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ESTRADA VS DESIERTO; ARROYO

Posted by kaye lee on 2:48 AM
Estrada vs Desierto G.R. No. 146710-15; Estrada vs Arroyo G.R. No. 146738, March 2 2001

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

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

On January 19, PNP and the AFP also withdrew their support for Estrada and joined the crowd at EDSA Shrine. Estrada
called for a snap presidential election to be held concurrently with congressional and local elections on May 14, 2001. He
added that he will not run in this election. On January 20, SC declared that the seat of presidency was vacant, saying that
Estrada constructively resigned his post. At noon, Arroyo took her oath of office in the presence of the crowd at EDSA as
the 14th President. Estrada and his family later left Malacaang Palace. Erap, after his fall, filed petition for prohibition
with prayer for WPI. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in cases
filed against him not until his term as president ends. He also prayed for judgment confirming Estrada to be the lawful
and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office.

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

RULING:

1. Political questions- "to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive
branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure."

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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 assemblyto
petition the government for redress of
grievances which only affected the
office of the President.
extra constitutional and the legitimacy
of the new government that resulted
from it cannot be the subject of judicial
review

intra constitutional and the resignation
of the sitting President that it caused
and the succession of the Vice
President as President are subject to
judicial review.
presented a political question; involves legal questions.
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 Malacaan
Palace. In the press release containing his final statement:
1. He acknowledged the oath-taking of the respondent as President;
2. He emphasized he was leaving the Palace for the sake of peace and in order to begin the healing process (he did not
say that he was leaving due to any kind of disability and that he was going to reassume the Presidency as soon as the
disability disappears);
3. He expressed his gratitude to the people for the opportunity to serve them as President (without doubt referring to the
past opportunity);
4. He assured that he will not shirk from any future challenge that may come in the same service of the country;
5. He called on his supporters to join him in promotion of a constructive national spirit of reconciliation and solidarity.
Intent to resignmust be accompanied by act of relinquishmentact or omission before, during and after January 20,
2001.

3. The Congress passed House Resolution No. 176 expressly stating its support to Gloria Macapagal-Arroyo as President
of the Republic of the Philippines and subsequently passed H.R. 178 confirms the nomination of Teofisto T. Guingona Jr.

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

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

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

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

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

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

Arguments: Elma
As interpreted in CLU vs. Exec Sec, the mentioned consti provisions dont cover other public officials given the rank of
Secretary, Undersecretary, or Assistant Secretary.
His appointment falls under the exceptions in Art IX-B, Sec7
The 2 positions are not incompatible

NOTE: even if issue already moot, SC still took cognizance of the case because the case is capable of repetition, and to

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serve as a guide to the bench.

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

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

whether such appointments violate the other constitutional provision regarding multiple offices, Section 13, Article VII of
the 1987 Constitution
NO if based on position. YES if based on primary functions test.
the strict prohibition under Section 13, Article VII of the 1987 Constitution is not applicable to the PCGG Chairman nor to
the CPLC, as neither of them is a secretary, undersecretary, nor an assistant secretary, even if the former may have the
same rank as the latter positions.

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

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

In sum, the prohibition in Section 13, Article VII of the 1987 Constitution does not apply to respondent Elma since neither
the PCGG Chairman nor the CPLC is a Cabinet secretary, undersecretary, or assistant secretary. Even if this Court

