ESTRADA vs. DESIERTO

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."

Legal distinction between EDSA People Power I EDSA People Power II:

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 assembly to 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.

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 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.

ISSUE:

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

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

HELD:

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

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

For the president to be deemed as having resigned, there must be an intent to resign and the intent must be coupled by

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

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

PORMENTO vs. ESTRADA

FACTS: Atty. Pormento filed a petition for disqualification against former President Joseph Estrada for being a presidential candidate in the May 2010 elections. The petition was denied by COMELEC second division and subsequently by COMELEC en banc.

ISSUE: Whether or not Joseph Estrada is disqualified to run for presidency in the May 2010 elections according to the phrase in the Constitution which states: "[t]he President shall not be eligible for any reelection."

HELD: There is no actual controversy in the case at bar. The respondent did not win the second time he ran. The issue on the proper interpretation of the phrase "any reelection" will be premised on a person second election as President.

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.

NERI vs. SENATE

FACTS: Former NEDA Director General Romulo Neri testified before the Senate for 11 hours relating to the ZTE-NBN mess. However, when probed further on what he and the President discussed about the NBN Project, he refused to answer, invoking “executive privilege”. In particular, he refused to answer 3 questions:

(a) whether or not President Arroyo followed up the NBN Project

(b) whether or not she directed him to prioritize it

(c) whether or not she directed him to approve it

Unrelenting, the Senate Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and testify on November 20, 2007. However, Executive Secretary Eduardo R. Ermita requested the Senate Committees to dispense with Neri’s testimony on the ground of executive privilege. In his letter, Ermita said “that the information sought to be disclosed might impair our diplomatic as well as economic relations with China.” Neri did not appear before the Committees. As a result, the Senate issued an Order citing him in contempt and ordered his arrest and detention until such time that he would appear and give his testimony.

Are the communications elicited by the subject three (3) questions covered by executive privilege?

Yes. The Communications elicited by the 3 Questions are covered by Executive Privilege. xxx “we are convinced that the communications elicited by the questions are covered by the presidential communications privilege. First, the communications relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

The Senate contends that the grant of the executive privilege violates the “Right of the people to information on matters of public concern”. Is the senate correct?

ANSWER: No. While Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense, that in every exercise of its power of inquiry, the people are exercising their right to information. The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the people’s right to public information. The distinction between such rights is laid down in Senate v. Ermita: There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from government officials. These powers belong only to Congress, not to an individual citizen.

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking E.O. 464. Is there a recognized claim of executive privilege despite the revocation of E.O. 464?

ANSWER: Yes. The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.

In Senate v. Ermita, the executive privilege should be invoked by the President or through the Executive Secretary “by order of the President.” Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President?

ANSWER: Yes. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that “this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.” Obviously, he is referring to the Office of the President. That is more than enough compliance.

May the Congress require the executive to state the reasons for the claim with particularity?

ANSWER: No. The 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 to a coordinate and co-equal department. (Senate v. Ermita)

Is the contempt and arrest Order of Neri valid?

ANSWER: No. There being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. The respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the “possible needed statute which prompted the need for the inquiry,” along with “the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof.” The SC also find merit in the argument of the OSG that respondent Committees violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the “duly published rules of procedure.” The respondent Committees’ issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as “unsatisfactory” and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. (Neri vs. Senate, G.R. No. 180643, March 25, 2008)

LIBAN vs. GORDON

FACTS: Petitioners are officers of the Board of Directors of the QC Red Cross Chapter while Respondent is the Chairman of the Philippine National Red Cross (PNRC) Board of Governors.

Petitioners allege that by accepting the chairmanship of the PNRC Board of Governors, respondent has ceased to be a member of the Senate - Sec. 13, Art. VI, 1987 Consti: No Senator or Member of the HoR may hold any other office/employment in the Gov’t, or any subdivision, agency, or instrumentality thereof, including gov’t-owned or controlled corporations or their subsidiaries, during his term w/o forfeiting his seat. Neither shall he be appointed to any office which may have been created or the emoluments thereof increased during the term for which he was elected).

Petitioners cite Camporedondo v. NLRC which held that PNRC is a gov’t-owned or controlled corporation. Flores v. Drilon held that incumbent national legislators lose their elective posts upon their appointment to another government office.

Respondent:

Petitioners have no standing to file petition w/c appears to be an action for quo warranto – they do not claim to be entitled to the Senate office of respondent.

Sec. 11, Rule 66, Rules of Civil Procedure: action should be commenced w/in 1 year after the cause of public officer’s

forfeiture of office – respondent has been working as a Red Cross volunteer for 40 yrs

Petitioners cannot raise a constitutional question as taxpayers – no claim that they suffered some actual damage/threatened injury or illegal disbursement of public funds

If petition is for declaratory relief, SC has no jurisdiction original jurisdiction in RTC

PNRC is not a gov’t owned/controlled corporation Sec. 13, Art. VI of Consti does not apply because volunteer

service to PNRC is not an office/employment

WON petitioners have standing.

