrada explicitly states that He is hereby restored to his civil and political rights.

On November 30, 2009, former President Estrada filed a Certificate of Candidacy[7] for the position of President but was opposed by three petitions seeking for his disqualification. None of the cases prospered and MRs were denied by Comelec En Banc. Estrada only managed to garner the second highest number of votes on the May 10, 2010 synchronized elections.

On October 2, 2012, former President Estrada once more ventured into the political arena, and filed a Certificate of Candidacy,[10] this time vying for a local elective post, that of the Mayor of the City of Manila.

Petitioner Risos-Vidal filed a Petition for Disqualification against former President Estrada before the COMELEC because of Estrada’s Conviction for Plunder by the Sandiganbayan Sentencing Him to Suffer the Penalty of Reclusion Perpetua with Perpetual Absolute Disqualification. Petitioner relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC) In a Resolution dated April 1, 2013, the COMELEC, Second Division, dismissed the petition for disqualification holding that President Estrada’s right to seek public office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo.

Estrada won the mayoralty race in May 13, 2013 elections. Petitioner-intervenor Alfredo Lim garnered the second highest votes intervene and seek to disqualify Estrada for the same ground as the contention of Risos-Vidal and praying that he be proclaimed as Mayor of Manila.

ISSUE:

Whether or not the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that former President Estrada is qualified to vote and be voted for in public office as a result of the pardon granted to him by former President Arroyo.

HELD:

No. The COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the assailed Resolutions. The arguments forwarded by Risos-Vidal fail to adequately demonstrate any factual or legal bases to prove that the assailed COMELEC Resolutions were issued in a “whimsical, arbitrary or capricious exercise of power that amounts to an evasion or refusal to perform a positive duty enjoined by law” or were so “patent and gross” as to constitute grave abuse of discretion.

Former President Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code.

The proper interpretation of Articles 36 and 41 of the Revised Penal Code.

A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The sentence which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua.

The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position.

Proclamation No. 80, s. 1987

Signed on February 28, 1987

MALACAÑAN PALACE

MANILA

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 80

GRANTING AMNESTY IN FAVOR OF ALL PERSONS WHO, IN THE FURTHERANCE OF THEIR POLITICAL BELIEFS, MAY HAVE COMMITTED ACTS PENALIZED BY EXISTING LAWS

WHEREAS, certain persons or group/s of persons continue to oppose the government;

WHEREAS, these persons may have committed an act or acts in violation of existing laws in furtherance of their political beliefs;

WHEREAS, it is in the interest of the nation to forgive these individuals and forego their prosecution in order that all may be reunited and peace and order established in our land, and so that they can contribute their energy and talents to the achievement of political and social reforms within the framework of the laws and democracy;

WHEREAS, the unity of the Filipino people is necessary so that the nation can recover from the ravages of dictatorships; cdt

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by Section 6, Art. XVIII, of the 1987 Constitution, do hereby declare and proclaim full and complete amnesty in favor of all persons who have or may have committed any act penalized under existing laws in furtherance of their political beliefs and who, not being in the custody of, or charged by, undergoing investigation by, the authorities of the present administration, as of the date, the 28th of February 1987, and for six months thereafter, return their own free will to the fold of the law for the following crimes: treason; conspiracy or proposal to commit the crime of treason; misprision of treason; espionage; rebellion or insurrection; conspiracy and proposal to commit rebellion or insurrection; inciting to rebellion or insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal assemblies; illegal associations; direct assault; indirect assault; resistance and disobedience to a person in authority or agents of such person or persons; subversion; and illegal possession of firearms and explosives. This shall not, however, apply to crimes or acts committed from purely personal motives or outside of the foregoing enumerations.

