PJuly 4, 2017 from the allegiance to said Government or its laws, the territory of the Republic of the Philippines

es or any part thereof,

of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature, wholly or
partially, of any of their powers or prerogatives';
G.R. No. 231658

WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was the series of violent acts committed by
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY C. ALEJANO, EMMANUEL A. the Maute terrorist group such as the attack on the military outpost in Butig, Lanao del Sur in February 2016, killing
BILLONES, AND TEDDY BRAWNER BAGUILAT, JR., Petitioners and wounding several soldiers, and the mass jailbreak in Marawi City in August 2016, freeing their arrested comrades
vs. and other detainees;
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN N. LORENZANA, SECRETARY OF
THE DEPARTMENT OF NATIONAL DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO
ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR, WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi City, Lanao del
Respondents Sur, 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 openly attempting to remove from the allegiance to the Philippine Government this
x-----------------------x part of Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and
to maintain public order and safety in Mindanao, constituting the crime of rebellion; and

G.R. No. 231771

WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terror, and
cause death and damage to property not only in Lanao del Sur but also in other parts of Mindanao.
EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO, CARL
ANTHONY D. OLALO, ROY JIM BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY, AMARYLLIS H.
ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO, GABRIELA WOMEN'S PARTY NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic of the Philippines, by virtue of the
REPRESENTATIVE i\RLENED.BROSAS,KABATAAN PARTY-LIST REPRESENTATIVE SARAH JANE I. ELAGO, powers vested in me by the Constitution and by law, do hereby proclaim as follows:
MAE PANER, GABRIELA KRISTA DALENA, ANNA ISABELLE ESTEIN, MARK VINCENT D. LIM, VENCER MARI
CRISOSTOMO, JOVITA MONTES, Petitioners,
vs. SECTION 1. There is hereby declared a state of martial law in the Mindanao group of islands for a period not
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR MEDIALDEA, DEFENSE exceeding sixty days, effective as of the date hereof.
SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEF OF STAFF LT. GENERAL
EDUARDO ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD DELA ROSA, Respondents
SECTION 2. The privilege of the writ of habeas corpus shall likewise be suspended in the aforesaid area for the
duration of the state of martial law.
x-----------------------x

DONE in the Russian Federation, this 23rd day of May in the year of our Lord, Two Thousand and Seventeen.
G.R. No. 231774

Within the timeline set by Section 18, Article VII of the Constitution, the President submitted to Congress on May 25,
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, NORAISAH S. SANI, ZAHRIA P. MUTI- 2017, a written Report on the factual basis of Proclamation No. 216.
MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF NATIONAL DEFENSE (DND) The Report pointed out that for decades, Mindanao has been plagued with rebellion and lawless violence which only
SECRETARY DELFIN N. LORENZANA, DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG) escalated and worsened with the passing of time.
SECRETARY (OFFICER-INCHARGE) CATALINO S. CUY, ARMED FORCES OF THE PHILIPPINES (AFP) CHEF
OF STAFF GEN. EDUARDO M. AÑO, PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL
RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., Respondents. Mindanao has been the hotbed of violent extremism and a brewing rebellion for decades. In more recent years, we
have witnessed the perpetration of numerous acts of violence challenging the authority of the duly constituted
authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano carnage, and the bombings in
DECISION Cotabato, Sultan Kudarat, Sulu, and Basilan, among others. Two armed groups have figured prominently in all these,
namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1

DEL CASTILLO, J.:

The President went on to explain that on May 23, 2017, a government operation to capture the high-ranking officers
of the Abu Sayyaf Group (ASG) and the Maute Group was conducted. These groups, which have been unleashing
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo Roa Duterte issued Proclamation havoc in Mindanao, however, confronted the government operation by intensifying their efforts at sowing violence
No. 216 declaring a state of martial law and suspending the privilege of the writ of habeas corpus in the whole of aimed not only against the government authorities and its facilities but likewise against civilians and their properties.
Mindanao. As narrated in the President's Report:

The full text of Proclamation No. 216 reads as follows: On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior leader of the ASG, and Maute Group
operational leaders, Abdullah and Omarkhayam Maute, was confronted with armed resistance which escalated into
open hostility against the government. Through these groups' armed siege and acts of violence directed towards
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September 2016 declaring a state of national civilians and government authorities, institutions and establishments, they were able to take control of major social,
emergency on account of lawless violence in Mindanao; economic, and political foundations of Marawi City which led to its paralysis. This sudden taking of control was
intended to lay the groundwork for the eventual establishment of a DAESH wilayat or province in Mindanao.

WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In case of invasion or rebellion, when the
public safety requires it, he (the President) may, for a period not exceeding sixty days, suspend the privilege of the Based on verified intelligence reports, the Maute Group, as of the end of 2016, consisted of around two hundred
writ of habeas corpus or place the Philippines or any part thereof under martial law x x x'; sixty-three (263) members, fully armed and prepared to wage combat in furtherance of its aims. The group chiefly
operates in the province of Lanao del Sur, but has extensive networks and linkages with foreign and local armed
groups such as the Jemaah Islamiyah, Mujahidin Indonesia Timur and the ASG. It adheres to the ideals being
WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No. 6968, provides that 'the crime of espoused by the DAESH, as evidenced by, among others, its publication of a video footage declaring its allegiance to
rebellion or insurrection is committed by rising and taking arms against the Government for the purpose of removing
the DAESH. Reports abound that foreign-based terrorist groups, the ISIS (Islamic State of Iraq and Syria) in • The groups likewise laid siege to another hospital, Filipino-Libyan Friendship Hospital, which they later set ablaze.
particular, as well as illegal drug money, provide financial and logistical support to the Maute Group.

• Lawless armed groups likewise ransacked the Landbank of the Philippines and commandeered one of its armored
The events commencing on 23 May 2017 put on public display the groups' clear intention to establish an Islamic vehicles.
State and their capability to deprive the duly constituted authorities - the President, foremost - of their powers and
prerogatives.2
• Latest information indicates that about seventy-five percent (75%) of Marawi City has been infiltrated by lawless
armed groups composed of members of the Maute Group and the ASG. As of the time of this Report, eleven (11)
In particular, the President chronicled in his Report the events which took place on May 23, 2017 in Marawi City members of the Armed Forces and the Philippine National Police have been killed in action, while thirty-five (35)
which impelled him to declare a state of martial law and suspend the privilege of writ of habeas corpus, to wit: others have been seriously wounded.

• At 1400H members of the Maute Group and ASG, along with their sympathizers, commenced their attack on various • There are reports that these lawless armed groups are searching for Christian communities in Marawi City to
facilities - government and privately owned - in the City of Marawi. execute Christians. They are also preventing Maranaos from leaving their homes and forcing young male Muslims to
join their groups.

• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being manage by the Bureau of Jail
Management and Penology (BJMP). • Based on various verified intelligence reports from the AFP and the PNP, there exists a strategic mass action of
lawless armed groups in Marawi City, seizing public and private facilities, perpetrating killings of government
personnel, and committing armed uprising against and open defiance of the government. 3
• The Maute Group forcibly entered the jail facilities, destroyed its main gate, and assaulted on-duty personnel. BJMP
personnel were disarmed, tied, and/or locked inside the cells.
The unfolding of these events, as well as the classified reports he received, led the President to conclude that -

• The group took cellphones, personnel-issued firearms, and vehicles (i.e., two [2] prisoner vans and private vehicles).
These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power in
Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao.
• By 1630H, the supply of power into Marawi City had been interrupted, and sporadic gunfights were heard and felt
everywhere. By evening, the power outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply
was still cut off, plunging the city into total black-out.) The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their ranks
and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of a
segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced, and
• From 1800H to 1900H, the same members of the Maute Group ambushed and burned the Marawi Police Station. A unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
patrol car of the Police Station was also taken. Government.

• A member of the Provincial Drug Enforcement Unit was killed during the takeover of the Marawi City Jail. The Maute There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority, and
Group facilitated the escape of at least sixty-eight (68) inmates of the City Jail. prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt to
undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure
that all laws are faithfully executed; and remove his supervisory powers over local govemments.4
• The BJMP directed its personnel at the Marawi City Jail and other affected areas to evacuate.

According to the Report, the lawless activities of the ASG, Maute Group, and other criminals, brought about undue
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell constraints and difficulties to the military and government personnel, particularly in the performance of their duties
under the control of these groups. They threatened to bomb the bridges to pre-empt military reinforcement. and functions, and untold hardships to the civilians, viz.:

• As of 2222H, persons connected with the Maute Group had occupied several areas in Marawi City, including Naga Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief
Street, Bangolo Street, Mapandi, and Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi, Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their
Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo, Barionaga, and Abubakar. functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been
adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its
ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government
• These lawless armed groups had likewise set up road blockades and checkpoints at the Iligan City-Marawi City from restoring peace and order in the area. Movement by both civilians and government personnel to and from the
junction. city is likewise hindered.

• Later in the evening, the Maute Group burned Dansalan College Foundation, Cathedral of Maria Auxiliadora, the The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based terrorists
nun's quarters in the church, and the Shia Masjid Moncado Colony. Hostages were taken from the church. and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao, have
resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the security of
the entire Island of Mindanao.5
• About five (5) faculty members of Dansalan College Foundation had been reportedly killed by the lawless groups.

The Report highlighted the strategic location of Marawi City and the crucial and significant role it plays in Mindanao,
• Other educational institutions were also burned, namely, Senator Ninoy Aquino College Foundation and the Marawi
and the Philippines as a whole. In addition, the Report pointed out the possible tragic repercussions once Marawi City
Central Elementary Pilot School.
falls under the control of the lawless groups.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the DAESH flag there, among other several
The groups' occupation of Marawi City fulfills a strategic objective because of its terrain and the easy access it
locations. As of 0600H of 24May 2017, members of the Maute Group were seen guarding the entry gates of Amai
provides to other parts of Mindanao. Lawless armed groups have historically used provinces adjoining Marawi City as
Pakpak Hospital. They held hostage the employees of the Hospital and took over the PhilHealth office located
escape routes, supply lines, and backdoor passages.
thereat.
Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed or harass the hospital personnel. 22 The Lagman Petition also refutes the claim in the President's Report that a branch
men, the siege of Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of of the Landbank of the Philippines was ransacked and its armored vehicle commandeered. It alleges that the bank
Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino employees themselves clarified that the bank was not ransacked while the armored vehicle was owned by a third
people and preserve our national integrity.6 party and was empty at the time it was commandeered.23 It also labels as false the report on the burning of the
Senator Ninoy Aquino College Foundation and the Marawi Central Elementary Pilot School. It avers that the Senator
Ninoy Aquino College Foundation is intact as of May 24, 2017 and that according to Asst. Superintendent Ana Alonto,
The President ended his Report in this wise: the Marawi Central Elementary Pilot School was not burned by the terrorists.24 Lastly, it points out as false the report
on the beheading of the police chief of Malabang, Lanao del Sur, and the occupation of the Marawi City Hall and part
of the Mindanao State University.25
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds
of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.7 Third, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis since the
President's Report mistakenly included the attack on the military outpost in Butig, Lanao del Sur in February 2016, the
mass jail break in Marawi City in August 2016, the Zamboanga siege, the Davao market bombing, the Mamasapano
In addition to the Report, representatives from the Executive Department, the military and police authorities carnage and other bombing incidents in Cotabato, Sultan Kudarat, and Basilan, as additional factual bases for the
conducted briefings with the Senate and the House of Representatives relative to the declaration of martial law. proclamation of martial law. It contends that these events either took place long before the conflict in Marawi City
began, had long been resolved, or with the culprits having already been arrested.26
After the submission of the Report and the briefings, the Senate issued P.S. Resolution No. 388 8 expressing full
support to the martial law proclamation and finding Proclamation No. 216 "to be satisfactory, constitutional and in Fourth, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis considering that
accordance with the law". In the same Resolution, the Senate declared that it found "no compelling reason to revoke the President acted alone and did not consult the military establishment or any ranking official27 before making the
the same". The Senate thus resolved as follows: proclamation.

