Executive Department (cases).docx

EXECUTIVE DEPARTMENT Macalintal vs PET, GR 191618, June 7, 2011 (Admin Law, PET, Quasi-judicial power) Facts: Par 7, Sec 4, Art VII of the 1987 Constitution provides: “The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President, and may promulgate its rules for the purpose.” Sec 12, Art. VIII of the Constitution provides: The Members of the Supreme Court and of other courts established by law shall not be designated to any agency performing quasi-judicial or administrative functions. The case at bar is a motion for reconsideration filed by petitioner of the SC’s decision dismissing the former’s petition and declaring the establishment of the respondent PET as constitutional. Petitioner argues that PET is unconstitutional on the ground that Sec 4, Art VII of the Constitution does not provide for the creation of the PET, and it violates Sec 12, Art VIII of the Constitution. The Solicitor General maintains that the constitution of the PET is on firm footing on the basis of the grant of authority to the Supreme Court to be the sole judge of all election contests for the President or Vice-President under par 7, Sec 4, Art VII of the Constitution. Issue: Whether or not PET is constitutional. Whether or not PET exercises quasi-judicial power. Held: Yes. The explicit reference of the Members of the Constitutional Commission to a Presidential Electoral Tribunal, with Fr. Joaquin Bernas categorically declaring that in crafting the last paragraph of Sec. 4, Art VII of the 1987 Constitution, they “constitutionalized what was statutory.” Judicial power granted to the Supreme

Court by the same Constitution is plenary. And under the doctrine of necessary implication, the additional jurisdiction bestowed by the last paragraph of Section 4, Article VII of the Constitution to decide presidential and vice-presidential elections contests includes the means necessary to carry it into effect. No. The traditional grant of judicial power is found in Section 1, Article VIII of the Constitution which provides that the power “shall be vested in one Supreme Court and in such lower courts as may be established by law.” The set up embodied in the Constitution and statutes characterize the resolution of electoral contests as essentially an exercise of judicial power. When the Supreme Court, as PET, resolves a presidential or vice-presidential election contest, it performs what is essentially a judicial power. The COMELEC, HRET and SET are not, strictly and literally speaking, courts of law. Although not courts of law, they are, nonetheless, empowered to resolve election contests which involve, in essence, an exercise of judicial power, because of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the COMELEC) and Section 17, Article VI (for the Senate and House Electoral Tribunals) of the Constitution.

Pormento vs. Estrada Facts: Estrada was elected President of the Republic of the Philippines in the May 1998 elections. He sought the presidency again in the May 2010 elections. Pormento opposed Estrada’s candidacy and filed a petition for disqualification. COMELEC (Division) denied his petition as well as his subsequent Motion for Reconsideration (En Banc). Pormento then filed the present petition for certiorari before the Court. In the meantime, Estrada was able to participate as a candidate for President in the May 10, 2010 elections where he garnered the second highest number of votes.

Issue: Is Estrada disqualified to run for presidency in the May 2010 elections in view of the prohibition in the Constitution which states that: "[t]he President shall not be eligible for any reelection?

Held: Private respondent was not elected President the second time he ran. Since the issue on the proper interpretation of the phrase any reelection will be premised on a persons second (whether immediate or not) election as President, there is no case or controversy to be resolved in this case. No live conflict of legal rights exists. There is in this case no definite, concrete, real or substantial controversy that touches on the legal relations of parties having adverse legal interests. No specific relief may conclusively be decreed upon by this Court in this case that will benefit any of the parties herein. As such, one of the essential requisites for the exercise of the power of judicial review, the existence of an actual case or controversy, is sorely lacking in this case. As a rule, this Court may only adjudicate actual, ongoing controversies.The Court is not empowered to decide moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the result as to the thing in issue in the case before it. In other words, when a case is moot, it becomes nonjusticiable.

An action is considered moot when it no longer presents a justiciable controversy because the issues involved have become academic or dead or when the matter in dispute has already been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between the parties. There is nothing for the court to resolve as the determination thereof has been overtaken by subsequent events.

Assuming an actual case or controversy existed prior to the proclamation of a President who has been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of that elections, private respondent was not elected President for the second time. Thus, any discussion of his reelection will simply be hypothetical and speculative. It will serve no useful or practical purpose. (Pormento vs. Estrada, G.R. No. 191988, August 31, 2010)

The fact that Bautista was extended an appointment naming her as OIC of MARINA shows that she does not occupy it in an ex-officio capacity since an exofficio position does not require any "further warrant or appoint.

DENNIS A. B. FUNA v. EXECUTIVE SECRETARY EDUARDO R. ERMITA, GR No. 184740, 2010-02-11 Facts: 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) Bautista was designated as Undersecretary for Maritime Transport of the department under Special Order No. 2006-171 dated October 23, 2006 On September 1, 2008, following the resignation of then MARINA Administrator Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and lawyer, filed the instant petition challenging the constitutionality of Bautista's appointment/designation, which is proscribed by the prohibition on the President, Vice-President, the Members of the Cabinet, and their deputies and assistants to hold any other office or employment Issues: Petitioner argues that Bautista's concurrent positions as DOTC Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the 1987 Constitution He points out that while it was clarified in Civil Liberties Union that the prohibition does not apply to those... positions held in ex-officio capacities, the position of MARINA Administrator is not ex-officio to the post of DOTC Undersecretary

Petitioner further contends that even if Bautista's appointment or designation as OIC of MARINA was intended to be merely temporary, still, such designation must not violate a standing constitutional prohibition

Petitioner likewise asserts the incompatibility between the posts of DOTC Undersecretary and MARINA Administrator... respondents submit that the petition should still be dismissed for being unmeritorious considering that Bautista's concurrent designation as MARINA OIC and DOTC Undersecretary was... constitutional. There was no violation of Section 13, Article VII of the 1987 Constitution because respondent Bautista was merely designated acting head of MARINA on September 1, 2008. She was designated MARINA OIC, not appointed MARINA Administrator. The sole issue to be resolved is 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. Ruling: 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.

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. 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. 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. Principles: 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. 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.

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.

representing a district in Quezon Province in the May 2010 elections; that he then relinquished his position as the Government Corporate Counsel; and that pending the appointment of his successor, Agra continued to perform his duties as the Acting Solicitor General. Notwithstanding the conflict in the versions of the parties, the fact that Agra has admitted to holding the two offices concurrently in acting capacities is settled, which is sufficient for purposes of resolving the constitutional question that petitioner raises herein. Issue: Whether or not Agra’s holding of concurrent position is unconstitutional. Held: Yes. At the center of the controversy is the correct application of Section 13, Article VII of the 1987 Constitution, viz:

FUNA VS AGRA (G.R. NO. 191644 FEBRUARY 19, 2013) Facts: The petitioner alleges that on March 1, 2010, President Gloria M. Macapagal Arroyo appointed Agra as the Acting Secretary of Justice following the resignation of Secretary Agnes VST Devanadera in order to vie for a congressional seat in Quezon Province; that on March 5, 2010, President Arroyo designated Agra as the Acting Solicitor General in a concurrent capacity; that on April 7, 2010, the petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer, commenced this suit to challenge the constitutionality of Agra’s concurrent appointments or designations, claiming it to be prohibited under Section 13, Article VII of the 1987 Constitution; that during the pendency of the suit, President Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor General; and that Cadiz assumed as the Solicitor General and commenced his duties as such on August 5, 2010. Agra renders a different version of the antecedents. He represents that on January 12, 2010, he was then the Government Corporate Counsel when President Arroyo designated him as the Acting Solicitor General in place of Solicitor General Devanadera who had been appointed as the Secretary of Justice; that on March 5, 2010, President Arroyo designated him also as the Acting Secretary of Justice vice Secretary Devanadera who had meanwhile tendered her resignation in order to run for Congress

Section 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. A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of the 1987 Constitution, to wit: Section 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. Being designated as the Acting Secretary of Justice concurrently with his position of Acting Solicitor General, therefore, Agra was undoubtedly covered by Section 13, Article VII, supra, whose text and spirit were too clear to be differently read. Hence, Agra could not validly hold any other office or employment during his tenure as the Acting Solicitor General, because the Constitution has not otherwise so provided.

It was of no moment that Agra’s designation was in an acting or temporary capacity. The text of Section 13, supra, plainly indicates that the intent of the Framers of the Constitution was to impose a stricter prohibition on the President and the Members of his Cabinet in so far as holding other offices or employments in the Government or in government-owned or government controlledcorporations was concerned. In this regard, to hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which implies nothing less than the actual discharge of the functions and duties of the office. Indeed, in the language of Section 13 itself, supra, the Constitution makes no reference to the nature of the appointment or designation. The prohibition against dual or multiple offices being held by one official must be construed as to apply to all appointments or designations, whether permanent or temporary, for it is without question that the avowed objective of Section 13, supra, is to prevent the concentration of powers in the Executive Department officials, specifically the President, the Vice-President, the Members of the Cabinet and their deputies and assistants. To construe differently is to “open the veritable floodgates of circumvention of an important constitutional disqualification of officials in the Executive Department and of limitations on the Presidents power of appointment in the guise of temporary designations of Cabinet Members, undersecretaries and assistant secretaries as officers-in-charge of government agencies, instrumentalities, or government-owned or controlled corporations.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor General, was not covered by the stricter prohibition under Section 13, supra, due to such position being merely vested with a cabinet rank under Section 3, Republic Act No. 9417, he nonetheless remained covered by the general prohibition under Section 7, supra. Hence, his concurrent designations were still subject to the conditions under the latter constitutional provision. In this regard, the Court aptly pointed out in Public Interest Center, Inc. v. Elma: The general rule contained in Article IX-B of the 1987 Constitution permits an appointive official to hold more than one office only if “allowed by law or by the primary functions of his position.” In the case of Quimson v. Ozaeta, this Court ruled that, “[t]here is no legal objection to a government official occupying two government offices and performing the functions of both as long as there is no incompatibility.” The crucial test in determining whether incompatibility exists

between two offices was laid out in People v. Green – whether one office is subordinate to the other, in the sense that one office has the right to interfere with the other.