It is further declared that in order to determine those persons who may come within the terms of this amnesty, an Amnesty Committee is hereby created in each province or city composed of the Provincial/City Citizens Attorney, as Chairman, and four members, namely: the AFP Judge Advocate designated by the Secretary of National Defense, the Provincial/City Secretary, an IBP representative designated by the Provincial/City IBP Chapter and the fourth to be chosen by the Chairman and the herein three named members, which shall examine the facts and circumstances surrounding each case. The Committee shall decide each case within ten (10) working days from receipt of the application, and upon finding that it falls within the terms of this Proclamation, it shall so declare and the amnesty shall immediately be effective as to said person. Should the Amnesty Committee fail to make its decision within the given ten day period, such inaction shall be construed as an automatic grant of amnesty in favor of the applicant concerned. casia

Any person who desires to avail of the amnesty provided herein may, at anytime within six (6) months from date of issuance of this Proclamation, file an application for amnesty with the Bayanihan Center organized in each province or city. The Bayanihan Center immediately forward the application to the Amnesty Committee, which shall then evaluate and pass upon the application in accordance with the Guidelines that may be issued by the National Reconciliation and Development Council to implement this Proclamation and shall make the necessary decision in each particular case.

This Proclamation take effect immediately.

DONE in the City of Manila, this 28th day of February, in the year of Our Lord, Nineteen Hundred and Eighty-Seven.

SABELLO VS DECS

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

Facts: Sabello, an elementary school principal and the assistant principal of the Talisay Brgy. High School together with their barrio captain were charged of the violation of RA 3019(Anti Graft and Corrupt Practices Act). They were both convicted and sentenced 1yr & disqualification to hold office. Petitioner is alleged that he gravely erred in depositing 840.00 to the City Treasurer's office in the name of Talisay Barrio H.S to cover up for the teachers salary. The amount of 840 came from the aid given by the Pres. in the amount of 2,000 for each barrio. The Barrio Council believing in good faith that the barrio H.S was a barrio project therefore it is entitled to its share with the funds given by the pres. Petitioner then appealed to the C.A of MNL. Court of appeals then modified the penaly by eliminating the subsidiary imprisonment in case of insolvency in the payment of 1/2 of the amount being involved. Petitioner could no longer appeal to the Supreme court so then judgment became final. Afterwards, the pres granted the petitioner ABSOLUTE PARDON restoring him full civil and political rights. Petitioner then applied for the reinstatement of his employment; he was reinatated but not as a Principal rather a classroom teacher. He then appealed for the relief of the Supreme Court to grant his requesr of being reinstated to his former position and for the payment of his backwages.

ISSUE: whether petitioner merits reappointment to the position he held prior to his conviction that of Elementary Principal I. HELD: The DECS did not act on the request of the petitioner because they contended through the Sol.Gen that there is no justiceable controversy to be resolved.

The Court believed otherwise.There is here a justiciable controversy. Petitioner claims he must be restored to the same position he was in before he was convicted on a mere technical error and for which he was given an absolute pardon, under the circumstances of this case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer a matter of discretion on the part of the appointing power, but discretion tempered with fairness and justice.

As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer is that its officials can be sued for alleged grave errors in their official acts. Again, We ignore technicality by considering this a suit against the officials of this government agency.

In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or ineligibility from public office forms part of the punishment prescribed under the penal code and that pardon frees the individual from all the penalties and legal disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a public office it does not entitle him to automatic reinstatement. He should apply for reappointment to said office.There are no circumstances that would warrant the diminution in his rank, justice and equity dictate that he be returned to his former position of Elementary School Principal I and not to that of a mere classroom teacher.

However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982 since in Monsanto 4 this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the government service upon his conviction for an offense. Thus, although his reinstatement had been duly authorized, it did not thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and were thus ordered reinstated or to those otherwise acquitted of the charge against them.

WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture and Sports and/or his duly authorized representative is hereby directed to appoint petitioner to the position of Elementary School Principal I or it equivalent, without pronouncement as to cost. This decision is immediately executory.

PEOPLE VS SALLE, JR

Francisco Salle, Jr. and Ricky Mengote were found guilty beyond reasonable doubt and each is sentenced to suffer the penalty of reclusion perpetua and to pay an indemnity. The appellants seasonably filed their Notice of Appeal. On 24 March 1993, the Court accepted the appeal. On 6 January 1994, however, appellant Francisco Salle, Jr. filed an Urgent Motion to Withdraw his Appeal. They were granted a conditional pardon that with their acceptance of the conditional pardon, the appellants will be released from confinement, the appellants impliedly admitted their guilt and accepted their sentence, and hence, the appeal should be dismissed.They were discharged from the New Bilibid Prison on 28 December 1993. Atty. La’o further informed the Court that appellant Ricky Mengote left for his province without consulting her. She then prays that the Court grant Salle's motion to withdraw his appeal and consider it withdrawn upon his acceptance of the conditional pardon. Mengote has not filed a motion to withdraw his appeal.