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the sense of the Senate, that the Senate Finally, the Lagman Petition claims that the President's proclamation of martial law lacks sufficient factual basis
finds the issuance of Proclamation No. 216 to be satisfactory, constitutional and in accordance with the law. The owing to the fact that during the presentation before the Committee of the Whole of the House of Representatives, it
Senate hereby supports fully Proclamation No. 216 and finds no compelling reason to revoke the sarne.9 was shown that the military was even successful in pre-empting the ASG and the Maute Group's plan to take over
Marawi City and other parts of Mindanao; there was absence of any hostile plan by the Moro Islamic Liberation Front;
and the number of foreign fighters allied with ISIS was "undetermined"28 which indicates that there are only a meager
The Senate's counterpart in the lower house shared the same sentiments. The House of Representatives likewise number of foreign fighters who can lend support to the Maute Group. 29
issued House Resolution No. 105010 "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO REASON TO REVOKE
PROCLAMATION NO. 216, ENTITLED 'DECLARING A STATE OF MARTIAL LAW AND SUSPENDING THE Based on the foregoing argumentation, the Lagman Petition asks the Court to: (1)"exercise its specific and special
PRIVILEGE OF THE WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'. jurisdiction to review the sufficiency of the factual basis of Proclamation No. 216"; and (2) render "a Decision voiding
and nullifying Proclamation No. 216" for lack of sufficient factual basis.30
The Petitions
In a Resolution31 dated June 6, 2017, the Court required respondents to comment on the Lagman Petition and set the
case for oral argument on June 13, 14, and 15, 2017.
A) G.R. No. 231658 (Lagman Petition)

On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and 231774 were filed and eventually
On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary C. Alejano, Emmanuel A. Billones, consolidated with G.R. No. 231658.32
and Teddy Brawner Baguilat, Jr. filed a Petition11 Under the Third Paragraph of Section 18 of Article VII of the 1987
Constitution.
B) G.R. No. 231771 (Cullamat Petition)
First, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because there is no
rebellion or invasion in Marawi City or in any part of Mindanao. It argues that acts of terrorism in Mindanao do not The Cullamat Petition, "anchored on Section 18, Article VII"33 of the Constitution, likewise seeks the nullification of
constitute rebellion12 since there is no proof that its purpose is to remove Mindanao or any part thereof from Proclamation No. 216 for being unconstitutional because it lacks sufficient factual basis that there is rebellion in
allegiance to the Philippines, its laws, or its territory.13 It labels the flying of ISIS flag by the Maute Group in Marawi Mindanao and that public safety warrants its declaration. 34
City and other outlying areas as mere propaganda114 and not an open attempt to remove such areas from the
allegiance to the Philippine Government and deprive the Chief Executive of the assertion and exercise of his powers
and prerogatives therein. It contends that the Maute Group is a mere private army, citing as basis the alleged In particular, it avers that the supposed rebellion described in Proclamation No. 216 relates to events happening in
interview of Vera Files with Joseph Franco wherein the latter allegedly mentioned that the Maute Group is more of a Marawi City only an not in the entire region of Mindanao. It concludes that Proclamation No 216 "failed to show any
"clan's private militia latching into the IS brand theatrically to inflate perceived capability".15 The Lagman Petition factual basis for the imposition of martial law in the entire Mindanao,"35 "failed to allege any act of rebellion outside
insists that during the briefing, representatives of the military and defense authorities did not categorically admit nor Marawi City, much less x x x allege that public safety requires the imposition o martial law in the whole of
deny the presence of an ISIS threat in the country but that they merely gave an evasive answer16 that "there is ISIS in Mindanao".36
the Philippines".17 The Lagman Petition also avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current
armed conflict in Marawi City was precipitated or initiated by the government in its bid to capture Hapilon. 18 Based on
said statement, it concludes that the objective of the Maute Group's armed resistance was merely to shield Hapilon The Cullamat Petition claims that the alleged "capability of the Maute Group and other rebel groups to sow terror and
and the Maute brothers from the government forces, and not to lay siege on Marawi City and remove its allegiance to cause death and damage to property"37 does not rise to the level of rebellion sufficient to declare martial law in the
the Philippine Republic.19 It then posits that if at all, there is only a threat of rebellion in Marawi City which is akin to whole of Mindanao.38 It also posits that there is no lawless violence in other parts of Mindanao similar to that in
"imminent danger" of rebellion, which is no longer a valid ground for the declaration of martial law.20 Marawi City.39

Second, the Lagman Petition claims that the declaration of martial law has no sufficient factual basis because the Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel groups" in the last Whereas Clause of
President's Report containef "false, inaccurate, contrived and hyperbolic accounts".21 Proclamation No. 216 for being vague as it failed to identify these rebel groups and specify the acts of rebellion that
they were supposedly waging.40

It labels as false the claim in the President's Report that the Maute Group attacked Amai Pakpak Medical Center.
Citing online reports on the interview of Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman Petition insists
that the Maute Group merely brought an injured member to the hospital for treatment but did not overrun the hospital
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and falsities in the Report of the President failed to specify the vehicle, mode or remedy through which the "appropriate proceeding" mentioned therein may be
to Congress, particularly the attack at the Amai Pakpak Hospital, the ambush and burning of the Marawi Police resorted to. The OSG suggests that the "appropriate proceeding" referred to in Section 18, Article VII may be availed
Station, the killing of five teachers of Dansalan College Foundation, and the attacks on various government facilities.41 of using the vehicle, mode or remedy of a certiorari petition, either under Section 1 or 5, of Article VIII.61 Corollarily,
the OSG maintains that the review power is not mandatory, but discretionary only, on the part of the Court. 62 The
Court has the discretion not to give due course to the petition.63
In fine, the Cullamat Petition prays for the Court to declare Proclamation No. 216 as unconstitutional or in the
alternative, should the Court find justification for the declaration of martial law and suspension of the privilege of the
writ of habeas corpus in Marawi City, to declare the same as unconstitutional insofar as its inclusion of the other parts Prescinding from the foregoing, the OSG contends that the sufficiency of the factual basis of Proclamation No. 216
of Mindanao.42 should be reviewed by the Court "under the lens of grave abuse of discretion"64 and not the yardstick of correctness
of the facts.65 Arbitrariness, not correctness, should be the standard in reviewing the sufficiency of factual basis.

C) G.R. No. 231774 (Mohamad Petition)

The OSG maintains that the burden lies not with the respondents but with the petitioners to prove that Proclamation
No. 216 is bereft of factual basis.1âwphi1 It thus takes issue with petitioners' attempt to shift the burden of proof when
The Mohamad Petition, denominated as a "Petition for Review of the Sufficiency of [the] Factual Basis of [the] they asked the Court "to compel [the] respondents to present proof on the factual basis"66 of Proclamation No. 216.
Declaration of Martial Law and [the] Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself as "a For the OSG, "he who alleges must prove"67 and that governmental actions are presumed to be valid and
special proceeding"44 or an "appropriate proceeding filed by any citizen"45 authorized under Section 18, Article VII of constitutional.68
the Constitution.

Likewise, the OSG posits that the sufficiency of the factual basis must be assessed from the trajectory or point of view
The Mohamad Petition posits that martial law is a measure of last resort46 and should be invoked by the President of the President and base on the facts available to him at the time the decision was made.69 It argues that the
only after exhaustion of less severe remedies.47 It contends that the extraordinary powers of the President should be sufficiency of the factual basis should be examined not based on the facts discovered after the President had made
dispensed sequentially, i.e., first, the power to call out the armed forces; second, the power to suspend the privilege his decision to declare martial law because to do so would subject the exercise of the President's discretion to an
of the writ of habeas corpus; and finally, the power to declare martial law.48 It maintains that the President has no impossible standard.70 It reiterates that the President's decision should be guided only by the information and data
discretion to choose which extraordinary power to use; moreover, his choice must be dictated only by, and available to him at the time he made the determination. 71 The OSG thus asserts that facts that were
commensurate to, the exigencies of the situation.49 established after the declaration of martial law should not be considered in the review of the sufficiency of the factual
basis of the proclamation of martial law. The OSG suggests that the assessment of after-proclamation facts lies with
the President and Congress for the purpose of determining the propriety of revoking or extending the martial law. The
According to the Mohamad Petition, the factual situation in Marawi is not so grave as to require the imposition of OSG fears that if the Court considers after-proclamation-facts in its review of the sufficiency of the factual basis for
martial law.50 It asserts that the Marawi incidents "do not equate to the existence of a public necessity brought about the proclamation, it would in effect usurp the powers of the Congress to determine whether martial law should be
by an actual rebellion, which would compel the imposition of martial law or the suspension of the privilege of the writ revoked or extended.72
of habeas corpus".51 It proposes that "[m]artial law can only be justified if the rebellion or invasion has reached such
gravity that [its] imposition x x x is compelled by the needs of public safety"52 which, it believes, is not yet present in
Mindanao. It is also the assertion of the OSG that the President could validly rely on intelligence reports coming from the Armed
Forces of the Philippines;73 and that he could not be expected to personally determine the veracity of thecontents of
the reports.74 Also, since the power to impose martial law is vested solely on the President as Commander-in-Chief,
Moreover, it alleges that the statements contained in the President's Report to the Congress, to wit: that the Maute the lack of recommendation from the Defense Secretary, or any official for that matter, will not nullify the said
Group intended to establish an Islamic State; that they have the capability to deprive the duly constituted authorities declaration, or affect its validity, or compromise the sufficiency of the factual basis.
of their powers and prerogatives; and that the Marawi armed hostilities is merely a prelude to a grander plan of taking
over the whole of Mindanao, are conclusions bereft of substantiation.53
Moreover, the OSG opines that the petitioners miserably failed to validly refute the facts cited by the President in
Proclamation No. 216 and in his Report to the Congress by merely citing news reports that supposedly contradict the
The Mohamad Petition posits that immediately after the declaration of martial law, and without waiting for a facts asserted therein or by criticizing in piecemeal the happenings in Marawi. For the OSG, the said news articles
congressional action, a suit may already be brought before the Court to assail the sufficiency of the factual basis of are "hearsay evidence, twice removed,"75 and thus inadmissible and without probative value, and could not overcome
Proclamation No. 216. the "legal presumption bestowed on governmental acts".76

Finally, in invoking this Court's power to review the sufficiency ofthe factual basis for the declaration of martial law and Finally, the OSG points out that it has no duty or burden to prove that Proclamation No. 216 has sufficient factual
the suspension of the privilege of the writ of habeas corpus, the Mohamad Petition insists that the Court may "look basis. It maintains that the burden rests with the petitioners. However, the OSG still endeavors to lay out the factual
into the wisdom of the [President's] actions, [and] not just the presence of arbitrariness".54 Further, it asserts that basis relied upon by the President "if only to remove any doubt as to the constitutionality of Proclamation No. 216".77
since it is making a negative assertion, then the burden to prove the sufficiency of the factual basis is shifted to and
lies on the respondents.55 It thus asks the Court "to compel the [r]espondents to divulge relevant information" 56 in
order for it to review the sufficiency of the factual basis. The facts laid out by the OSG in its Consolidated Comment will be discussed in detail in the Court's Ruling.

In closing, the Mohamad Petition prays for the Court to exercise its power to review, "compel respondents to present ISSUES
proof on the factual basis [of] the declaration of martial law and the suspension of the privilege of the writ of habeas
corpus in Mindanao"57 and declare as unconstitutional Proclamation No. 216 for lack of sufficient factual basis.
The issues as contained in the revised Advisory78 are as follows:

The Consolidated Comment

1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and 231774 are the "appropriate proceeding"
covered by Paragraph 3, Section 18, Article VII of the Constitution sufficient to invoke the mode of review required of
The respondents' Consolidated Comment58 was filed on June 12, 2017, as required by the Court. Noting that the this Court when a declaration of martial law or the suspension of the privilege of the writ of habeas corpus is
same coincided with the celebration of the 119th anniversary of the independence of this Republic, the Office of the promulgated;
Solicitor General (OSG) felt that "defending the constitutionality of Proclamation No. 216" should serve as "a rallying
call for every Filipino to unite behind one true flag and defend it against all threats from within and outside our
shores".59 2. Whether or not the President in declaring martial law and suspending the privilege of the writ of habeas corpus:

The OSG acknowledges that Section 18, Article VII of the Constitution vests the Court with the authority or power to a. is required to be factually correct or only not arbitrary in his appreciation of facts;
review the sufficiency of the factual basis of the declaration of martial law.60 The OSG, however, posits that although
Section 18, Article VII lays the basis for the exercise of such authority or power, the same constitutional provision
b. is required to obtain the favorable recommendation thereon of the Secretary of National Defense; One of the requisites for judicial review is locus standi, i.e., "the constitutional question is brought before [the Court]
by a party having the requisite 'standing' to challenge it."79 As a general rule, the challenger must have "a personal
and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
c. is required to take into account only the situation at the time of the proclamation, even if subsequent events prove enforcement."80 Over the years, there has been a trend towards relaxation of the rule on legal standing, a prime
the situation to have not been accurately reported; example of which is found in Section 18 of Article VII which provides that any citizen may file the appropriate
proceeding to assail the sufficiency of the factual basis of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus. "[T]he only requisite for standing to challenge the validity of the suspension is
3. Whether or not the power of this Court to review the sufficiency of the factual basis [of] the proclamation of martial that the challenger be a citizen. He need not even be a taxpayer." 81
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;
Petitioners in the Cullamat Petition claim to be "suing in their capacities as citizens of the Republic;"82 similarly,
petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women, all of legal [age], and residents of
4. Whether or not there were sufficient factual [basis] for the proclamation of martial law or the suspension of the Marawi City".83 In the Lagman Petition, however, petitioners therein did not categorically mention that they are suing's
privilege of the writ of habeas corpus; citizens but merely referred to themselves as duly elected Representatives.84 That they are suing in their official
capacities as Members of Congress couLd have elicited a vigorous discussion considering the issuance by the House
of Representatives of House Resolution No. 1050 expressing full support to President Duterte and finding no reason
a. What are the parameters for review? to revoke Proclamation No. 216. By such resolution, the House of Representatives is declaring that it finds no reason
to review the sufficiency of the factual basis of the martial law declaration, which is in direct contrast to the views and
arguments being espoused by the petitioners in the Lagman Petition. Considering, however, the trend towards
b. Who has the burden of proof?
relaxation of the rules on legal standing, as well as the transcendental issues involved in the present Petitions, the
Court will exercise judicial self-restraint85 and will not venture into this matter. After all, "the Court is not entirely
c. What is the threshold of evidence? without discretion to accept a suit which does not satisfy the requirements of a [bona fide] case or of standing.
Considerations paramount to [the requirement of legal standing] could compel assumption of jurisdiction."86 In any
case, the Court can take judicial cognizance of the fact that petitioners in the Lagman Petition are all citizens of the
5. Whether the exercise of the power of judicial review by this Court involves the calibration of graduated powers Philippines since Philippine citizenship is a requirement for them to be elected as representatives. We will therefore
granted the President as Commander-in-Chief, namely calling out powers, suspension of the privilege of the writ consider them as suing in their own behalf as citizens of this country. Besides, respondents did not question
of habeas corpus, and declaration of martial law; petitioners' legal standing.

6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, vague and thus null and void: II. Whether or not the petitions are the
"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
a. with its inclusion of "other rebel groups;" or sufficient to invoke the mode of review required
by the Court.

b. since it has no guidelines specifying its actual operational parameters within the entire Mindanao region;
All three petitions beseech the cognizance of this Court based on the third paragraph of Section 18, Article VII
(Executive Department) of the 1987 Constitution which provides:
7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and in the Report of the President to
Congress are sufficient [bases]:
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must
a. for the existence of actual rebellion; or promulgate its decision thereon within thirty days from its filing.

b. for a declaration of martial law or the suspension of the privilege of the writ of habeas corpus in the entire During the oral argument, the petitioners theorized that the jurisdiction of this Court under the third paragraph of
Mindanao 1 region; Section 18, Article VII is sui generis.87 It is a special and specific jurisdiction of the Supreme Court different from those
enumerated in Sections 1 and 5 of Article VIII.88

8. Whether or not 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 The Court agrees.

9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will: a) Jurisdiction must be
specifically conferred by the
Constitution or by law.
a. have the effect of recalling Proclamation No. 55 s. 2016; or

It is settled that jurisdiction over the subject matter is conferred only by the Constitution or by the law.89 Unless
b. also nullify the acts of the President in calling out the armed forces to quell lawless violence in Marawi and other jurisdiction has been specifically conferred by the Constitution or by some legislative act, no body or tribunal has the
parts of the Mindanao region. power to act or pass upon a matter brought before it for resolution. It is likewise settled that in the absence of
a clear legislative intent, jurisdiction cannot be implied from the language of the Constitution or a statute.90 It must
appear clearly from the law or it will not be held to exist.91
After the oral argument, the parties submitted their respective memoranda and supplemental memoranda.

