ESTRADA VS DESIERTO; ARROYO

Estrada 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 Malacañang 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."

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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 issues—President 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 Malacañan 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 resign—must be accompanied by act of relinquishment—act 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

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EDSA I EDSA II

exercise of the people power of

revolution which overthrew the

whole government.

exercise of people 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 constitutional and the

legitimacy of the new government

that resulted from it cannot be the

subject of judicial review

intra constitutional and the

resignation of the sitting President

that it caused and the succession

of the Vice President as President

are subject to judicial review.

presented a political question; involves legal questions.

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.

Atty. Evillo C. Pormento v. Joseph Ejercito "Erap" Estrada and Comelec, G.R. No. 191988, August 31, 2010

R E S O L U T I O N

CORONA, C.J.:

I. 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

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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.

ROMULO L. NERI vs. SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY

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G.R. No. 180643, September 4, 2008

MOTION FOR RECONSIDERATION

FACTS: In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on matters concerning the National Broadband Project (the “NBN Project”), a project awarded by the Department of Transportation and Communications (“DOTC”) to Zhong Xing Telecommunications Equipment (“ZTE”). Petitioner disclosed that then Commission on Elections (“COMELEC”) Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo (“President Arroyo”) of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to answer, invoking “executive privilege.” To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it.

Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner’s testimony on the ground of executive privilege.

The senate thereafter issued a show cause order, unsatisfied with the reply, therefore, issued an Order citing Neri in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear and give his testimony.

On the same date, petitioner moved for the reconsideration of the above Order. Denied. Petition for certiorari and Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) granted by the SC court.

CORE ISSUE:

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the three (3) questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.

HELD:

I

There Is a Recognized Presumptive

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Presidential Communications Privilege

Respondent Committees argue as if this were the first time the presumption in favor of the presidential communications privilege is mentioned and adopted in our legal system. That is far from the truth. There, the Court enumerated the cases in which the claim of executive privilege was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that, “”the right to information does not extend to matters recognized as ‘privileged information’ under the separation of powers, by which the Court meant Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.”

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in Senate v. Ermita.

A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government

and inextricably rooted in the separation of powers under the Constitution x x x

II

There Are Factual and Legal Bases to

Hold that the Communications Elicited by the

Three (3) Questions Are Covered by Executive Privilege

A. The power to enter into an executive agreement is a “quintessential and non-delegable presidential power.”

First, respondent Committees contend that the power to secure a foreign loan does not relate to a “quintessential and non-delegable presidential power,” because the Constitution does not vest it in the President alone, but also in the Monetary Board which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

The fact that a power is subject to the concurrence of another entity does not make such power less executive. The 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. Now, the fact that the President has to secure the prior concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power. In the same way that certain legislative acts require action

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from the President for their validity does not render such acts less legislative in nature.

B. The “doctrine of operational proximity” was laid down precisely to limit the scope of the presidential communications privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the “doctrine of operational proximity” for the reason that “it maybe misconstrued to expand the scope of the presidential communications privilege to communications between those who are ‘operationally proximate’ to the President but who may have “no direct communications with her.”

It must be stressed that the doctrine of “operational proximity” was laid down in In re: Sealed Case27precisely to limit the scope of the presidential communications privilege. In the case at bar, the danger of expanding the privilege “to a large swath of the executive branch” (a fear apparently entertained by respondents) is absent because the official involved here is a member of the Cabinet, thus, properly within the term “advisor” of the President; in fact, her alter ego and a member of her official family.

C. The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional provisions on government transparency, accountability and disclosure of information.

The Letter dated November 15, 2007 of Executive Secretary Ermita specified

presidential communications privilege in relation to diplomatic and economic relations with another sovereign nation as the bases for the claim. Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect. This is a matter of respect for a coordinate and co-equal department.

Privileged character of diplomatic negotiations

In PMPF v. Manglapus, .” The Resolution went on to state, thus:The nature of diplomacy requires centralization of authority and expedition of decision which are inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.

With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of the people to information and public accountability and transparency, the Court finds nothing in these arguments to support respondent Committees’ case.

There is no debate as to the importance of the constitutional right of the people to information and the constitutional policies on public accountability and transparency. These are the twin postulates vital to the effective functioning of a democratic government. In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions, did not in any way curb the public’s right to information or diminish the importance of public accountability and transparency.