SC: NO. The petition is an action for quo warranto (Sec. 1, Rule 66, Rules of Court – an action for the usurpation of a public office against a public officer who does or suffers an act which constitutes a ground for forfeiture of his office). See facts for petitioner’s allegations. Petitioners do not claim to be entitled to the Senate office of respondent.

WON PNRC is a Private or Government-Owned or Controlled Corporation.

SC: PNRC is a Private Corporation.

May 22, 1947 – Pres. Manuel Roxas signed RA 95 (PNRC Charter) adhering to the Geneva Convention of July 27, 1929. PNRC is:

- A non-profit, donor-funded, voluntary, humanitarian organization whose mission is to bring timely, effective, and compassionate humanitarian assistance for the most vulnerable w/o consideration of nationality, race, religion, gender, social status, or political affiliation.

- A member of National Society of the International Red Cross and Red Crescent Movement. 7 Fundamental Principles: Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity, Universality.

- Must be autonomous, neutral and independent; not appear to be instrument/agency that implements gov’t policy to merit the trust of all and effectively carry out its mission – therefore, it cannot be owned/controlled by the gov’t

The Philippine government does not own the PNRC – does not have gov’t assets and does not receive any appropriation from the Congress. It is financed primarily by contributions from private individuals/entities obtained through solicitation campaigns organized by its Board of Governors (Sec. 11, PNRC Charter).

The government does not control the PNRC. Only 6 of the 30 members of the PNRC Board of Governors are appointed by the President of the Philippines (Sec. 6, PNRC Charter). A

majority of 4/5 of the PNRC Board are elected/chosen by the private sector members of the PNRC.

The PNRC Chairman is not appointed by the President or any subordinate gov’t official, therefore, he is not an official/employee of the Philippine Government. Sec. 16, Art. VII of Consti – President appoints all officials & employees in the Executive branch whose appointments are vested in the President by the Consti or by law. President also appoints those whose appointments are not otherwise provided by law. The law may also authorize the “heads of deparments, agencies, commissions, or boards” to appoint officers lower in rank.

The vast majority of the thousands of PNRC members are private individuals, including students and foreigners; those contribute to the annual fund campaign of the PNRC (Sec. 5, PNRC Charter amended by PD 1264).

Sec. 2(13) of the Introductory Provisions of the Administrative Code of 1987: A gov’t-owned or controlled corporation must be owned by the gov’t, and in case of a stock corporation, at least a majority of its capital stock must be owned by the gov’t. In case of a non-stock corporation, at least a majority of the members must be gov’t officials holding such membership by appointment/designation by the gov’t.

WON the office of the PNRC Chairman is a gov’t office or an office in a government-owned or controlled corporation for purposes of the prohibition in Sec. 13, Art. VI of Consti.

SC: The office of the PNRC Chairman is a private office. The President cannot review, reverse or modify the decisions/actions of the PNRC Board and the PNRC Chairman. Only the PNRC Board can review, reverse or modify the decisions/actions of the PNRC Chairman.

*The PNRC Charter is Violative of the Constitutional Proscription against the Creation of Private Corporations by Special Law

1935 (Sec. 7 was in force when PNRC was created by special character on March 22, 1947), 1973 & 1987 (Sec. 16) Constitutions provide that: The Congress shall not, except by general law, provide for the formation, organization, or regulation of private corporations. Gov’t-owned or controlled corporations may be created/established by special charters in the interest of the common good and subject to the test of economic viability.

Feliciano v. CoA – Sec. 16 of 1987 Consti bans private corporations to be created by special charters, which

historically gave individuals, families or groups special privileges denied to other citizens.

PNRC was created through a special charter, however, the elements of gov’t ownership and control (e.g. capital assets and operating funds from gov’t) are clearly lacking in the PNRC. It therefore cannot be considered a gov’t-owned or controlled corporation.

In creating PNRC as a corporate entity, Congress was in fact creating a private corporation, which is not exempt from constitutional prohibition (Sec. 16 above) even as a non-profit/charitable corporation.

PNRC Charter insofar as it creates the PNRC as a private corporation and grants it corporate powers is void for being unconstitutional Sec. 1-13 are void. Other provisions remain valid as they can be considered as a recognition by the State that PNRC is the local National Society of the International Red Cross and Red Crescent Movement and thus entitled to the benefits, exemptions and privileges set forth in the PNRC Charter. They also implement the Phil. Gov’t’s treaty obligations based on the Geneva Conventions.

Judgment: Office of the PNRC Chairman declared not a government office.

DISSENTING:

PNRC is a gov’t-owned or controlled corporation (GOCC). Its charter does not violate the constitutional proscription against creation of private corporations by special law. PNRC was incorporated under RA 95, a special law. It cannot be anything but a GOCC. PNRC was not impliedly converted into a private corporation simply because its charter was amended to vest in it authority to secure loans, be exempted from payment of all duties, tax fees, etc.

The use of Sec. 2(13) of Introductory Provisions of Administrative Code of 1987 by the ponencia to define a GOCC does not pronounce a definition of a GOCC that strays from Sec. 16, Art. XII of Consti. It merely declares that a GOCC may either be a stock or non-stock corporation.

Sec. 1 of PNRC Charter – PNRC is officially designated to assist the RP in discharging the obligations set forth in the Geneva Conventions – therefore, it is engaged in the performance of the gov’ts public functions.