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.

DE CASTRO VS. JBC G.R. No. 191002, March 17, 2010 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

The OSG contends that the incumbent President may appoint the next Chief Justice, because the prohibition under Section 15, Article VII of the Constitution does not apply to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the Constitution; that had the framers intended the prohibition to apply to Supreme Court appointments, they could have easily expressly stated so in the Constitution, which explains why the prohibition found in Article VII (Executive Department) was not written in Article VIII (Judicial Department); and that the framers also incorporated in Article VIII ample restrictions or limitations on the President’s power to appoint members of the Supreme Court to ensure its independence from “political vicissitudes” and its “insulation from political pressures,” such as stringent qualifications for the positions, the establishment of the JBC, the specified period within which the President shall appoint a Supreme Court Justice.

A part of the question to be reviewed by the Court is whether the JBC properly initiated the process, there being an insistence from some of the oppositorsintervenors that the JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another part is, of course, whether the JBC may resume its process until the short list is prepared, in view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence of the vacancy. ISSUE: Whether the incumbent President can appoint the successor of Chief Justice Puno upon his retirement. HELD: Prohibition under Section 15, Article VII does not apply to appointments to fill a vacancy in the Supreme Court or to other appointments to the Judiciary. Two constitutional provisions are seemingly in conflict. The first, Section 15, Article VII (Executive Department), provides: Section 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will prejudice public service or endanger public safety. The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled within ninety days from the occurrence thereof. Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court.

Had the framers intended to extend the prohibition contained in Section 15, Article VII to the appointment of Members of the Supreme Court, they could have explicitly done so. They could not have ignored the meticulous ordering of the provisions. They would have easily and surely written the prohibition made explicit in Section 15, Article VII as being equally applicable to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1), Article VIII. That such specification was not done only reveals that the prohibition against the President or Acting President making appointments within two months before the next presidential elections and up to the end of the President’s or Acting President’s term does not refer to the Members of the Supreme Court. Section 14, Section 15, and Section 16 are obviously of the same character, in that they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer only to appointments within the Executive Department renders conclusive that Section 15 also applies only to the Executive Department. 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.

ATTY. CHELOY E. VELICARIA- GARAFIL v. OFFICE OF PRESIDENT, GR No. 203372, 2015-06-16 Facts: Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President Macapagal-Arroyo) issued more than 800 appointments to various positions in several government offices. The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads: 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. None of the petitioners claim that their appointments fall under this exception. Issuance of EO 2 On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath of office as President of the Republic of the Philippines. On 30 July 2010, President Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued by President Macapagal-Arroyo which... violated the constitutional ban on midnight appointments. The only known exceptions to this prohibition are (1)... temporary appointments in the executive positions when continued vacancies will prejudice public service or endanger public safety and in the light of the recent Supreme Court decision in the case of De Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010, (2)... appointments to the Judiciary; (a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on or after March 11, 2010, except temporary appointments in the executive... positions when continued vacancies will prejudice public service or endanger public safety as may be determined by the appointing authority. Effect of the Issuance of EO 2

Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge of her termination. She was made to return the office-issued laptop and cellphone, and was told that her salary ceased as of 7 August 2010. On 12 August 2010, Atty. Velicaria-Garafil was informed... that her former secretary at the OSG received a copy of a memorandum on her behalf. The memorandum, dated 9 August 2010, bore the subject “Implementation of Executive Order No. 2 dated 30 July 2010” and was addressed to the OSG’s Director of Finance and Management Service. Atty. Venturanza received via facsimile transmission an undated copy of DOJ Order No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec. De Lima), designated Senior Deputy State Prosecutor Richard Anthony D. Fadullon (Pros. Fadullon) as Officer-in-Charge of the Office of the City Prosecutor in Quezon City. In a letter to Sec. De Lima dated 15 September 2010, Atty. Venturanza asked for clarification of his status, duties, and functions since DOJ Order No. 556 did not address the same. G.R. No. 209138 The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August 2010, Villanueva and Rosquita sought to intervene in G.R. No. 192991.[ Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. Rulings of the CA Even though the same issues were raised in the different petitions, the CA promulgated separate Decisions for the petitions. The CA consistently ruled that EO 2 is constitutional In the cases of Attys. Velicaria-Garafil and Venturanza, the CA stated that the OP should consider the circumstances of their appointments. In the cases of Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated that the revocation of their appointments... was proper because they were midnight appointees.

Issues: We resolve the following issues in these petitions: (1) whether petitioners’ appointments violate Section 15, Article VII of the 1987 Constitution, and (2) whether EO 2 is constitutional. Ruling: The petitions have no merit. All of petitioners’ appointments are midnight appointments and are void for violation of Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional. Midnight Appointments Constitutionality of EO 2 Based on prevailing jurisprudence, appointment to a government post is a process that takes several steps to complete. Any valid appointment, including one made under the exception provided in Section 15, Article VII of the 1987 Constitution, must consist of the President... signing an appointee’s appointment paper to a vacant office, the official transmittal of the appointment paper (preferably through the MRO), receipt of the appointment paper by the appointee, and acceptance of the appointment by the appointee evidenced by his or her oath of... office or his or her assumption to office. In its narrow sense, an appointment is not a process, but is only an “executive act that the President unequivocally exercises pursuant to his discretion.” In short, the dissent allows an appointment to take effect during the ban, as long as the President signed and transmitted the appointment before the... ban, even if the appointee never received the appointment paper before the ban and accepted the appointment only during the ban. The dissent’s view will lead to glaring absurdities. Allowing the dissent’s proposal that an appointment is complete merely upon the signing of an appointment paper and its transmittal, excluding the appointee’s acceptance from the appointment process, will lead to the absurdity... that, in case of non-acceptance, the position is considered occupied and nobody else may be appointed to it.

Moreover, an incumbent public official, appointed to another public office by the President, will automatically be deemed to occupy the new public office and to have... automatically resigned from his first office upon transmittal of his appointment paper, even if he refuses to accept the new appointment. This will result in chaos in public service

Even worse, a President who is unhappy with an incumbent public official can simply appoint him to another public office, effectively removing him from his first office without due process. The mere transmittal of his appointment paper will remove the public official from office... without due process and even without cause, in violation of the Constitution.

assumption of his new position; or where the President can simply remove an incumbent from his current office by appointing him to another one. I stress that acceptance through oath or any positive... act is still indispensable before any assumption of office may occur.[46] Appointing Authority Appointment involves an exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamental component... of the appointing power.

The dissent’s assertion that appointment should be viewed in its narrow sense (and is not a process) only during the prohibited period is selective and timebased, and ignores well-settled jurisprudence. For purposes of complying with the time limit imposed... by the appointment ban, the dissent’s position cuts short the appointment process to the signing of the appointment paper and its transmittal, excluding the receipt of the appointment paper and acceptance of the appointment by the appointee.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choice of the President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carries the... discretion of whom to appoint.

The concurrence of all steps in the appointment process is... admittedly required for appointments outside the appointment ban. There is no justification whatsoever to remove acceptance as a requirement in the appointment process for appointments just before the start of the appointment ban, or during the appointment ban in appointments... falling within the exception. The existence of the appointment ban makes no difference in the power of the President to appoint; it is still the same power to appoint. In fact, considering the purpose of the appointment ban, the concurrence of all steps in the appointment... process must be strictly applied on appointments made just before or during the appointment ban.

It is not enough that the President signs the appointment paper. There should be evidence that the President intended the appointment paper to be issued. It could happen that an appointment paper may be dated and signed by the President months before the appointment ban, but... never left his locked drawer for the entirety of his term. Release of the appointment paper through the MRO is an unequivocal act that signifies the President’s intent of its issuance.

Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge the functions of his new office, and thus make the appointment effective. There can never be an instance where the appointment of an incumbent will... automatically result in his resignation from his present post and his subsequent

MRO - Malacañang Records Office Transmittal

The MRO’s exercise of its mandate does not prohibit the President or the Executive Secretary from giving the appointment paper directly to the appointee. However, a problem may arise if an appointment paper is not coursed through the MRO and the appointment paper is lost or the... appointment is questioned. T The possession of the original appointment paper is not indispensable to authorize an appointee to assume office. If it were indispensable, then a loss of the original appointment paper, which could be brought about by negligence, accident, fraud, fire or theft, corresponds to a... loss of the office.[56] However, in case of loss of the original appointment paper, the appointment must be

evidenced by a certified true copy issued by the proper office, in this case the MRO. Vacant Position An appointment can be made only to a vacant office. An appointment cannot be made to an occupied office. The incumbent must first be legally removed, or his appointment validly terminated, before one could be validly installed to succeed him.[57] EO 2 remained faithful to the intent of Section 15, Article VII of... the 1987 Constitution: the outgoing President is prevented from continuing to rule the country indirectly after the end of his term.