A plain reading of the afore-quoted Section 18, Article VII reveals that it specifically grants authority to the Court to
OUR RULING determine the sufficiency of the factual basis of the proclamation of martial law or suspension of the privilege of the
writ of habeas corpus.
I. Locus standi of petitioners.
b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively unto
Section 1 or 5 of Article VIII the President the right to determine the factors which may lead to the declaration of martial law and the suspension of
the writ of habeas corpus. I suppose he has strong and compelling reasons in seeking to delete this particular,
phrase. May we be informed of his good and substantial reasons?
It could not have been the intention of the framers of the Constitution that the phrase "in an appropriate proceeding"
would refer to a Petition for Certiorari pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a
petition for certiorari is whether the respondent has committed any grave abuse of discretion amounting to lack or MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this
excess of jurisdiction in the performance of his or her functions. Thus, it is not the proper tool to review the sufficiency phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual
of the factual basis of the proclamationor suspension. It must be emphasized that under Section 18, Article VII, the invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a time fuse. It
Court is tasked to review the sufficiency of the factual basis of the President's exercise of emergency powers. Put is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
differently, if this Court applies the standard of review used in a petition for certiorari, the same would emasculate its judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even during those first 60
constitutional task under Section 18, Article VII. days.

c) Purpose/significance of MR. SUAREZ. Given our traumatic experience during the past administration, if we give exclusive right to the
Section 18, Article VII is to President to determine these factors, especially the existence of an invasion or rebellion and the second factor of
constitutionalize the pre-Marcos determining whether the public safety requires it or not, may I call the attention of the Gentleman to what happened to
martial law ruling in In the Matter of us during the past administration. Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
the Petition for Habeas Corpus of Lansang. President of the Philippines by virtue of the powers vested upon him purportedly under Article VII, Section 10 (2) of
the Constitution, wherein he made this predicate under the "Whereas" provision:

The third paragraph of Section 18, Article VII was inserted by the framers of the 1987 Constitution to constitutionalize
the pre-Marcos martial law ruling of this Court in In the Matter of the Petition for Habeas Corpus of Lansang,92 to wit: Whereas, the rebellion and armed action undertaken by these lawless elements of the Communists and other armed
that the factual basis of the declaration of martial law or the suspension of the privilege of the writ of habeas corpus is aggrupations organized to overthrow the Republic of the Philippines by armed violence and force have assumed the
not a political question but precisely within the ambit of judicial review. magnitude of an actual state of war against our people and the Republic of the Philippines.

"In determining the meaning, intent, and purpose of a law or constitutional provision, the history of the times out of And may I also call the attention of the Gentleman to General Order No. 3, also promulgated by Ferdinand E. Marcos,
which it grew and to which it may be rationally supposed to bear some direct relationship, the evils intended to be in his capacity as Commander-in-Chief of all the Armed Forces of the Philippines and pursuant to Proclamation No.
remedied, and the good to be accomplished are proper subjects of inquiry."93 Fr. Joaquin G. Bernas, S.J. (Fr. 1081 dated September 21, 1972 wherein he said, among other things:
Bernas), a member of the Constitutional Commission that drafted the 1987 Constitution, explained:

Whereas, martial law having been declared because of wanton destruction of lives and properties, widespread
The Commander-in-Chief provisions of the 1935 Constitution had enabled President Ferdinand Marcos to impose lawlessness and anarchy and chaos and disorder now prevailing throughout the country, which condition has been
authoritarian rule on the Philippines from 1972 to 1986. Supreme Court decisions during that period upholding the brought about by groups of men who are actively engaged in a criminal conspiracy to seize political and state power
actions taken by Mr. Marcos made authoritarian rule part of Philippine constitutional jurisprudence. The members of in the Philippines in order to take over the government by force and violence, the extent of which has now assumed
the Constitutional Commission, very much aware of these facts, went about reformulating the Commander-in-Chief the proportion of an actual war against our people and the legitimate government ...
powers with a view to dismantling what had been constructed during the authoritarian years. The new formula
included revised grounds for the activation of emergency powers, the manner of activating them, the scope of the
powers, and review of presidential action.94 (Emphasis supplied) And he gave all reasons in order to suspend the privilege of the writ of habeas corpus and declare martial law in our
country without justifiable reason. Would the Gentleman still insist on the deletion of the phrase 'and, with the
concurrence of at least a majority of all the members of the Congress'?
To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that the authority to decide whether there is
a state of rebellion requiring the suspension of the privilege of the writ of habeas corpus is lodged with the President
and his decision thereon is final and conclusive upon the courts. This ruling was reversed in the 1971 case MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is undoubtedly an aberration in our history
of Lansang where it was held that the factual basis of the declaration of martial law and the suspension of the and national consciousness. But given the possibility that there would be another Marcos, our Constitution now has
privilege of the writ of habeas corpus is not a political question and is within the ambit of judicial review.96 However, in sufficient safeguards. As I said, it is not really true, as the Gentleman has mentioned, that there is an exclusive right
1983, or after the declaration of martial law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v. to determine the factual basis because the paragraph beginning on line 9 precisely tells us that the Supreme Court
Enrile,97 abandoned the ruling in Lansang and reverted to Montenegro. According to the Supreme Court, the may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation
constitutional power of the President to suspend the privilege of the writ of habeas corpus is not subject to judicial of martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its decision
inquiry.98 on the same within 30 days from its filing.

Thus, by inserting Section 18 in Article VII which allows judicial review of the declaration of martial law and I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And
suspension of the privilege of the writ of habeas corpus, the framers of the 1987 Constitution in effect here we are trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. And I
constitutionalized and reverted to the Lansang doctrine. am saying that there are enough safeguards, unlike in 1972 when Mr. Marcos was able to do all those things
mentioned.100

d) Purpose of Section 18,

Article VII is to provide additional To give more teeth to this additional safeguard, the framers of the 1987 Constitution not only placed the President's
safeguard against possible abuse by proclamation of martial law or suspension of the privilege of the writ of habeas corpus within the ambit of judicial
the President on the exercise of the review, it also relaxed the rule on standing by allowing any citizen to question before this Court the sufficiency of the
extraordinary powers. factual basis of such proclamation or suspension. Moreover, the third paragraph of Section 18, Article VII veritably
conferred upon any citizen a demandable right to challenge the sufficiency of the factual basis of said proclamation or
suspension. It further designated this Court as the reviewing tribunal to examine, in an appropriate proceeding, the
Section 18, Article VII is meant to provide additional safeguard against possible abuse by the President in the sufficiency of the factual basis and to render its decision thereon within a limited period of 30 days from date of filing.
exercise of his power to declare martial law or suspend the privilege of the writ of habeas corpus. Reeling from the
aftermath of the Marcos martial law, the framers of the Constitution deemed it wise to insert the now third paragraph
of Section 18 of Article VII.99 This is clear from the records of the Constitutional Commission when its members were e) Purpose of Section 18,
deliberating on whether the President could proclaim martial law even without the concurrence of Congress. Thus: Article VII is to curtail the extent of
the powers of the President.

MR. SUAREZ. Thank you, Madam President.

The most important objective, however, of Section 18, Article VII is the curtailment of the extent of the powers of the any action initiated by a citizen for the purpose of questioning the sufficiency of the factual basis of the exercise of the
Commander-in-Chief. This is the primary reason why the provision was not placed in Article VIII or the Judicial Chief Executive's emergency powers, as in these cases. It could be denominated as a complaint, a petition, or a
Department but remained under Article VII or the Executive Department. matter to be resolved by the Court.

During the closing session of the Constitutional Commission's deliberations, President Cecilia Muñoz Palma III. The power of the Court to review the
expressed her sentiments on the 1987 Constitution. She said: sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
The executive power is vested in the President of the Philippines elected by the people for a six-year term with no Section 18, Article VII of the 1987 Constitution is
reelection for the duration of his/her life. While traditional powers inherent in the office of the President are granted, independent of the actions taken by Congress.
nonetheless for the first time, there are specific provisions which curtail the extent of such powers. Most significant is
the power of the Chief Executive to suspend the privilege of the writ of habeas corpus or proclaim martial law.
During the oral argument,105 the OSG urged the Court to give! deference to the actions of the two co-equal branches
of the Government: on' the part of the President as Commander-in-Chief, in resorting to his extraordinary powers to
The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos caused the imposition of martial law for declare martial law and suspend the privilege of the writ of habeas corpus; and on the part of Congress, in giving its
more than eight years and the suspension of the privilege of the writ even after the lifting of martial law in 1981. The imprimatur to Proclamation No. 216 and not revoking the same.
new Constitution now provides that those powers can be exercised only in two cases, invasion or rebellion when
public safety demands it, only for a period not exceeding 60 days, and reserving to Congress the power to revoke
such suspension or proclamation of martial law which congressional action may not be revoked by the President. The framers of the 1987 Constitution reformulated the scope of the extraordinary powers of the President as
More importantly, the action of the President is made subject to judicial review, thereby again discarding Commander-in-Chief and the review of the said presidential action. In particular, the President's extraordinary powers
jurisprudence which render[s] the executive action a political question and beyond the jurisdiction of the courts to of suspending the privilege of the writ of habeas corpus and imposing martial law are subject to the veto powers of
adjudicate. the Court and Congress.

For the first time, there is a provision that the state of martial law does not suspend the operation of the Constitution a) The judicial power to review
nor abolish civil courts or legislative assemblies, or vest jurisdiction to military tribunals over civilians, or suspend the versus the congressional power to
privilege of the writ. Please forgive me if, at this point, I state that this constitutional provision vindicates the dissenting revoke.
opinions I have written during my tenure in the Supreme Court in the martial law cases.101

The Court may strike down the presidential proclamation in an appropriate proceeding filed by any citizen on the
f) To interpret "appropriate ground of lack of sufficient factual basis. On the other hand, Congress may revoke the proclamation or suspension,
proceeding" as filed under Section 1 which revocation shall not be set aside by the President.
of Article VIII would be contrary to
the intent of the Constitution.
In reviewing the sufficiency of the factual basis of the proclamation or suspension, the Court considers only the
information and data available to the President prior to or at the time of the declaration; it is not allowed td "undertake
To conclude that the "appropriate proceeding" refers to a Petition for Certiorari filed under the expanded jurisdiction of an independent investigation beyond the pleadings."106 On the other hand, Congress may take into consideration not
this Court would, therefore, contradict the clear intention of the framers of the Constitution to only data available prior to, but likewise events supervening the declaration. Unlike the Court I which does not look
place additional safeguards against possible martial law abuse for, invariably, the third paragraph of Section 18, into the absolute correctness of the factual basis as will be discussed below, Congress could probe deeper and
Article VII would be subsumed under Section 1 of Article VIII. In other words, the framers of the Constitution added further; it can delve into the accuracy of the facts presented before it.
the safeguard under the third paragraph of Section 18, Article VII on top of the expanded jurisdiction of this Court.

In addition, the Court's review power is passive; it is only initiated by the filing of a petition "in an appropriate
g) Jurisdiction of the Court is proceeding" by a citizen. On the other hand, Congress' review mechanism is automatic in the sense that it may be
not restricted to those enumerated in activated by Congress itself at any time after the proclamation or suspension was made.
Sections I and 5 of Article VIII

Thus, the power to review by the Court and the power to revoke by Congress are not only totally different but likewise
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 and 5 of Article VIII. For instance, its independent from each other although concededly, they have the same trajectory, which is, the nullification of the
jurisdiction to be the sole judge of all contests relating to the election, returns, and qualifications of the President or presidential proclamation. Needless to say, the power of the Court to review can be exercised independently from the
Vice-President can be found in the last paragraph of Section 4, Article VII.102 The power of the Court to review power of revocation of Congress.
on certiorari the decision, order, or ruling of the Commission on Elections and Commission on Audit can be found in
Section 7, Article IX(A).103
b) The framers of the 1987
Constitution intended the judicial
h) Unique features of the third power to review to be exercised
paragraph of Section 18, Article VII independently from the congressional
make it sui generis. power to revoke.

The unique features of the third paragraph of Section 18, Article VII clearly indicate that it should be treated as sui If only to show that the intent of the framers of the 1987 Constitution was to vest the Court and Congress with veto
generis separate and different from those enumerated in Article VIII. Under the third paragraph of Section 18, Article powers independently from each other, we quote the following exchange:
VII, a petition filed pursuant therewith will follow a different rule on standing as any citizen may file it. Said provision of
the Constitution also limits the issue to the sufficiency of the factual basis of the exercise by the Chief Executive of his
emergency powers. The usual period for filing pleadings in Petition for Certiorari is likewise not applicable under the MS. QUESADA. Yesterday, the understanding of many was that there would be safeguards that Congress will be
third paragraph of Section 18, Article VII considering the limited period within which this Court has to promulgate its able to revoke such proclamation.
decision.

MR. RAMA. Yes.

