Executive

The Executive Department

Macalintal versus Comelec

FACTS:Petitioner Macalintal files a petition for certiorari and prohibition, seeking a declaration that certain provisions of R.A. No. 9189 (The Overseas Absentee Voting Act of 2003) are unconstitutional. The Court upholds petitioner’s right to file the instant petition, stating in essence that the petitioner has seriously and convincingly presented an issue of transcendental significance to the Filipino people, considering that public funds are to be used and appropriated for the implementation of said law.

ARGUMENTS:Petitioner raises three principal questions for contention:

(1) That Section 5(d) of R.A. No. 9189 allowing the registration of voters who are immigrants or permanent residents in other countries, by their mere act of executing an affidavit expressing their intention to return to the Philippines, violates the residency requirement in Art. V, Sec. 1 of the Constitution;

(2) That Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and party list representatives, including the President and the Vice-President, violates the constitutional mandate under Art. VII, Sec. 4 of the Constitution that the winning candidates for President

and Vice-President shall be proclaimed as winners only by Congress; and

(3) That Section 25 of the same law, allowing Congress (through the Joint Congressional Oversight Committee created in the same section) to exercise the power to review, revise, amend, and approve the Implementing Rules and Regulations (IRR) that the COMELEC shall promulgate, violates the independence of the COMELEC under Art. IX-A, Sec. 1 of the Constitution.

ISSUES:1)     Whether or not Section 5(d) of R.A. No. 9189 is violative of Art. V, Sec. 1 of the Constitution.

2)     Whether or not Section 18.5 of R.A. No. 9189 is violative of Art. VII, Sec. 4 of the Constitution.

3)     Whether or not Section 25 of R.A. No. 9189 is violative of Art. IX-A, Sec. 1 of the Constitution.

HELD:1)     NO. Section 5(d) of R.A. No. 9189 is not violative of Art. V, Sec. 1 of the Constitution.

2)     YES. Section 18.5 of R.A. No. 9189, with respect only to the votes of the President and Vice-President, and not to the votes of the Senators and party-list representatives, is violative of Art. VII, Sec. 4 of the Constitution.3)     YES. Section 25 of R.A. No. 9189, with respect only to the second sentence in its second paragraph allowing Congress to exercise the power to review, revise, amend,

and approve the IRR that the COMELEC shall promulgate, is violative of Art. IX-A, Sec. 1 of the Constitution.

REASONS:1)  Section 5(d) of R.A. No. 9189, entitled “An Act Providing for a System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes,” provides:

Sec. 5. Disqualifications.—The following shall be disqualified from voting under this Act:

d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registration, an affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also state that he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of the immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia.

Petitioner posits that Section 5(d) is unconstitutional in that it violates the requirement that the voter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six months immediately preceding the election, as provided under Section 1, Article V of the Constitution which reads: “Sec. 1. Suffrage may be exercised by all citizens of the

Philippines not otherwise disqualified by law, who are at least eighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to vote for at least six months immediately preceding the election.”

For the resolution of this instant issue, the Court has relied on, among others, the discussions of the members of the Constitutional Commission on the topics of absentee voting and absentee voter qualification, in connection with Sec. 2, Art. V of the Constitution, which reads: “Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad.” It was clearly shown from the said discussions that the Constitutional Commission intended to enfranchise as much as possible all Filipino citizens abroad who have not abandoned their domicile of origin, which is in the Philippines. The Commission even intended to extend to young Filipinos who reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified as voters for the first time.

It is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1. By the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions, the strategic location of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Section 1 with respect to qualified Filipinos abroad. The same

Commission has in effect declared that qualified Filipinos who are not in the Philippines may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No. 2104, which later became R.A. No. 9189, was deliberated upon on the Senate floor, further weakening petitioner’s claim on the unconstitutionality of Section 5(d) of R.A. No. 9189. 

2) Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators, and party-list representatives.Section 18.5 of the same Act provides:

Sec. 18. On-Site Counting and Canvassing.—

18.5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election will not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamation of winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if the holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such country or countries, in which events, factors and circumstances are beyond the control or influence of the Commission.

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of winning candidates for President and Vice-President is unconstitutional and violative of the following provisions of Section 4 of Article VII of the Constitution:

Sec. 4.The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes the proclamation of the winning

candidates for the presidency and the vice-presidency, granting merit to petitioner’s contention that said Section appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totally disregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of President and Vice-President.Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitioner, to encroach “on the power of Congress to canvass the votes for President and Vice-President and the power to proclaim the winners for the said positions.”

3) Section 25 of R.A. No. 9189 created the Joint Congressional Oversight Committee (JCOC), as follows:

Sec. 25. Joint Congressional Oversight Committee.—a Joint Congressional Oversight Committee is hereby created, composed of the Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators designated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and seven (7) other Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided, that of the seven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining three (3) from the minority.

The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of

this Act. It shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission.

