ESTRADA VS DESIERTO; ARROYOPosted by kaye lee on 2:48 AMEstrada vs Desierto G.R. No. 146710-15; Estrada vs Arroyo G.R. No. 146738, March 2 2001

[Immunity from Suit; Resignation of the President; Justiciable controversy]

FACTS:It began in October 2000 when allegations of wrong doings involving bribe-taking, illegal gambling, and other forms of corruption were made against Estrada before the Senate Blue Ribbon Committee. On November 13, 2000, Estrada was impeached by the Hor and, on December 7, impeachment proceedings were begun in the Senate during which more serious allegations of graft and corruption against Estrada were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to the President, succeeded in suppressing damaging evidence against Estrada. As a result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out and Senate President Pimentel resigned after casting his vote against Estrada.

On January 19, PNP and the AFP also withdrew their support for Estrada and joined the crowd at EDSA Shrine. Estrada called 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. On January 20, SC declared that the seat of presidency was vacant, saying that Estrada constructively resigned his post. At noon, Arroyo took her oath of office in the presence of the crowd at EDSA as the 14th President. Estrada and his family later left Malacaang Palace. Erap, after his fall, filed petition for prohibition with prayer for WPI. 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 Estrada to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office.

ISSUE(S):1. WoN the petition presents a justiciable controversy.2. WoN Estrada resigned as President.3. WoN Arroyo is only an acting President.4. WoN the President enjoys immunity from suit.5. WoN the prosecution of Estrada should be enjoined due to prejudicial publicity.

RULING:

1. Political questions- "to 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."Legal distinction between EDSA People Power I EDSA People Power II:EDSA IEDSA II

exercise ofthe people power of revolutionwhich overthrew the whole government.exercise ofpeople power of freedom of speech and freedom of assemblyto petition the government for redress of grievances which only affected the office of the President.

extra constitutionaland the legitimacy of the new government that resulted from it cannot be the subject of judicial review

intra constitutionaland the resignation of the sitting President that it caused and the succession of the Vice President as President are subject to judicial review.

presented apolitical question;involveslegal questions.

The cases at bar pose legal and not political questions. The principal issues for resolution require the proper interpretation of certain provisions in the 1987 Constitution: Sec 1 of Art II, and Sec 8 of Art VII, and the allocation of governmental powers under Sec 11 of Art VII. The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity.

2. Elements of valid resignation: (a)an intent to resign and (b) acts of relinquishment. Both were present when President Estrada left the Palace.Totality of prior contemporaneous posterior facts and circumstantial evidence bearing material relevant issuesPresident Estrada is deemed to have resigned constructive resignation.SC declared that the resignation of President Estrada could not be doubted as confirmed by his leaving Malacaan Palace. In the press release containing his final statement:1. He acknowledged the oath-taking of the respondent as President;2. He emphasized he was leaving the Palace for the sake of peace and in order to begin the healing process (he did not say that he was leaving due to any kind of disability and that he was going to reassume the Presidency as soon as the disability disappears);3. He expressed his gratitude to the people for the opportunity to serve them as President (without doubt referring to the past opportunity);4. He assured that he will not shirk from any future challenge that may come in the same service of the country;5. He called on his supporters to join him in promotion of a constructive national spirit of reconciliation and solidarity.Intent to resignmust be accompanied by act of relinquishmentact or omission before, during and after January 20, 2001.

3. The Congress passed House Resolution No. 176 expressly stating its support to Gloria Macapagal-Arroyo as President of the Republic of the Philippines and subsequently passed H.R. 178 confirms the nomination of Teofisto T. Guingona Jr. As Vice President. Senate passed HR No. 83 declaring the Impeachment Courts as Functius Officio and has been terminated. It is clear is that both houses of Congress recognized Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of Estrada is no longer temporary as the Congress has clearly rejected his claim of inability.The Court therefore cannot exercise its judicial power for this is political in nature and addressed solely to Congress by constitutional fiat. In fine, even if Estrada can prove that he did not resign, still, he cannot successfully claim that he is a President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by Congress and the decision that Arroyo is the de jure, president made by a co-equal branch of government cannot be reviewed by this Court.

4. The cases filed against Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president. He cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability. The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any trespasser.