A proceeding "[i]n its general acceptation, [is] the form in which actions are to be brought and defended, the manner
of intervening in suits, of conducting them, the mode of deciding them, of opposing judgments, and of executing."104 In
fine, the phrase "in an appropriate proceeding" appearing on the third paragraph of Section 18, Article VII refers to
MS. QUESADA. But now, if they cannot meet because they have been arrested or that the Congress has been only limitations being that he acts within permissible constitutional boundaries or in a manner not constituting grave
padlocked, then who is going to declare that such a proclamation was not warranted? abuse of discretion.116 In fact, "the actual use to which the President puts the armed forces is x x x not subject to
judicial review."117

xxxx
The extraordinary powers of suspending the privilege of the writ of habeas corpus and/or declaring martial law may
be exercised only when there is actual invasion or rebellion, and public safety requires it. The 1987 Constitution
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary is not exactly just standing by. A imposed the following limits in the exercise of these powers: "(1) a time limit of sixty days; (2) review and possible
petition for a writ of habeas corpus, if the Members are detained, can immediately be applied for, and the Supreme revocation by Congress; [and] (3) review and possible nullification by the Supreme Court."118
Court shall also review the factual basis. x x x107

The framers of the 1987 Constitution eliminated insurrection, and the phrase "imminent danger thereof' as grounds
c) Re-examination of the for the suspension of the privilege of the writ of habeas corpus or declaration of martial law.119 They perceived the
Court's pronouncement in Fortun v. phrase "imminent danger" to be "fraught with possibilities of abuse;"120 besides, the calling out power of the President
President Macapagal-Arroyo "is sufficient for handling imminent danger."121

Considering the above discussion, the Court finds it imperative to re-examine, reconsider, and set aside its The powers to declare martial law and to suspend the privilege of the writ of habeas corpus involve curtailment and
pronouncement in Fortun v. President Macapagal-Arroyo108 to the effect that: suppression of civil rights and individual freedom. Thus, the declaration of martial law serves as a warning to citizens
that the Executive Department has called upon the military to assist in the maintenance of law and order, and while
the emergency remains, the citizens must, under pain of arrest and punishment, not act in a manner that will render it
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the more difficult to restore order and enforce the law.122 As such, their exercise requires more stringent safeguards by
factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to the Congress, and review by the Court.123
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 b) What really happens during martial law?
a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.109

During the oral argument, the following questions cropped up: What really happens during the imposition of martial
xxxx law? What powers could the President exercise during martial law that he could not exercise if there is no martial
law? Interestingly, these questions were also discussed by the framers of the 1987 Constitution, viz.:

If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the
short time expected of it, then the Court can step in, hear the petitions challenging the President's action, and FR. BERNAS. That same question was asked during the meetings of the Committee: What precisely does martial law
ascertain if it has a factual basis. x x x110 add to the power of the President to call on the armed forces? The first and second lines in this provision state:

By the above pronouncement, the Court willingly but unwittingly clipped its own power and surrendered the same to A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
Congress as well as: abdicated from its bounden duty to review. Worse, the Court considered' itself just on stand-by, courts or legislative assemblies...
waiting and willing to act as a substitute in case Congress "defaults." It is an aberration, a stray declaration, which
must be rectified and set aside in this proceeding.111
The provision is put there, precisely, to reverse the doctrine of the Supreme Court. I think it is the case of Aquino v.
COMELEC where the Supreme Court said that in times of martial law, the President automatically has legislative
We, therefore, hold that the Court can simultaneously exercise its power of review with, and independently from, the power. So these two clauses denied that. A state of martial law does not suspend the operation of the Constitution;
power to revoke by Congress. Corollary, any perceived inaction or default on the part of Congress does not deprive therefore, it does not suspend the principle of separation of powers.
or deny the Court of its power to review.

The question now is: During martial law, can the President issue decrees? The answer we gave to that question in
IV. The judicial power to review the sufficiency the Committee was: During martial law, the President may have the powers of a commanding general in a theatre of
of factual basis of the declaration of martial law war. In actual war when there is fighting in an area, the President as the commanding general has the authority to
or the suspension of the privilege of the writ of issue orders which have the effect of law but strictly in a theater of war, not in the situation we had during the period
habeas corpus does not extend to the calibration of martial law. In other words, there is an effort here to return to the traditional concept of martial law as it was
of the President's decision of which among his developed especially in American jurisprudence, where martial law has reference to the theater of war.124
graduated powers he will avail of in a given
situation.
xxxx

The President as the Commander-in-Chief wields the extraordinary powers of: a) calling out the armed forces; b)
suspending the privilege of the writ of habeas corpus; and c) declaring martial law.112 These powers may be resorted FR. BERNAS. This phrase was precisely put here because we have clarified the meaning of martial law; meaning,
to only under specified conditions. limiting it to martial law as it has existed in the jurisprudence in international law, that it is a law for the theater of war.
In a theater of war, civil courts are unable to function. If in the actual theater of war civil courts, in fact, are unable to
function, then the military commander is authorized to give jurisdiction even over civilians to military courts precisely
The framers of the 1987 Constitution reformulated the powers of the Commander-in-Chief by revising the "grounds for because the civil courts are closed in that area. But in the general area where the civil courts are open then in no
the activation of emergency powers, the manner of activating them, the scope of the powers, and review of case can the military courts be given jurisdiction over civilians. This is in reference to a theater of war where the civil
presidential action."113 courts, in fact, are unable to function.

a) Extraordinary powers of the MR. FOZ. It is a state of things brought about by the realities of the situation in that specified critical area.
President distinguished.

FR. BERNAS. That is correct.

Among the three extraordinary powers, the calling out power is the most benign and involves ordinary police
action.114 The President may resort to this extraordinary power whenever it becomes necessary to prevent or
suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully discretionary to the President;" 115 the MR. FOZ. And it is not something that is brought about by a declaration of the Commander-in-Chief.
FR. BERNAS. It is not brought about by a declaration of the Commander-in-Chief. The understanding here is that the powers will be availed of in a given situation. Voting 28 to 12, the framers of the 1987 Constitution removed the
phrase 'nor authorize the conferment of jurisdiction on military courts and agencies over civilians' has reference to the requirement of congressional concurrence in the first imposition of martial law and suspension of the privilege.133
practice under the Marcos regime where military courts were given jurisdiction over civilians. We say here that we will
never allow that except in areas where civil courts are, in fact, unable to function and it becomes necessary for some
kind of court to function.125 MR. PADILLA.x x x

A state of martial law is peculiar because the President, at such a time, exercises police power, which is normally a We all agree with the suspension of the writ or the proclamation of martial law should not require beforehand the
function of the Legislature. In particular, the President exercises police power, with the military’s assistance, to ensure concurrence of the majority of the Members of the Congress. However, as provided by the Committee, the Congress
public safety and in place of government agencies which for the time being are unable to cope with the condition in a may revoke, amend, or shorten or even increase the period of such suspension. 134
locality, which remains under the control of the State. 126

xxxx
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente V. Mendoza's (Justice
Mendoza) Statement before the Senate Committee on Justice on March 13, 2006, stated that under a valid
declaration of martial law, the President as Commander-in-Chief may order the "(a) arrests and seizures without MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis that in the first imposition of martial
judicial warrants; (b) ban on public assemblies; (c) [takeover] of news media and agencies and press censorship; and law there is no need for concurrence of the Members of Congress because the provision says 'in case of actual
(d) issuance of Presidential Decrees x x x".128 invasion or rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino de Castro said, there is a
need for immediate response because there is an attack. Second, the fact of securing a concurrence may be
impractical because the roads might be blocked or barricaded. x x x So the requirement of an initial concurrence of
Worthy to note, however, that the above-cited acts that the President may perform do not give him unbridled the majority of all Members of the Congress in case of an invasion or rebellion might be impractical as I can see it.
discretion to infringe on the rights of civilians during martial law. This is because martial law does not suspend the
operation of the Constitution, neither does it supplant the operation of civil courts or legislative assemblies. Moreover,
the guarantees under the Bill of Rights remain in place during its pendency. And in such instance where the privilege Second, Section 15 states that the Congress may revoke the declaration or lift the suspension.
of the writ of habeas corpus is also suspended, such suspension applies only to those judicially charged with rebellion
or offenses connected with invasion.129
And third, the matter of declaring martial law is already a justiciable question and no longer a political one in that it is
subject to judicial review at any point in time. So on that basis, I agree that there is no need for concurrence as a
Clearly, from the foregoing, while martial law poses the most severe threat to civil liberties,130 the Constitution has prerequisite to declare martial law or to suspend the privilege of the writ of habeas corpus. x x x135
safeguards against the President's prerogative to declare a state of martial law.
xxxx
c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a MR. SUAREZ. Thank you.
sequence, order, or arrangement by
which the Commander-in-Chief must
The Commissioner is suggesting that in connection with Section 15, we delete the phrase 'and, with the concurrence
adhere to.
of at least a majority of all the Members of the Congress...'

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a 'sequence' of 'graduated power[s]'.
MR. PADILLA. That is correct especially for the initial suspension of the privilege of the writ of habeas corpus or also
From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ
the declaration of martial law.
of habeas corpus, and the power to declare martial law."131 It must be stressed, however, that the graduation refers
only to hierarchy based on scope and effect. It does not in any manner refer to a sequence, arrangement, or order
which the Commander-in-Chief must follow. This so-called "graduation of powers" does not dictate or restrict the MR. SUAREZ. So in both instances, the Commissioner is suggesting that this would be an exclusive prerogative of
manner by which the President decides which power to choose. the President?

These extraordinary powers are conferred by the Constitution with the President as Commander-in-Chief; it therefore MR. PADILLA. At least initially, for a period of 60 days. But even that period of 60 days may be shortened by the
necessarily follows that the power and prerogative to determine whether the situation warrants a mere exercise of the Congress or the Senate because the next sentence says that the Congress or the Senate may even revoke the
calling out power; or whether the situation demands suspension of the privilege of the writ of habeas corpus; or proclamation.136
whether it calls for the declaration of martial law, also lies, at least initially, with the President. The power to choose,
initially, which among these extraordinary powers to wield in a given set of conditions is a judgment call on the part of
the President. As Commander-in-Chief, his powers are broad enough to include his prerogative to address exigencies xxxx
or threats that endanger the government, and the very integrity of the State. 132

MR. SUAREZ. x x x
It is thus beyond doubt that the power of judicial review does not extend to calibrating the President's decision
pertaining to which extraordinary power to avail given a set of facts or conditions. 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 The Commissioner is proposing a very substantial amendment because this means that he is vesting exclusively unto
initially, lies with the President. the President the right to determine the factors which may lead to the declaration of martial law and the suspension of
the writ of habeas corpus. I suppose he has strong and compelling reasons in seeking to delete this particular phrase.
May we be informed of his good and substantial reasons?
d) The framers of the 1987
Constitution intended the Congress
not to interfere a priori in the MR. MONSOD. This situation arises in cases of invasion or rebellion. And in previous interpellations regarding this
decision-making process of the phrase, even during the discussions on the Bill of Rights, as I understand it, the interpretation is a situation of actual
President. invasion or rebellion. In these situations, the President has to act quickly. Secondly, this declaration has a time fuse. It
is only good for a maximum of 60 days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
judiciary to inquire into the sufficiency of the factual basis of the proclamation always exists, even during those first 60
The elimination by the framers of the 1987 Constitution of the requirement of prior concurrence of the Congress in the days.
initial imposition of martial law or suspension of the privilege of the writ of habeas corpus further supports the
conclusion that judicial review does not include the calibration of the President's decision of which of his graduated
xxxx j) The recommendation of the
Defense Secretary is not a condition
for the declaration of martial law or
MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is undoubtedly an aberration in our history suspension of the privilege of the writ
and national consciousness. But given the possibility that there would be another Marcos, our Constitution now has of habeas corpus.
sufficient safeguards. As I said, it is not really true, as the Gentleman mentioned, that there is an exclusive right to
determine the factual basis because the paragraph being on line 9 precisely tells us that the Supreme court may
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of Even the recommendation of, or consultation with, the Secretary of National Defense, or other high-ranking military
martial law or the suspension of the privilege of the writ or the extension thereof and must promulgate its decision on officials, is not a condition for the President to declare martial law. A plain reading of Section 18, Article VII of the
the same within 30 days from its filing. 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. Rightly so, it
I believe that there are enough safeguards. The Constitution is supposed to balance the interests of the country. And is only on the President and no other that the exercise of the powers of the Commander-in-Chief under Section 18,
here we are trying to balance the public interest in case of invasion or rebellion as against the rights of citizens. x x x Article VII of the Constitution is bestowed.

MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos had done? g) In any event, the President
initially employed the most benign
action - the calling out power -
MR. MONSOD. There is nothing absolute in this world, and there may be another Marcos. What we are looking for before he declared martial law and
are safeguards that arereasonable and, I believe, adequate at this point. On the other hand, in case of invasion or suspended the privilege of the writ of
rebellion, even during the first 60 days when the intention here is to protect the country in that situation, it would be habeas corpus.
unreasonable to ask that there should be a concurrence on the part of the Congress, which situation is automatically
terminated at the end of such 60 days.
At this juncture, it must be stressed that prior to Proclamation No. 216 or the declaration of martial law on May 23,
201 7, the President had already issued Proclamation No. 55 on September 4, 2016, declaring a state of national
xxxx emergency on account of lawless violence in Mindanao. This, in fact, is extant in the first Whereas Clause of
Proclamation No. 216. Based on the foregoing presidential actions, it can be gleaned that although there is no
obligation or requirement on his part to use his extraordinary powers on a graduated or sequential basis, still the
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide for a legislative check on this awesome President made the conscious anddeliberate effort to first employ the most benign from among his extraordinary
power of the Chief Executive acting as Commander-in-Chief? powers. As the initial and preliminary step towards suppressing and preventing the armed hostilities in Mindanao, the
President decided to use his calling out power first. Unfortunately, the situation did not improve; on the contrary, it
only worsened. Thus, exercising his sole and exclusive prerogative, the President decided to impose martial law and
MR. MONSOD. I would be less comfortable if we have a presidency that cannot act under those conditions.
suspend the privilege of the writ of habeas corpus on the belief that the armed hostilities in Mindanao already amount
to actual rebellion and public safety requires it.
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate authority?
V. Whether or not Proclamation No. 216 may
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the concurrence of Congress would be be considered vague and thus void because of (a)
available; and, secondly, the President will be able to act quickly in order to deal with the circumstances. its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
MR. SUAREZ. So, we would be subordinating actual circumstances to expediency? Mindanao region.