All the parties, petitioner and respondents alike, are unanimous in claiming that Section 25 of R.A. No. 9189 is unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner. However, the Court finds it expedient to expound on the role of Congress through the JCOC vis-à-vis the independence of the COMELEC as a constitutional body, as aptly provided for under Art. IX-A, Sec. 1, which reads “Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission on Elections, and the Commission on Audit.”

The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions, one of which is the aforementioned provision on the independence of constitutional commissions. The Court has held that “whatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted it to be independent from the other departments of the Government.”

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme of government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the case of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitude in

devising means and methods that will insure the accomplishment of the great objective for which it was created — free, orderly and honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically – not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions.

The Court has no general powers of supervision over COMELEC which is an independent body “except those specifically granted by the Constitution,” that is, to review its decisions, orders and rulings. In the same vein, it is not correct to hold that because of its recognized extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervisory powers over its rule-making authority. In line with this, this Court holds that Section 25 of R.A.  9189 is unconstitutional and must therefore be stricken off from the said law.

SECTION 8.In case of death, permanent disability, removal from office, or resignation of the President, the Vice-President shall become the President to serve the unexpired term. In case of death, permanent disability, removal from office, or resignation of both the President and Vice-President, the

President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice-President shall have been elected and qualified.

Brillantes versus Comelec

FACTS : On December 22, 1997, Congress enacted Republic Act No. 8436 authorizing the COMELEC to use an automated election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national and local elections. It also required the COMELEC to acquire automated counting machines (ACMs), computer equipment, devices and materials and adopt new electoral forms and printing materials.The COMELEC initially intended to implement the said automation during the May 11, 1998 presidential elections, particularly in counting the votes collected from the Autonomous Region in Muslim Mindanao (ARMM). However, the failure of the machines to correctly read a number of automated ballots discontinued its implementation.

Contributions for the establishment of the AES persisted that even President Gloria Macapagal-Arroyo issued

Executive Order No. 172 on January 24, 2003, allocating the sum of P2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections. On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive Order No. 175 authorizing the release of a further supplemental P500 million budget for the AES project of the COMELEC.

The Supreme Court resolved the COMELEC to maintain the old and manual voting and counting system for the May 10, 2004 elections after contract negations with companies Mega Pacific Consortium (the supplier of the computerized voting/counting machines) were discontinued. Despite this impediment, the COMELEC nevertheless continued the electronic transmission of advanced unofficial results of the 2004 elections for national, provincial and municipal positions, also dubbed as an "unofficial quick count." 

ARGUMENTS: Petitioner contends that the respondent COMELEC committed grave abuse of discretion amounting to excess of Jurisdiction in the issuance of Resolution No. 6712. Respondent COMELEC contends that its advancement in tabulation procedures is allowed within the statutory confines of section 52 (i) of the Omnibus Election Code that:

Prescribe(s) the use or adoption of the latest technological and electronic devices, taking into account the situation prevailing in the area and the funds available for the purpose. Provided, That the Commission shall notify the authorized representatives of accredited political parties and candidates in areas affected by the

use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices.

ISSUE: Whether or not Resolution No. 6712 dated April 28, 2004 issued by the COMELEC in authorizing the use of election funds in consolidating the election results for the May 10, 2004 elections should be declared VOID, as it is unconstitutional. 

HELD: YES. For violating section 4 of Article VII. The said Resolution No. 6712 preempts the sole authority of the Congress to canvass the votes of the election returns for the President and the Vice-President. 

REASONS: Art. VII, Sec. 4 of the 1987: Resolution Preempts the sole and exclusive authority vested in the Congress to canvass the votes for the election of President and Vice-President. It is a grave error on the part of the respondent to have ignored the misapprehensions addressed by Senate President Franklin M. Drilon to COMELEC Chairman Benjamin Abalos during the 2004 saying that such act would be in violation of the Constitution (section 4 of Article VII): "any quick count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be lacking of any constitutional authority."

The existence of an accredited Citizen’s arm: Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 8173, and reiterated in Section 18 of Rep. Act No. 8436, the accredited citizen’s arm - in this case, NAMFREL - is exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes, whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is authorized to use a copy of the election returns for purposes of conducting an "unofficial" count.

In addition, the second or third copy of the election returns, while required to be delivered to the COMELEC under the said laws, are not intended for undertaking an "unofficial" count. The said copies are archived and unsealed only when needed by to verify election results in connection with resolving election disputes that may be established.

Inapplicability of Section 52(i) of the Omnibus Election Code:  The Court contends that Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the assailed resolution, does not cover the use of the latest technological and election devices for "unofficial" tabulations of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days prior to the effectivity of the use of such devices, after failing to submit any document proving that it had

notified all political parties of the intended adoption of Resolution No. 6712.