PNRC is endowed w/ corporate powers. It administers special funds – contributions of members, aid given by gov’t, supported by PCSO and LGUs. It submits annual reports receipts and disbursement to the President.

ANRC (precursor of PNRC) is considered a federal instrumentality – immunity from state taxation, subjected to governmental supervision & regular financial audit, principal officer appointed by the President – but remains an independent, volunteer-led org. No basis to assume that it cannot merit the trust of all and cannot effectively carry out mission as a National Red Cross Society. Separatists & insurgents do not consider them as the enemy but as the entity to turn to in the event of injury.

Considering that PNRC is a GOCC, its charter does not violate the constitutional provision (Sec. 16, Art. XII).

To declare Sec. 1 of PNRC Charter (creation and incorporation of the org) invalid and the rest valid is to reach an absurd situation in w/c obligations are imposed on and a framework for its operation is laid down for a legally non-existing entity. Sec. 2-17 of RA 95 are not separable from Sec. 1 – cannot stand independently – no separability clause.

Presumption of constitutionality of law is presumed. There is no clear showing that the PNRC Charter runs counter to the consti. All reasonable doubts should be resolved in favor of the constitutionality of the statute.

Deleterious effects will result if PNRC is declared a private corporation – employees will no longer be covered by the GSIS; it can no longer be extended tax exemptions and official immunity; and cannot anymore be given support, financial or otherwise, by the National Gov’t, LGUs, and PCSO. The Court must not arbitrarily declare a law unconstitutional just to save a single individual from unavoidable consequences of his transgression of the Consti even if done in good faith.

Sen. Gordon’s continuous occupancy of 2 incompatible positions is a clear violation of the Consti (Sec. 13, Art. VI). The language in the provision is unambiguous; requires no in-depth construction. A position held in an ex officio capacity (a second post held by virtue of the functions of the first office) does not violate such constitutional proscription. The chairmanship of the PNRC Board is not held in an ex officio capacity by a member of Congress.

PUBLIC ESTATE vs. ELMA

FACTS: On 30 October 1998, respondent Elma was appointed and took his oath of office as Chairman of the PCGG. Thereafter, on 11 January 1999, during his tenure as PCGG Chairman, respondent Elma was appointed CPLC. He took his oath of office as CPLC the following day, but he waived any remuneration that he may receive as CPLC.

Petitioners, citing the case of Civil Liberties Union v. Executive Secretary alleged that respondent Elma’s concurrent appointments as PCGG Chairman and CPLC contravenes Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution. Petitioners also maintained that respondent Elma was holding incompatible offices.

Relying on the Resolution of the same case, respondents allege that:

a) the strict prohibition against holding multiple positions provided under Section 13, Article VII of the 1987 Constitution applies only to heads of executive departments, their undersecretaries and assistant secretaries; it does not cover other public officials given the rank of Secretary, Undersecretary, or Assistant Secretary;

b) it is Section 7, par. 2, Article IX-B of the 1987 Constitution that should be applied in their case.

This provision, according to the respondents, would allow a public officer to hold multiple positions if

(1) the law allows the concurrent appointment of the said official; and

(2) the primary functions of either position allows such concurrent appointment;

c) since there exists a close relation between the two positions and there is no incompatibility between them, the primary functions of either position would allow respondent Elma’s concurrent appointments to both positions; and

d) the appointment of the CPLC among incumbent public officials is an accepted practice.

In 2001, the appointees of former President Joseph Estrada were replaced by the appointees of the incumbent president, Gloria Macapagal Arroyo.

ISSUE/S: 1) WON Respondent Magdangal B. Elma’s concurrent appointments as PCGG Chairman and CPLC is unconstitutional for being the violative of the proscription against multiple offices imposed by Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution;

HELD: 1) YES. In harmonizing Section 13, Article VII and Section 7, par. 2, Article IX-B of the 1987 Constitution, the Court held in Civil Liberties Union v. Executive Secretary that

(a) all elective and appointive public officials and employees 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 (Section 7, Article IX-B); but

(b) the President, the Vice-President, Members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself (Section 13, Article VII).

Test in determining WON incompatibility exists between two offices: WON one office is subordinate to the other, in the sense that one office has the right to interfere with the other (People v. Green)

Definition/Requisites of Incompatibility: Incompatibility between two offices, is an inconsistency in the functions of the two.

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.

What is not incompatibile: 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.

Here, 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. In such cases, questions on his impartiality will inevitably be raised. This is the situation that the law seeks to avoid in imposing the prohibition against holding incompatible offices.

2) Who are deemed covered by the strict prohibition under Section 13, Article VII of the 1987 Constitution?

HELD: The persons cited in the constitutional provision are the “Members of the Cabinet, their deputies and assistants.”

These terms must be given their common and general acceptation as referring to the heads of the executive

departments, their undersecretaries and assistant secretaries. Public officials given the rank equivalent to a Secretary, Undersecretary, or Assistant Secretary are not covered by the prohibition, nor is the Solicitor General affected thereby.