MR. MONSOD. I do not believe it is expediency when one is trying to protect the country in the event of an invasion Proclamation No. 216 is being facially challenged on the ground of "vagueness" by the insertion of the phrase "other
or a rebellion.137 rebel groups"139 in its Whereas Clause and for lack of available guidelines specifying its actual operational parameters
within the entire Mindanao region, making the proclamation susceptible to broad interpretation, misinterpretation, or
confusion.
The foregoing exchange clearly manifests the intent of the Constitution not to allow Congress to interfere a priori in
the President's choice of extraordinary powers.
This argument lacks legal basis.

e) The Court must similarly

and necessarily refrain from a) Void-for-vagueness doctrine.
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain The void-for-vagueness doctrine holds that a law is facially invalid if "men of common intelligence must necessarily
situation or condition. guess at its meaning and differ as to its application."140 "[A] statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its
application. [In such instance, the statute] is repugnant to the Constitution in two respects: (1) it violates due process
It cannot be overemphasized that time is paramount in situations necessitating the proclamation of martial law or for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves
suspension of the privilege of the writ of habeas corpus. It was precisely this time element that prompted the law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
Constitutional Commission to eliminate the requirement of 1 concurrence of the Congress in the initial imposition by muscle."141
the President of martial law or suspension of the privilege of the writ of habeas corpus.
b) Vagueness doctrine applies
Considering that the proclamation of martial law or suspension of the privilege of the writ of habeas corpus is now only in free speech cases.
anchored on actual invasion or rebellion and when public safety requires it, and is no longer under threat or in
imminent danger thereof, there is a necessity and urgency for the President to act quickly to protect the
country.138 The Court, as Congress does, must thus accord the President the same leeway by not wading into the The vagueness doctrine is an analytical tool developed for testing "on their faces" statutes in free speech cases or, as
realm that is reserved exclusively by the Constitution to the Executive Department. they are called in American law, First Amendment cases.142 A facial challenge is allowed to be made to a vague
statute and also to one which is overbroad because of possible "'chilling effect' on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime under an As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men 'of common
overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a crime. The intelligence must necessarily guess at its meaning and differ as to its application.' It is repugnant to the Constitution in
overbroad or vague law thus chills him into silence." 143 two respects: (1) it violates due process for failure to accord persons, especially the parties targetted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes
an arbitrary flexing of the Government muscle.
It is best to stress that the vagueness doctrine has a special application only to free-speech cases. They are not
appropriate for testing the validity of penal statutes.144 Justice Mendoza explained the reason as follows:
But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving clause or by
construction. Thus, in Coates v. City of Cincinnati, the U.S. Supreme Court struck down an ordinance that had made
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible it illegal for 'three or more persons to assemble on any sidewalk and there conduct themselves in a manner annoying
'chilling effect' upon protected speech. The theory is that ' [w]hen statutes regulate or proscribe speech and no readily to persons passing by.' Clearly, the ordinance imposed no standard at all 'because one may never know in advance
apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the what annoys some people but does not annoy others.'
transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity.' The possible harm to society in permitting some Coates highlights what has been referred to as a 'perfectly vague' act whose obscurity is evident on its face. It is to be
unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be distinguished, however, from legislation couched in imprecise language - but which nonetheless specifies a standard
deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. though defectively phrased - in which case, it may be 'saved' by proper construction. 151

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their The term "other rebel groups" in Proclamation No. 216 is not at all vague when viewed in the context of the words
very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting that accompany it. Verily, the text of Proclamation No. 216 refers to "other rebel groups" found in Proclamation No.
laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free 55, which it cited by way of reference in its Whereas clauses.
speech.

e) Lack of guidelines/
xxxx operational parameters does not
make Proclamation No. 216 vague.

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing 'on their
faces' statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be Neither could Proclamation No. 216 be described as vague, and thus void, on the ground that it has no guidelines
made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is specifying its actual operational parameters within the entire Mindanao region. Besides, operational guidelines will
that'one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that serve only as mere tools for the implementation of the proclamation. In Part III, we declared that judicial review covers
impliedly it might also be taken as applying to other persons or other situations in which its application might be only the sufficiency of information or data available to or known to the President prior to, or at the time of, the
unconstitutional.' As has been pointed out, 'vagueness challenges in the First Amendment context, like overbreadth declaration or suspension. And, as will be discussed exhaustively in Part VII, the review will be confined to the
challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are proclamation itself and the Report submitted to Congress.
invalidated [only] 'as applied' to a particular defendant.' x x x145

Clearly, therefore, there is no need for the Court to determine the constitutionality of the implementing and/or
Invalidation of statutes "on its face" should be used sparingly because it results in striking down statutes entirely on operational guidelines, general orders, arrest orders and other orders issued after the proclamation for being
the ground that they might beapplied to parties not before the Court whose activities are constitutionally irrelevant to its review. Thus, any act committed under the said orders in violation of the Constitution and the laws,
protected.146 "Such invalidation would constitute a departure from the usual requirement of 'actual case and such as criminal acts or human rights violations, should be resolved in a separate proceeding. Finally, there is a risk
controversy' and permit decisions to be made in a sterile abstract context having no factual concreteness." 147 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.

c) Proclamation No. 216

cannot be facially challenged using VI. Whether or not nullifying Proclamation No.
the vagueness doctrine. 216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is unwarranted. Proclamation No. 216 quell lawless violence in Marawi and other parts
does not regulate speech, religious freedom, and other fundamental rights that may be facially challenged. 148 What it of the Mindanao region.
seeks to penalize is conduct, not speech.

a) The calling out power is in a

As held by the Court in David v. President Macapagal-Arroyo,149 the facial review of Proclamation No. 1017, issued by different category from the power to
then President Gloria Macapagal-Arroyo declaring a state of national emergency, on ground o vagueness is uncalled declare martial law and the power to
for since a plain reading of Proclamation No. 10171 shows that it is not primarily directed at speech or even speech- suspend the privilege of the writ of
related1 conduct. It is actually a call upon the Armed Forces of the Philippines (AFP) to prevent or suppress all forms habeas corpus; nullification of
of lawless violence. Like Proclamation No. 1017, Proclamation No. 216 pertains to a spectrum of conduct, not free Proclamation No. 216 will not affect
speech, which is manifestly subject to state regulation. Proclamation No. 55.

d) Inclusion of "other rebel The Court's ruling in these cases will not, in any way, affect the President's declaration of a state of national
groups " does not make Proclamation emergency on account of lawless violence in Mindanao through Proclamation No. 55 dated September 4, 2016,
No.216 vague. where he called upon the Armed Forces and the Philippine National 1 Police (PNP) to undertake such measures to
suppress any and all forms of lawless violence in the Mindanao region, and to prevent such lawless violence from
spreading and escalating elsewhere in the Philippines.
The contention that the phrase "other rebel groups" leaves Proclamation No. 216 open to broad interpretation,
misinterpretation, and confusion, cannot be sustained.
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in a different category from the power to
150
suspend the privilege of the writ of habeas corpus and the power to declare martial law:
In People v. Nazario, the Court enunciated that:
x x x Congress may revoke such proclamation or suspension and the Court may review the sufficiency of the factual However, it must also be stressed that this "operative fact doctrine" is not a fool-proof shield that would repulse any
basis thereof. However, there is no such equivalent provision dealing with the revocation or review of the President's challenge to acts performed during the effectivity of martial law or suspension of the privilege of the writ of habeas
action to call out the armed forces. The distinction places the calling out power in a different category from the power corpus, purportedly in furtherance of quelling rebellion or invasion, and promotion of public safety, when evidence
to declare martial law and the power to suspend the privilege of the writ of habeas corpus, otherwise, the framers of shows otherwise.
the Constitution would have simply lumped together the three powers and provided for their revocation and review
without any qualification.153
VII. The Scope of the Power to Review.

In other words, 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, although, of course, it may also be a a) The scope of the power of
prelude to a possible future exercise of the latter powers, as in this case. review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
Even so, the Court's review of the President's declaration of martial law and his calling out the Armed Forces declaration of martial law and
necessarily entails separate proceedings instituted for that particular purpose. suspension of the privilege of habeas
corpus.

As explained in Integrated Bar of the Philippines v. Zamora,154 the President's exercise of his power to call out the
armed forces to prevent or suppress lawless violence, invasion or rebellion may only be examined by the Court as to To recall, the Court, in the case of In the Matter of the Petition for Habeas Corpus of Lansang,160 which was decided
whether such power was exercised within permissible constitutional limits or in a manner constituting grave abuse of under the 1935 Constitution,161 held that it can inquire into, within proper bounds, whether there has been adherence
discretion.155 to or compliance with the constitutionally-imposed limitations on the Presidential power to suspend the privilege of the
writ of habeas corpus.162 "Lansang limited the review function of the Court to a very prudentially narrow test of
arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang as follows:
In Zamora, the Court categorically ruled that the Integrated Bar of the ' Philippines had failed to sufficiently comply
with the requisites of locus standi, as it was not able to show any specific injury which it had suffered or could suffer
by virtue of President Joseph Estrada's order deploying the Philippine Marines to join the PNP in visibility patrols What, however, are these 'proper bounds' on the power of the courts? The Court first gave the general answer that its
around the metropolis.156 power was 'merely to check - not to supplant - the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act.
More specifically, the Court said that its power was not 'even comparable with its power over civil or criminal cases
This locus standi requirement, however, need not be complied with in so far as the Court's jurisdiction to review the elevated thereto by appeal...in which cases the appellate court has all the powers of the courtof origin,' nor to its
sufficiency of the factual basis of the President's declaration of martial law or suspension of the privilege ofthe writ power of quasi-judicial administrative decisions where the Court is limited to asking whether 'there is some evidentiary
of habeas corpus is concerned. In fact, by constitutional design, such review may be instituted by any citizen before basis' for the administrative finding. Instead, the Court accepted the Solicitor General's suggestion that it 'go
the Court,157 without the need to prove that he or she stands to sustain a direct and personal injury as a consequence no further than to satisfy [itself] not that the President's decision is correct and that public safety was endangered by
of the questioned Presidential act/s. the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act
arbitrarily.'164

But, even assuming arguendo that the Court finds no sufficient basis for the declaration of martial law in this case,
such ruling could not affect the President's exercise of his calling out power through Proclamation No. 55. Lansang, however, was decided under the 1935 Constitution. The 1987 Constitution, by providing only for judicial
review based on the determination of the sufficiency of the factual bases, has in fact done away with the test of
arbitrariness as provided in Lansang.
b) The operative fact doctrine.

b) The "sufficiency of factual

Neither would the nullification of Proclamation No. 216 result in the nullification of the acts of the President done basis test".
pursuant thereto. Under the "operative fact doctrine," the unconstitutional statute is recognized as an "operative fact"
before it is declared unconstitutional.158
Similarly, under the doctrine of contemporaneous construction, the framers of the 1987 Constitution are presumed to
know the prevailing jurisprudence at the time they were drafting the Constitution. Thus, the phrase "sufficiency of
Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and factual basis" in Section 18, Article VII of the Constitution should be understood as the only test for judicial review of
void. As the new Civil Code puts it: 'When the courts declare a law to be inconsistent with the Constitution, the former the President's power to declare martial law and suspend the privilege of the writ of habeas corpus under Section 18,
shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only Article VII of the Constitution. The Court does not need to satisfy itself that the President's decision is correct, rather it
when they are not contrary to the laws or the Constitution.' The above provision of the Civil Code reflects the orthodox only needs to determine whether the President's decision had sufficient factual bases.
view that an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties,
and affords no protection. This doctrine admits of qualifications, however. As the American Supreme Court stated:
'The actual existence of a statute prior to such a determination [of constitutionality], is an operative fact and may have We conclude, therefore, that Section 18, Article VII limits the scope of judicial review by the introduction of the
consequences which cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to "sufficiency of the factual basis" test.
the invalidity may have to be considered in various aspects, - with respect to particular regulations, individual and
corporate, and particular conduct, private and official.
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
The orthodox view finds support in the well-settled doctrine that the Constitution is supreme and provides the these powers is a judgment call of the President, the determination of this Court as to whether there is sufficient
measure for the validity of legislative or executive acts. Clearly then, neither the legislative nor the executive branch, factual basis for the exercise of such, must be based only on facts or information known by or available to the
and for that matter much less, this Court, has power under the Constitution to act contrary to its terms. Any attempted President at the time he made the declaration or suspension, which facts or information are found in the proclamation
exercise of power in violation of its provisions is to that extent unwarranted and null. 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.
The growing awareness of the role of the judiciary as the governmental organ which has the final say on whether or
not a legislative or executive measure is valid leads to a more appreciative attitude of theemerging concept that a
declaration of nullity may have legal consequences which the more orthodox view would deny. That for a period of Past events may be considered as justifications for the declaration and/or suspension as long as these are connected
time such a statute, treaty, executive order, or ordinance was in 'actual existence' appears to be indisputable. What is or related to the current situation existing at the time of the declaration.
more appropriate and logical then than to consider it as 'an operative fact?' (Emphasis supplied)159
As to what facts must be stated in the proclamation and the written Report is up to the President.165 As Commander- VIII. The parameters for determining the
in-Chief, he has sole discretion to determine what to include and what not to include in the proclamation and the sufficiency of the/actual basis/or the declaration
written Report taking into account the urgency of the situation as well as national security. He cannot be forced to of martial law and/or the suspension of the
divulge intelligence reports and confidential information that may prejudice the operations and the safety of the privilege of the writ of habeas corpus.
military.

a) Actual invasion or rebellion,

Similarly, events that happened after the issuance of the proclamation, which are included in the written report, and public safety requirement.
cannot be considered in determining the sufficiency of the factual basis of the declaration of martial law and/or the
suspension of the privilege of the writ of habeas corpus since these happened after the President had already issued
the proclamation. If at all, they may be used only as tools, guides or reference in the Court's determination of the Section 18, Article VII itself sets the parameters for determining the sufficiency of the factual basis for the declaration
sufficiency of factual basis, but not as part or component of the portfolio of the factual basis itself. of martial law and/or the suspension of the privilege of the writ of habeas corpus, "namely (1) actual invasion or
rebellion, and (2) public safety requires the exercise of such power." 170 Without the concurrence of the two conditions,
the President's declaration of martial law and/or suspension of the privilege of the writ of habeas corpus must be
In determining the sufficiency of the factual basis of the declaration and/or the suspension, the Court should look into struck down.
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 As a general rule, a word used in a statute which has a technical or legal meaning, is construed to have the same
precision in the President's appreciation of facts would unduly burden him and therefore impede the process of his technical or legal meaning.171 Since the Constitution did not define the term "rebellion," it must be understood to have
decision-making. Such a requirement will practically necessitate the President to be on the ground to confirm the the same meaning as the crime of "rebellion" in the Revised Penal Code (RPC).172
correctness of the reports submitted to him within a period that only the circumstances obtaining would be able to
dictate. Such a scenario, of course, would not only place the President in peril but would also defeat the very purpose
of the grant of emergency powers upon him, that is, to borrow the words of Justice Antonio T. Carpio in Fortun, to During the July 29, 1986 deliberation of the Constitutional Commission of 1986, then Commissioner Florenz D.
"immediately put an end to the root cause of the emergency".166 Possibly, by the time the President is satisfied with Regalado alluded to actual rebellion as one defined under Article 134 of the RPC:
the correctness of the facts in his possession, it would be too late in the day as the invasion or rebellion could have
already escalated to a level that is hard, if not impossible, to curtail.
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion and no longer imminent rebellion.
Does the Committee mean that there should be actual shooting or actual attack on the legislature or Malacañang, for
Besides, the framers of the 1987 Constitution considered intelligence reports of military officers as credible evidence example? Let us take for example a contemporary event - this Manila Hotel incident, everybody knows what
that the President ca appraise and to which he can anchor his judgment,167 as appears to be the case here. happened. Would the Committee consider that an actual act of rebellion?