Acceptance by the Qualified Appointee Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to acceptance of the appointment.[60] An oath of office is a qualifying requirement for a public office, a prerequisite to the full investiture of the... office.[61] Excluding the act of acceptance from the appointment process leads us to the very evil which we seek to avoid (i.e., antedating of appointments). Excluding the act of acceptance will only provide more occasions to honor the Constitutional provision in the breach. The inclusion... of acceptance by the appointee as an integral part of the entire appointment process prevents the abuse of the Presidential power to appoint. It is relatively easy to antedate appointment papers and make it appear that they were issued prior to the appointment ban, but it is... more difficult to simulate the entire appointment process up until acceptance by the appointee. Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot prove with certainty that their appointment papers were transmitted before the appointment ban took effect. On the other hand, petitioners admit that they took their oaths of... office during the appointment ban.

Petitioners have failed to raise any valid ground for the Court to declare EO 2, or any part of it, unconstitutional. Consequently, EO 2 remains valid and constitutional. EO 2- PNOY revokes the midnight ban appointments of PGMA WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the petition in G.R. No. 209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL. Principles: The President exercises only one kind of appointing power. There is no need to differentiate the exercise of the President’s appointing power outside, just before, or during the appointment ban. The Constitution allows the President to exercise the power of... appointment during the period not covered by the appointment ban, and disallows (subject to an exception) the President from exercising the power of appointment during the period covered by the appointment ban. The following elements should always concur in the making of a valid (which should be understood as both complete and effective) appointment: (1) authority to appoint and evidence of the exercise of the authority; (2) transmittal of the appointment paper and... evidence of the transmittal; (3) a vacant position at the time of appointment; and (4) receipt of the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and none of the disqualifications. The concurrence of all... these elements should always apply, regardless of when the appointment is made, whether outside, just before, or during the appointment ban.

ANA THERESIA “RISA” HONTIVEROS-BARAQUEL v. TOLL REGULATORY BOARD, GR No. 181293, 2015-02-23 Facts: Toll Regulatory Board (TRB) was created on 31 March 1977 by Presidential Decree No. (P.D.) 1112[1] in order to supervise and regulate, on behalf of the government, the collection of toll fees and the operation of toll facilities by the private... secto .D. 1113[2] was issued granting to the Construction and Development Corporation of the Philippines (now Philippine National Construction Corporation or PNCC) the right, privilege, and authority to construct, operate, and maintain toll... facilities in the North and South Luzon Toll Expressways for a period of 30 years starting 1 May 1977 TRB and PNCC later entered into a Toll Operation Agreement,[3] which prescribed the operating conditions of the right granted to PNCC under P.D. 1113. .D. 1113 was amended by P.D. 1894,[4] which granted PNCC the right, privilege, and authority to construct, maintain, and operate the North Luzon, South Luzon

and Metro Manila Expressways, together with the toll facilities appurtenant thereto. September 1993, PNCC entered into an agreement[5] with PT Citra Lamtoro Gung Persada (CITRA), a limited liability company organized and established under the laws of the Republic of Indonesia, whereby the latter committed to provide PNCC with a... pre-feasibility study on the proposed MME project. In order to accelerate the actual implementation of both the MME and the MMS projects, PNCC and CITRA entered into a second agreement.[7] Through that agreement,... CITRA committed to finance and undertake the preparation, updating, and revalidation of previous studies on the construction, operation, and maintenance of the projects. As a result of the feasibility and related studies, PNCC and CITRA submitted, through the TRB, a Joint Investment Proposal (JIP) to the Republic of the Philippines.[8] The JIP embodied the implementation schedule for the financing, design and construction... of the MMS in three stages: the South Metro Manila Skyway, the North Metro Manila Skyway, and the Central Metro Manila Skywa August 1995, PNCC and CITRA entered into a Business and Joint Venture Agreement[10] and created the Citra Metro Manila Tollways Corporation (CMMTC).

On 27 November 1995, the Republic of the Philippines through the TRB as Grantor, CMMTC as Investor, and PNCC as Operator executed a Supplemental Toll Operation Agreement (STOA)[11] covering Stage 1, Phases 1 and 2; and Stage 2, Phase 1 of the South Metro Manila Skyway... operation and maintenance of the project roads became the primary and exclusive privilege and responsibility of the PNCC Skyway Corporation (PSC), a wholly owned subsidiary of PNCC, which undertook and performed the latter's obligations under the STOA. 18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC executed the assailed Amendment to the Supplemental Toll Operation Agreement (ASTOA).

ASTOA incorporated the amendments, revisions, and modifications necessary to... cover the design and construction of Stage 2 of the South Metro Manila Skyway. Also under the ASTOA, Skyway O & M Corporation (SOMCO) replaced PSC in performing the operations and maintenance of Stage 1 of the South Metro Manila Skyway. (E.O.) 497 January 2006, Department of Transportation and Communications (DOTC) Secretary Leandro Mendoza approved the ASTOA through the challenged Memorandum dated 20 July 21 December 2007, PNCC, PSC, and CMMTC entered into the assailed Memorandum of Agreement (MOA)[16] providing for the successful and seamless assumption by SOMCO of the operations and maintenance of Stage 1 of the South Metro Manila Skyway. Under the MOA,... PSC received the amount of ?320 million which was used for the settlement of its liabilities arising from the consequent retrenchment or separation of its affected employees. TRB issued the challenged Toll Operation Certificate (TOC)[17] to SOMCO 2007, authorizing the latter to operate and maintain Stage 1 of the South Metro Manila Skyway effective 10:00 p.m. on 31 December 2007.

January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees Union (PSCEU) filed before the Regional Trial Court of Parañaque City, Branch 258 (RTC), a complaint against respondents TRB, PNCC, PSC, CMMTC, and SOMCO. The complaint was for injunction and... prohibition with a prayer for a writ of preliminary injunction and/or a temporary restraining order, and sought to prohibit the implementation of the ASTOA and the MOA, as well as the assumption of the toll operations by SOMCO.[21] Petitioners PSCEU and PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for being contrary to law and for being grossly disadvantageous to the government. Petitioners argue that the franchise for toll operations was exclusively vested by P.D. 1113 in PNCC,... By agreeing to the arrangement whereby SOMCO would replace PSC in the toll operations and... management, PNCC seriously breached

the terms and conditions of its undertaking under the franchise and effectively abdicated its rights and privileges in favor of SOMCO. OMCO was highly irregular and contrary to law, because 1) it did not indicate the conditions that shall be imposed on SOMCO as provided under P.D. 1112;[41] 2) none of the requirements on public bidding, negotiations, or... even publication was complied with before the issuance of the TOC to SOMCO; 3) applying the stricter "grandfather rule," SOMCO does not qualify as a facility operator as defined under R.A. 6957,[42] as amended by R.A. 7718;[43] and 4)... there were no public notices and hearings conducted wherein all legitimate issues and concerns about the transfer of the toll operations would have been properly ventilated. approval by the DOTC Secretary of the ASTOA could not take the place of the presidential approval required under P.D. 1113[44] and P.D. 1894[45] concerning the franchise granted to PNCC. ll respondents counter that petitioners do not have the requisite legal standing to file the petition. All... p... titioners violate the hierarchy of courts... espondents argue that nothing in the ASTOA, the approval thereof by the DOTC Secretary, the MOA, or the TOC was violative of the Constitution.

authority to operate a public utility can be granted by administrative agencies when authorized by law.

transfer or assignment of PNCC's franchise... no valid objection to the approval of the ASTOA by the DOTC Secretary, because he was authorized by the President to do so by virtue of E.O. 497. no merit in the claim that the TOC granted to SOMCO was highly irregular and contrary to law. First, the TOC clearly states that the toll operation and maintenance by SOMCO shall be regulated by the Republic of the Philippines in accordance with P.D. 1112, the STOA, the toll operations and maintenance rules and regulations, and lawful orders, instructions, and conditions that may be imposed from time to time.[64] Second, there is no need to comply with the public bidding and negotiation... requirements, because the South Metro Manila Skyway is an ongoing project, not a new one.[65] Furthermore, the STOA, which was the basis for the ASTOA, was concluded way before the effectivity of R.A. 9184[66] in 2003. [67] SOMCO is a Filipino corporation with substantial 72% Filipino ownership.[68] Fourth, the law requires prior notice and hearing only in an administrative body's exercise of quasi-judicial functions.[69] In this case, the transfer... of the toll operations and maintenance to SOMCO was a contractual arrangement entered into in accordance with law.[70] Finally, the assumption of the toll operation and maintenance by SOMCO is not disadvantageous to the government. Petitioners belittle the P2.5 million capitalization of SOMCO, considering that PSC's capitalization at the time it was incorporated was merely P500,000.

P.D. 1112, the TRB is empowered to grant authority and enter into contracts for the construction, operation, and... maintenance of a toll facility,[57] such as the ASTOA in this case. Also, the ASTOA was an amendment, not to the legislative franchise of PNCC, but to the STOA previously executed between the Republic of the Philippines through the TRB, PNCC, and

ASTOA, PNCC shall get a direct share in the toll revenues without any corollary obligation, unlike the arrangement in the STOA whereby PNCC's 10% share in the toll revenues was intended primarily for the toll operation and maintenance by

CMMTC

PSC.[72]... no reason to fear that the assumption by SOMCO would result in poor delivery of toll services. CITRA and the other shareholders of SOMCO are entities with experience and proven track record in toll operations.[73]

PNCC's franchise was never sold, transferred, or otherwise assigned to SOMCO[59] in the same way that PSC's previous assumption of the operation and maintenance of the South Metro Manila Skyway did not amount to a... sale,

Also, SOMCO hired or absorbed more than 300 PSC employees,[74] who brought with them their work expertise and experience. S Issues:

(e) To grant authority to operate a toll facility and to issue therefore the necessary "Toll Operation Certificate" subject to such conditions as shall be imposed by the Board including inter alia the following: (1)

Substantive:

That the Operator shall desist from collecting toll upon the expiration of the Toll Operation Certificate.