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This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They could continue the investigation and even call petitioner Neri to testify again.

III.

Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions

Are Critical to the Exercise of their Functions

The jurisprudential test laid down by this Court in past decisions on executive privilege is that the presumption of privilege can only be overturned by a showing of compelling needfor disclosure of the information covered by executive privilege.

In the Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and corruption.

We remain unpersuaded by respondents’ assertions.

The burden to show this is on the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather information which, according to said respondents, would “aid” them in crafting legislation. Clearly, the need for hard facts in crafting legislation cannot be equated with the

compelling or demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate actual controversies.

For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after all.

Oversight Function of the Congress

Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for information in the exercise of this function is not as compelling as in instances when the purpose of the inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3) questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight. In any event, whether or not investigating graft and corruption is a legislative or oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by the Constitution.

Office of the Ombudsman: The Office of the Ombudsman is the body properly equipped by the Constitution and our laws to preliminarily

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determine whether or not the allegations of anomaly are true and who are liable therefor.

IV

Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order

Respondent Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the “Rules”) are beyond the reach of this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of government, however, when a constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith. We cannot turn a blind eye to possible violations of the Constitution simply out of courtesy.

Section 21, Article VI of the Constitution states that:

The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of person appearing in or affected by such inquiries shall be respected. (Emphasis supplied)

We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish. This is especially true here where what is involved is the contempt power. It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness who has the

highest stake in the proper observance of the Rules.

Congress as a “continuing body”

On the nature of the Senate as a “continuing body,” this Court sees fit to issue a clarification. Certainly, there is no debate that the Senate as an institution is “continuing”, as it is not dissolved as an entity with each national election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of each Congress acts separately and independently of the Senate of the Congress before it.

Motion for Reconsideration Denied.

__________

NOTES:

“Quintessential” is defined as the most perfect embodiment of something, the concentrated essence of substance.24

“non-delegable” means that a power or duty cannot be delegated to another or, even if delegated, the responsibility remains with the obligor.

Restrictions on the right to information: (1) national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such state secrets,

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they must be “examined in strict confidence and given scrupulous protection.”

G. R. No.175352: January 18, 2011

DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners vs. RICHARD J. GORDON,Respondent. PHILIPPINE NATIONAL RED CROSS, Intervenor.

LEONARDO-DE CASTRO, J.:

FACTS: Respondent filed a motion for partial recommendation on a Supreme Court decision which ruled that being chairman of the Philippine National Red Cross (PNRC) did not disqualify him from being a Senator, and that the charter creating PNRC is unconstitutional as the PNRC is a private corporation and the Congress is precluded by the Constitution to create such.The Court then ordered the PNRC to incorporate itself with the SEC as a private corporation. Respondent takes exception to the second part of the ruling, which addressed the constitutionality of the statute creating the PNRC as a private corporation. Respondent avers that the issue of constitutionality was only touched upon in the issue of locus standi. It is a rule that the constitutionality will not be touched upon if it is not the lis mota of the case.

ISSUE: Whether or not it was proper for the Court to have ruled on the constitutionality of the PNRC statute.

HELD: Petition has merit.

Political Law: It has been consistently held in Jurisprudence that the Court should exercise judicial restraint when it comes to issues of

constitutionality where it is not the lis mota of the case. In the case at bar, the constitutionality of the PNRC statute was raised in the issue of standing. As such, the Court should not have declared certain provisions of such as unconstitutional. On the substantive issue, the PNRC is sui generis. It is unlike the private corporations that the Constitution wants to prevent Congress from creating. First, the PNRC is not organized for profit. It is an organization dedicated to assist victims of war and administer relief to those who have been devastated by calamities, among others. It is entirely devoted to public service. It is not covered by the prohibition since the Constitution aims to eliminate abuse by the Congress, which tend to favor personal gain. Secondly, the PNRC was created in order to participate in the mitigation of the effects of war, as embodied in the Geneva Convention. The creation of the PNRC is compliance with international treaty obligations. Lastly, the PNRC is a National Society, an auxiliary of the government. It is not like government instrumentalities and GOCC. The PNRC is regulated directly by international humanitarian law, as opposed to local law regulating the other mentioned entities. As such, it was improper for the Court to have declared certain portions of the PNRC statute as unconstitutional. However, it is the stand of Justice Carpio that there is no mandate for the Government to create a National Society to this effect. He also raises the fact that the PNRC is not sui generis in being a private corporation organized for public needs. Justice Abad is of the opinion that the PNRC is neither private or governmental, hence it was within the power of Congress to create.