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. However, despite the non-applicability of Section 13, Article VII of the 1987 Constitution to respondent Elma, he remains covered by the general prohibition under Section 7, Article IX-B and his appointments must still comply with the standard of compatibility of officers laid down therein; failing which, his appointments are hereby pronounced in violation of the Constitution.

As held in Civil Liberties, there are 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.

Further qualification to the exceptions: 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.” It will not suffice that no additional compensation.

FUNA vs. ERMITA

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

On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications (DOTC).

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

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

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

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

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

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

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

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special

privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

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

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

Sec. 7. x x x Unless otherwise allowed by law or the primary functions of his position, no appointive official shall hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or their subsidiaries.

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

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

Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article IX-B is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the President, the

Vice-President, Members of the Cabinet, their deputies and assistants.

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

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

WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID.

NOTES: 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

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-C?

Assuming 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. ENDIGA

FACTS: Petitioners in GR No. 139565, led by Baltazar N. Endriga (the Endriga group), were appointed members of the board of trustees of the Cultural Center of the Philippines (CCP) by President Fidel V. Ramos in 1995, with the qualification that their appointments would extend only until December 31, 1998. On December 22, 1998, then President Joseph Estrada advised petitioners that they were being replaced by seven new appointees to the CCP board, led by Armita B. Rufino (the Rufino group). Having been dislodged from the CCP, Endriga filed quo warranto proceedings questioning the President’s authority to appoint new members in the CCP board.

It was alleged that under Section 6(b)[1] of Presidential Decree No. 15, vacancies in the board “shall be filled by election by a vote of a majority of the trustees held at the next regular meeting x x x.” The Endriga group claimed that it was only when the board was entirely vacant that the President of the Philippines may fill the vacancies, in consultation with the ranking officers of the CCP. The members of the group believed that since only one seat was vacant, President Estrada could not appoint a new board. They averred that presidential appointment was unjustified, since the CCP board still had 10 incumbent trustees who had the statutory power to fill any vacancy in the board by election.

On May 14, 1999, the Court of Appeals (CA) granted the quo warranto Petition.

It declared the Endriga group lawfully entitled to hold office and ousted respondents from the CCP board. The CA held that Section 6(b) of Presidential Decree (PD) 15 had clearly vested in the remaining members of the board the power to elect new trustees. It ruled that the President could exercise the power to appoint only when the board was entirely vacant.

In its appeal before this Court, the Rufino group asserted that Section 6(b) of PD 15, which authorized the CCP trustees to elect their fellow trustees, should be declared unconstitutional. The provision was allegedly repugnant to Section 16 of Article VII of the Constitution, which allowed the appointment only of “officers lower in rank” than the appointing power.

ISSUE: Whether Section 6 (b and c) of PD 15 was unconstitutional in the light of Section 16 of Article VII of the Constitution.

HELD: At the outset, the Court recognized the occurrence of a supervening event that could have rendered the case moot – the resignation of the Rufino group and the appointment of new CCP trustees by President Gloria Macapagal-Arroyo. The Court, however, deemed it best to pass upon the merits of the case, in order to prevent a repeat of this regrettable controversy and to protect the CCP from being periodically wracked by internecine politics. Moreover, the Court brushed aside procedural barriers, in view of the paramount importance of the constitutional issues involved.

By a vote of 10-3, the Court held that Section 6 (b and c) of PD 15 was irreconcilable with Section 16 of Article VII of the Constitution.

The clear and categorical language of Section 6 (b) of PD 15 states that vacancies in the CCP board shall be filled by a majority vote of the remaining trustees. It is only when the board becomes entirely vacant that the vacancies shall be filled by the President of the Philippines, acting in consultation with the same ranking officers of the CCP. Thus, Section 6 (b) empowers the remaining trustees of the board to fill the vacancies by electing their fellow trustees. Simply put, this provision authorizes the appointing officer to appoint an officer who will be equal in rank to the former.

In its Decision, the Court held that the power of appointment granted in Section 6 (b) of PD 15 transgressed Section 16 of Article VII of the Constitution. It explained that the power to appoint – vested by Section 16 in the President; or the heads of departments, agencies, commissions or boards – was restricted only to officers lower in rank. This constitutional provision clearly excluded a situation in which the appointing officers appointed an officer who would be equal to them in rank.

This latter situation, however, was present in the CCP, whose trustees were appointing new co-trustees who would be equal in rank to the former. Thus, Section 6 (b and c) of PD 15 was found to be unconstitutional, insofar as it violated the

constitutional mandate that the head of the board may be authorized to appoint lower-ranking officers only.

Further, Section 16 of Article VII of the Constitution authorized Congress to vest specifically in the heads of departments, agencies, commissions, or boards – and in no other person – the power to appoint lower-ranked officers. The word “heads” referred to the chairpersons of the commissions or boards, not to their members, for several reasons.