At this point, it is wise to quote the pertinent portions of the Dissenting Opinion of Justice Presbitero J. Velasco Jr. MR. REGALADO. If we consider the definition of rebellion under Articles 134 and 135 of the Revised Penal Code,
in Fortun: that presupposes an actual assemblage of men in an armed public uprising for the purposes mentioned in Article 134
and by the means employed under Article 135. x x x173

President Arroyo cannot be blamed for relying upon the information given to her by the Armed Forces of the
Philippines and the Philippine National Police, considering that the matter of the supposed armed uprising was within Thus, rebellion as mentioned in the Constitution could only refer to rebellion as defined under Article 134 of the RPC.
their realm of competence, and that a state of emergency has also been declared in Central Mindanao to prevent To give it a different definition would not only create confusion but would also give the President wide latitude of
lawless violence similar to the 'Maguindanao massacre,' which may be an indication that there is a threat to the public discretion, which may be abused - a situation that the Constitution see k s to prevent. 174
safety warranting a declaration of martial law or suspension of the writ.
Article 134 of the RPC states:
Certainly, the President cannot be expected to risk being too late before declaring martial law or suspending the writ
of habeas corpus. The Constitution, as couched, does not require precision in establishing the fact of rebellion. The
President is called to act as public safety requires.168 Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government
or its laws, the territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed forces,
Corollary, as the President is expected to decide quickly on whether there is a need to proclaim martial law even only depriving the Chief Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
on the basis of intelligence reports, it is irrelevant, for purposes of the Court's review, if subsequent events prove that
the situation had not been accurately reported to him.
Thus, for rebellion to exist, the following elements must be present, to wit: "(l) there is a (a) public uprising and (b)
taking arms against the Government; and (2) the purpose of the uprising or movement is either (a) to remove from the
After all, the Court's review is confined to the sufficiency, not accuracy, of the information at hand during the allegiance to the Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any body of land,
declaration or suspension; subsequent events do not have any bearing insofar as the Court's review is concerned. In naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of their
any event, safeguards under Section 18, Article VII of the Constitution are in place to cover such a situation, e.g., the powers and prerogatives."175
martial law period is good only for 60 days; Congress may choose to revoke it even immediately after the
proclamation is made; and, this Court may investigate the factual background of the declaration.169
b) Probable cause is the
allowable standard of proof for the
Hence, the maxim falsus in uno, falsus in omnibus finds no application in this case. Falsities of and/or inaccuracies in President.
some of the facts stated in the proclamation and the written report are not enough reasons for the Court to invalidate
the declaration and/or suspension as long as there are other facts in the proclamation and the written Report that
support the conclusion that there is an actual invasion or rebellion and that public safety requires the declaration In determining the existence of rebellion, the President only needs to convince himself that there is probable cause or
and/or suspension. evidence showing that more likely than not a rebellion was committed or is being committed.176 To require him to
satisfy a higher standard of proof would restrict the exercise of his emergency powers. Along this line, Justice Carpio,
in his Dissent in Fortun v. President Macapagal-Arroyo, concluded that the President needs only to satisfy probable
In sum, the Court's power to review is limited to the determination of whether the President in declaring martial law cause as the standard of proof in determining the existence of either invasion or rebellion for purposes of declaring
and suspending the privilege of the writ of habeas corpus had sufficient factual basis. Thus, our review would be martial law, and that probable cause is the most reasonable, most practical and most expedient standard by which
limited to an examination on whether the President acted within the bounds set by the Constitution, i.e., whether the the President can fully ascertain the existence or non-existence of rebellion necessary for a declaration of martial law
facts in his possession prior to and at the time of the declaration or suspension are sufficient for him to declare martial or suspension of the writ. This is because unlike other standards of proof, which, in order to be met, would require
law or suspend the privilege of the writ of habeas corpus. much from the President and therefore unduly restrain his exercise of emergency powers, the requirement of
probable cause is much simpler. It merely necessitates an "average man [to weigh] the facts and circumstances
without resorting to the calibration of the rules of evidence of which he has no technical knowledge. He [merely] relies b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the Maute
on common sense [and] x x x needs only to rest on evidence showing that, more likely than not, a crime has been Group and other detainees;
committed x x x by the accused."177

3. On May 23, 2017:183

To summarize, 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. a) Takeover of a hospital in Marawi;

Having laid down the parameters for review, the Court shall nowproceed to the core of the controversy - whether b) Establishment of several checkpoints within Marawi;
Proclamation No. 216,Declaring a State of Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in
the whole of Mindanao, lacks sufficient factual basis.
c) Burning of certain government and private facilities;

IX. There is sufficient factual basis for the

declaration of martial law and the suspension of d) Mounting casualties on the part of the government;
the writ of habeas corpus.
e) Hoisting the flag of ISIS in several areas; and
At this juncture, it bears to emphasize that the purpose of judicial review is not the determination of accuracy or
veracity of the facts upon which the President anchored his declaration of martial law or suspension of the privilege of
the writ of habeas corpus; rather, only the sufficiency of the factual basis as to convince the President that there is f) Capability of the Maute Group and other rebel groups to sow terror, and cause death and damage to property not
probable cause that rebellion exists. It must also be reiterated that martial law is a matter ofurgency and much leeway only in Lanao del Sur but also in other parts of Mindanao; and the Report184 submitted to Congress:
and flexibility should be accorded the President. As such, he is not expected to completely validate all the information
he received before declaring martial law or suspending the privilege of the writ of habeas corpus.
1. Zamboanga siege;185

We restate the elements of rebellion for reference:

2. Davao bombing;186

1. That there be (a) public uprising, and (b) taking up arms against the Government; and
3. Mamasapano carnage;187

2. That the purpose of the uprising or movement is either: (a) to remove from the allegiance to said Government or its
4. Cotabato bombings;188
laws the territory of the Philippines or any part thereof, or any body of land, naval or other armed forces or (b) to
deprive the Chief Executive or Congress, wholly or partially, of any of their powers or prerogatives.178
5. Sultan Kudarat bombings;189
Petitioners concede that there is an armed public uprising in Marawi City.179 However, they insist that the armed
hostilities do not constitute rebellion in the absence of the element of culpable political purpose, i.e., the removal from 6. Sulu bombings;190
the allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof; or (ii) any
body of land, naval, or other armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of
any of their powers and prerogatives. 7. Basilan bombings;191

The contention lacks merit. 8. Attempt to capture Hapilon was confronted with armed resistance by combined forces of ASG and the Maute
Group;192
a) Facts, events and
information upon which the President 9. Escalation of armed hostility against the government troops;193
anchored his decision to declare
martial law and suspend the privilege
of the writ of habeas corpus. 10. Acts of violence directed not only against government authorities and establishments but civilians as well; 194

Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM,180 the Court will consider 11. Takeover of major social, economic and political foundations which paralyzed Marawi City;195
only those facts and/or events which were known to or have transpired on or before that time, consistent with the
scope of judicial review. Thus, the following facts and/or events were deemed to have been considered by the
President in issuing Proclamation No. 216, as plucked from and extant in Proclamation No. 216 itself: 12. The object of the armed hostilities was to lay the groundwork for the establishment of a DAESH/ISIS wilayat or
province;196

1. Proclamation No. 55 issued on September 4, 2016, declaring a state of national emergency on account of lawless
violence in Mindanao;181 13. Maute Group has 263 active members, armed and combat-ready;197

2. Series of violent acts182 committed by the Maute terrorist group including: 14. Extensive networks or linkages of the Maute Group with foreign and local armed groups;198

a) Attack on the military outpost in Butig, Lanao del Sur m February 2016, killing and 15. Adherence of the Maute Group to the ideals espoused by ISIS; 199
wounding several soldiers;

16. Publication of a video showing Maute Group's declaration of allegiance to ISIS;200

17. Foreign-based terrorist groups provide financial and logistical support to the Maute Group;201 1) The Maute Group is "openly attempting to remove from the allegiance to the Philippine Government this part of
Mindanao and deprive the Chief Executive of his powers and prerogatives to enforce the laws of the land and to
maintain public order and safety in Mindanao, constituting the crime of rebellion."221
18. Events on May 23, 2017 in Marawi City, particularly:

2) "[L]awless armed groups have taken up arms and committed public uprising against the duly constituted
a) at 2:00 PM, members and sympathizers of the Maute Group and ASG attacked various government and privately- government and against the people of Mindanao, for the purpose of removing Mindanao - starting with the City of
owned facilities;202 Marawi, Lanao del Sur - from its allegiance to the Government and its laws and depriving the Chief Executive of his
powers and prerogatives to enforce the laws of the land and to maintain public order and safety in Mindanao, to the
great damage, prejudice, and detriment of the people therein and the nation as a whole."222
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City Jail; facilitated the escape of
inmates; killed a member of PDEA; assaulted and disarmed on-duty personnel and/or locked them inside the cells;
confiscated cellphones, personnel-issued firearms, and vehicles;203 3) The May 23, 2017 events "put on public display the groups' clear intention to establish an Islamic State and their
capability to deprive the duly constituted authorities - the President, foremost - of their powers and prerogatives. "223

c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power outage by evening;204
4) "These activities constitute not simply a display of force, but a clear attempt to establish the groups' seat of power
in Marawi City for their planned establishment of a DAESH wilayat or province covering the entire Mindanao."224
d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi Police Station; commandeered a police
car;205
5) "The cutting of vital lines for transportation and power; the recruitment of young Muslims to further expand their
206
ranks and strengthen their force; the armed consolidation of their members throughout Marawi City; the decimation of
e) BJMP personnel evacuated the Marawi City Jail and other affected areas; a segment of the city population who resist; and the brazen display of DAESH flags constitute a clear, pronounced,
and unmistakable intent to remove Marawi City, and eventually the rest of Mindanao, from its allegiance to the
Government."225
f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, was taken by the rebels;207

6) "There exists no doubt that lawless armed groups are attempting to deprive the President of his power, authority,
g) road blockades and checkpoints set up by lawless armed groups at the Iligan-Marawi junction;208 and prerogatives within Marawi City as a precedent to spreading their control over the entire Mindanao, in an attempt
to undermine his control over executive departments, bureaus, and offices in said area; defeat his mandate to ensure
that all laws are faithfully executed; and remove his supervisory powers over local governments."226
h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the nuns' quarters in the church, and the
Shia Masjid Moncado Colony;209
7) "Law enforcement and other government agencies now face pronounced difficulty sending their reports to the Chief
Executive due to the city-wide power outages. Personnel from the BJMP have been prevented from performing their
i) taking of hostages from the church;210
functions. Through the attack and occupation of several hospitals, medical services in Marawi City have been
adversely affected. The bridge and road blockades set up by the groups effectively deprive the government of its
j) killing of five faculty members of Dansalan College foundation; 211 ability to deliver basic services to its citizens. Troop reinforcements have been hampered, preventing the government
from restoring peace and order in the area. Movement by both civilians and government personnel to and from the
city is likewise hindered."227
k) burning of Senator Ninoy Aquino College Foundation and Marawi Central Elementary Pilot School;212
8) "The taking up of arms by lawless armed groups in the area, with support being provided by foreign-based
1) overrunning of Amai Pakpak Hospital;213 terrorists and illegal drug money, and their blatant acts of defiance which embolden other armed groups in Mindanao,
have resulted in the deterioration of public order and safety in Marawi City; they have likewise compromised the
security of the entire Island of Mindanao."228
m) hoisting the ISIS flag in several areas;214

9) "Considering the network and alliance-building activities among terrorist groups, local criminals, and lawless armed
n) attacking and burning of the Filipino-Libyan Friendship Hospital;215 men, the siege f Marawi City is a vital cog in attaining their long-standing goal: absolute control over the entirety of
Mindanao. These circumstances demand swift and decisive action to ensure the safety and security of the Filipino
people and preserve our national integrity."229
o) ransacking of a branch of Landbank of the Philippines and commandeering an armored vehicle;216

Thus, the President deduced from the facts available to him that there was an armed public uprising, the culpable
p) reports regarding Maute Group's plan to execute Christians;217 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 powers 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
q) preventing Maranaos from leaving their homes;218 of martial law and suspension of the privilege of the writ of habeas corpus.

r) forcing young Muslims to join their group;219 and A review of the aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation No.
216, had sufficient factual bases tending to show that actual rebellion exists. The President's conclusion, that there
was an armed public uprising, the culpable purpose of which was the removal from the allegiance of the Philippine
s) intelligence reports regarding the existence of strategic mass action of lawless armed groups in Marawi City, Government a portion of its territory and the deprivation of the President from performing his powers and
seizing public and private facilities, perpetrating killings of government personnel1 , and committing armed uprising prerogatives, was reached after a tactical consideration of the facts. In fine, the President satisfactorily discharged his
against and open defiance of the Government. 220 burden of proof.

b) The President's Conclusion 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. As Justice Carpio decreed in his Dissent in Fortun:
After the assessment by the President of the aforementioned facts, he arrived at the following conclusions, as
mentioned in Proclamation No. 216 and the Report:
x x x [T]he Constitution does not compel the President to produce such amount of proof as to unduly burden and
effectively incapacitate her from exercising such powers.