Whether the TRB has the power to grant authority to operate a toll facility;

(2)

Whether the TOC issued to SOMCO was valid;

That the entire facility operated as a toll system including all operation and maintenance equipment directly related thereto shall be turned over to the government immediately upon the expiration of the Toll Operation Certificate.

Whether the approval of the ASTOA by the DOTC Secretary was valid; and Whether the assumption of toll operations by SOMCO is disadvantageous to the governmenT Ruling: III TRB has the power to grant... authority to operate a toll facility. clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D. 1894 have invested the TRB with sufficient power to grant a qualified person or entity with authority to construct, maintain, and operate a toll facility and to issue the... corresponding toll operating permit or TOC. Section 3. Powers and Duties of the Board. The Board shall have in addition to its general powers of administration the following powers and duties:

(a) Subject to the approval of the President of the Philippines, to enter into contracts in behalf of the Republic of the Philippines with persons, natural or juridical, for the construction, operation and maintenance of toll facilities such as but not limited to national... highways, roads, bridges, and public thoroughfares. Said contract shall be open to citizens of the Philippines and/or to corporations or associations qualified under the Constitution and authorized by law to engage in toll operations;... x x x x

(3) That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign the rights or privileges acquired under the Toll Operation Certificate to any person, firm, company, corporation or other commercial or legal entity, nor merge with any... other company or corporation organized for the same purpose, without the prior approval of the President of the Philippines. In the event of any valid transfer of the Toll Operation Certificate, the Transferee shall be subject to all the conditions, terms, restrictions and... limitations of this Decree as fully and completely and to the same extent as if the Toll Operation Certificate has been granted to the same person, firm, company, corporation or other commercial or legal entity. (4) That in time of war, rebellion, public peril, emergency, calamity, disaster or disturbance of peace and order, the President of the Philippines may cause the total or partial closing of the toll facility or order to take over thereof by the Government... without prejudice to the payment of just compensation. (5)

That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds shall be issued by any government agency or government-owned or controlled corporation on any financing program of the toll operator in connection with his undertaking under the Toll Operation Certificate. (6) The Toll Operation Certificate may be amended, modified or revoked whenever the public interest so requires. (a) The Board shall promulgate rules and regulations governing the procedures for the grant of Toll Certificates. The rights and privileges of a grantee under a Toll Operation Certificate shall be defined by the Board. (b) To issue rules and regulations to carry out the purposes of this Decree. SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision over the GRANTEE with respect to the Expressways, the toll facilities necessarily appurtenant thereto and, subject to the provisions of Section 8 and 9 hereof, the toll that the GRANTEE will charge... the users thereof. nothing in P.D. 1113 or P.D. 1894 that states that... the franchise granted to PNCC is to the exclusion of all others. if we were to go by the theory of petitioners, it is only the operation and maintenance of the toll facilities that is vested with PNCC. This interpretation is contrary to the wording of P.D. 1113 and P.D. 1894 granting PNCC the right, privilege and authority to... construct, operate and maintain the North Luzon, South Luzon and Metro Manila Expressways and their toll facilities.

operation and maintenance of the project roads were the primary and exclusive privilege and responsibility of PNCC through PSC... under the STOA. On the other

hand, the design and construction of the project roads were the primary and exclusive privilege and responsibility of CMMTC. However, with the execution of the ASTOA, the parties agreed that SOMCO shall replace PSC in undertaking the operations and... maintenance of the project roads. Thus, the "exclusivity clause" was a matter of agreement between the parties, which amended it in a later contract; it was not a matter provided under the law. TRB is also empowered to modify, amend, and impose additional conditions on the franchise of PNCC in an appropriate contract, particularly when public interest calls... for it. SECTION 3. This franchise is granted subject to such conditions as may be imposed by the [Toll Regulatory] Board in an appropriate contract to be executed for this purpose, and with the understanding and upon the condition that it shall be subject to amendment,... alteration or repeal when public interest so requires. xxx SECTION 6. This franchise is granted subject to such conditions, consistent with the provisions of this Decree, as may be imposed by the Toll Regulatory Board in the Toll Operation Agreement and such other modifications or amendments that may be made thereto, and with the... understanding and upon the condition that it shall be subject to amendment or alteration when public interest so dictates. STOA, which further modified the franchise. PNCC cannot be said to have breached its franchise when it transferred the... toll operations to SOMCO. PNCC remained the franchise holder for the construction, operation, and maintenance of the project roads; it only opted to partner with investors in the exercise of its franchise leading to the organization of companies such as PSC and SOMCO. considering that PNCC was granted the right, privilege, and authority to construct, operate, and maintain the North Luzon, South Luzon, and Metro Manila Expressways and their toll facilities, we have not heard petitioners decrying the "breach" by PNCC of its franchise... when it agreed to make CMMTC responsible for the design and construction of the project roads under the STOA. he TOC issued to SOMCO was not irregular.

The TOC issued to SOMCO was not irregular. TOC, as a grant of authority from the government, is subject to the latter's control insofar as the grant affects or concerns the public. authorization is issued upon the clear understanding that the operation and maintenance of Stage 1 of the South Metro Manila Skyway as a toll facility and the collection of toll fees shall be closely supervised and regulated by the Grantor, by and through the Board of Directors, in accordance with the terms and conditions set forth in the STOA, as amended, the rules and regulations duly promulgated by the Grantor for toll road operations and maintenance, as well as the lawful orders, instructions and conditions which the Grantor, through the TRB, may impose from time to time in view of the public nature of the facility. allegation that none of the requirements for public bidding was observed before the TOC was issued to SOMCO, this matter was also squarely answered by the Court in Francisco, Jr. v. TRB,[106] to wit: Where, in the instant case, a franchisee undertakes the tollway projects of construction, rehabilitation and expansion of the tollways under its franchise, there is no need for a public bidding. In pursuing the projects with the vast resource requirements, the... franchisee can partner with other investors, which it may choose in the exercise of its management prerogatives. Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the South Metro Manila Skyway. The STOA gave birth to PSC, which was put in charge of the operation and maintenance of the project roads. The ASTOA had to be executed for Stage 2 to accommodate changes... and modifications in the original design. The ASTOA then brought forth the incorporation of SOMCO to replace PSC in the operations and maintenance of Stage 1 of the South Metro Manila Skyway. Clearly, no public bidding was necessary because PNCC, the franchisee, merely exercised... its management prerogative when it decided to undertake the construction, operation, and maintenance of the project roads through companies which are products of joint ventures with chosen partners.

petitioners have not shown how SOMCO... fails to meet the nationality requirement for a public utility operator. Petitioners only aver in their petition that 40% of SOMCO is owned by CMMTC, a foreign company, while the rest is owned by the following: a) Toll Road Operation and Maintenance Venture Corporation (TROMVC),... almost 40% of which is owned by a Singaporean company; b) Assetvalues Holding Company, Inc. (AHCI), of which almost 40% is Dutch-owned; and c) Metro Strategic Infrastructure Holdings, Inc. (MSIHI), 40% of which is owned by Metro Pacific Corporation, whose ownership or... nationality was not specified.[108]... rebut petitioners' allegations, respondents readily present matrices showing the itemization of percentage ownerships of the subscribed capital stock of SOMCO, as well as that of TROMVC, AHCI, and MSIHI. Respondents attempt to show that all these corporations are of Philippine nationality, with 60% of their capital stock owned by Filipino citizens. no public notices and hearings were necessary prior to the issuance of the TOC to SOMCO. For the same reason that a public bidding is not necessary, PNCC cannot be required to call for public hearings concerning matters within its prerogative. Approval of the ASTOA by the DOTC Secretary was approval by... the President. The doctrine of qualified political agency declares that, save in matters on which the Constitution or the circumstances require the President to act personally, executive and administrative functions are exercised through executive departments headed by cabinet secretaries,... whose acts are presumptively the acts of the President unless disapproved by the latter... ower to grant franchises or issue authorizations for the operation of a public utility is not exclusively exercised by Congress. Second, except where the situation falls within that special class that demands the exclusive and personal exercise by the President of constitutionally vested power,[117] the President acts through alter egos whose acts are as if the Chief Executive's own. Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by PNCC or its merger with another company ever took place... creation of the TRB and the grant of franchise to PNCC were made in the light of the recognition on the part of the government that the private sector had to be involved as an

alternative source of financing for the pursuance of national infrastructure projects. As the... franchise holder for the construction, maintenance and operation of infrastructure toll facilities, PNCC was equipped with the right and privilege, but not necessarily the means, to undertake the project. This is where joint ventures with private investors become... necessary. In joint ventures with investor companies, PNCC contributes the franchise it possesses, while the partner contributes the financing both necessary for the construction, maintenance, and operation of the toll facilities. PNCC did not thereby lease, transfer, grant the usufruct... of, sell, or assign its franchise or other rights or privileges. This remains true even though the partnership acquires a distinct and separate personality from that of the joint venturers or leads to the formation of a new company that is the product of such joint venture, such... as PSC and SOMCO in this case. Petitioners have not shown that the... transfer of toll operations to SOMCO was... grossly disadvantageous to the government. Gross" means glaring, reprehensible, culpable, flagrant, and shocking.[120] It requires that the mere... allegation shows that the disadvantage on the part of the government is unmistakable, obvious, and certain. llegations of petitioners are nothing more than speculations, apprehensions, and supposition... ns. The aim in the establishment of toll facilities is to draw from private resources the financing of government infrastructure projects. Naturally, these private investors would want to receive reasonable return on their investments. Thus, the collection of toll fees for the use... of public improvements has been authorized, subject to supervision and regulation by the national government