5. No. Case law will tell us that a right to a fair trial and the free press are incompatible. Also, since our justice system does not use the jury system, the judge, who is a learned and legally enlightened individual, cannot be easily manipulated by mere publicity. The Court also said that Estrada did not present enough evidence to show that the publicity given the trial has influenced the judge so as to render the judge unable to perform. Finally, the Court said that the cases against Estrada were still undergoing preliminary investigation, so the publicity of the case would really have no permanent effect on the judge and that the prosecutor should be more concerned with justice and less with prosecution.

Public Interest Center vs. ELMAJune 30, 2006, Chico-Nazario*concurrent appointments, incompatible officeN: CPM + TRO to declare null and void the concurrent appointments of ELMA as PCGG Chair and as Chief Presidential Legal Counsel

F: Elma was appointed as PCGG Chair Oct 1998. Later on he was appointed as CPLC (Jan 1999 during his term), but waived any remuneration that he may receive as CPLC.Supervening events: Theres actually no more controversy involved: In 2001, Elma was replaced by Sabio as PCGG. Nachura was then appointed as CPLC but pending resolution of the case, he was appointed SOLGEN.

Arguments: Public Interest CenterCLU vs. Exec Sec: Art IX-B, Sec 7, par2 and Art VII, Sec13 are violated by concurrent appointmentsCPLC and PCGG Chair are incompatible offices

Arguments: ElmaAs interpreted in CLU vs. Exec Sec, the mentioned consti provisions dont cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.His appointment falls under the exceptions in Art IX-B, Sec7The 2 positions are not incompatible

NOTE: even if issue already moot, SC still took cognizance of the case because the case is capable of repetition, and to serve as a guide to the bench.

whether the position of the PCGG Chairman or that of the CPLC falls under the prohibition against multiple offices imposed by Section 7, par. 2, Article IX-B of the 1987 ConstitutionYES.The crucial test in determining whether incompatibility exists between two offices was laid out in People v. Green[13] - whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other.

[I]ncompatibility between two offices, is an inconsistency in the functions of the two; x x x Where one office is not subordinate to the other, nor the relations of the one to the other such as are inconsistent and repugnant, there is not that incompatibility from which the law declares that the acceptance of the one is the vacation of the other. The force of the word, in its application to this matter is, that from the nature and relations to each other, of the two places, they ought not to be held by the same person, from the contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. x x x The offices must subordinate, one [over] the other, and they must, per se, have the right to interfere, one with the other, before they are incompatible at common law. x x x***In this case, an incompatibility exists between the positions of the PCGG Chairman and the CPLC. The duties of the CPLC include giving independent and impartial legal advice on the actions of the heads of various executive departments and agencies and to review investigations involving heads of executive departments and agencies, as well as other Presidential appointees. The PCGG is, without question, an agency under the Executive Department. Thus, the actions of the PCGG Chairman are subject to the review of the CPLC.*note: Memorandum Order No. 152, issued on 9 July 2004 (provides that CPLC review Decision on investigation involving Cabinet Secretaries, agency heads, or Presidential appointees with the rank of Secretary conducted by the Presidential Anti-Graft Commission (PAGC))

whether such appointments violate the other constitutional provision regarding multiple offices, Section 13, Article VII of the 1987 ConstitutionNO if based on position. YES if based on primary functions test.the strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor to the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if the former may have the same rank as the latter positions.

*Review ulit CLU vs. Exec Sec: The language of Section 13, Article VII is a definite and unequivocal negation of the privilege of holding multiple offices or employment.The Court cautiously allowed only two exceptions to the rule against multiple offices:(1) those provided for under the Constitution, such as Section 3, Article VII, authorizing the Vice-President to become a member of the Cabinet; or(2) posts occupied by the Executive officials specified in Section 13, Article VII without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of said officials office.The Court further qualified that additional duties must not only be closely related to, but must be required by the officials primary functions. Moreover, the additional post must be exercised in an ex-officio capacity, which denotes an act done in an official character, or as a consequence of office, and without any other appointment or authority than that conferred by the office.[18] Thus, it will not suffice that no additional compensation shall be received by virtue of the second appointment, it is mandatory that the second post is required by the primary functions of the first appointment and is exercised in an ex-officio capacity.

*Even Section 13, Article VII does not sanction this dual appointment. Appointment to the position of PCGG Chairman is not required by the primary functions of the CPLC, and vice versa.