ISSUE: Whether Mengote’s conditional pardon is valid.

HELD: No. Since pardon is given only to one whose conviction is final, pardon has no effect until the person withdraws his appeal and thereby allows his conviction to be final and Mengote has not filed a motion to withdraw his appeal. – “WHEREFORE, counsel for accused-appellantRicky Mengote y Cuntado is hereby given thirty (30) days from notice hereof within which to secure from the latter the withdrawal of his appeal and to submit it to this Court. The conditional pardon granted the said appellant shall be deemed to take effect only upon the grant of such withdrawal. In case of non- compliance with this Resolution, the Director of the Bureau of Corrections must exert every possible effort to take back into his custody the said appellant, forwhich purpose he may seek the assistance of the Philippine National Police or the NationalBureau of Investigation.

SECTION 21

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OFCUSTOMS, petitioners,vs.

EASTERN SEA TRADING, respondent.

G.R. No. L-14279October 31, 1961

Topic: Executive Agreements

NATURE OF THE CASE

This is a petition for review of a decision of the Court of Tax Appeals, whichreversed a decision of the Commissioner of Customs

FACTS Several onion and garlic shipments imported by respondent consignee fromHongkong and Japan were seized and subjected to forfeiture proceedings for alleged violations of Section 1363 of the Revised Administrative Code. Allegedly, none of the shipments had the certificate required by Central BankCirculars 44 and 45 (requiring a Central Bank license and a certificateauthorizing the importation or release of the subject good ) for their release.The Collector of Customs of Manila rendered judgment declaring theforfeiture of the goods in favor of the Government. Upon appeal, theCommissi oner of Customs upheld the Collector’s decision. Respondent filed a petition for review with the Court of Tax Appeals. The CTA reversed the

Commissioner’ s decision. Hence, this present petition.

ISSUES

1. Whether the seizure and forfeiture of the goods imported from Japan canbe justified under EO 328 (which implements an executive agreementextending the effectivity of the Trades and Financial Agreements of thePhilippines with Japan)

---YES.

2. Whether the executive agreement sought to be implemented by EO 328 islegal and valid, considering that the Senate has not concurred in the makingof said executive agreement

---NO.

RULING

Treaties are different from executive agreements. While treaties are formaldocuments which require ratification by the Senate, executive agreementsbecome binding through executive action without the need of a vote by theSenate or Congress. Further, international agreements involving politicalissues or changes of national policy and those involving internationalarrangements of a permanent character usually take the form of treaties; onthe other hand, international agreements embodying adjustments of detail carrying out well-established national policies and traditions and thoseinvolving arrangements of a more or less temporary nature usually take theform of executive agreements.The right of the Executive to enter into binding agreements without thenecessity of subsequent Congressional approval has been confirmed by long usage

. From the earliest days of our history we have entered into executiveagreements covering such subjects as commercial and consular relations,most-favored-nation rights, patent rights, trademark and copyright protection,postal and navigation arrangements and the settlement of claims.

Thevalidity of these has never been seriously questioned by our courts

.Francis Saye, former US High Commissioner to the Philippines, further states that xxx it would seem to be sufficient, in order to show that the tradeagreements under the act of 1934 are not anomalous in character, that theyare not treaties, and that they have abundant precedent in our history, torefer to certain classes of agreements entered into by the Executive withoutthe approval of the Senate. They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations generally,international claims, postal matters, the registration of trademarks andcopyrights, etcetera. Some of them were concluded not by specificcongressional authorization but in conformity with policies declared in acts of Congress with respect to the general subject matter, such as tariff acts; whilestill others, particularly those with respect of the settlement of claims againstforeign governments, were concluded independently of any legislationThe Parity Rights Agreement, which was provided for in the Ordinance Appended to the Constitution was the subject of an executive agreement,made without the concurrence of 2/3 of the Senate of the US.Hence, the validity of the executive agreement in question in this case ispatent.The authority to issue import licenses was not vested exclusively upon theImport Control Commission or Administration. EO 328 provided for export or import licenses "from the

Central Bank of the Philippines or the ImportControl Administration" or Commission. Indeed, the latter was created only toperform the task of implementing certain objectives of the Monetary Boardand the Central Bank, which otherwise had to be undertaken by these two (2)agencies

. Upon the abolition of said Commission, the duty to provide meansand ways for the accomplishment of said objectives had merely to bedischarged directly by the Monetary Board and the Central Bank, even if theaforementioned Executive Order had been silent thereon.The decision of the CTA is reversed.