As regards the P320... million settlement given to PSC, the amount was to be used principally for the payment of its liabilities of PSC arising... from the retrenchment of its employees. We note that under the MOA, the residual assets of PSC shall still be offered for sale to CMMTC, subject to valuation.[122] Thus, it would be inaccurate to say that PSC would receive only P320 million for the entire... arrangement.

understandable that SOMCO does not yet have a proven track record in toll operations, considering that it was only the ASTOA and the MOA that gave birth to it

2. Whether or not President Arroyo invalidly exercised emergency powers when she called out the AFP and the PNP to prevent and suppress all incidents of lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City Ampatuan vs Puno Case Digest

3. Whether or not the President had factual bases for her actions

Calling Out Power, Emergency Powers, Local Autonomy Facts: On 24 November 2009, the day after the Maguindanao Massacre, then Pres. Arroyo issued Proclamation 1946, placing “the Provinces of Maguindanao and Sultan Kudarat and the City of Cotabato under a state of emergency.” She directed the AFP and the PNP “to undertake such measures as may be allowed by the Constitution and by law to prevent and suppress all incidents of lawless violence” in the named places. Three days later, she also issued AO 273 “transferring” supervision of the ARMM from the Office of the President to the DILG. She subsequently issued AO 273-A, which amended the former AO (the term “transfer” used in AO 273 was amended to “delegate”, referring to the supervision of the ARMM by the DILG). Claiming that the President’s issuances encroached on the ARMM’s autonomy, petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie SahaliGenerale, all ARMM officials, filed this petition for prohibition under Rule 65. They alleged that the President’s proclamation and orders encroached on the ARMM’s autonomy as these issuances empowered the DILG Secretary to take over ARMM’s operations and to seize the regional government’s powers. They also claimed that the President had no factual basis for declaring a state of emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, where no critical violent incidents occurred and that the deployment of troops and the taking over of the ARMM constitutes an invalid exercise of the President’s emergency powers. Petitioners asked that Proclamation 1946 as well as AOs 273 and 273-A be declared unconstitutional. Issues: 1. Whether Proclamation 1946 and AOs 273 and 273-A violate the principle of local autonomy under the Constitution and The Expanded ARMM Act

Held: 1. The principle of local autonomy was not violated. DILG Secretary did not take over control of the powers of the ARMM. After law enforcement agents took the respondent Governor of ARMM into custody for alleged complicity in the Maguindanao Massacre, the ARMM Vice‐Governor, petitioner Adiong, assumed the vacated post on 10 Dec. 2009 pursuant to the rule on succession found in Sec. 12 Art.VII of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the ARMM Regional Assembly, petitioner Sahali‐Generale, Acting ARMM ViceGovernor. The DILG Secretary therefore did not take over the administration or the operations of the ARMM. 2. The deployment is not by itself an exercise of emergency powers as understood under Section 23 (2), Article VI of the Constitution, which provides: SECTION 23. x x x (2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof. The President did not proclaim a national emergency, only a state of emergency in the three places mentioned. And she did not act pursuant to any law enacted by Congress that authorized her to exercise extraordinary powers. The calling out of the armed forces to prevent or suppress lawless violence in such places is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same. 3. The President’s call on the armed forces to prevent or suppress lawless violence springs from the power vested in her under Section 18, Article VII of the Constitution, which provides:

Section 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. x x x

alleged that, since not all areas under the ARMM were placed under a state of emergency, it follows that the takeover of the entire ARMM by the DILG Secretary had no basis too.

While it is true that the Court may inquire into the factual bases for the President’s exercise of the above power, it would generally defer to her judgment on the matter. As the Court acknowledged in Integrated Bar of the Philippines v. Hon. Zamora, it is clearly to the President that the Constitution entrusts the determination of the need for calling out the armed forces to prevent and suppress lawless violence. Unless it is shown that such determination was attended by grave abuse of discretion, the Court will accord respect to the President’s judgment. Thus, the Court said:

The imminence of violence and anarchy at the time the President issued Proclamation 1946 was too grave to ignore and she had to act to prevent further bloodshed and hostilities in the places mentioned. Progress reports also indicated that there was movement in these places of both high-powered firearms and armed men sympathetic to the two clans. Thus, to pacify the people’s fears and stabilize the situation, the President had to take preventive action. She called out the armed forces to control the proliferation of loose firearms and dismantle the armed groups that continuously threatened the peace and security in the affected places.

If the petitioner fails, by way of proof, to support the assertion that the President acted without factual basis, then this Court cannot undertake an independent investigation beyond the pleadings. The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidence upon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof. On the other hand, the President, as Commander-in-Chief has a vast intelligence network to gather information, some of which may be classified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may be imperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. Indeed, the decision to call out the military to prevent or suppress lawless violence must be done swiftly and decisively if it were to have any effect at all. x x x. Here, petitioners failed to show that the declaration of a state of emergency in the Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the President’s exercise of the “calling out” power had no factual basis. They simply

Since petitioners are not able to demonstrate that the proclamation of state of emergency in the subject places and the calling out of the armed forces to prevent or suppress lawless violence there have clearly no factual bases, the Court must respect the President’s actions. (Ampatuan vs Puno, G.R. No. 190259, June 7, 2011)

Did the issuance of PP 1963, lifting martial law and restoring the [privilege of the] writ in Maguindanao, render the issues moot and academic? III. THE RULING [The Court DISMISSED the consolidated petitions on the ground that they have become MOOT and ACADEMIC.] YES, the issuance of PP 1963, lifting martial law and restoring the [privilege of the] writ in Maguindanao, rendered the issues moot and academic

Philip Sigfrid Fortun v. Gloria Macapagal-Arroyo, et al., G.R. No. 190293, March 20, 2012 (and other consolidated cases)

Prudence and respect for the co-equal departments of the government dictate that the Court should be cautious in entertaining actions that assail the constitutionality of the acts of the Executive or the Legislative department. The issue of constitutionality, said the Court in Biraogo v. Philippine Truth Commission of 2010, must be the very issue of the case, that the resolution of such issue is unavoidable.

DECISION (En Banc)

The issue of the constitutionality of Proclamation 1959 is not unavoidable for two reasons:

ABAD, J.:

One. President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus before the joint houses of Congress could fulfill their automatic duty to review and validate or invalidate the same. xxx.

I.

THE FACTS

On November 23, 2009, heavily armed men believed led by the ruling Ampatuan family of Maguindanao gunned down and buried under shoveled dirt 57 innocent civilians. In response to this carnage, President Arroyo issued on November 24, 2009 PP 1946 declaring a state of emergency in Maguindanao, Sultan Kudarat, and Cotabato City. On December 4, 2009, President Arroyo issued PP 1959 declaring martial law and suspending the privilege of the writ of habeas corpus in Maguindanao except for identified areas of the Moro Islamic Liberation Front. On December 6, 2009, President Arroyo submitted her report to Congress. On December 9, 2009, Congress convened in joint session to review the validity of the President’s action. But two days later, or on December 12, 2009, before Congress could act, the President issued PP 1963, lifting martial law and restoring the privilege of the writ of habeas corpus. II.

THE ISSUES

xxx

xxx

xxx

[U]nder the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the situation on the ground, a power that the President does not have. Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the Supreme Court step in as its final rampart. The

constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court. xxx

xxx

xxx

Here, President Arroyo withdrew Proclamation 1959 before the joint houses of Congress, which had in fact convened, could act on the same. Consequently, the petitions in these cases have become moot and the Court has nothing to review. The lifting of martial law and restoration of the privilege of the writ of habeas corpus in Maguindanao was a supervening event that obliterated any justiciable controversy. Two. Since President Arroyo withdrew her proclamation of martial law and suspension of the privilege of the writ of habeas corpus in just eight days, they have not been meaningfully implemented. The military did not take over the operation and control of local government units in Maguindanao. The President did not issue any law or decree affecting Maguindanao that should ordinarily be enacted by Congress. No indiscriminate mass arrest had been reported. Those who were arrested during the period were either released or promptly charged in court. Indeed, no petition for habeas corpus had been filed with the Court respecting arrests made in those eight days. The point is that the President intended by her action to address an uprising in a relatively small and sparsely populated province. In her judgment, the rebellion was localized and swiftly disintegrated in the face of a determined and amply armed government presence. xxx

xxx

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xxx. In a real sense, the proclamation and the suspension never took off. The Congress itself adjourned without touching the matter, it having become moot and academic.

On May 23, 2017, as the President stated in his Report, the Maute terrorist group took over a hospital in Marawi City; established several checkpoints within the city; burned down certain government and private facilities and inflicted casualties on the part of Government forces; and started flying the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby indicating a removal of allegiance from the Philippine Government and their capability to deprive the duly constituted authorities – the President, foremost – of their powers and prerogatives. The Report also highlighted the strategic location of Marawi City; the role it plays in Mindanao, and the Philippines as a whole; and the possible tragic repercussions once it falls under the control of the lawless groups. After the submission of the Report and the briefings, the Senate declared that it found “no compelling reason to revoke Proclamation 216. The Lagman Group, the Cullamat Group and the Mohamad Group petitioned the Supreme Court, questioning the factual basis of President Duterte’s Proclamation of martial law. EDCEL LAGMAN, ET AL VS. SALVADOR MEDIALDEA, ET AL

ISSUES:

(The Declaration of Martial Law and the Suspension of the Privilege of the Writ of Habeas Corpus in the whole of Mindanao)

[1] W/N the petitions are the “appropriate proceeding” covered by paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode of review required by the Court;

FACTS: Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued Proclamation No. 216 declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao. In accordance with Section 18, Article VII of the Constitution, the President, on May 25, 2017, submitted to Congress a written Report on the factual basis of Proclamation No. 216. The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence which only escalated and worsened with the passing of time.