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assumes, arguendo, that Section 13, Article VII is applicable to respondent Elma, he still could not be appointed
concurrently to the offices of the PCGG Chairman and CPLC because neither office was occupied by him in an ex-officio
capacity, and the primary functions of one office do not require an appointment to the other post. Moreover, even if the
appointments in question are not covered by Section 13, Article VII of the 1987 Constitution, said appointments are still
prohibited under Section 7, Article IX-B, which covers all appointive and elective officials, due to the incompatibility
between the primary functions of the offices of the PCGG Chairman and the CPLC.
Funa vs Executive Secretary with Notes
G.R. No. 184740 February 11, 2010
DENNIS A. B. FUNA, Petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Office of the President, SEC.
LEANDRO R. MENDOZA, in his official capacity as Secretary of the Department of Transportation and Communications,
USEC. MARIA ELENA H. BAUTISTA, in her official capacities as Undersecretary of the Department of Transportation and
Communications and as Officer-in-Charge of the Maritime Industry Authority (MARINA), Respondents.
D E C I S I O N
VILLARAMA, JR., J.:
Facts:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction, to declare as unconstitutional the designation of respondent
Undersecretary Maria Elena H. Bautista as Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H. Bautista (Bautista) as
Undersecretary of the Department of Transportation and Communications (DOTC).
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was
designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC
Undersecretary.
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant
petition challenging the constitutionality of Bautistas appointment/designation, which is proscribed by the prohibition on
the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or
employment.
On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator of the MARINA and she
assumed her duties and responsibilities as such on February 2, 2009.
Petitioner argues that Bautistas concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section
13, Article VII of the 1987 Constitution .
On the other hand, the respondents argue that the requisites of a judicial inquiry are not present in this case. In fact, there
no longer exists an actual controversy that needs to be resolved in view of the appointment of respondent Bautista as
MARINA Administrator effective February 2, 2009 and the relinquishment of her post as DOTC Undersecretary for
Maritime Transport, which rendered the present petition moot and academic. Petitioners prayer for a temporary
restraining order or writ of preliminary injunction is likewise moot and academic since, with this supervening event, there is
nothing left to enjoin.
Issue: Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent with the position of DOTC
Undersecretary for Maritime Transport to which she had been appointed, violated the constitutional proscription against
dual or multiple offices for Cabinet Members and their deputies and assistants.

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Held:
The petition is meritorious.
Petitioner having alleged a grave violation of the constitutional prohibition against Members of the Cabinet, their deputies
and assistants holding two (2) or more positions in government, the fact that he filed this suit as a concerned citizen
sufficiently confers him with standing to sue for redress of such illegal act by public officials.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that
a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or
dismiss it on ground of mootness. But even in cases where supervening events had made the cases moot, this Court did
not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar,
and public. In the present case, the mootness of the petition does not bar its resolution.
Resolution of the present controversy hinges on the correct application of Section 13, Article VII of the 1987 Constitution,
which provides:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not, during his
tenure, be appointed as Members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including government-owned or controlled corporations and
their subsidiaries.
On the other hand, Section 7, paragraph (2), Article IX-B reads:
Sec. 7. x x 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.

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Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-
President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in
the government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple government offices or employment. Verily, wherever the language
used in the constitution is prohibitory, it is to be understood as intended to be a positive and unequivocal negation. The
phrase "unless otherwise provided in this Constitution" must be given a literal interpretation to refer only to those particular
instances cited in the Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under
Section 3, par. (2), Article VII; or acting as President in those instances provided under Section 7, pars. (2) and (3), Article
VII; and, the Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by the stricter prohibition
under Section 13, Article VII and consequently she cannot invoke the exception provided in Section 7, paragraph 2, Article
IX-B where holding another office is allowed by law or the primary functions of the position. Neither was she designated
OIC of MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista as Officer-in-Charge,
Office of the Administrator, Maritime Industry Authority, in a concurrent capacity with her position as DOTC
Undersecretary for Maritime Transport, is hereby declared UNCONSTITUTIONAL for being violative of Section 13, Article
VII of the 1987 Constitution and therefore, NULL and VOID.
Note:
Appointment may be defined as the selection, by the authority vested with the power, of an individual who is to exercise
the functions of a given office. When completed, usually with its confirmation, the appointment results in security of tenure
for the person chosen unless he is replaceable at pleasure because of the nature of his office. Designation, on the other
hand, connotes merely the imposition by law of additional duties on an incumbent official, as where, in the case before us,
the Secretary of Tourism is designated Chairman of the Board of Directors of the Philippine Tourism Authority, or where,
under the Constitution, three Justices of the Supreme Court are designated by the Chief Justice to sit in the Electoral
Tribunal of the Senate or the House of Representatives. It is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the naming of a particular person
to a specified public office. That is the common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the office only in a temporary capacity and may be
replaced at will by the appointing authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.


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

FACTS:

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

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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.

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Ad Interim Appointment vs. Temporary Appointment

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

Was the renewal of appointment valid?