Estrada versus Desierto

Facts: In the May 11, 1998 elections, petitioner Joseph Estrada was elected President while respondent Gloria Macapagal-Arroyo was elected Vice-President. From the beginning of his term, however, petitioner was plagued by problems that slowly eroded his popularity. On October 4, 2000, Ilocos Sur Governor Chavit Singson, a long time friend of the petitioner, accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords. The expose’ immediately ignited reactions of rage. On November 13, 2000, House Speaker Villar transmitted the Articles of Impeachment signed by 115 representatives or more than 1/3 of all the members of the House of Representatives to the Senate. On November 20, 2000, the Senate formally opened the impeachment trial of the petitioner. On January 16, 2001, by a vote of 11-10, the senator-judges ruled against the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name “Jose Velarde.” The ruling was met by a spontaneous outburst of anger that hit the streets of the metropolis. Thereafter, the Armed Forces and the PNP withdrew their support to the Estrada government. Some Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs resigned from their posts. 

On January 20, 2001, at about 12 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Philippines. On the same day, petitioner issued a press statement that he was leaving Malacanang Palace for the sake of peace and in order to begin the healing process of the nation. It also appeared that on the same day, he signed a letter stating that he was transmitting a declaration that he was unable to exercise the powers and duties of his office and that by operation of law and the Constitution, the Vice-President shall be the Acting President. A copy of the letter was sent to Speaker Fuentebella and Senate President Pimentel on the same day.

After his fall from the power, the petitioner’s legal problems appeared in clusters. Several cases previously filed against him in the Office of the Ombudsman were set in motion.

Issues: (1) Whether or not the petitioner resigned as President(2) Whether or not the petitioner is only temporarily unable to act as President

Held: Petitioner denies he resigned as President or that he suffers from a permanent disability.

Resignation is a factual question. In order to have a valid resignation, there must be an intent to resign and the intent must be coupled by acts of relinquishment. The validity of a resignation is not governed by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the

resignation is clear, it must be given legal effect. In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before leaving Malacanang Palace. Consequently, whether or not petitioner resigned has to be determined from his acts and omissions before, during and after Jan. 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue. The Court had an authoritative window on the state of mind of the petitioner provided by the diary of Executive Sec. Angara serialized in the Phil. Daily Inquirer. During the first stage of negotiation between Estrada and the opposition, the topic was already about a peaceful and orderly transfer of power. The resignation of the petitioner was implied. During the second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period. The Court held that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacanang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as President of the Republic, but with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of the nation. He did not say he was leaving the Palace due to any kind of inability 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; (4) he assured that he will not shirk from any future challenge

that may come ahead in the same service of the country; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.

The Court also tackled the contention of the petitioner that he is merely temporarily unable to perform the powers and duties of the presidency, and hence is a President on leave. The inability claim is contained in the Jan. 20, 2001 letter of petitioner sent to Senate Pres. Pimentel and Speaker Fuentebella. Despite said letter, the House of Representatives passed a resolution supporting the assumption into office by Arroyo as President. The Senate also passed a resolution confirming the nomination of Guingona as Vice-President. Both houses of Congress have recognized respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly rejected petitioner’s claim of inability. The Court cannot pass upon petitioner’s claim of inability to discharge the powers and duties of the presidency. The question is political in nature and addressed solely to Congress by constitutional fiat. It is a political issue which cannot be decided by the Court without transgressing the principle of separation of powers.

Civil Liberties Union versus Executive Secretary

FACTS: The petitioner are assailing the Executive Order No. 284 issued by the President allowing cabinet members, undersecretary or asst. secretaries and other

appointive officials of the executive department to hold 2 positions in the government and government corporations and to receive additional compensation. They find it unconstitutional against the provision provided by Section 13, Article VII prohibiting the President, Cabinet members and their deputies to hold any other office or employment. Section 7, par. (2), Article IX-B further states that “Unless otherwise allowed by law or by 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 corporation or their subsidiaries." In the opinion of the DOJ as affirmed by the Solicitor General, the said Executive Order is valid and constitutional as Section 7 of Article IX-B stated “unless otherwise allowed by law” which is construed to be an exemption from that stipulated on Article VII, section 13, such as in the case of the Vice President who is constitutionally allowed to become a cabinet member and the Secretary of Justice as ex-officio member of the Judicial and Bar Council. 

ISSUE: Whether Section 7 of Article IX-B provides an exemption to Article VII, section 13 of the constitution.

RULING: The court held it is not an exemption since the legislative intent of both Constitutional provisions is to prevent government officials from holding multiple positions in the government for self enrichment which a betrayal of public trust. Section 7, Article I-XB 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. Thus the phrase “unless otherwise provided by the Constitution” in Section 13, Article VII cannot be construed as a broad exception from Section 7 of Article IX-B that is contrary to the legislative intent of both constitutional provisions. Such phrase is only limited to and strictly applies only to particular instances of allowing the VP to become a cabinet member and the Secretary of Justice as ex-officio member of the Judicial and Bar Council. The court thereby declared E.O 284 as null and void.