[2] A. Is the President required to be factually correct or only not arbitrary in his appreciation of facts? B. Is the President required to obtain the favorable recommendation thereon bf the Secretary of National Defense? C. Is the President is required to take into account only the situation at the time of the proclamation, even if subsequent events prove the situation to have not been accurately reported? [3] Is the power of this Court to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus is independent of the actual actions that have been taken by Congress jointly or separately;

[4] W/N there were sufficient factual [basis] for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus; A. What are the parameters for review? B. Who has the burden of proof? C. What is the threshold of evidence?

[5] Whether the exercise of the power of judicial review by this Court involves the calibration of graduated powers granted the President as Commander-in-Chief? [6] W/N Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void: a. with its inclusion of “other rebel groups;” or b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region; [7] W/N the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to Congress are sufficient bases: a. for the existence of actual rebellion; or b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire Mindanao region; [8] W/N terrorism or acts attributable to terrorism are equivalent to actual rebellion and the requirements of public safety sufficient to declare martial law or suspend the privilege of the writ of habeas corpus; and [9] W/N nullifying Proclamation No. 216 of23 May 2017 will: A. have the effect of recalling Proclamation No. 55 s. 2016; or B. also nullify the acts of the President in calling out the armed forces to quell lawless violence in Marawi and other parts of the Mindanao region.

RULING: 1. The Court agrees that the jurisdiction of this Court under the third paragraph of Section 18, Article VII is sui generis. It is a special and specific jurisdiction of the Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII. The phrase “in an appropriate proceeding” appearing on the third paragraph of Section 18, Article VII refers to any action initiated by a citizen for the purpose of

questioning the sufficiency of the factual basis of the exercise of the Chief Executive’s emergency powers, as in these cases. It could be denominated as a complaint, a petition, or a matter to be resolved by the Court. 2. a.) In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into the full complement or totality of the factual basis, and not piecemeal or individually. Neither should the Court expect absolute correctness of the facts stated in the proclamation and in the written Report as the President could not be expected to verify the accuracy and veracity of all facts reported to him due to the urgency of the situation. To require him otherwise would impede the process of his decision-making. b.) The recommendation of the Defense Secretary is not a condition for the declaration of martial law or suspension of the privilege of the writ of habeas corpus. A plain reading of Section 18, Article VII of the Constitution shows that the President’s power to declare martial law is not subject to any condition except for the requirements of actual invasion or rebellion and that public safety requires it. Besides, it would be contrary to common sense if the decision of the President is made dependent on the recommendation of his mere alter ego. Only on the President can exercise of the powers of the Commander-in-Chief. c.) As Commander-in-Chief, the President has the sole discretion to declare martial law and/or to suspend the privilege of the writ of habeas corpus, subject to the revocation of Congress and the review of this Court. Since the exercise of these powers is a judgment call of the President, the determination of this Court as to whether there is sufficient factual basis for the exercise of such, must be based only on facts or information known by or available to the President at the time he made the declaration or suspension which facts or information are found in the proclamation as well as the written Report submitted by him to Congress. These may be based on the situation existing at the time the declaration was made or past events. As to how far the past events should be from the present depends on the President. 3. The power of the Court to review the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus under Section 18, Article VII of the 1987 Constitution is independent of the actions taken by Congress.

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the ground of lack sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension, which revocation shall not be set aside by the President. The power to review by the Court and the power to revoke by Congress are not only totally different but likewise independent from each other although concededly, they have the same trajectory, which is, the nullification of the presidential proclamation.

There is no need for the Court to determine the constitutionality of the implementing and/or operational guidelines, general orders, arrest orders and other orders issued after the proclamation for being irrelevant to its review. Any act committed under the said orders in violation of the Constitution and the laws should be resolved in a separate proceeding. Finally, there is a risk that if the Court wades into these areas, it would be deemed as trespassing into the sphere that is reserved exclusively for Congress in the exercise of its power to revoke.

4. The parameters for determining the sufficiency of factual basis are as follows: l) actual rebellion or invasion; 2) public safety requires it; the first two requirements must concur; and 3) there is probable cause for the President to believe that there is actual rebellion or invasion.

7. There is sufficient factual basis for the declaration of martial law and the suspension of the writ of habeas corpus. By a review of the facts available to him that there was an armed public uprising, the culpable purpose of which was to remove from the allegiance to the Philippine Government a portion of its territory and to deprive the Chief Executive of any of his power and prerogatives, leading the President to believe that there was probable cause that the crime of rebellion was and is being committed and that public safety requires the imposition of martial law and suspension of the privilege of the writ of habeas corpus.

The President needs only to satisfy probable cause as the standard of proof in determining the existence of either invasion or rebellion for purposes of declaring martial law, and that probable cause is the most reasonable, most practical and most expedient standard by which the President can fully ascertain the existence or non-existence of rebellion necessary for a declaration of martial law or suspension of the writ. To require him to satisfy a higher standard of proof would restrict the exercise of his emergency powers. 5. The judicial power to review the sufficiency of factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus does not extend to the calibration of the President’s decision of which among his graduated powers he will avail of in a given situation. To do so would be tantamount to an incursion into the exclusive domain of the Executive and an infringement on the prerogative that solely, at least initially, lies with the President. 6. a.) Inclusion of “other rebel groups ” does not make Proclamation No. 216 vague. The term “other rebel groups” in Proclamation No. 216 is not at all vague when viewed in the context of the words that accompany it. Verily, the text of Proclamation No. 216 refers to “other rebel groups” found in Proclamation No. 55, which it cited by way of reference in its Whereas clauses. b.) Lack of guidelines/operational parameters does not make Proclamation No. 216 vague. Operational guidelines will serve only as mere tools for the implementation of the proclamation.

After all, what the President needs to satisfy is only the standard of probable cause for a valid declaration of martial law and suspension of the privilege of the writ of habeas corpus. 8. Terrorism neither negates nor absorbs rebellion. Rebellion may be subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate crimes. In fact, rebellion is only one of the various means by which terrorism can be committed. Meanwhile, public safety requires the declaration of martial law and the suspension of the privilege of the writ of habeas corpus in the whole of Mindanao. For a declaration of martial law or suspension of the privilege of the writ of habeas corpus to be valid, there must be concurrence of 1.) actual rebellion or invasion and 2.) the public safety requirement. In his report, the President noted that the acts of violence perpetrated by the ASG and the Maute Group were directed not only against government forces or establishment but likewise against civilians and their properties. There were bomb threats, road blockades, burning of schools and churches, hostages and killings of civilians, forced entry of young male Muslims to the group, there were hampering of medical services and delivery of basic services, reinforcement of government troops, among others. These particular scenarios convinced the President that the

atrocities had already escalated to a level that risked public safety and thus impelled him to declare martial law and suspend the privilege of the writ of habeas corpus. 9. a.) The calling out power is in a different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas corpus; nullification of Proclamation No. 216 will not affect Proclamation No. 55. The President may exercise the power to call out the Armed Forces independently of the power to suspend the privilege of the writ of habeas corpus and to declare martial law. Even so, the Court’s review of the President’s declaration of martial law and his calling out the Armed Forces necessarily entails separate proceedings instituted for that particular purpose. b.) Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President done pursuant thereto. Under the operative fact doctrine,” the unconstitutional statute is recognized as an “operative fact” before it is declared unconstitutional. *** Verily, the Court upholds the validity of the declaration of martial law and suspension of the privilege of the writ of habeas corpus in the entire Mindanao region. The Court FINDS sufficient factual bases for the issuance of Proclamation No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED.

Facts: The Sandiganbayan convicted petitioner Salvacion A. Monsanto (then assistant treasurer of Calbayog City) of the crime of estafa through falsification of public documents. She was sentenced to jail and to indemnify the government in the sum of P4,892.50.The SC affirmed the decision. She then filed a motion for reconsideration but while said motion was pending, she was extended by then President Marcos absolute pardon which she accepted (at that time, the rule was that clemency could be given even before conviction). By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be restored to her former post as assistant city treasurer since the same was still vacant. Her letter was referred to the Minister of Finance who ruled that she may be reinstated to her position without the necessity of a new appointment not earlier than the date she was extended the absolute pardon. Petitioner wrote the Ministry stressing that the full pardon bestowed on her has wiped out the crime which implies that her service in the government has never been interrupted and therefore the date of her reinstatement should correspond to the date of her preventive suspension; that she is entitled to backpay for the entire period of her suspension; and that she should not be required to pay the proportionate share of the amount of P4,892.50 The Ministry referred the issue to the Office of the President. Deputy Executive Secretary Factoran denied Monsanto’s request averring that Monsanto must first seek appointment and that the pardon does not reinstate her former position.

Issues: 1. Is Monsanto entitled to backpay? 2. Is a public officer, who has been granted an absolute pardon by the Chief Executive, entitled to reinstatement to her former position without need of a new appointment? 3. May petitioner be exempt from the payment of the civil indemnity imposed upon her by the sentence?