First, the 1935, the 1973, and the 1987 Constitutions made a clear distinction whenever the power to appoint lower-ranked officers was granted to the members of or the head of a collegial body. When conferring the power of appointment to the members of that collegial body, our past and present Constitutions used the phrases “in the courts,”[4] “courts,”[5] “the Supreme Court,”[6] “members of the Cabinet,” 4and “the Constitutional Commissions.”[7]

Thus, if the intention was to grant to members of a commission or board the power to appoint lower-ranked officials, Section 16 of Article VII of the Constitution should have used the phrase “in the commissions or boards.” But in sharp contrast, this provision vested the power “in the heads of the departments, agencies, commissions or boards.”

Second, the deliberations[8] of the present Constitution revealed that the framers had intended the phrase “in the heads of departments, agencies, commissions, or boards” to be an enumeration of offices whose heads may be vested by law with the power to appoint lower-ranked officers. Thus, in the enumeration, what applied to the first office applied also to the succeeding offices mentioned.

Third, all commissions or boards had chief executives who were their heads. Since the Constitution spoke of “heads” of office, and all commissions or boards had chief executives or heads, that word could have referred only to the chief executives or heads of the commissions or boards.

Given that the word “heads” referred to the commission or board chairpersons, not members, the Court ruled that the head of the CCP was the chairperson of the CCP board of trustees. This conclusion was further supported by the fact that Section 8 of PD 15[9] and Section 3 of the Revised Rules and Regulations[10] of the CCP recognized that its board chairperson – as the head of the CCP – had the power to appoint, remove, and discipline all officers, staff and personnel of the CCP.

Pursuant to Section 16 of Article VII of the Constitution, the chairperson of the CCP board, as the head of the CCP, was the only officer who could be vested by law with the power to appoint lower-ranked officers of the CCP. Section 6 (b) of PD 15 could not validly grant this power of appointment to the members of the CCP board, as they were not the head of the CCP.

Moreover, Section 6 (b and c) of PD 15 was found to be unconstitutional, because it ran afoul of the President’s power of control under Section 17 of Article VII of the Constitution.[11] It was noted that the CCP was an agency that fell under the Executive Branch.

Under the Revised Administrative Code of 1987, any agency “not placed by law or order creating them under any specific department” fell “under the Office of the President.”[12] Since the CCP did not fall under the Legislative or the Judicial Branch of government and was not an independent constitutional or quasi-judicial body or local government unit, then the CCP necessarily fell under the Executive Branch and should be subject to the President’s control.

However, Section 6 (b and c) of PD 15, by authorizing the trustees of the CCP board to fill its vacancies, insulated the CCP from political influence and pressure, specifically from the President. This authority made the CCP a self-perpetuating entity, virtually outside the control of the Chief Executive. Such public office or board could not legally exist under the present Constitution.

The legislature could not have validly enacted a law that would put a government office in the Executive Branch outside the control of the President.

While the charter of the CCP vested it with autonomy of policy and operation, this charter did not free it from the President’s control. As part of the Executive Branch, the CCP could not be cut off from that control in the guise of insulating the latter from presidential influence.

NOTES:

Appointment Power of President

Under Section 16, Article VII of the 1987 Constitution, the President appoints three groups of officers. The first group refers to the heads of the Executive departments, ambassadors, other public ministers and consuls, officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in the President by the Constitution. The second group refers to those whom the President may be authorized by law to

appoint. The third group refers to all other officers of the Government whose appointments are not otherwise provided by law.

Under the same Section 16, there is a fourth group of lower-ranked officers whose appointments Congress may by law vest in the heads of departments, agencies, commissions, or boards. The present case involves the interpretation of Section 16, Article VII of the 1987 Constitution with respect to the appointment of this fourth group of officers.

The President appoints the first group of officers with the consent of the Commission on Appointments. The President appoints the second and third groups of officers without the consent of the Commission on Appointments. The President appoints the third group of officers if the law is silent on who is the appointing power, or if the law authorizing the head of a department, agency, commission, or board to appoint is declared unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the President shall appoint the trustees of the CCP Board because the trustees fall under the third group of officers.

Scope of Appointment Power of the Heads of Departments, Agencies, Commissions or Boards

The framers of the 1987 Constitution clearly intended that Congress could by law vest the appointment of lower-ranked officers in the heads of departments, agencies, commissions, or boards. The deliberations of the 1986 Constitutional Commission explain this intent beyond any doubt.

The framers of the 1987 Constitution changed the qualifying word “inferior” to the less disparaging phrase “lower in rank” purely for style. However, the clear intent remained that these inferior or lower in rank officers are the subordinates of the heads of departments, agencies, commissions, or boards who are vested by law with the power to appoint. The express language of the Constitution and the clear intent of its framers point to only one conclusion — the officers whom the heads of departments, agencies, commissions, or boards may appoint must be of lower rank than those vested by law with the power to appoint.

Congress may vest the authority to appoint only in the heads of the named offices

Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest “in the heads of departments, agencies, commissions, or boards” the power to appoint lower-ranked officers. xxx

In a department in the Executive branch, the head is the Secretary. The law may not authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked officers in the Executive department. In an agency, the power is vested in the head of the agency for it would be preposterous to vest it in the agency itself. In a commission, the head is the chairperson of the commission. In a board, the head is also the chairperson of the board. In the last three situations, the law may not also authorize officers other than the heads of the agency, commission, or board to appoint lower-ranked officers.