Definitely, the President need not gather proof beyond reasonable doubt, which is the standard of proof required for
convicting an accused charged with a criminal offense.x x x

xxxx

Proof beyond reasonable doubt is the highest quantum of evidence, and to require the President to establish the
existence of rebellion or invasion with such amount of proof before declaring martial law or suspending the writ
amounts to an excessive restriction on 'the President's power to act as to practically tie her hands and disable her
from effectively protecting the nation against threats to public safety.'

Neither clear and convincing evidence, which is employed in either criminal or civil cases, is indispensable for a lawful
declaration of martial law or suspension of the writ. This amount of proof likewise unduly restrains the President in
exercising her emergency powers, as it requires proof greater than preponderance of evidence although not beyond
reasonable doubt.

Not even preponderance of evidence, which is the degree of proof necessary in civil cases, is demanded for a lawful
declaration of martial law. FACTUAL STATEMENTS COUNTER-EVIDENCE
(1) that the Maute group attacked Amai Pakpak Hospital and hoisted the Statements made by:
xxxx DAESH flag there, among several locations. As of 0600H of 24 May 2017, (a) Dr. Amer Saber, Chief of the Hospital
members of the Maute Group were seen guarding the entry gates of the (b) Health Secretary Paulyn Ubial;
Amai Pakpak Hospital and that they held hostage the employees of the (c) PNP Spokesperson Senior Supt. Dionardo Carlos;
Hospital and took over the PhilHealth office located thereat (Proclamation
Weighing the superiority of the evidence on hand, from at least two opposing sides, before she can act and impose (d) AFP Public Affairs Office Chief Co. Edgard Arevalo; and
martial law or suspend the writ unreasonably curtails the President's emergency powers. No. 216 and Report); (e) Marawi City Mayor Majul Gandamra denying that the hospital was
attacked by the Maute Group citing online news articles of Philstar, Sunstar,
Inquirer, and Bombo Radyo.232
Similarly, substantial evidence constitutes an unnecessary restriction on the President's use of her emergency
2. that the Maute Group ambushed and burned the Marawi Police Station
powers. Substantial evidence is the amount of proof required in administrative or quasi-judicial cases, or that amount Statements made by PNP Director General Ronald dela Rosa and Marawi
of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Proclamation No. 216 and the Report); City Mayor Majul Gandamra in the online news reports of ABS-CBN News
and CNN Philippines233 denying that the Maute group occupied the Marawi
Police Station.
I am of the view that probable cause of the existence of either invasion or rebellion suffices and satisfies the standard
3. that lawless armed groups likewise ransacked the Landbank of the Statement made by the bank officials in the on-line news article of
of proof for a valid declaration of martial law and suspension of the writ.
Philippines and commandeered one of its armored vehicles (Report); Philstar234 that the Marawi City branch was not ransacked but sustained
damages from the attacks.
Probable cause is the same amount of proof required for the filing of a criminal information by the prosecutor and4.for
that the Marawi Central Elementary Pilot School was burned Statements in the on-line news article of Philstar235 made by the Marawi City
the issuance of an arrest warrant by a judge. Probable cause has been defined as a 'set of facts and circumstances(Proclamation No. 216 and the Report); Schools Division Assistant Superintendent Ana Alonto denying that the
as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any school was burned and Department of Education Assistant Secretary
offense included therein has been committed by the person sought to be arrested.' Tonisito Umali stating that they have not received any report of damage.
5. that the Maute Group attacked various government facilities Statement in the on-line news article of Inquirer236 made by Marawi City
In determining probable cause, the average man weighs the facts and circumstances without resorting to the (Proclamation No. 216 and the Report). Mayor Majul Gandamra stating that the ASG and the Maute Terror Groups
calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding have not taken over any government facility in Marawi City.
of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and
that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence
that would justify conviction. However, the so-called counter-evidence were derived solely from unverified news articles on the internet, with
neither the authors nor the sources shown to have affirmed the contents thereof It was not even shown that efforts
were made to secure such affirmation albeit the circumstances proved futile. As the Court has consistently ruled,
Probable cause, basically premised on common sense, is the most reasonable, most practical, and most expedient news articles are hearsay evidence, twice removed, and are thus without any probative value, unless offered for a
standard by which the President can fully ascertain the existence or non-existence of rebellion, necessary for a purpose other than proving the truth of the matter asserted. 237 This pronouncement applies with equal force to the
declaration of martial law x x x230 Cullamat Petition which likewise submitted online news articles238 as basis for their claim of insufficiency of factual
basis.
c) Inaccuracies, simulations,
falsities, and hyperboles. Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in these cases. As long
as there are other facts in the proclamation and the written Report indubitably showing the presence of an actual
invasion or rebellion and that public safety requires the declaration and/or suspension, the finding of sufficiency of
The allegation in the Lagman Petition that the facts stated in Proclamation No. 216 and the Report are false,
factual basis, stands.
inaccurate, simulated, and/or hyperbolic, does not persuade. As mentioned, the Court is not concerned about
absolute correctness, accuracy, or precision of the facts because to do so would unduly tie the hands of the President
in responding to an urgent situation. d) Ruling in Bedol v.
Commission on Elections not
Applicable.
Specifically, it alleges that the following facts are not true as shown by its counter-evidence.231
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news reports may be admitted on grounds of Considering the nation's and its people's traumatic experience martial law under the Marcos regime, one would
relevance, trustworthiness, and necessity. Petitioners' reliance on this case is misplaced. The Court in Bedol made it expect the framers of the 1987 Constitution to stop at nothing from not resuscitating the law. Yet it would appear that
clear that the doctrine of independent relevant statement, which is an ·exception to the hearsay rule, applies in cases the constitutional writers entertained no doubt about the necessity and practicality of such specie of extraordinary
"where only the fact that such statements were made is relevant, and the truth or falsity thereof is power and thus, once again, bestowed on the Commander-in-Chief the power to declare martial law albeit in its
immaterial."240 Here, the question is not whether such statements were made by Saber, et. al., but rather whether diluted form.
what they said are true. Thus, contrary to the view of petitioners, the exception in Bedol finds no application here.

Indeed, martial law and the suspension of the privilege of the writ of habeas corpus are necessary for the protection
e) There are other independent of the security of the nation; suspension of the privilege of the writ of habeas corpus is "precautionary , and although it
facts which support the finding that, might [curtail] certain rights of individuals, [it] is for the purpose of defending and protecting the security of the state or
more likely than not, rebellion exists the entire country and our sovereign people".253 Commissioner Ople referred to the suspension of the privilege of the
and that public safety requires it. writ of habeas corpus as a "form of immobilization" or "as a means of immobilizing potential internal enemies"
"especially in areas like Mindanao."254

Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report; along with these
alleged false data is an arsenal of other independent facts showing that more likely than not, actua1 rebellion exists, Aside from protecting the security of the country, martial law also guarantees and promotes public safety. It is worthy
and public safety requires the declaration of martial law or suspension of the privilege of the writ of habeas corpus. To of mention that rebellion alone does not justify the declaration of martial law or suspension of the privilege of the writ
be precise, the alleged false and/or inaccurate statements are only five out of the severa1 statements bulleted in the of habeas corpus; the public safety requirement must likewise be present.
President's Report. Notably, in the interpellation by Justice Francis H. Jardeleza during the second day of the oral
argument, petitioner Lagman admitted that he was not aware or that he had no personal knowledge of the other
incidents cited.241 As it thus stands, there is no question or challenge with respect to the reliability of the other b) As Commander-in-Chief, the
incidents, which by themselves are ample to preclude the conclusion that the President's report is unreliable and that President receives vital, relevant,
Proclamation No. 216 was without sufficient factual basis. classified, and live information which
equip and assist him in making
decisions.
Verily, there is no credence to petitioners' claim that the bases for the President's imposition of martial law and
suspension of the writ of habeas corpus were mostly inaccurate, simulated, false and/or hyperbolic.
In Parts IX and X, the Court laid down the arsenal of facts and events that formed the basis for Proclamation No. 216.
For the President, the totality of facts and events, more likely than not, shows that actual rebellion exists and that
X. Public safety requires the declaration of public safety requires the declaration of martial law and suspension of the privilege of the writ of habeas
martial law and the suspension of the privilege of corpus. Otherwise stated, the President believes that there is probable cause that actual rebellion exists and public
the writ of habeas corpus in the whole of safety warrants the issuance of Proclamation No. 216. In turn, the Court notes that the President, in arriving at such a
Mindanao. conclusion, relied on the facts and events included in the Report, which we find sufficient.

Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration of martial law or To be sure, the facts mentioned in the Proclamation and the Report are far from being exhaustive or all-
suspension of the privilege of the writ of habeas corpus. For a declaration of martial law or suspension of the privilege encompassing. At this juncture, it may not be amiss to state that as Commander-in-Chief, the President has
of the writ of habeas corpus to be valid, there must be a concurrence of actual rebellion or invasion and the public possession of documents and information classified as "confidential", the contents of which cannot be included in the
safety requirement. In his Report, the President noted that the acts of violence perpetrated by the ASG and the Maute Proclamation or Report for reasons of national security. These documents may contain information detailing the
Group were directed not only against government forces or establishments but likewise against civilians and their position of government troops and rebels, stock of firearms or ammunitions, ground commands and operations,
properties.242 In addition and in relation to the armed hostilities, bomb threats were issued;243 road blockades and names of suspects and sympathizers, etc. , In fact, during the closed door session held by the Court, some
checkpoints were set up;244 schools and churches were burned;245 civilian hostages were taken and killed;246 non- information came to light, although not mentioned in the Proclamation or Report. But then again, the discretion
Muslims or Christians were targeted;247 young male Muslims were forced to join their group;248 medical services and whether to include the same in the Proclamation or Report is the judgment call of the President. In fact, petitioners
delivery of basic services were hampered;249 reinforcements of government troops and civilian movement were concede to this. During the oral argument, petitioner Lagman admitted that "the assertion of facts [in the Proclamation
hindered;250 and the security of the entire Mindanao Island was compromised.251 and Report] is the call of the President."255

These particular scenarios convinced the President that the atrocities had already escalated to a level that risked It is beyond cavil that the President can rely on intelligence reports and classified documents. "It is for the President
public safety and thus impelled him to declare martial law and suspend the privilege of the writ of habeas corpus. In as [C]ommander-in[C]hief of the Armed Forces to appraise these [classified evidence or documents/]reports and be
the last paragraph of his Report, the President declared: satisfied that the public safety demands the suspension of the writ."256 Significantly, respect to these so-called
classified documents is accorded even "when [the] authors of or witnesses to these documents may not be
revealed."257
While the government is presently conducting legitimate operations to address the on-going rebellion, if not the seeds
of invasion, public safety necessitates the continued implementation of martial law and the suspension of the privilege
of the writ of habeas corpus in the whole of Mindanao until such time that the rebellion is completely quelled.252 In fine, not only does the President have a wide array of information before him, he also has the right, prerogative,
and the means to access vital, relevant, and confidential data, concomitant with his position as Commander-in-Chief
of the Armed Forces.
Based on the foregoing, we hold that the parameters for the declaration of martial law and suspension of the privilege
of the writ f habeas corpus have been properly and fully complied with. Proclamation No. 216 has sufficient factual
basis there being probable cause to believe that rebellion exists and that public safety requires the martial law c) The Court has no machinery
declaration and the suspension of the privilege of the writ of habeas corpus. or tool equal to that of the
Commander-in-Chief to ably and
properly assess the ground
XI. Whole of Mindanao conditions.

a) The overriding and In contrast, the Court does not have the same resources available to the President. However, this should not be
paramount concern of martial law is considered as a constitutiona1 lapse. On the contrary, this is in line with the function of the Court, particularly in this
the protection of the security of the instance, to determine the sufficiency of factual basis of Proclamation No. 216. As thoroughly discussed in Part VIII,
nation and the good and safety of the the determination by the Court of the sufficiency of factual basis must be limited only to the facts and information
public. mentioned in the Report and Proclamation. In fact, the Court, in David v. President Macapagal-Arroyo,258 cautioned
not to "undertake an independent investigation beyond the pleadings." In this regard, "the Court will have to rely on
the fact-finding capabilities of the [E]xecutive [D]epartment;"259 in turn, the Executive Department will have to open its Even Bishop Bacani was convinced that the 1987 Constitution has enough safeguards against presidential abuses
findings to the Court,260 which it did during the closed door session last June 15, 2017. and commission of human rights violations. In voting yes for the elimination of the requirement of prior concurrence of
Congress, Bishop Bacani stated, viz.:

d) The 1987 Constitution

grants to the President, as BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that despite my concern for human rights, I
Commander-in-Chief, the discretion believe that a good President can also safeguard human rights and human lives as well. And I do not want to unduly
to determine the territorial coverage emasculate the powers of the President. Xxx263
or application of martial law or
suspension of the privilege of the writ
of habeas corpus. Commissioner Delos Reyes shared the same sentiment, to wit:

Section 18, Article VII of the Constitution states that "[i]n case of invasion or rebellion, when the public safety requires MR. DE LOS REYES. May I explain my vote, Madam President.
it, [the President] may x x x suspend the privilege of writ of habeas corpus or place the Philippines or any part
thereof under martial law." Clearly, the Constitution grants to the President the discretion to determine the territorial
coverage of martial law and the suspension of the privilege of the writ of habeas corpus. He may put the entire x x x The power of the President to impose martial law is doubtless of a very high and delicate nature. A free people
Philippines or only a part thereof under martial law. are naturally jealous of the exercise of military power, and the power to impose martial law is certainly felt to be one of
no ordinary magnitude. But as presented by the Committee, there are many safeguards: 1) it is limited to 60 days; 2)
Congress can revoke it; 3) the Supreme Court can still review as to the sufficiency of factual basis; and 4) it does not
This is both an acknowledgement and a recognition that it is the Executive Department, particularly the President as suspend the operation of the Constitution. To repeat what I have quoted when I interpellated Commissioner Monsod,
Commander-in-Chief, who is the repository of vital, classified, and live information necessary for and relevant in it is said that the power to impose martial law is dangerous to liberty and may be abused. All powers may be abused
calibrating the territorial application of martial law and the suspension of the privilege of the writ of habeas corpus. It, if placed in unworthy hands. But it would be difficult, we think, to point out any other hands in which this power will be
too, is a concession that the President has the tactical and military support, and thus has a more informed more safe and at the same time equally effectual. When citizens of the State are in arms against each other and the
understanding of what is happening on the ground. Thus, the Constitution imposed a limitation on the period of constituted authorities are unable to execute the laws, the action of the President must be prompt or it is of little value.
application, which is 60 days, unless sooner nullified, revoked or extended, but not on the territorial scope or area of x x x264 (Emphasis supplied)
coverage; it merely stated "the Philippines or any part thereof," depending on the assessment of the President.