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent Elma since neither the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant secretary. Even if this Court assumes, arguendo, that Section 13, Article VII is applicable to respondent Elma, he still could not be appointed concurrently to the offices of the PCGG Chairman and CPLC because neither office was occupied by him in an ex-officio capacity, and the primary functions of one office do not require an appointment to the other post. Moreover, even if the appointments in question are not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still prohibited under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility between the primary functions of the offices of the PCGG Chairman and the CPLC.Funa vs Executive Secretary with NotesG.R. No. 184740 February 11, 2010DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC. LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of Transportation and Communications, USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.D E C I S I O NVILLARAMA, JR., J.:Facts:This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC).On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment.On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA and she assumed her duties and responsibilities as such on February 2, 2009.Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution .On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioners prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin.Issue: Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants.Held:The petition is meritorious.Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for redress of such illegal act by public officials.A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. But even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. In the present case, the mootness of the petition does not bar its resolution. Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides:Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.On the other hand, Section 7, paragraph (2), Article IX-B reads:Sec. 7. x x xUnless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus:These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.Note:Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while designation is legislative in nature.Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person to a specified public office. That is the common understanding of the term. However, where the person is merely designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary appointment, which does not confer security of tenure on the person named.

Matibag vs. Benipayo, G.R. No. 149036, April 2, 2002

FACTS:

COMELEC en banc appointed petitioner as Acting Director IV of the EID. Such appointment was renewed in temporary capacity twice, first by Chairperson Demetrio and then by Commissioner Javier. Later, PGMA appointed, ad interim, Benipayo as COMELEC Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of 7 yrs. The three took their oaths of office and assumed their positions. However, since the Commission on Appointments did not act on said appointments, PGMA renewed the ad interim appointments.

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 temporary appointment prohibited by Sec. 1(2), Art. IX-CAssuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition on reappointment under Sec. 1(2), Art. IX-C

RULING:

Nature of an Ad Interim Appointment

An ad interim appointment is a permanent appointment because it takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified into office. The fact that is subject to confirmation by the Commission on Appointments does not alter its permanent character. The Constitution itself makes an ad interim appointment permanent in character by making it effective until disapproved by the Commission on Appointments or until the next adjournment of Congress. The second paragraph of Sec.16, Art.VII of the Constitution provides as follows:

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

Thus, the ad interim appointment remains effective until such disapproval or next adjournment, signifying that it can no longer be withdrawn or revoked by the President. xxx

...the term ad interim appointment means a permanent appointment made by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoked at any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurisprudence.

Rights of an Ad Interim Appointee

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of the civil service. He enjoys the constitution protection that [n]o officer or employee in the civil service shall be removed or suspended except for cause provided by law. Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the moment he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office. Once an appointee has qualified, he acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for cause, after notice and hearing, consistent with the requirements of due process.

How Ad Interim Appointment is Terminated

An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad interim appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission on Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No one, however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees.

Ad Interim Appointment vs. Temporary Appointment

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from making to the three independent constitutional commissions, including the COMELEC xxx

Was the renewal of appointment valid?

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a new appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appointing authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give its consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decision, the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer renew the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission on Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is another matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the close of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointment as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appointee xxx

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim appointment cannot be revived by another ad interim appointment because the disapproval is final under Section 16, Article VII of the Constitution, and not because a reappointment is prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim appointment can be revived by a new ad interim appointment because there is no final disapproval under Section 16, Article VII of the Constitution, and such new appointment will not result in the appointee serving beyond the fixed term of seven years.Rufino vs Endriga

Rufino vs EndrigaG.R. No. 139554July 21, 2006

FACTS:On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30) creating the Cultural Center of the Philippines as a trust governed by a Board of Trustees of seven members to preserve and promote Philippine culture.On5 October 1972, or soon after the declaration of Martial Law,President Marcos issued PD 15,the CCPs charter, which converted the CCP under EO 30 into a non-municipal public corporation free from the pressure or influence of politics. PD 15 increased the members of CCPs Board from seven to nine trustees.Later, Executive Order No. 1058, issued on10 October 1985, increased further the trustees to 11.

After the People Power Revolution in 1986, then President Corazon C. Aquino asked for the courtesy resignations of the then incumbent CCP trustees and appointed new trustees to the Board.Eventually, during the term of President Fidel V. Ramos, the CCP Board included Endriga, Lagdameo, Sison,Potenciano,Fernandez, LenoraA. Cabili (Cabili), andManuel T. Maosa (Maosa).