Estrada versus GMA

FACTS:The case basically revolves around the series of events that happened prior and subsequent to the event we know as EDSA II. During the 1998 elections, Joseph E. Estrada and Gloria Macapagal Arroyo were elected as president and vice-president respectively. The downfall of the Estrada administration began when For. Gov. Luis Chavit Singson went to the media and released his exposé that petitioner was part of the Jueteng scandal as having received large sums of money. After this expose, a lot of different groups and many personalities had asked for the resignation of the petitioner. Some of which are the Catholic Bishops Conference of the Philippines (CBCP), Sen. Nene Pimentel, Archbishop of Manila, Jaime Cardinal Sin, For. Pres. Fidel Ramos, and For. Pres. Corazon Aquino who asked petitioner to make the “supreme self-sacrifice”. Respondent also resigned as

Secretary of the Department of Social Welfare and Services and also asked petitioner for his resignation. 4 senior economic advisers of the petitioner resigned and then Speaker Manny Villar, together with 47 representatives, defected from Lapian ng Masang Pilipino.

By November, an impeachment case was to be held as Speaker Manny Villar had transmitted the Articles of Impeachment to the senate. On November 20, the 21 senators took oath as judges to the impeachment trial with SC CJ Hilario Davide, Jr., presiding. The impeachment trial was one for the ages. It was a battle royal of well known lawyers. But then came the fateful day, when by the vote of 11-10, the judges came to a decision to not open the second envelop allegedly containing evidence showing that the petitioner had a secret bank account under the name “Jose Velarde” containing P3.3 billion. The not opening of the 2nd envelop resulted to the people going to the streets and the public prosecutors withdrawing from the trial. On January 19, AFP Chief of Staff Angelo Reyes marched to EDSA shrine and declared “on behalf of your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are withdrawing our support to this government.” PNP Chief, Director General Panfilo Lacson together with some Cabinet members made the same announcement.

June 20 was the day of surrender. At around 12:20 AM, negotiations started for the peaceful transition of power. But at around 12 noon, respondent took oath as the 14th president of the Philippines. At 2:30 PM, petitioner

and his family left Malacanang. He issued the following Press Statement:“20 January 2001

STATEMENT FROMPRESIDENT JOSEPH EJERCITO ESTRADAAt twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines.  While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil society.It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation.  I leave the Palace of our people with gratitude for the opportunities given to me for service to our people.  I will not shirk from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity.May the Almighty bless our country and beloved people.MABUHAY!(Sgd.) JOSEPH EJERCITO ESTRADA”

It also appears that on the same day, January 20, 2001, he signed the following letter:“Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office.  By operation of law and the Constitution, the Vice-President shall be the Acting President.(Sgd.) JOSEPH EJERCITO ESTRADA”

On January 22, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC. The said resolution confirmed the authority given by the 12 SC justices to the CJ during the oath taking that happened on January 20. Soon, other countries accepted the respondent as the new president of the Philippines. The House then passed Resolution No. 175 “expressing the full support of the House of Representatives to the administration of Her Excellency Gloria Macapagal-Arroyo, President of the Philippines.” It also approved Resolution No. 176 “expressing the support of the House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and expressing its support for her administration as a partner in the attainment of the nation’s goals under the Constitution.”

On February 6, respondent recommended Teofisto Guingona to be the vice president. On February 7, the Senate adopted Resolution 82 which confirmed the nomination of Senator Guingona. On the same day, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has been terminated. Several cases were filed against the petitioner which are as follows: (1) OMB Case No. 0-00-

1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges against the petitioner.  It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as members, viz:  Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso.  On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set.  On February 5, petitioner filed with this Court GR No.

146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction.  It sought to enjoin the respondent Ombudsman from “conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if legally warranted.” Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto.  He prayed for judgment “confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution.” Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents “to comment thereon within a non-extendible period expiring on 12 February 2001.” On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents’ comments “on or before 8:00 a.m. of February 15.”In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for “Gag Order” on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:

“(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief Justice issue a press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being cited for contempt to refrain from making any comment or discussing in public the merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from resolving or deciding the criminal cases pending investigation in his office against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will make the cases at bar moot and academic.”

ISSUES:I Whether the petitions present a justiciable controversy.II Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President on leave while respondent Arroyo is an Acting President.III Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution of petitioner Estrada.  In the negative and on the assumption that petitioner is still President, whether he is immune from criminal prosecution.IV Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

DECISION:I No. The case is legal not political.II No. He is not a president on leave.

III No. The impeachment proceedings was already aborted. As a non-sitting president, he is not entitled to immunity from criminal prosecutionIV There is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.