The grant of the power to appoint to the heads of agencies, commissions, or boards is a matter of legislative grace. Congress has the discretion to grant to, or withhold from, the heads of agencies, commissions, or boards the power to appoint lower-ranked officers. If it so grants, Congress may impose certain conditions for the exercise of such legislative delegation, like requiring the recommendation of subordinate officers or the concurrence of the other members of the commission or board.

This is in contrast to the President’s power to appoint which is a self-executing power vested by the Constitution itself and thus not subject to legislative limitations or conditions. The power to appoint conferred directly by the Constitution on the Supreme Court en banc and on the Constitutional Commissions is also self-executing and not subject to legislative limitations or conditions.

The Constitution authorizes Congress to vest the power to appoint lower-ranked officers specifically in the “heads” of the specified offices, and in no other person. The word “heads” refers to the chairpersons of the commissions or boards and not to their members xxx.

President’s Power of Control

The presidential power of control over the Executive branch of government extends to all executive employees from the Department Secretary to the lowliest clerk. This constitutional power of the President is self-executing and does not require any implementing law. Congress cannot limit or curtail the President’s power of control over the Executive branch.

xxx

The CCP does not fall under the Legislative or Judicial branches of government. The CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the CCP must fall under the Executive branch. Under the Revised Administrative Code of 1987, any agency “not placed by law

or order creating them under any specific department” falls “under the Office of the President.”

Since the President exercises control over “all the executive departments, bureaus, and offices,” the President necessarily exercises control over the CCP which is an office in the Executive branch. In mandating that the President “shall have control of all executive x x x offices,” Section 17, Article VII of the 1987 Constitution does not exempt any executive office — one performing executive functions outside of the independent constitutional bodies — from the President’s power of control. There is no dispute that the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.

The President’s power of control applies to the acts or decisions of all officers in the Executive branch. This is true whether such officers are appointed by the President or by heads of departments, agencies, commissions, or boards. The power of control means the power to revise or reverse the acts or decisions of a subordinate officer involving the exercise of discretion.

In short, the President sits at the apex of the Executive branch, and exercises “control of all the executive departments, bureaus, and offices.” There can be no instance under the Constitution where an officer of the Executive branch is outside the control of the President. The Executive branch is unitary since there is only one President vested with executive power exercising control over the entire Executive branch. Any office in the Executive branch that is not under the control of the President is a lost command whose existence is without any legal or constitutional basis.

The Legislature cannot validly enact a law that puts a government office in the Executive branch outside the control of the President in the guise of insulating that office from politics or making it independent. If the office is part of the Executive branch, it must remain subject to the control of the President. Otherwise, the Legislature can deprive the President of his constitutional power of control over “all the executive x x x offices.” If the Legislature can do this with the Executive branch, then the Legislature can also deal a similar blow to the Judicial branch by enacting a law putting decisions of certain lower courts beyond the review power of the Supreme Court. This will destroy the system of checks and balances finely structured in the 1987 Constitution among the Executive, Legislative, and Judicial branches.

Of course, the President’s power of control does not extend to quasi-judicial bodies whose proceedings and decisions are judicial in nature and subject to judicial review, even as such

quasi-judicial bodies may be under the administrative supervision of the President. It also does not extend to local government units, which are merely under the general supervision of the President.

PIMENTEL vs. ERMITA

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.

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.

DE CASTRO vs. JBC

FACTS: The legal debate takes its root from the anticipated compulsory retirement of the incumbent Chief Justice. Under the Constitution, the President is mandated to fill any vacancy in the Supreme Court within ninety (90) days from its occurrence from the list of at least three nominees prepared by the Judicial and Bar Council (JBC) for every vacancy.

In view of this forthcoming vacancy, the JBC, on January 18, 2010, meeting en banc, resolved to commence the nomination process and subsequently announce the opening for application or recommendation for the position of Chief Justice of the Supreme Court.

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 were automatically considered for the position. Others either applied or were nominated.

The JBC proceeded to the next step by publishing the names of the candidates in the Philippine Daily Inquirer and The Philippine Star. In the said publications, the public was asked to file their sworn complaints, written report or opposition, if any, against the candidates not later than February 22. 2010.

The looming vacancy in the highest court of the land became an instant headline. The issue as to whether the incumbent president may appoint the next chief justice despite the constitutional ban on appointments two months before the election elicited conflicting opinions and triggered an intense debate among legal luminaries. Wary of the possibility of having judiciary completely beholden to the incumbent, the public had never been more vigilant.

Prompted by prudence, the JBC opted to defer its decision as to whom to send its list of nominees. From such prudence,

however, sprawled several petitions to the Supreme Court asking the JBC either to submit its list of nominees to the current president or to prohibit the Council from continuing with the selection process and transmitting the names of the candidate to the ultimate appointing power.

Dealing essentially with the same legal questions, the petitions were consolidated. The JBC and the Office of the Solicitor General (OSG) were directed by the Supreme Court to comment.

ISSUE/S:

1) In view of Article VII, Section 15, which prohibits the president from making appointments two months before the election, except temporary appointments to executive positions when continued vacancies therein will endanger public service or public safety, may the incumbent president make appointments to the judiciary, including that for the position of Chief Justice upon the retirement of incumbent Chief Justice Reynato Puno, pursuant to Article VIII Section 4(1) of the constitution?