Public Interest Center vs. ELMA

June 30, 2006, Chico-Nazario

*concurrent appointments, incompatible office

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N: 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: There’s 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 Center

CLU vs. Exec Sec: Art IX-B, Sec 7, par2 and Art VII, Sec13 are violated by concurrent appointments

CPLC and PCGG Chair are incompatible offices

Arguments: Elma

As interpreted in CLU vs. Exec Sec, the mentioned consti provisions don’t cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary.

His appointment falls under the exceptions in Art IX-B, Sec7

The 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 Constitution

YES.

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

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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 Constitution

NO 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 official’s 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,

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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.

Disposition: Grant petition

G.R. No. 184740 February 11, 2010

DENNIS 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 N

VILLARAMA, JR., J.:

Facts:

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

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary

of the Department of Transportation and Communications (DOTC).

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

On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautista’s appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment.

On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA and she assumed her duties and responsibilities as such on February 2, 2009.

Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution .

On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC

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Undersecretary for Maritime Transport, which rendered the present petition moot and academic. Petitioner’s prayer for a temporary restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is nothing left to enjoin.

Issue: Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against dual or multiple offices for Cabinet Members and their deputies and assistants.

Held:

The petition is meritorious.

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

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. But even in cases where supervening events had

made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar, and public. In the present case, the mootness of the petition does not bar its resolution.

Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution, which provides:

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

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

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

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Sec. 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification was held to be absolute, as the holding of "any other office" is not qualified by the phrase "in the Government" unlike in Section 13, Article VI prohibiting Senators and Members of the House of Representatives from holding "any other office or employment in the Government"; and when compared with other officials and employees such as members of the armed forces and civil service employees, we concluded thus:

These sweeping, all-embracing prohibitions imposed on the President and his official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive

public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and assistants.

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.

Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.

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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. 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

16

with the LawDepartment

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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.

Rufino vs Endriga

G.R. No. 139554

July 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.

On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD 15, the CCP’s 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 CCP’s Board from seven to nine trustees. Later, Executive Order No. 1058, issued on 10 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,

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Potenciano, Fernandez, Lenora A. Cabili (“Cabili”), and Manuel T. Mañosa (“Mañosa”).

On 22 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. Mañosa

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-Enrile

Potenciano

Except for Tantoco, the Rufino group took their respective oaths of office and assumed the performance of their duties in early January 1999.

On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court questioning President Estrada’s appointment of seven 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 Mañosa’s 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.”

On 14 May 1999, the Court of Appeals granted the quo warranto petition. The Court of Appeals declared the Endriga group lawfully

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entitled to hold office as CCP trustees. On the other hand, the appellate court’s Decision ousted the Rufino group from the CCP 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 be officers 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.

On 3 August 1999, the Court of Appeals denied the Rufino group’s motion for reconsideration. The Court of Appeals also denied the Endriga group’s motion for immediate execution of the 14 May 1999 Decision.

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 President’s 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 President’s 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 President’s power of control.

The CCP is part of the Executive branch. No law can cut off the President’s control over the CCP in the guise of insulating the CCP from the President’s influence. By stating that the “President shall have control of all the executive x x x offices,” the 1987 Constitution empowers

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the President not only to influence but even to control all offices in the Executive branch, including the CCP. Control is far greater than, and subsumes, influence.

Pimentel vs. Ermita

Post under case digests, Political Law at Friday, March 09, 2012 Posted by Schizophrenic Mind

Facts: This is a petition to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo (“President Arroyo”) through Executive Secretary Eduardo 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 acting secretaries of their respective departments.

On August 2004, Arroyo issued appointments to respondents as acting secretaries of their respective departments.

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

Issue: Is President Arroyo’s appointment of respondents as acting secretaries without 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 the Constitution expressly allows it to interfere. Limitations on the executive power to appoint are construed strictly against the legislature. The scope of the legislature’s interference in the executive’s power to appoint is limited to the power to prescribe the qualifications to an appointive office. Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither may Congress impose on the President the duty to appoint any particular person to an office.