RATIO/REASON:1. I. Whether or not the case involves a political

questionRespondents contend that the cases at bar pose a political question. Gloria Macapagal Arroyo became a President through the People power revolution. Her legitimacy as president was also accepted by other nations. Thus, they conclude that the following shall serve as political thicket which the Court cannot enter.The Court rules otherwise. A political question has been defined by our Court 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.”Respondents allege that the legality of the Arroyo administration should be treated similarly with the Aquino administration. Respondents propose that the situation of the Arroyo and Aquino administrations are similar. However, the Court finds otherwise.

The Court has made substantial distinctions which are the following:

Aquino Arroyo

Government was a result of a successful revolution

Government was a result of a peaceful revolution

In the Freedom constitution, it was stated that the Aquino government was instilled directly by the people in defiance of the 1973 Constitution as amended.

Arroyo took the oath of the 1987 Constitution. She is discharging the authority of the president under the 1987 constitution.

It is a well settled rule that the legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. But this would not apply as the Court finds substantial difference between the 2 EDSA Revolutions. It would show that there are differences between the 2 governments set up by EDSA I and II. This was further explained by the Court by comparing the 2 EDSA Revolutions.

EDSA I EDSA II

Extra-constitutional. Hence, “Xxx IN DEFIANCE OF THE 1973 CONSTITUTION, AS AMENDED”—cannot be

Intra-Constitutional. Hence, the oath of the respondent as President includes the protection

subject of judicial review

and upholding of the 1987 Constitution.—resignation of the President makes it subject to judicial review

exercise of the people power of revolution whichoverthrew 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

Political question Legal Question

In this issue, the Court holds that the issue is legal and not political.

1. II. Whether or not petitioner resigned as PresidentResignation is a factual question and its elements are beyond quibble:  there must be an intent to resign and the intent must be coupled by acts of relinquishment. There is no required form of resignation. It can be expressed, implied, oral or written. It is true that respondent never wrote a letter of resignation before he left Malacanang on June 20, 2001. In this issue, the Court would use the totality test or

the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this test, the Court rules that the petitioner had resigned. The Court knows the amount of stress that the petitioner had suffered. With just a blink of an eye, he lost the support of the legislative when then Manny Villar and other Representatives had defected. AFP Chief of Staff General Angelo Reyes had already gone to EDSA.  PNP Chief Director General Panfilo Lacson and other cabinet secretaries had withdrawn as well. By looking into the Angara diaries, it was pointed out that the petitioner had suggested a snap election at May on which he would not be a candidate. Proposing a snap election in which he is not a candidate means that he had intent to resign. When the proposal for a dignified exit or resignation was proposed, petitioner did not disagree but listened closely. This is proof that petitioner had reconciled himself to the reality that he had to resign.  His mind was already concerned with the five-day grace period he could stay in the palace.  It was a matter of time.

The negotiations that had happened were about a peaceful transfer of power. It was already implied that petitioner would resign. The negotiations concentrated on the following: (1) the transition period of five days after the petitioner’s resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner. Also taken from the Angara diaries, The President says. “Pagod na pagod na ako. 

Ayoko na masyado nang masakit.  Pagod na ako sa red tape, bureaucracy, intriga.  (I am very tired.  I don’t want any more of this – it’s too painful.  I’m tired of the red tape, the bureaucracy, the intrigue.) I just want to clear my name, then I will go.” The quoted statement of the petitioner was a clear evidence that he has resigned.

The second round of negotiations were about the consolidating of the clauses which were proposed by both sides. The second round of negotiation cements the reading that the petitioner has resigned.  It will be noted that during this second round of negotiation, the resignation of the petitioner was again treated as a given fact.  The only unsettled points at that time were the measures to be undertaken by the parties during and after the transition period.

When everything was already signed by the side of the petitioner and ready to be faxed by Angara, the negotiator for the respondent, Angelo Reyes, called to Angara saying that the SC would allow respondent to have her oath taking. Before petitioner left Malacanang, he made a last statement.

The statement reads: ‘At twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic of the Philippines.  While along with many other legal minds of our country, I have strong and serious doubts about the legality and constitutionality of her proclamation as president, I do

not wish to be a factor that will prevent the restoration of unity and order in our civil society.It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of peace and in order to begin the healing process of our nation.  I leave the Palace of our people with gratitude for the opportunities given to me for service to our people.  I will not shrik from any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of reconciliation and solidarity.May the Almighty bless our country and our beloved people.MABUHAY!’”

By making such statement, petitioner impliedly affirms the following: (1) he acknowledged the oath-taking of the respondent as President of the Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process of our nation.  He did not say he was leaving the Palace due to any kind of inability and that he was going to re-assume the presidency as soon as the disability disappears; (3) he expressed his gratitude to the people for the opportunity to serve them.  Without doubt, he was referring to the past opportunity given him to serve the people as President; (4) he assured that he will not shirk from any future challenge that may come ahead in the same service of our country.  Petitioner’s reference is to

afuture challenge after occupying the office of the president which he has given up; and (5) he called on his supporters to join him in the promotion of a constructive national spirit of reconciliation and solidarity.  Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not give up the presidency.