On22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP Board for a term of four years to replace the Endriga group as well as two other incumbent trustees. The seven new trustees were:

1.Armita B. Rufino -President, vice Baltazar N. Endriga

2.Zenaida R. Tantoco-Member, vice Doreen Fernandez

3.Federico Pascual -Member, vice Lenora A. Cabili

4.Rafael Buenaventura -Member, vice Manuel T. Maosa

5.Lorenzo Calma -Member, vice Ma.Paz D. Lagdameo

6.Rafael Simpao, Jr.-Member, vice Patricia C. Sison

7.Freddie Garcia -Member, vice Irma Ponce-EnrilePotenciano

Except for Tantoco,the Rufino grouptooktheirrespective oaths of office and assumedthe performance of their duties in early January 1999.

On6 January 1999, the Endriga group filed a petition forquo warrantobefore this Court questioning President Estradas appointment ofseven new members to the CCP Board.The Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP Board shall be filled by election by a vote of a majority of the trustees held at the next regular meeting x x x.In case only one trustee survive[s], the vacancies shall be filled by the surviving trustee acting in consultation with the ranking officers of the [CCP].The Endriga group claimed that it is only when the CCP Board is entirely vacant may the President of the Philippines fill such vacancies, acting in consultation with the ranking officers of the CCP.

The Endriga group asserted that when former President Estrada appointed the Rufino group, only one seat was vacant due to the expiration of Maosas term.The CCP Board then had 10 incumbent trustees.The Endriga group refused to accept that the CCP was under the supervision and control of the President.The Endriga group cited Section 3 of PD 15, which states that the CCP shall enjoy autonomy of policy and operation x x x.

On14 May 1999, the Court of Appeals granted thequo warrantopetition.The Court of Appeals declared the Endriga group lawfully entitled to hold office as CCP trustees.On the other hand, the appellate courts Decision ousted the Rufino group from theCCP Board.

In their motion for reconsideration, the Rufino group asserted that the law could only delegate to the CCP Board the power to appoint officers lower in rank than the trustees of the Board.The law may not validly confer on the CCP trustees the authority to appoint or elect their fellow trustees, for the latter would beofficers of equal rank and not of lower rank.Section 6(b) of PD 15 authorizing the CCP trustees to elect their fellow trustees should be declared unconstitutional being repugnant to Section 16, Article VII of the 1987 Constitution allowing the appointment only of officers lower in rank than the appointing power.

On3 August 1999, the Court of Appeals denied the Rufino groups motion for reconsideration.The Court of Appeals also denied the Endriga groups motion for immediate execution of the14 May 1999Decision.Hence, the instant consolidated petitions.

ISSUE:Whether or not Sec. 6 (b) of PD 15 is constitutional and CCP trustees have the authority to appoint and elect their fellow trustees when there is vacancy.

RULING:

NO. The SC ruled that Sec. 6 (b) and (c) of PD 15 as amended which authorizes the remaining trustees to fill by election vacancies in the Board of Trustees of CCP is unconstitutional.Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill vacancies in the Board, runs afoul with the Presidents power of control under Section 17, Article VII of the 1987 Constitution.The intent of Section 6(b) and (c) of PD 15 is to insulate the CCP from political influence and pressure, specifically from the President.Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating entity, virtually outside the control of the President.Such a public office or board cannot legally exist under the 1987 Constitution.

Section 3 of PD 15, as amended, states that the CCP shall enjoy autonomy of policy and operation x x x.This provision does not free the CCP from the Presidents control, for if it does, then it would be unconstitutional.This provision may give the CCP Board a free hand in initiating and formulating policies and undertaking activities, but ultimately these policies and activities are all subject to the Presidents power of control.

The CCP is part of the Executive branch. No law can cut off the Presidents control over the CCP in the guise of insulating the CCP from the Presidents influence.By stating that the President shall have control of all the executive x x x offices, the 1987 Constitution empowers the Presidentnot only to influence but even to controlall offices in the Executive branch, including the CCP.Control is far greater than, and subsumes, influence.Pimentel vs. ErmitaPost undercase digests,Political LawatFriday, March 09, 2012Posted bySchizophrenic MindFacts:This is a petition to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo (President Arroyo) throughExecutive SecretaryEduardo R. Ermita (Secretary Ermita) to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap (respondents) as actingsecretariesof their respective departments.

On August 2004, Arroyo issued appointments to respondents as actingsecretariesof their respective departments.

Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad interim appointments to respondents assecretariesof the departments to which they were previously appointed in an acting capacity.

Issue:Is President Arroyosappointmentof respondents as actingsecretarieswithout the consent of the Commission on Appointments while Congress is in session, constitutional?

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

However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to give or withhold consent to presidential appointments.

Petitioners contend that President Arroyo should not have appointed respondents as actingsecretariesbecause in case of avacancy inthe Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary.

The essence of anappointmentin an acting capacity is its temporary nature. It is a stop-gap measure intended to fill an office for a limited time until theappointmentof a permanentoccupantto the office. In case ofvacancy inan office occupied by an alter ego of the President, such as the office of adepartment secretary, the President must necessarily appoint an alter ego of her choice as acting secretarybefore thepermanent appointee of her choice could assume office.

Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds aposition ofgreat 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 adepartment secretarymay become vacant while Congress is in session. Since adepartment secretaryis the alter ego of the President, the acting appointee to the office must necessarily have the Presidents confidence. Thus, by the very nature of the office of adepartment secretary, the President must appoint in an acting capacitya personof her choice even while Congress is in session. That person may or may not be the permanent appointee, but practical reasons may make it expedient that the acting appointee will also be the permanent appointee.

The law expressly allows the President to make such actingappointment. Section 17, Chapter 5, Title I, Book III of EO 292 states that [t]he President may temporarily designate an officer already in the government service or any other competent person to perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting capacitya personnot yet in the government service, as long as the President deems that person competent.

Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting appointments as a way to circumvent confirmation by the Commission on Appointments.

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

However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyos issuance of ad interim appointments to respondents immediately upon the recess of Congress, waybefore thelapse of one year.De Castro v. JBCFacts:This case is based on multiple cases field with dealt with the controversy that has arisen from the forthcoming compulsory requirement of Chief Justice Puno on May 17, 2010 or seven days after the presidential election.On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, the JBC passed a resolution which stated that they have unanimously agreed to start the process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the retirement of the incumbent Chief Justice.

As a result, the JBC opened the position of Chief Justice for application or recommendation, and published for that purpose its announcement in the Philippine Daily Inquirer and the Philippine Star.

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of announcing the names of the following candidates to invite to the public to file their sworn complaint, written report, or opposition, if any, not later than February 22, 2010.

Although it has already begun the process for the filling of the position of Chief Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the President its list of nominees for the position due to the controversy in this case being unresolved.

The compiled cases which led to this case and the petitions of intervenors called for either the prohibition of the JBC to pass the shortlist, mandamus for the JBC to pass the shortlist, or that the act of appointing the next Chief Justice by GMA is a midnight appointment.

A precedent frequently cited by the parties is the In Re Appointments Dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the RTC of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively, shortly referred to here as the Valenzuela case, by which the Court held that Section 15, Article VII prohibited the exercise by the President of the power to appoint to judicial positions during the period therein fixed.

ISSUES

W/N the petitioners have legal standing?

W/N there is justiciable controversy that is ripe for judicial determination?

W/N the incumbent President appoint the next Chief Justice?

W/N mandamus and prohibition will lie to compel the submission of the shortlist of nominees by the JBC?

RULING

Petitioners have legal standing because such requirement for this case was waived by the Court.

Legal standing is a peculiar concept in constitutional law because in some cases, suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly speaking, the petitioners are not covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove the impediment to its addressing and resolving the serious constitutional questions raised.

There is a justiciable issue

We hold that the petitions set forth an actual case or controversy that is ripe for judicial determination. The reality is that the JBC already commenced the proceedings for the selection of the nominees to be included in a short list to be submitted to the President for consideration of which of them will succeed Chief Justice Puno as the next Chief Justice. Although the position is not yet vacant, the fact that the JBC began the process of nomination pursuant to its rules and practices, although it has yet to decide whether to submit the list of nominees to the incumbent outgoing President or to the next President, makes the situation ripe for judicial determination, because the next steps are the public interview of the candidates, the preparation of the short list of candidates, and the interview of constitutional experts, as may be needed.

The resolution of the controversy will surely settle with finality the nagging questions that are preventing the JBC from moving on with the process that it already began, or that are reasons persuading the JBC to desist from the rest of the process.

PROHIBITION UNDER SECTION 15, ARTICLE VII DOES NOT APPLY TO APPOINTMENTS TO FILL A VACANCY IN THE SUPREME COURT OR TO OTHER APPOINTMENST TO THE JUDICIARY.