HELD: 1) Yes. Appointments in the judiciary is not covered by the appointment ban during elections.

2) May the JBC be compelled to submit the list of nominees to the President?

HELD: 2) No. Despite the clear existence of a duty on the part of the JBC, as enjoined in the Constitution, the element of neglect to perform such duty was neither present at the time of the filing nor at the time of the resolution of the petitions.

1. Constitution was meticulously drafted, styled, and arranged to give effect to the principle of separation of powers. Placed under Article VII which is devoted to the Executive branch, the Court argued that the prohibition on midnight appointments was intended to apply to executive appointments only. The fact that prohibition was not mentioned in Article VIII of the constitution reveals that it was not meant to cover appointments to the Judiciary.

2. Intent of the framers as can be gleaned from the records. The deliberations of the Constitutional Commission, as quoted in Valenzuela, do not support the Court’s ruling therein. The records disclosed the express intent of the framers “to enshrine in the Constitution a command to the president to fill up any vacancy therein within 90 days from its occurrence.” The use of the word shall means that such command is imperative or mandatory. The implication is that the prohibition in Art VII, Section 15

would not apply to appointments made in pursuance of such mandate. The non-applicability of the prohibition was “confirmed by 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.”

3. The Rationale of Art VII, Section 15 and the Creation of the Judicial and Bar Council. Citing Valenzuela, the court pointed out that Article VII, Section 15 of the 1987 Constitution has a broader scope than the ruling in Aytona vs Castillo. It contemplates not only midnight appointments – those made obviously for partisan reasons as shown by their number and the time of their making – but also appointments presumed made for the purpose of influencing the outcome of the Presidential election.

4. The argument that there will still be 45 days left, of the 90 days provided in the Constitution, for the succeeding president, upon assumption of office, to appoint the next chief justice ignores the need to apply Section 4(1) to every situation of a vacancy in the Supreme Court.”

5. Affirming Valenzuela will undermine “the intent of the Constitution of ensuring the independence of the judicial department from the executive and legislative departments” Should the next chief justice be appointed by the next president, whoever the latter might appoint might become beholden to him thereby compromising judicial independence. The same risk, the ponencia explains, is not present should the incumbent president appoint the next chief justice. This is precisely because the incumbent president’s term would have ended by the 30th of June.

6. Contention that there is no need for the President to appoint the next Chief Justice because the Judiciary Act of 1948 allows the assumption of an acting Chief Justice is contrary to the intent of the framers of the present Constitution. The Court further pointed out the Judiciary Act of 1948 was promulgated under a different context. At the time of its enactment, the appointment of the Chief Justice was still subject to the confirmation of the Commission on Appointments. The provision allowing an acting Chief Justice to take over responds to situations where, due to delays in confirmation, the new chief justice has not yet been appointed.

7. In order for mandamus to lie, the following requisites must be present: (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 law.

DISSENT

1. Constitutional draftsmanship style is the weakest aid in arriving at a constitutional construction. Constitutional draftsmanship style is the weakest aid in arriving at a constitutional construction. (Anak Mindanao Party-List Group vs. Executive Secretary) While it can be conceded that the allocation of the articles in the Constitution was consciously adopted in recognition of the principle of separation of powers, Carpio-Morales argued that the equation does not end there. The present constitution is likewise a system of checks and balances. “That the power of judicial appointment was lodged in the President is a recognized measure of limitation on the power of the judiciary, which measure, however, is counterbalanced by the election ban due to the need to insulate the judiciary from the political climate of presidential elections.”

2. The establishment of the JBC is not sufficient to curtail the evils of midnight appointments in the judiciary. The comprehensive ban on midnight appointments was drafted precisely because “the JBC is not enough to safeguard or insulate judicial appointments from politicization.” Carpio-Morales concluded “that the second ratiocination in the ponencia could thus not remove an added constitutional safeguard by pretending to have examined and concluded that the establishment of the JBC had eliminated all encompassing forms of political maneuverings during elections.”

3. All rules of statutory construction revolt against the interpretation arrived at by the ponencia. All rules of statutory construction revolt against the interpretation arrived at by the ponencia. The general rule as provided in Article VII, Section 15 is clear. The exception is likewise clearly stated in the same provision. “There is no clear circumstance that would indicate that the enumeration in the exception was not intended to be exclusive. The fact that Section 15 was couched in negative language reinforces the exclusivity of the exception.”

4. The 90-day period to fill the vacancy in the Supreme Court is suspended during the ban on midnight appointments.The ban on midnight appointments makes

it legally impossible for the President to comply with the mandate of Article VIII, Section 4(1) thereby releasing her from the obligation. “The 90-day period to fill the vacancy in the Supreme Court is deemed suspended during the period of the ban which takes effect only once in 6 years.”