Petitioner however argues that he only took a temporary leave of absence. This is evidenced by a letter which reads as follows:“Sir

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this declaration that I am unable to exercise the powers and duties of my office.  By operation of law and the Constitution, the Vice President shall be the Acting President.(Sgd.) Joseph Ejercito Estrada”

The Court was surprised that the petitioner did not use this letter during the week long crisis. It would be very easy for him to say before he left Malacanang that he was temporarily unable to govern, thus, he is leaving Malacanang. Under any circumstance, however, the mysterious letter cannot negate the resignation of the petitioner.  If it was preparedbefore the press release of the petitioner clearly showing his resignation from the presidency, then the resignation must prevail as a later act.  If, however, it was prepared after the press release, still, it commands scant legal significance.

Petitioner also argues that he could not resign. His legal basis is RA 3019 which states:“Sec. 12.  No public officer shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery.”During the amendments, another section was inserted which states that:

During the period of amendments, the following provision was inserted as section 15:“Sec. 15. Termination of office — No public official shall be allowed to resign or retire pending an investigation, criminal or administrative, or pending a prosecution against him, for any offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official from office shall not be a bar to his prosecution under this Act for an offense committed during his incumbency.”

The original senate bill was rejected because of the 2nd paragraph of section 15. Nonetheless, another similar bill was passed. Section 15 then became section 13. There is another reason why petitioner’s contention should be rejected. In the cases at bar, the records show that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for the

reason that as the sitting President then, petitioner was immune from suit.  Technically, the said cases cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them.  Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA 3019, bars him from resigning.  The Court holds otherwise. The impeachment proceeding may be arguable. However, even if the impeachment proceeding is administrative, it cannot be considered pending because the process had already broke down. There was also a withdrawal by the prosecutors to partake in the impeachment case. In fact, the proceeding was postponed indefinitely. In fact, there was no impeachment case pending when he resigned.

1. III. Whether or not the petitioner is only temporarily unable to act as President

This issue arose from the January 20 letter which was addressed to then Speaker Fuentebella and then Senate President Pimentel. Petitioner’s contention is that he is a president on leave and that the respondent is an acting president. This contention is the centerpiece of petitioner’s stance that he is a President on leave and respondent Arroyo is only an Acting President.An examination of section 11, Article VII is in order.  It provides:

“SEC. 11.  Whenever the President transmit to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office.  Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue.  For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session within twelve days after it is required to assemble, determines by a

two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office."

After studying in-depth the series of events that happened after petitioner left Malacanang, it is very clear that the inability of the petitioner as president is not temporary. The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as President of the Philippines. The Court says that they cannot, for such is an example of a political question, in which the matter has solely been left to the legislative,

1. IV. Whether or not the petitioner enjoys immunity from suit. If yes, what is the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, he enjoysimmunity from all kinds of suit, whether criminal or civil. The “immunity” the petitioner points to is the principle of non-liability.

The principle of non-liability simply states that a chief executive may not be personally mulcted in civil damages for the consequences of an act executed in the

performance of his official duties. He is liable when he acts in a case so plainly outside of his power and authority that he cannot be said to have exercise discretion in determining whether or not he had the right to act.  What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not.  In other words, he is entitled to protection in determining the question of his authority.  If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination.The Court rejects the petitioner’s argument that before he could be prosecuted, he should be first convicted of impeachment proceedings. The impeachment proceeding was already aborted because of the walking out of the prosecutors. This was then formalized by a Senate resolution (Resolution #83) which declared the proceeding functus officio. According to the debates in the Constitutional Convention, when an impeachment proceeding have become moot due to the resignation of the President, proper civil and criminal cases may be filed against him.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.  The cases filed against petitioner 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 allege mantle of immunity of a non-sitting president.  Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure immunity from liability.   It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts and omissions. As for civil immunity, it means immunity from civil damages only covers “official acts”.

1. V. Whether of not the prosecution of petitioner Estrada should be enjoined to prejudicial publicity

Petitioner contends that the respondent Ombudsman should be stopped from conducting an investigation of the cases filed against him for he has already developed a bias against the petitioner. He submits that it is a violation of due process. There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained publicity during the investigation and trial of high profile cases. The British approach the problem with the presumption that publicity will prejudice a jury.  Thus, English courts readily stay and stop criminal trials when the right of an accused to fair trial suffers a threat. The American approach is different.  US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. During cases like such, the test of actual prejudice shall be applied. The test shows that there must be allegation and proof that the judges have been unduly influenced, not simply that they might be,

by the barrage of publicity. The Court rules that there is not enough evidence to warrant this Court to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.  Petitioner needs to offer more than hostile headlines to discharge his burden of proof.