Two constitutional provisions seemingly in conflict:

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

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

Justification of the Supreme Court:

First. The records of the deliberations of the Constitutional Commission reveal that the framers devoted time to meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that the organization and arrangement of the provisions of the Constitution were not arbitrarily or whimsically done by the framers, but purposely made to reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the awesome powers of government among the three great departments, the Legislative (Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement was a true recognition of the principle of separation of powers that underlies the political structure

As can be seen, Article VII is devoted to the Executive Department, and, among others, it lists the powers vested by the Constitution in the President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the Article.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII.

Although Valenzuela came to hold that the prohibition covered even judicial appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission.

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative, operating to impose a duty that may be enforced should not be disregarded. Thereby, Sections 4(1) imposes on the President the imperative duty to make an appointment of a Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure by the President to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the vacancy in the Supreme Court was undoubtedly a special provision to establish a definite mandate for the President as the appointing power, and cannot be defeated by mere judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was couched in stronger negative language.

Second. Section 15, Article VII does not apply as well to all other appointments in the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as part of Article VII was to eliminate midnight appointments from being made by an outgoing Chief Executive. Given the background and rationale for the prohibition in Section 15, Article VII, we have no doubt that the Constitutional Commission confined the prohibition to appointments made in the Executive Department. The framers did not need to extend the prohibition to appointments in the Judiciary, because their establishment of the JBC and their subjecting the nomination and screening of candidates for judicial positions to the unhurried and deliberate prior process of the JBC ensured that there would no longer be midnight appointments to the Judiciary. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by doing away with the intervention of the Commission on Appointments.

Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming presidential elections. He assured that on the basis of the (Constitutional) Commissions records, the election ban had no application to appointments to the Court of Appeals. This confirmation was accepted by the JBC, which then submitted to the President for consideration the nominations for the eight vacancies in the Court of Appeals.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and Section 16) concern the appointing powers of the President.

Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to the Judiciary further undermines the intent of the Constitution of ensuring the independence of the Judicial Department from the Executive and Legislative Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of political leaders vying for the Presidency in a presidential election. Consequently, the wisdom of having the new President, instead of the current incumbent President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial independence, because the appointee can also become beholden to the appointing authority. In contrast, the appointment by the incumbent President does not run the same risk of compromising judicial independence, precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.

Section 4 (3), Article VII requires the regular elections to be held on the second Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the regular presidential elections are held on May 8, the period of the prohibition is 115 days. If such elections are held on May 14, the period of the prohibition is 109 days. Either period of the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the difference between the shortest possible period of the ban of 109 days and the 90-day mandatory period for appointments) in which the outgoing President would be in no position to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to assume that the framers of the Constitution could not have intended such an absurdity.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a JBC list is necessary at all for the President any President to appoint a Chief Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court.

Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by the President from a list of at least three nominees prepared by the Judicial and Bar Council for any vacancy. Such appointments need no confirmation.

xxx

The provision clearly refers to an appointee coming into the Supreme Court from the outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates for the Supreme Court, not of those who are already members or sitting justices of the Court, all of whom have previously been vetted by the JBC.

WRIT OF MANDAMUS DOES NOT LIE AGAINST THE JBC

Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act that the law specifically enjoins as a duty resulting from an office, trust, or station. It is proper when the act against which it is directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available to direct the exercise of a judgment or discretion in a particular way.

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of lawDE CASTRO VS.JBCfor appointment issue ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL ARROYOG.R. No. 191002, March 17, 2010FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming presidential elections on May 10, 2010.These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three nominees prepared by the Judicial and Bar Council for every vacancy. Also considering that Section 15, Article VII (Executive Department) of the Constitution prohibits the President or Acting President from making appointments within two months immediately before the next presidential elections and up to the end of his term, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of Chief Justice.Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and January 25, 2010, respectively.The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its independence from political vicissitudes and its insulation from political pressures, such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.HELD:Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary.Two constitutional provisions are seemingly in conflict.The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety.The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof.Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereofGudani vs. Senga G.R. No. 170165 August 15, 2006Facts of the case:

Senator Biazon invited senior officers of the Armed Forces of the Philippines (AFP) including General Gudani to appear before a public hearing in the Senate Committee on National Defense and Security wherein Hello Garci controversy of President Gloria Macapagal Arroyo emerged. Upon the discretion of the President, AFP Chief of Staff Senga issued a memorandum prohibiting General Gudani and company from appearing before the Senate Committee without Presidental approval. However, General Gudani and Col. Batulan still attended the said committee in compliance with Senator Biazon.