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

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

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

Rufino vs Endriga
G.R. No. 139554
July 21, 2006

FACTS:
On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO 30) creating the Cultural
Center of the Philippines as a trust governed by a Board of Trustees of seven members to preserve and promote
Philippine culture.
On 5 October 1972, or soon after the declaration of Martial Law, President Marcos issued PD 15, the CCPs charter,
which converted the CCP under EO 30 into a non-municipal public corporation free from the pressure or influence of

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politics. PD 15 increased the members of CCPs Board from seven to nine trustees. Later, Executive Order No. 1058,
issued on 10 October 1985, increased further the trustees to 11.

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

On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees to the CCP Board for a
term of four years to replace the Endriga group as well as two other incumbent trustees. The seven new trustees were:

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

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

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

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

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

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

7. Freddie Garcia - Member, vice Irma Ponce-Enrile
Potenciano


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


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

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

On 14 May 1999, the Court of Appeals granted the quo warranto petition. The Court of Appeals declared the Endriga
group lawfully entitled to hold office as CCP trustees. On the other hand, the appellate courts Decision ousted the Rufino
group from the CCP Board.

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

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

Hence, the instant consolidated petitions.


ISSUE:

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




12

RULING:

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

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

The CCP is part of the Executive branch. No law can cut off the Presidents control over the CCP in the guise of insulating
the CCP from the Presidents influence. By stating that the President shall have control of all the executive x x x offices,
the 1987 Constitution empowers the President not only to influence but even to control all offices in the Executive branch,
including the CCP. Control is far greater than, and subsumes, influence.
Pimentel vs. Ermita
Post under case digests, Political Law at Friday, March 09, 2012 Posted by Schizophrenic Mind
Facts: This is a petition to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo
(President Arroyo) through Executive Secretary Eduardo R. Ermita (Secretary Ermita) to Florencio B. Abad, Avelino J.
Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C.
Yap (respondents) as acting secretaries of their respective departments.

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

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

Issue: Is President Arroyos appointment of respondents as actingsecretaries 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 Constitutionexpressly allows it to interfere. Limitations on the
executive power to appoint are construed strictly against the legislature. The scope of the legislatures interference in the

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executives 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 inthe 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 Presidents 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 actingappointment. Section 17, Chapter 5, Title I, Book III of EO 292
states that [t]he President may temporarily designate an officer already in the government service or any other competent
person to perform the functions of an office in the executive branch. Thus, the President may even appoint in an acting
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

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may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on
Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments.
Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on Appointments.

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

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

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

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

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

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

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




ISSUES


W/N the petitioners have legal standing?



15

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


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


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




RULING




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

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




There is a justiciable issue

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

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




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

Two constitutional provisions seemingly in conflict:

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

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



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

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




Justification of the Supreme Court:

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

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

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

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

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

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

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



17



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

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




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




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

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




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




Sixth. The argument has been raised to the effect that there will be no need for the incumbent President to appoint during

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the prohibition period the successor of Chief Justice Puno within the context of Section 4 (1), Article VIII, because anyway
there will still be about 45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

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

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



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

Sec. 9, Article VIII says:

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

xxx

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




WRIT OF MANDAMUS DOES NOT LIE AGAINST THE JBC

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

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has a clear legal right to the act
demanded; (b) it must be the duty of the defendant to perform the act, because it is mandated by law; (c) the defendant
unlawfully neglects the performance of the duty enjoined by law; (d) the act to be performed is ministerial, not
discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law
DE CASTRO VS. JBC for appointment issue
ARTURO M. DE CASTRO vs. JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA MACAPAGAL
ARROYO
G.R. No. 191002, March 17, 2010