According to the records, it was the petitioner who assailed the biasness of the Ombudsman. The petitioner alleges that there were news reports which said that the Ombudsman had already prejudged the cases against him. The Court rules that the evidence presented is insufficient. The Court also cannot adopt the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. Investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the finding of probable cause against him is the result of bias, he still has the remedy of assailing it before the proper court.

Marcos versus Manglapus

FACTS:February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent “people power” revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary government.Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,

considering the dire consequences to the nation of his return at a time when the stability of government is threatened from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

Petitioners assert that the right of the Marcoses to return to the Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law.Furthermore, they contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may do so “within the limits prescribed by law.” Nor may the President impair their right to travel because no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is guaranteed.

ISSUES:• Whether or not the President has the power under the Constitution, to bar the Marcoses from returning to the Philippines.• Whether or not the President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcose’s to the Philippines poses a serious threat to national interest and welfare and decided to bar their return.

HELD:SC well-considered opinion that the President has a residual power which justifies her act of banning the return of the Marcoses and she did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines.It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to one’s country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the right to enter one’s country as separate and distinct

rights. The Declaration speaks of the “right to freedom of movement and residence within the borders of each state” [Art. 13(l)] separately from the “right to leave any country, including his own, and to return to his country.” [Art. 13(2).] On the other hand, the Covenant guarantees the “right to liberty of movement and freedom to choose his residence” [Art. 12(l)] and the right to “be free to leave any country, including his own.” [Art. 12(2)] which rights may be restricted by such laws as “are necessary to protect national security, public order, public health or morals or enter qqqs own country” of which one cannot be “arbitrarily deprived.” [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one’s country in the same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one’s country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being “arbitrarily deprived” thereof [Art. 12 (4).]

Although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the

specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain individuals. The power involved is the President’s residual power to protect the general welfare of the people. It is founded on the duty of the President, as steward of the people.

The Constitution declares among the guiding principles that “[t]he prime duty of the Government is to serve and protect the people” and that “[t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.” [Art. II, Secs. 4 and 5.]

More particularly, this case calls for the exercise of the President’s powers as protector of the peace. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its existence.

The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way

diminished by the relative want of an emergency specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President’s exercising as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the Marcose’s and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.

The State, acting through the Government, is not precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the fruition of the people’s sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of judicial notice.

Matibag versus 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 RULINGNature 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 theCongress.”

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.

...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.

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. 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.

Pimentel versus 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. 

Integrated Bar of the Philippines verus Zamora

Facts: Invoking his powers as Commander-in-Chief under Sec. 18, Art. VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate with

each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or suppressing criminal or lawless violence.

The President declared that the services of the Marines in the anti-crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation shall have improved. The IBP filed a petition seeking to declare the deployment of the Philippine Marines null and void and unconstitutional.

Issues:(1) Whether or not the President’s factual determination of the necessity of calling the armed forces is subject to judicial review

(2) Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional provisions on civilian supremacy over the military and the civilian character of the PNP

Held: When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary power solely vested in his wisdom. Under Sec. 18, Art. VII of the Constitution, Congress may revoke such proclamation of martial law or suspension of the privilege of the writ of habeas corpus and the Court may review the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President’s action to call out the armed forces. The distinction places the calling out power in a different category from the power to declare martial

law and power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would have simply lumped together the 3 powers and provided for their revocation and review without any qualification. 

The reason for the difference in the treatment of the said powers highlights the intent to grant the President the widest leeway and broadest discretion in using the power to call out because it is considered as the lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and individual freedoms, and thus necessitating safeguards by Congress and review by the Court. 

In view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis. The present petition fails to discharge such heavy burden, as there is no evidence to support the assertion that there exists no justification for calling out the armed forces.

The Court disagrees to the contention that by the deployment of the Marines, the civilian task of law enforcement is “militarized” in violation of Sec. 3, Art. II of the Constitution. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The calling of the Marines constitutes permissible use of military assets for civilian law enforcement. The local

police forces are the ones in charge of the visibility patrols at all times, the real authority belonging to the PNP.

Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the police force. The real authority in the operations is lodged with the head of a civilian institution, the PNP, and not with the military. Since none of the Marines was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of. Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.

People versus Patriarca

Facts: Accused-appellant Jose Patriarca, Jr., a member of the NPA, was found guilty by the trial court of the crime of murder for the death of Alfredo Arevalo and was sentenced to suffer the penalty of reclusion perpetua. Accused-appellant appealed the decision of the RTC.

Accused-appellant applied for amnesty under Proclamation No. 724. His application was favorably granted by the National Amnesty Board concluding that his activities were done in pursuit of his political beliefs.

Issue: What is the effect of the grant of amnesty to the conviction of the accused-appellant?

Held: Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that the person released by amnesty stands before the law precisely as though he had committed no offense.

Paragraph 3 of Art. 89 of the Revised Penal Code provides that criminal liability is totally extinguished by amnesty, which completely extinguishes the penalty and all its effects.

The grant of amnesty serves to put an end to the appeal. Accused-appellant is acquitted of the crime of murder.