Monsanto vs. Factoran

Held: 1. Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court. While a pardon has generally been regarded as blotting out the existence of guilt so that in the eye of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the commission of the crime and the conviction thereof. It does not wash out the moral stain. It involves forgiveness and not forgetfulness. A pardon looks to the future. It is not retrospective. It makes no amends for the past. It affords no relief for what has been suffered by the offender. It does not impose upon the government any obligation to make reparation for what has been suffered. “Since the offense has been established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” This would explain why petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and benefits. 2. The pardon granted to petitioner has resulted in removing her disqualification from holding public employment but it cannot go beyond that. To regain her former post as assistant city treasurer, she must re-apply and undergo the usual procedure required for a new appointment. 3. Civil liability arising from crime is governed by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability may only be extinguished by the same causes recognized in the Civil Code, namely: payment, loss of the thing due, remission of the debt, merger of the rights of creditor and debtor, compensation and novation. (Monsanto vs. Factoran, G.R. No. 78239, February 9, 1989)

Risos-Vidal vs. Comelec Facts: In September 12, 2007, the Sandiganbayan convicted former President Estrada for the crime of plunder and was sentenced to suffer the penalty of Reclusion Perpetua and the accessory penalties of civil interdiction during the period of sentence and perpetual absolute disqualification. On October 25, 2007, however, former President Gloria Macapagal Arroyo extended executive clemency, by way of pardon, to former President Estrada, explicitly stating that he is restored to his civil and political rights. In 2009, Estrada filed a Certificate of Candidacy for the position of President. None of the disqualification cases against him prospered but he only placed second in the results. In 2012, Estrada once more ventured into the political arena, and filed a Certificate of Candidacy, this time vying for a local elective post, that of the Mayor of the City of Manila. Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the Comelec stating that Estrada is disqualified to run for public office because of his conviction for plunder sentencing him to suffer the penalty of reclusion perpetua with perpetual absolute disqualification. Petitioner relied on Section 40 of the Local Government Code (LGC), in relation to Section 12 of the Omnibus Election Code (OEC). The Comelec dismissed the petition for disqualification holding that President Estrada’s right to seek public office has been effectively restored by the pardon vested upon him by former President Gloria M. Arroyo. Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who garnered the second highest votes, intervened and sought to disqualify Estrada for the same ground as the contention of Risos-Vidal and praying that he be proclaimed as Mayor of Manila. Issue:

May former President Joseph Estrada run for public office despite having been convicted of the crime of plunder which carried an accessory penalty of perpetual disqualification to hold public office?

Held: Yes. Estrada was granted an absolute pardon that fully restored all his civil and political rights, which naturally includes the right to seek public elective office, the focal point of this controversy. The wording of the pardon extended to former President Estrada is complete, unambiguous, and unqualified. It is likewise unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, objective, and constitutional interpretation of the language of the pardon is that the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. It is insisted that, since a textual examination of the pardon given to and accepted by former President Estrada does not actually specify which political right is restored, it could be inferred that former President Arroyo did not deliberately intend to restore former President Estrada’s rights of suffrage and to hold public office, orto otherwise remit the penalty of perpetual absolute disqualification. Even if her intention was the contrary, the same cannot be upheld based on the pardon’s text. The pardoning power of the President cannot be limited by legislative action. The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article IX-C, provides that the President of the Philippines possesses the power to grant pardons, along with other acts of executive clemency, to wit:

Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules, and regulations shall be granted by the President without the favorable recommendation of the Commission. It is apparent from the foregoing constitutional provisions that the only instances in which the President may not extend pardon remain to be in: (1) impeachment cases; (2) cases that have not yet resulted in a final conviction; and (3) cases involving violations of election laws, rules and regulations in which there was no favorable recommendation coming from the COMELEC. Therefore, it can be argued that any act of Congress by way of statute cannot operate to delimit the pardoning power of the President. The proper interpretation of Articles 36 and 41 of the Revised Penal Code. A close scrutiny of the text of the pardon extended to former President Estrada shows that both the principal penalty of reclusion perpetua and its accessory penalties are included in the pardon. The sentence which states that “(h)e is hereby restored to his civil and political rights,” expressly remitted the accessory penalties that attached to the principal penalty of reclusion perpetua. Hence, even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable from the text of the pardon that the accessory penalties of civil interdiction and perpetual absolute disqualification were expressly remitted together with the principal penalty of reclusion perpetua. The disqualification of former President Estrada under Section 40 of the LGC in relation to Section 12 of the OEC was removed by his acceptance of the absolute pardon granted to him

Section 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.

While it may be apparent that the proscription in Section 40(a) of the LGC is worded in absolute terms, Section 12 of the OEC provides a legal escape from the prohibition – a plenary pardon or amnesty. In other words, the latter provision allows any person who has been granted plenary pardon or amnesty after conviction by final judgment of an offense involving moral turpitude, inter alia, to run for and hold any public office, whether local or national position.

He shall also have the power to grant amnesty with the concurrence of a majority of all the Members of the Congress.

The third preambular clause of the pardon did not operate to make the pardon conditional.

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Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek any elective position or office," neither makes the pardon conditional, nor militate against the conclusion that former President Estrada’s rights to suffrage and to seek public elective office have been restored. This is especially true as the pardon itself does not explicitly impose a condition or limitation, considering the unqualified use of the term "civil and political rights"as being restored. Jurisprudence educates that a preamble is not an essential part of an act as it is an introductory or preparatory clause that explains the reasons for the enactment, usually introduced by the word "whereas." Whereas clauses do not form part of a statute because, strictly speaking, they are not part of the operative language of the statute. In this case, the whereas clause at issue is not an integral part of the decree of the pardon, and therefore, does not by itself alone operate to make the pardon conditional or to make its effectivity contingent upon the fulfilment of the aforementioned commitment nor to limit the scope of the pardon. Besides, a preamble is really not an integral part of a law. It is merely an introduction to show its intent or purposes. It cannot be the origin of rights and obligations. Where the meaning of a statute is clear and unambiguous, the preamble can neither expand nor restrict its operation much less prevail over its text. If former President Arroyo intended for the pardon to be conditional on Respondent’s promise never to seek a public office again, the former ought to have explicitly stated the same in the text of the pardon itself. Since former President Arroyo did not make this an integral part of the decree of pardon, the Commission is constrained to rule that the 3rd preambular clause cannot be interpreted as a condition to the pardon extended to former President Estrada. (Risos-Vidal vs. Comelec, G.R. No. 206666, January 21, 2015)

Saguisag v. Exec Secretary Ochoa July 26, 2016 G.R. No. 212426 EDCA, Treaty, Executive Agreement, International Agreement AUGUST 22, 2018 FACTS:This is a Resolution on the Motion for Reconsideration seeking to reverse the Decision of this Court in Saguisag et. al., v. Executive Secretary dated 12 January 2016. Petitioners claim this Court erred when it ruled that the Enhanced Defense Cooperation Agreement (EDCA) between the Philippines and the US was not a treaty. In connection to this, petitioners move that EDCA must be in the form of a treaty in order to comply with the constitutional restriction under Section 25, Article· XVIII of the 1987 Constitution on foreign military bases, troops, and facilities. Additionally, they reiterate their arguments on the issues of telecommunications, taxation, and nuclear weapons. The principal reason for the Motion for Reconsideration is evidently petitioners’ disagreement with the Decision that EDCA implements the VFA and Mutual Defense Treaty (MDT). Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of the VFA and MDT because it provides a wider arrangement than the VFA for military bases, troops, and facilities, and it allows the establishment of U.S. military bases. ISSUE: Whether or not EDCA is a treaty. RULING:

Petitioners detail their objections to EDCA in a similar way to their original petition, claiming that the VFA and MDT did not allow EDCA to contain the following provisions: 1. Agreed Locations 2. Rotational presence of personnel 3. U.S. contractors

International practice has accepted the use of various forms and designations of international agreements, ranging from the traditional notion of a treaty – which connotes a formal, solemn instrument – to engagements concluded in modern, simplified forms that no longer necessitate ratification. An international agreement may take different forms: treaty, act, protocol, agreement, concordat, compromis d’arbitrage, convention, covenant, declaration, exchange of notes, statute, pact, charter, agreed minute, memorandum of agreement, modus vivendi, or some other form.

4. Activities of U.S. contractors

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of these provisions. The very nature of EDCA, its provisions and subject matter, indubitably categorize it as an executive agreement – a class of agreement that is not covered by the Article XVIII Section 25 restriction – in painstaking detail. To partially quote the Decision: Executive agreements may dispense with the requirement of Senate concurrence because of the legal mandate with which they are concluded. As culled from the deliberations of the Constitutional Commission, past Supreme Court Decisions, and works of noted scholars, executive agreements merely involve arrangements on the implementation of existing policies, rules, laws, or agreements. They are concluded (1) to adjust the details of a treaty; (2) pursuant to or upon confirmation by an act of the Legislature; or (3) in the exercise of the President’s independent powers under the Constitution. The raison d’etre of executive agreements hinges on prior constitutional or legislative authorizations. The special nature of an executive agreement is not just a domestic variation in international agreements.