19

FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just days after the coming
presidential elections on May 10, 2010.
These cases trace their genesis to the controversy that has arisen from the forthcoming compulsory retirement of Chief
Justice Puno on May 17, 2010, or seven days after the presidential election. Under Section 4(1), in relation to Section 9,
Article VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy. Also considering that Section 15, Article VII
(Executive Department) of the Constitution prohibits the President or Acting President from making appointments within
two months immediately before the next presidential elections and up to the end of his term, except temporary
appointments to executive positions when continued vacancies therein will prejudice public service or endanger public
safety.
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the process of filling up the position of
Chief Justice.
Conformably with its existing practice, the JBC automatically considered for the position of Chief Justice the five most
senior of the Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C.
Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.; and Associate Justice
Antonio Eduardo B. Nachura. However, the last two declined their nomination through letters dated January 18, 2010 and
January 25, 2010, respectively.
The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under
Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any
vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of
the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have
easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive
Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII
ample restrictions or limitations on the Presidents power to appoint members of the Supreme Court to ensure its
independence from political vicissitudes and its insulation from political pressures, such as stringent qualifications for
the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court
Justice.
A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an
insistence from some of the oppositors-intervenors that the JBC could only do so once the vacancy has occurred (that is,
after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in
view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short
list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the
occurrence of the vacancy.
ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
HELD:
Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other
appointments to the Judiciary.
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next
presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger
public safety.

20

The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed
of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence thereof.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of
the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting
President making appointments within two months before the next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of
the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting
President making appointments within two months before the next presidential elections and up to the end of the
Presidents or Acting Presidents term does not refer to the Members of the Supreme Court.
Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President
to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders
conclusive that Section 15 also applies only to the Executive Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference to the context, i.e. that every part must be considered together
with the other parts, and kept subservient to the general intent of the whole enactment. It is absurd to assume that the
framers deliberately situated Section 15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds
of presidential appointments. If that was their intention in respect of appointments to the Judiciary, the framers, if only to
be clear, would have easily and surely inserted a similar prohibition in Article VIII, most likely within Section 4 (1) thereof
Gudani vs. Senga G.R. No. 170165 August 15, 2006
Facts of the case:

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


Issue:

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


21


Ruling:

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

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

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

On March 3, President Arroyo lifted PP 1017.

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

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

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

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

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

22


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

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

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


Issue:


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


Ruling of the court:


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

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

The President's declaration of state rebellion was merely an act declaring a status or conduction of a public moment of
interest. State of national emergency, however, is the prerogative of the President. Her exercise of emergency powers

23

such as the taking over of privately owned utility requires delegation from the Congress, which is entirely different from the
martial law.

As to the seizure of the Daily Tribune and the arrest of Randy David, the Court considers those actions unlawful based on
the fact that it violates the constitutional mandate of freedom of expression.
FACTS:
On February 24, 2006, President Arroyo issued PP No. 1017 declaring a state of emergency, thus:

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

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

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

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

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

RULING:

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision: by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well any act of insurrection or rebellion
Second provision: and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;

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

PP 1017 is partially constitutional insofar as provided by the first provision of the decree.
First Provision: Calling Out Power.
The only criterion for the exercise of the calling-out power is that whenever it becomes necessary, the
President may call the armed forces to prevent or suppress lawless violence, invasion or rebellion. (Integrated Bar
of the Philippines v. Zamora)
President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4, Chap 2, Bk II of the Revised Administration Code. Such
declaration, in the words of Sanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP
1017 is more than that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion.
She also relied on Section 17, Article XII, a provision on the States extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an awesome power.
Obviously, such Proclamation cannot be deemed harmless.
To clarify, PP 1017 is not a declaration of Martial Law. It is merely an exercise of President Arroyos calling-
out power for the armed forces to assist her in preventing or suppressing lawless violence.


Second Provision: The "Take Care" Power.
The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is
based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1,
Article VI categorically states that [t]he legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor
a state of emergency can justify President Arroyos exercise of legislative power by issuing decrees.


Third Provision: The Power to Take Over
Distinction must be drawn between the Presidents authority to declare a state of national emergency and to
exercise emergency powers. To the first, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues arise.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon it.
However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and
exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.

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Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over
of private business affected with public interest is just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the the State may, during the emergency and under reasonable terms
prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with
public interest, it refers to Congress, not the President. Now, whether or not the President may exercise such power is
dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court
rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned public utility or business affected with public interest. Nor can he
determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no
power to point out the types of businesses affected with public interest that should be taken over. In short, the President
has no absolute authority to exercise all the powers of the State under Section 17, Article VII in the absence of an
emergency powers act passed by Congress.




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