Issue:

Whether or not the President can prevent military officers from testifying at a legislative inquiry.

Ruling:

The President has a constitutional authority to prohibit members of the AFP from attending a Senate hearing by virtue of her power as a commander-in-chief. This is under her prerogative as the highest official of the AFP. Note thatit is not an invocation of her executive privilege, but on the Chief Executive's power to control the actions and speech of the members of the AFP. Non compliance of the military subordinates would violate the principle that "the civilian authority is supreme over the military authority".David vs. Arroyo G.R. No. 171396 May 3, 2006Facts of the case:

During the celebration of People Power I, President Arroyo issued Presidential Proclamation 1017 (PP 1017 for brevity) declaring a state of national emergency. The President also issued General Order (G.O.) No. 5 implementing PP 1017.

The President stated that over the past months, elements in political opposition have conspired with extreme left represented by NDF- CCP- NPA and military adventurists, which caused her to declare such order. The President considered aims to oust the President and take- over reigns of government as clear and present danger.

On March 3, President Arroyo lifted PP 1017.

Solicitor General argued that the basis of declaring PP 1017 was that the intent of the Constitution is to give full discretionary powers to the President in determining the necessity of calling out the AFP.

However despite the contentions of the Solicitor General, the Magdalo group indicted the Oakwood mutiny and called to wear red bands on their left arms to show disgust.

At the same time Oplan Hackle I was discovered, which constitutes plans of bombings and attacks on PMA Alumni Homecoming in Baguio, the same event where the President was invited. The next morning after the alumni homecoming celebration, a bomb was found inside the campus.

PNP Chief Arturo Lomibao also intercepted information that PNP- SAF members are planning to defect from the administration, while on the same view Congressman Peping Cojuanco plotted moves to bring down the Arroyo Administration.

Huge number of soldiers joined the rallies to provide critical mass and armed component to Anti- Arroyo protests.

Bombings of telephone communication towers and cell sites in Bulacaan and Bataan was also considered as an additional factual basis after the issuance of PP 1017 and GO 5.

Because of these incidental series of events which clearly presents a critical situation, President Arroyo cancelled all activities related to EDSA People Power I. Mike Arroyo, then Executive Secretary, announced that warrantless arrest and takeover of facilities can be implemented.

Succeeding this announcement was the arrest of Randy David, a Filipino journalist and UP professor due to a mistake of fact that he was actually involved in the street rallies. Seizure of Daily Tribune, Malaya and Abante-- all local news publication, took place which, according to the PNP, was meant to show a strong presence to tell the media outlets not to connive or do anything that would help rebels in bringing down the government. Police also arrested Congressman Crispin Beltran, who then represented the Anakpawis Party.

Issue:

Whether or not the issuance of Presidential Proclamation PP 1017 is unconstitutional? Whether or not the arrest of Randy David and the seizure of Daily Tribune et. al., is unconstitutional?

Ruling of the court:

Respondents claim that such petition is moot and academic based on the issuance of PP 1017, but the Court rejects such contention. A moot and academic case is one that ceases to present a justiciable controversy. In this case, the Court is convinced that the President was justified in issuing PP 1017 which calls for military aid.

Most people then equate it to martial law, but such case is different wherein the basis then was the 1973 Constitution. Under the present 1987 Constitution, the President may summon armed forces to aid him in supporting lawless violence.

The President's declaration of state rebellion was merely an act declaring a status or conduction of a public moment of interest. State of national emergency, however, is the prerogative of the President. Her exercise of emergency powers such as the taking over of privately owned utility requires delegation from the Congress, which is entirely different from the martial law.

As to the seizure of the Daily Tribune and the arrest of Randy David, the Court considers those actions unlawful based on the fact that it violates the constitutional mandate of freedom of expression.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. . ., 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 rebellionSecond 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 Arroyos 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 ofSanlakas, 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 States 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 Arroyos calling-out powerfor 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 Arroyos exercise of legislative power by issuing decrees.

Third Provision: The Power to Take OverDistinction must be drawn between the Presidents authority todeclarea 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 isconstitutionalsince 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 declaredunconstitutional.

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