Consequently, under international law, the distinction between a treaty and an international agreement or even an executive agreement is irrelevant for purposes of determining international rights and obligations. However, this principle does not mean that the domestic law distinguishing treaties, international agreements, and executive agreements is relegated to a mere variation in form, or that the constitutional requirement of Senate concurrence is demoted to an optional constitutional directive. There remain two very important features that distinguish treaties from executive agreements and translate them into terms of art in the domestic setting. First, executive agreements must remain traceable to an express or implied authorization under the Constitution, statutes, or treaties. The absence of these precedents puts the validity and effectivity of executive agreements under serious question for the main function of the Executive is to enforce the Constitution and the laws enacted by the Legislature, not to defeat or interfere in the performance of these rules. In turn, executive agreements cannot create new international obligations that are not expressly allowed or reasonably implied in the law they purport to implement. Second, treaties are, by their very nature, considered superior to executive agreements. Treaties are products of the acts of the Executive and the Senate unlike executive agreements, which are solely executive actions. Because of legislative participation through the Senate, a treaty is regarded as being on the same level as a statute. If there is an irreconcilable conflict, a later law or treaty takes precedence over one that is prior. An executive agreement is treated differently. Executive agreements that are inconsistent with either a law or a

treaty are considered ineffective. Both types of international agreement are nevertheless subject to the supremacy of the Constitution. Subsequently, the Decision goes to great lengths to illustrate the source of EDCA’s validity, in that as an executive agreement it fell within the parameters of the VFA and MDT, and seamlessly merged with the whole web of Philippine law. We need not restate the arguments here. It suffices to state that this Court remains unconvinced that EDCA deserves treaty status under the law. We find no reason for EDCA to be declared unconstitutional. It fully conforms to the Philippines’ legal regime through the MDT and VFA. It also fully conforms to the government’s continued policy to enhance our military capability in the face of various military and humanitarian issues that may arise.

Bayan v. Zamora, G.R. No. 138570, October 10, 2000 BUENA, J.: I.

THE FACTS

The Republic of the Philippines and the United States of America entered into an agreement called the Visiting Forces Agreement (VFA). The agreement was treated as a treaty by the Philippine government and was ratified by thenPresident Joseph Estrada with the concurrence of 2/3 of the total membership of the Philippine Senate. The VFA defines the treatment of U.S. troops and personnel visiting the Philippines. It provides for the guidelines to govern such visits, and further defines the rights of the U.S. and the Philippine governments in the matter of criminal jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987 Constitution, which provides that “foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate . . . and recognized as a treaty by the other contracting State.” II.

THE ISSUE

Was the VFA unconstitutional?

III.

THE RULING

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[The Court DISMISSED the consolidated petitions, held that the petitioners did not commit grave abuse of discretion, and sustained the constitutionality of the VFA.] NO, the VFA is not unconstitutional. Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by congress, ratified by a majority of the votes cast by the people in a national referendum; and (c) recognized as a treaty by the other contracting state.

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The records reveal that the United States Government, through Ambassador Thomas C. Hubbard, has stated that the United States government has fully committed to living up to the terms of the VFA. For as long as the United States of America accepts or acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty, there is indeed marked compliance with the mandate of the Constitution.

There is no dispute as to the presence of the first two requisites in the case of the VFA. The concurrence handed by the Senate through Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in [in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national referendum being unnecessary since Congress has not required it.

MARIA CAROLINA P. ARAULLO v. BENIGNO SIMEON C. AQUINO III, GR No. 209287, 2014-07-01

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Issues:

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This Court is of the firm view that the phrase “recognized as a treaty” means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty.

Facts:

Ruling: Principles: by allowing to the heads of offices some power to transfer funds within their respective offices, the Constitution itself ensures the fiscal autonomy of their offices, and at the same time maintains the separation of powers among the three main branches of the Government. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices... allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire... fabric of our constitutional system is based.

In the funding of current activities, projects, and programs, the general rule should still be that the budgetary amount contained in the appropriations bill is the extent Congress will determine as sufficient for the budgetary allocation for the proponent agency. The only exception is found in Section 25 (5), Article VI of the Constitution, by which the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions are authorized to... transfer appropriations to augment any item in the GAA for their respective offices from the savings in other items of their respective appropriations. Section 25(5), supra, not being a self-executing provision of the Constitution, must have an implementing law for it to be operative. In ascertaining the meaning of savings, certain principles should be borne in mind. The first principle is that Congress wields the power of the purse. Congress decides how the budget will be spent; what PAPs to fund; and the amounts of money to be spent for each PAP. The... second principle is that the Executive, as the department of the Government tasked to enforce the laws, is expected to faithfully execute the GAA and to spend the budget in accordance with the provisions of the GAA.[149] The Executive is expected to... faithfully implement the PAPs for which Congress allocated funds, and to limit the expenditures within the allocations, unless exigencies result to deficiencies for which augmentation is authorized, subject to the conditions provided by law. The third principle is that in... making the President's power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. In so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the Executive. But Congress does not... thereby allow the Executive to override its authority over the purse as to let the Executive exceed its delegated authority. And the fourth principle is that savings should be actual. "Actual" denotes something that is real or substantial, or something that exists... presently in fact, as opposed to something that is merely theoretical, possible, potential or hypothetical. he power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need... for such funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress' power of the purse. The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In

short, it nullifies the void law or... executive act but sustains its effects. It provides an exception to the general rule that a void or unconstitutional law produces no effect. But its use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an... unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play. It applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that... will permit its application. To be clear, the doctrine of operative fact extends to a void or unconstitutional executive act. The term executive act is broad enough to include any and all acts of the Executive, including those that are quasi-legislative and quasi-judicial in nature. Contrarily, the term 'executive act' is broad enough to encompass decisions of administrative bodies and agencies under the executive department which are subsequently revoked by the agency in question or nullified by the Court.

Neri vs. Senate Committee on Accountability of Public Officers G.R. No. 180643, March 25, 2008 (Topic: Executive Privilege – Constitutional Law 1) Facts: Petitioner Romulo Neri, then Director General of the National Economic and Development Authority (NEDA), was invited by the respondent Senate Committees to attend their joint investigation on the alleged anomalies in the National Broadband Network (NBN) Project. This project was contracted by the Philippine Government with the Chinese firm Zhong Xing Telecommunications Equipment (ZTE), which involved the amount of US$329,481,290. When he testified before the Senate Committees, he disclosed that then Commission on Elections Chairman Benjamin Abalos, brokering for ZTE, offered him P200 million in exchange for his approval of the NBN Project. He further narrated that he informed President Gloria Macapagal-Arroyo about the bribery attempt and that

she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, petitioner refused to answer, invoking “executive privilege.” In particular, he refused to answer the questions on 1.) whether or not the President followed up the NBN Project, 2.) whether or not she directed him to prioritize it, and 3.) whether or not she directed him to approve it. Later on, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and testify on 20 November 2007. However, Executive Secretary Eduardo Ermita sent a letter dated 15 November to the Committees requesting them to dispense with Neri’s testimony on the ground of executive privilege. Ermita invoked the privilege on the ground that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China,” and given the confidential nature in which these information were conveyed to the President, Neri “cannot provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.” Thus, on 20 November, Neri did not appear before the respondent Committees. On 22 November, respondents issued a Show Cause Letter to Neri requiring him to show cause why he should not be cited for contempt for his failure to attend the scheduled hearing on 20 November. On 29 November, Neri replied to the Show Cause Letter and explained that he did not intend to snub the Senate hearing, and requested that if there be new matters that were not yet taken up during his first appearance, he be informed in advance so he can prepare himself. He added that his non-appearance was upon the order of the President, and that his conversation with her dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the Philippines. Respondents found the explanation unsatisfactory, and later on issued an Order citing Neri in contempt and consequently ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until he appears and gives his testimony. Neri filed the petition asking the Court to nullify both the Show Cause Letter and the Contempt Order for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction, and stressed that his refusal to answer the three questions was anchored on a valid claim to executive privilege in accordance with the ruling in the landmark case of Senate vs. Ermita (G.R. No.

169777, 20 April 2006). For its part, the Senate Committees argued that they did not exceed their authority in issuing the assailed orders because there is no valid justification for Neri’s claim to executive privilege. In addition, they claimed that the refusal of petitioner to answer the three questions violates the people’s right to public information, and that the executive is using the concept of executive privilege as a means to conceal the criminal act of bribery in the highest levels of government. Issue: Whether or not the three questions that petitioner Neri refused to answer were covered by executive privilege, making the arrest order issued by the respondent Senate Committees void. Discussion: Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the three elements needed to be complied with in order for the claim to executive privilege to be valid. These are: 1.) the protected communication must relate to a quintessential and non-delegable presidential power; 2.) it must be authored, solicited, and received by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President; and, 3.) it may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence,” and by the unavailability of the information elsewhere by an appropriate investigating authority. In the present case, Executive Secretary Ermita claimed executive privilege on the argument that the communications elicited by the three questions “fall under conversation and correspondence between the President and public officials” necessary in “her executive and policy decision-making process,” and that “the information sought to be disclosed might impair our diplomatic as well as economic relations with the People’s Republic of China.” It is clear then that the basis of the claim is a matter related to the quintessential and non-delegable presidential power of diplomacy or foreign relations. As to the second element, the communications were received by a close advisor of the President. Under the “operational proximity” test, petitioner Neri can be considered a close advisor, being a member of the President’s Cabinet.

And as to the third element, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. Presidential communications are presumptive privilege and that the presumption can be overcome only by mere showing of public need by the branch seeking access to such conversations. In the present case, respondent Committees failed to show a compelling or critical need for the answers to the three questions in the enactment of any law under Sec. 21, Art. VI. Instead, the questions veer more towards the exercise of the legislative oversight function under Sec. 22, Art. VI. As ruled in Senate vs. Ermita, “the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation.” Neri’s refusal to answer based on the claim of executive privilege does not violate the people’s right to information on matters of public concern simply because Sec. 7, Art. III of the Constitution itself provides that this right is “subject to such limitations as may be provided by law.” Held: The divided Supreme Court (voting 9-6) was convinced that the three questions are covered by presidential communications privilege, and that this privilege has been validly claimed by the executive department, enough to shield petitioner Neri from any arrest order the Senate may issue against him for not answering such questions.

The petition was granted. The subject Order dated January 30, 2008, citing petitioner in contempt of the Senate Committee and directing his arrest and detention was nullified.