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 acting secretaries because “in case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting Secretary.”

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

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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 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. Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a person of her choice even while Congress is in session. 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 acting appointment. 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 capacity a person not 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 Arroyo’s issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse of one year.

ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL – ARROYO

G.R. No. 191002, March 17, 2010

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FACTS: 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 President’s 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.

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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 President’s or Acting President’s 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 President’s or Acting President’s 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.

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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) thereof.

GR No. 170165, August 15, 2006 [Article VI Sec. 22: Congress' Power of Inquiry; Legislative Investigation]

FACTS:

The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the surfacing of the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials of the executive department including the military establishment from appearing in any legislative inquiry without her consent. AFP Chief of Staff Gen. Senga issued a Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from appearing before the Senate Committee without Presidential approval. However, the two appeared before the Senate in spite the fact that a directive has been given to them. As a result, the two were relieved of their assignments for allegedly violating the Articles of War and the time honoured principle of the “Chain of Command.” Gen. Senga ordered them to be subjected before the General Court Martial proceedings for willfuly violating an order of a superior officer.

ISSUE:

Whether or not the President has the authority to issue an order to the members of the AFP preventing them from testifying before a legislative inquiry.

RULING:

Yes. The SC hold that 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, any chamber of Congress which seeks the appearance before it of 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.

SC ruled in Senate v. Ermita that the President may not issue a blanket requirement of prior consent on executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege must be formally invoked on specified grounds. However, 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

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commander-in-chief are not hampered by the same limitations as in executive privilege.

At the same time, the refusal of the President to allow members of the military to appear before Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s functions is the conduct of inquiries in aid of legislation. 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. Yet the Court is aware that with its pronouncement today that the President has the right to require prior consent from members of the armed forces, the clash may soon loom or actualize.

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.

Randolf S. David v. Gloria Macapagal-Arroyo, G.R. No. 171396, May 3, 2006 (and other consolidated cases)

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

I. THE FACTS

On February 24, 2006, as the Filipino nation celebrated the 20th Anniversary of the EDSA People Power I, President Arroyo issued PP 1017, implemented by G.O. No. 5, declaring a state of national 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, 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 and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New People’s Army, and some members of the political opposition in a plot to unseat or assassinate President Arroyo. They considered the aim to oust or assassinate the President

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and take-over the reins of government as a clear and present danger.

Petitioners David and Llamas were arrested without warrants on February 24, 2006 on their way to EDSA. Meanwhile, the offices of the newspaper Daily Tribune, which was perceived to be anti-Arroyo, was searched without warrant at about 1:00 A.M. on February 25, 2006. Seized from the premises – in the absence of any official of the Daily Tribune except the security guard of the building – were several materials for publication. The law enforcers, a composite team of PNP and AFP officers, cited as basis of the warrantless arrests and the warrantless search and seizure was Presidential Proclamation 1017 issued by then President Gloria Macapagal-Arroyo in the exercise of her constitutional power to call out the Armed Forces of the Philippines to prevent or suppress lawless violence.

II. THE ISSUE

1. Were the warrantless arrests of petitioners David, et al., made pursuant to PP 1017, valid?

2. Was the warrantless search and seizure on the Daily Tribune’s offices conducted pursuant to PP 1017 valid?

III. THE RULING

[The Court partially GRANTED the petitions.]

1. NO, the warrantless arrests of petitioners David, et al., made pursuant to PP 1017, were NOT valid.

[S]earches, seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides [for the following circumstances of valid warrantless arrests]:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

x x x.

Neither of the [provisions on in flagrante nor hot pursuit warrantless arrests] justifies petitioner David’s warrantless arrest. During the inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke was their observation that some rallyists were wearing t-shirts with the invective “Oust Gloria Now” and their erroneous assumption that petitioner David was the leader of the rally. Consequently, the Inquest Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He

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noted that petitioner David was not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to sedition.

2. NO, the warrantless search and seizure on the Daily Tribune’s offices conducted pursuant to PP 1017 was NOT valid.

[T]he search [and seizure in the Daily Tribune premises] is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG operatives.

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