Neri versus Senate Committee

FACTS

The Department of Transportation and Communication (DOTC) entered into contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project in the amount of $329,481,290 (approx. P16 Billion). This was financed by the People's Republic of China. Respondent Senate Committee on Accountability of Public Officers and Investigations (CAPO), Senate Committee on Trade and Commerce, and

Senate Committee on National Defense and Security, initiated an investigation to respective personalities and cabinet officials in the NBN Project, of which petitioner Romulo Neri was included. The petitioner testified and mentioned that he was offered P200 Billion for his approval for the NBN Project. But when asked further to divulge what was discussed about the project, he refused to answer and invoked "executive privilege," especially with matters relating to the involvement of Pres. Gloria Macapagal-Arroyo: (a) whether or not President Arroyo followed up the NBN Project, (b) whether or not she directed him to prioritize it, and (c) whether or not she directed him to approve. He then refused to appear in further hearings of the Committees. With this, the Committees issued an Order, citing him in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms. Neri petitioned to the Court for citiorari under Rule 65 of the Rules of Court assailing the show cause Letter and contempt Order. His petition was granted and the in contempt Order of the respondents and the instruction for his arrest and detention were nullified. The respondent Committees filed for a motion for reconsideration regarding the decision. They persisted in knowing the petitioner's answers to the questions not answered regarding the matters which involved the President.

ISSUE

Can a cabinet member invoke executive privilege on matters discussed with the President before legislative investigations?

HELD

No. The phrase "executive privilege" involves considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution, and may be claimed by one executive official, the President. But in the case of Senate v. Ermita, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific matter involving an executive agreement between the Philippines and China, which was the subject of the 3 questions propounded by petitioner Neri in the course of the Senate Committees' investigation. Ermita requested the Committees to dispense with Neri's testimony on the ground of executive privilege. Thus, petitioner, an executive official under the direct control and supervision of the Chief Executive, only acted by the order of his superior, hence cannot be held in contempt. The respondent Committees' Motion for Reconsideration was DENIED.

Clinton versus Jones

Procedural Posture: Paula Corbin Jones filed suit in federal district court in Arkansas against William Jefferson Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred on May 8, 1991. Clinton filed motions asking the district court to dismiss the case on grounds of presidential immunity and prohibit Jones from refiling the suit until after the end of his presidency. The district court rejected the presidential

immunity argument but allowed that no trial would take place until Clinton was no longer president. Both Clinton and Jones appealed to the U.S. Supreme Court, which granted certiorari.

Disposition: In a 9-0 decision, the court held in favor of Jones, affirming the district court’s right to decide this case.

Facts: Bill Clinton was elected to the presidency in 1992 and reelected in 1996. Prior to the presidency, Clinton held the office of governor of Arkansas. In 1994, Paula Corbin Jones filed suit in federal district court in Arkansas against Clinton and Arkansas state trooper Danny Ferguson over an incident that was alleged to have occurred at the Excelsior Hotel on May 8, 1991, in Little Rock. Jones, then an employee of the state, was working at the registration desk of a conference in which Governor Clinton delivered a speech. Jones alleges Trooper Ferguson told her that Governor Clinton wanted to see her in his room, and Ferguson escorted her to the room. Once in the room, Clinton begins to make unwanted sexual advances towards Jones. Clinton denies the allegations and claims that the lawsuit is politically motivated.Relevant Provision of Constitution: Article II, specifically separation of power principles.

Question: Whether the constitution protects a sitting president from a lawsuit that seeks damages from an unofficial act that occurred before becoming president?

Holding: The Federal Constitution did not require that federal courts, in all but the most exceptional cases, defer civil damages litigation against the President until the President’s term ended when such litigation was based on actions allegedly taken before the President’s term began, in part because (a) a temporary immunity from suit for unofficial acts, grounded purely in the identity of the President’s office, was unsupported by precedent of the Supreme Court, and (b) the doctrine of separation of powers did not require federal courts to stay all private actions against the President until the President left office; and (2) it was an abuse of discretion for the District Court, which had jurisdiction to decide the case at hand, to defer the trial until the President left office, in part because (a) such a lengthy and categorical stay took no account of the individual’s interest in bringing the case to trial, (b) the decision to postpone the trial was premature, and (c) no impingement upon the President’s conduct of his office had been shown.

Reasoning: (Stevens) There is no support for immunity for unofficial conduct. The doctrine of separation of powers does not require federal courts to stay all private actions against the president until he leaves office. The doctrine of separation of powers is concerned with the allocation of official power among the three co-equal branches of government.

Concurrence: (Breyer) The constitution does not automatically grant the president immunity from civil lawsuits based upon his private conduct. The president cannot simply rest upon the claim that a private civil lawsuit for damages will interfere with the

constitutionally assigned duties of the executive branch… without detailing any specific responsibilities or explaining how or degrees.