G.R. No. 159618 February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.MAZA,

Petitioner,vs. ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity asSecretary of Foreign Affairs,

Respondents.

VELASCO, JR.,

J.:

Facts:

Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive Secretary. Rome Statute of the International Criminal Court having a key determinative bearing on this case is the Rome Statute establishing the International Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of international concern and shall be complimentary to the national criminal jurisdiction. The serious crimes adverted to cover those considered grave under international law, such as genocide, crimes against humanity, war crimes, and crimes of aggression. On December 28, 2000, the RP, through Charge d•Affaires Enrique A. Manalo, signed the Rome Statute which, by its terms, is subject to ratification, acceptance or approval by the signatory states. As of the filing of the instant petition, only 92 out of the 139 signatory countries appear to have completed the ratification, approval and concurrence process. The Philippines is not among the 92.

Issue :

Whether the agreement is valid, binding, and effective without the concurrence by at least two-thirds (2/3) of all the members of the senate

Held:

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated therein as evidenced by it requiring State consent. Even further, theRome Statute specifically and unequivocally requires that: This Statute is subject to ratification, acceptance or approval by signatory States. These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great respect. The power to enter into executive agreements has long been recognized to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, [t]he power to enter into an executive agreement is in essence an executive power. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. The rationale behind this principle is the inviolable doctrine of separation of powers among the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non- Surrender Agreement ought to be in the form of a treaty, to be effective, has to be rejected.

Pimentel v. Executive Secretary

G.R. No. 158088 July 6, 2005

Facts:

1. The petitioners filed a petition for mandamus to compel the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippinesfor its concurrence pursuant to Sec. 21, Art VII of the 1987 Constitution. 2. The Rome Statute established the Int'l Criminal Court which will have jurisdiction over the most serious crimes as genocide, crimes against humanity, war crimes and crimes of aggression as defined by the Statute. The Philippines through the Chargie du Affairs in UN. The provisions of the Statute however require that it be subject to ratification, acceptance or approval of the signatory state.

3. Petitioners contend that ratification of a treaty, under both domestic and international law, is a function of the Senate, hence it is the duty of the Executive Department to transmit the signed copy to the senate to allow it to exercise its discretion.

Issue: Whether or not the Exec. Secretary and the DFA have the ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the Philippine mission to the U.N. even without the signature of the President.

The Supreme Court held NO.

1. The President as the head of state is the sole organ and authorized in the external relations and he is also the country's sole representative with foreign nations, He is the mouthpiece with respect to the country's foreign affairs.

2. In treaty-making, the President has the sole authority to negotiate with other states and enter into treaties but this power is limited by the Constitution with the 2/3 required vote of all the members of the Senate for the treaty to be valid. (Sec. 21, Art VII).

3. The legislative branch part is essential to provide a check on the executive in the field of foreign relations, to ensure the nation's pursuit of political maturity and growth.

SECTION 23

80 SCRA 538 – Political Law – Constitutional Law – President’s Immunity From Suit

In December 1977, a referendum was scheduled to be held. The purpose of which was to merge the office of the Prime Minister and the Office of the President. At that time, Marcos was serving as the president and at the same time he was wielding legislative powers. The referendum was to ask the people whether or not they still want Marcos to serve as the president (and at the same time Prime Minister) after an interim Batasan Pambansa will be organized. Ernesto Hidalgo filed a petition for prohibition and mandamus before the Supreme Court to enjoin COMELEC and the president from proceeding with the said referendum as he averred that the referendum will effectively amend the C0nstitution, which he says is unconstitutional and improper.

ISSUE: Whether or not the president can be sued and compelled through a mandamus by the SC.

HELD: The Supreme Court did not pass upon the issue of the suability of the Presisent in thsi case considering that the COMELEC, the body tasked to implement the referendum, was impleaded.

The SC however ruled that the referendum is valid and that the same will merely ask the people if they want Marcos to stay in power or not and that the referendum will not amend the Constitution as Hidalgo avers.