5. The Supreme Court can function effectively during the midnight appointments ban without an appointed Chief Justice. The ponencia’s interpretation of the proviso “Any vacancy shall be filled within ninety days from the occurrence thereof” as pertaining only to the period within which the President should appoint is absurd as it takes the application and nomination stages in isolation from the whole appointment process. The filling of the vacancy only involves the President, and the JBC was not considered when the period was increased from 60 days to 90 days. The sense of the Concom is the exact opposite. The flaw in the reasoning is made more evident when the vacancy occurs by virtue of death of a member of the Court. In that instance, the JBC could never anticipate the vacancy, and could never submit a list to the President before the 90-day period. It is “ironic for the ponencia to recognize that the President may need as much as 90 days of reflection in appointing a member of the Court, and yet abhor the idea of an acting Chief Justice in the interregnum as provided for by law, confirmed by tradition, and settled by jurisprudence to be an internal matter.”

GUDANI vs. SENGA

FACTS: The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of massive cheating in the 2004 elections and the surfacing of the “Hello Garci” controversy. President Arroyo issued E.O 164 enjoining officials of the executive department including the military establishment from appearing in any legislative inquiry without her approval. However, the two concluded their testimonies before the Senate in spite the fact that a directive has been given to them. As a result, both of them were relieved of their assignments for allegedly violating the Articles of War and the time honored principle of the “Chain of Command.”

May the President prevent a member of the armed forces from testifying before a legislative inquiry?

Yes. Soldiers are constitutionally obliged to obey the President they may dislike or distrust. The ability of the President to prevent military officials 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 the armed forces. Under

the Commander in Chief Clause (Art. XVl, section 5), the President has absolute authority over the persons and actions of the members of the armed forces. Such authority includes the ability of the President to restrict travel, movement and speech of military officers, activities which may otherwise be sanctioned under civilian law. (Gudani vs. Senga, GR No. 170165, August 15, 2006)

The President can prevent a member of the armed forces from testifying before a legislative inquiry. Is this rule absolute?

ANSWER: No. The rule is not absolute. In as much 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 right to conduct legislative inquiries. xxx Courts are empowered, under the principle of JUDICIAL REVIEW, to arbitrate disputes between the executive and legislative branches of the government on the proper parameters of power. By this, if the court so rule, the duty falls on the shoulders of the President, as commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the President has earlier disregarded with notion of officers appearing before the legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the court. (Gudani vs. Senga, GR No. 170165, August 15, 2006)

RATIONALE: Our ruling that the President could, as a general rule, require military officers to seek presidential approval before appearing before Congress is based foremost on the notion that a contrary rule unduly diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control over the armed forces in matters such as budget appropriations and the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline and the chain of command mandate that the President’s ability to control the individual members of the armed forces be accorded the utmost respect. Where a military officer is torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the commander-in-chief of the armed forces.

Remedy is judicial relief

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.

We believe and hold that our constitutional and legal order sanctions a modality by which members of the military may be compelled to attend legislative inquiries even if the President desires otherwise, a modality which does not offend the Chief Executive’s prerogatives as commander-in-chief. The remedy lies with the courts.

The fact that the executive branch is an equal, coordinate branch of government to the legislative creates a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is considerable interplay between the legislative and executive branches, informed by due deference and respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to originate national policies and legislation, such is balanced by the fact that it is the branch empowered by the Constitution to compel obeisance to its rulings by the other branches of government.

DAVID vs. ERMITA

FACTS: On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. And the authorities got hold of a document entitled "Oplan Hackle I" which detailed plans for bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to assassinate selected targets including some cabinet members and President Arroyo herself. GMA declared PP 1017 and is to be implemented by GO 5. The said law was aimed to suppress lawlessness and the connivance of extremists to bring down the government. Pursuant to such PP, GMA cancelled all

plans to celebrate EDSA I and at the same time revoked all permits issued for rallies and other public organization/meeting. Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The police arrested (without warrant) petitioner Randolf S. David, a professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas, president of party-list Akbayan. Operatives of the Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante. Congressman Crispin Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), was arrested on the ground of a warrant for his arrest dated 1985. When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the police. Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was Attempts were made to arrest Anak pawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of Representatives where the "Batasan 5" decided to stay indefinitely. In March, GMA issued PP 1021 w/c declared that the state of national emergency ceased to exist. David and some opposition Congressmen averred that PP1017 is unconstitutional for it has no factual basis and it cannot be validly declared by the president for such power is reposed in Congress. Also such declaration is actually a declaration of martial law. Olivares-Cacho also averred that the emergency contemplated in the Constitution are those of natural calamities and that such is an over breadth. Petitioners claim that PP 1017 is an over breadth because it encroaches upon protected and unprotected rights. The Solicitor General argued that the issue has become moot and academic by reason of the lifting of PP 1017 by virtue of the declaration of PP 1021. The Solicitor General averred that PP 1017 is within the president’s calling out power, take care power and take over power.

ISSUE: Whether PP 1017 and GO 5 is constitutional

RULING: The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence discussed earlier. However, PP 1017's extraneous provisions giving the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President - acting as Commander-in-Chief - addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid standard - that the military and the police should take only the "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in G.O. No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFP's authority in carrying out this portion of G.O. No. 5.

It is well to remember that military power is a means to an end and substantive civil rights are ends in themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people's liberty.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.