At this juncture, it bears to stress that it was the collective sentiment of the framers of the 1987 Constitution
e) The Constitution has that sufficient safeguards against possible misuse and abuse by the Commander-in-Chief of his extraordinary powers
provided sufficient safeguards against are already in place and that no further emasculation of the presidential powers is called for in the guise of additional
possible abuses of Commander-in- safeguards. The Constitution recognizes that any further curtailment, encumbrance, or emasculation of the
Chief's powers; further curtailment of presidential powers would not generate any good among the three co-equal branches, and to the country and its
Presidential powers should not only citizens as a whole. Thus:
be discouraged but also avoided.

MR. OPLE. The reason for my concern, Madam President, is that when we put all of these encumbrances on the
Considering the country's history, it is understandable that the resurgence of martial law would engender President and Commander-in-Chief during an actual invasion or rebellion, given an intractable Congress that may be
apprehensions among the citizenry. Even the Court as an institution cannot project a stance of nonchalance. dominated by opposition parties, we may be actually impelling the President to use the sword of Alexander to cut the
However, the importance of martial law in the context of our society should outweigh one's prejudices and Gordian knot by just declaring a revolutionary government that sets him free to deal with the invasion or the
apprehensions against it. The significance of martial law should not be undermined by unjustified fears and past insurrection. x x x265 (Emphasis supplied)
experience. After all, martial law is critical and crucial to the promotion of public safety, the preservation of the nation's
sovereignty and ultimately, the survival of our country. It is vital for the protection of the country not only against
internal enemies but also against those enemies lurking from beyond our shores. As such, martial law should not be f) Rebellion and public safety;
cast aside, or its scope and potency limited and diluted, based on bias and unsubstantiated assumptions. nature, scope, and range.

Conscious of these fears and apprehensions, the Constitution placed several safeguards which effectively watered It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the government;"266
down the power to declare martial law. The 1987 Constitution "[clipped] the powers of [the] Commander-in-Chief and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd action, that cannot be
because of [the] experience with the previous regime."261 Not only were the grounds limited to actual invasion or confined a priori, within predetermined bounds."267 We understand this to mean that the precise extent or range of the
rebellion, but its duration was likewise fixed at 60 days, unless sooner revoked, nullified, or extended; at the same rebellion could not be measured by exact metes and bounds.
time, it is subject to the veto powers of the Court and Congress.
To illustrate: A contingent armed with high-powered firearms publicly assembled in Padre Faura, Ermita, Manila
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad Petition, even exhorted his colleagues in the where the Court's compound is situated. They overpowered the guards, entered the Court's premises, and hoisted
Constitutional Convention to look at martial law from a new perspective by elaborating on the sufficiency of the the ISIS flag. Their motive was political, i.e., they want to remove from the allegiance to the Philippine government a
proposed safeguards: part of the territory of the Philippines, particularly the Court's compound and establish it as an ISIS-territory.

MR. MONSOD. x x x Based on the foregoing illustration, and vis-a-vis the nature of the crime of rebellion, could we validly say that the
rebellion is confined only within the Court's compound? Definitely not. The possibility that there are other rebels
positioned in the nearby buildings or compound of the Philippine General Hospital (PGH) or the Manila Science High
Second, we have been given a spectre of non sequitur, that the mere declaration of martial law for a fixed period not Schoo1 (MSHS) could not be discounted. There is no way of knowing that all participants in the rebellion went and
exceeding 60 days, which is subject to judicial review, is going to result in numerous violations of human rights, the stayed inside the Court's compound.
predominance of the military forever and in untold sufferings. Madam President, we are talking about invasion and
rebellion. We may not have any freedom to speak of after 60 days, if we put as a precondition the concurrence of
Congress. That might prevent the President from acting at that time in order to meet the problem. So I would like to Neither could it be validly argued that the armed contingent positioned in PGH or MSHS is not engaged in rebellion
suggest that, perhaps, we should look at this in its proper perspective. We are only looking at a very specific case. because there is no publicity in their acts as, in fact, they were merely lurking inside the compound of PGH and
We are only looking at a case of the first 60 days at its maximum. And we are looking at actual invasion and rebellion, MSHS. However, it must be pointed out that for the crime of rebellion to be consummated, it is not required
and there are other safeguards in those cases.262 that all armed participants should congregate in one place, in this case, the Court's compound, and publicly rise in
arms against the government for the attainment of their culpable purpose. It suffices that a portion of the contingent
gathered and formed a mass or a crowd and engaged in an armed public uprising against the government. Similarly,
it cannot be validly concluded that the grounds on which the armed public uprising actually to6k place should be the
measure of the extent, scope or range, of the actual I rebellion. This is logical since the other rebels positioned in The Court can only act within the confines of its power.1âwphi1 For the Court to overreach is to infringe upon
PGH, MSHS, I or elsewhere, whose participation did not involve the publicity aspect of rebellion, may also be another's territory. Clearly, the power to determine the scope of territorial application belongs to the President. "The
considered as engaging in the crime of rebellion. Court cannot indulge in judicial legislation without violating the principle of separation of powers, and, hence,
undermining the foundation of our republican system."281

Proceeding from the same illustration, suppose we say that the President, after finding probable cause that there
exists actual rebellion and that public safety requires it, declares martial law and suspends the writ of habeas To reiterate, the Court is not equipped with the competence and logistical machinery to determine the strategical
corpus in the whole of Metro Manila, could we then say that the territorial coverage of the proclamation is too value of other places in the military's efforts to quell the rebellion and restore peace. It would be engaging in an act of
expansive? adventurism if it dares to embark on a mission of deciphering the territorial metes and bounds of martial law. To be
blunt about it, hours after the proclamation of martial law none of the members of this Court could have divined that
more than ten thousand souls would be forced to evacuate to Iligan and Cagayan de Oro and that the military would
To answer this question, we revert back to the premise that the discretion to determine the territorial scope of martial have to secure those places also; none of us could have predicted that Cayamora Maute would be arrested in Davao
law lies with the President. The Constitution grants him the prerogative whether to put the entire Philippines City or that his wife Ominta Romato Maute would be apprehended in Masiu, Lanao del Sur; and, none of us had an
or any part thereof under martial law. There is no constitutional edict that martial law should be confined only in the inkling that the Bangsamoro Islamic Freedom Fighters (BIFF) would launch an attack in Cotabato City. The Court has
particular place where the armed public uprising actually transpired. This is not only practical but also logical. Martial no military background and technical expertise to predict that. In the same manner, the Court lacks the technical
law is an urgent measure since at stake is the nation's territorial sovereignty and survival. As such, the President has capability to determine which part of Mindanao would best serve as forward operating base of the military in their
to respond quickly. After the rebellion in the Court's compound, he need not wait for another rebellion to be mounted present endeavor in Mindanao. Until now the Court is in a quandary and can only speculate whether the 60-day
in Quezon City before he could impose martial law thereat. If that is the case, then the President would have to wait lifespan of Proclamation No. 216 could outlive the present hostilities in Mindanao. It is on this score that the Court
until every remote corner in the country is infested with rebels before he could declare martial law in should give the President sufficient leeway to address the peace and order problem in Mindanao.
the entire Philippines. For sure, this is not the scenario envisioned by the Constitution.

Thus, considering the current situation, it will not serve any purpose if the President is goaded into using "the sword of
Going back to the illustration above, although the President is not required to impose martial law only within the Alexander to cut the Gordian knot"282 by attempting to impose another encumbrance; after all "the declaration of
Court's compound because it is where the armed public uprising actually transpired, he may do so if he sees fit. At martial law or the suspension of the privilege of the writ of habeas corpus is essentially an executive act."283
the same time, however, he is not precluded from expanding the coverage of martial law beyond the Court's
compound. After all, rebellion is not confined within predetermined bounds.
Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue, rein in, or give the President a nudge,
so to speak, as some sort of reminder of the nation's experience under the Marcos-styled martial law. However, it is
Public safety, which is another component element for the declaration of martial law, "involves the prevention of and not fair to judge President Duterte based on the ills some of us may have experienced during the Marcos-martial law
protection from events that could endanger the safety of the general public from significant danger, injury/harm, or era. At this point, the Court quotes the insightful discourse of Commissioner Ople:
damage, such as crimes or disasters."268 Public safety is an abstract term; it does not take any physical form. Plainly,
its range, extent or scope could not be physically measured by metes and bounds. MR. OPLE. x x x
xxxx
Madam President, there is a tendency to equate patriotism with rendering the executive branch of the government
Perhaps another reason why the territorial scope of martial law should not necessarily be limited to the particular impotent, as though by reducing drastically the powers of the executive, we are rendering a service to human welfare.
vicinity where the armed public uprising actually transpired, is because of the unique characteristic of rebellion as a I think it is also important to understand that the extraordinary measures contemplated in the Article on the Executive
crime. "The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and pertain to a practical state of war existing in this country when national security will become a common bond of
plots. Acts committed in furtherance of rebellion[,] though crimes in themselves[,] are deemed absorbed in one single patriotism of all Filipinos, especially if it is an actual invasion or an actual rebellion, and the President may have to be
crime of rebellion."269 Rebellion absorbs "other acts committed in its pursuance". 270 Direct given a minimum flexibility to cope with such unprecedented threats to the survival of a nation. I think the Commission
assault,271 murder,272 homicide,273 arson,274 robbery,275 and kidnapping,276 just to name a few, are absorbed in the has done so but at the same time has not, in any manner, shunned the task of putting these powers under a whole
crime of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a basis of a separate system of checks and balances, including the possible revocation at any time of a proclamation of martial law by the
charge."277 Jurisprudence also teaches that not only common crimes may be absorbed in rebellion but also "offenses Congress, and in any case a definite determination of these extraordinary powers, subject only to another extension
under special laws [such as Presidential Decree No. 1829]278 which are perpetrated in furtherance of the political to be determined by Congress in the event that it is necessary to do so because the emergency persists.
offense".279 "All crimes, whether punishable under a special law or general law, which are me e components or
ingredients, or committed in furtherance thereof, become absorbed in the crime of rebellion and cannot be isolated
and charged as separate crimes in themselves.280 So, I think this Article on the Executive for which I voted is completely responsible; it is attuned to the freedom and the
rights of the citizenry. It does not render the presidency impotent and, at the same time, it allows for a vigorous
representation of the people through their Congress when an emergency measure is in force and effect.284
Thus, by the theory of absorption, the crime of murder committed in Makati City, if committed in furtherance of the
crime of rebellion being hypothetically staged in Padre Faura, Ermita, Manila, is stripped of its common complexion
and is absorbed in the crime of rebellion. This all the more makes it difficult to confine the application of martial law h) Several local armed groups
only to the place where the armed public uprising is actually taking place. In the illustration above, Padre Faura could have formed linkages aimed at
only be the nerve center of the rebellion but at the same time rebellion is also happening in Makati City. committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct proportion to the "range" of
actual rebellion and public safety simply because rebellion and public safety have no fixed physical dimensions. Their
transitory and abstract nature defies precise measurements; hence, the determination of the territorial scope of With a predominantly Muslim population, Marawi City is "the only Islamic City of the South."285 On April 15, 1980, it
martial law could only be drawn from arbitrary, not fixed, variables. The Constitution must have considered these was conferred the official title of "Islamic City of Marawi."286 The city's first name, "Dansalan," "was derived from the
limitations when it granted the President wide leeway and flexibility in determining the territorial scope of martial law. word 'dansal', meaning a destination point or rendezvous. Literally, it also means arrival or coming."287 Marawi lies in
the heart of Mindanao. In fact, the Kilometer Zero marker in Mindanao is found in Marawi City thereby making Marawi
City the point of reference of all roads in Mindanao.
Moreover, the President's duty to maintain peace and public safety is not limited only to the place where there is
actual rebellion; it extends to other areas where the present hostilities are in danger of spilling over. It is not intended
merely to prevent the escape of lawless elements from Marawi City, but also to avoid enemy reinforcements and to Thus, there is reasonable basis to believe that Marawi is only the staging point of the rebellion, both for symbolic and
cut their supply lines coming from different parts of Mindanao. Thus, limiting the proclamation and/or suspension to strategic reasons. Marawi may not be the target but the whole of Mindanao. As mentioned in the Report, "[l]awless
the place where there is actual rebellion would not only defeat the purpose of declaring martial law, it will make the armed groups have historically used provinces adjoining Marawi City as escape routes, supply lines, and backdoor
exercise thereof ineffective and useless. passages;"288 there is also the plan to establish a wilayat in Mindanao by staging the siege of Marawi. The report that
prior to May 23, 2017, Abdullah Maute had already dispatched some of his men to various places in Mindanao, such
as Marawi, Iligan, and Cagayan de Oro for bombing operations, carnapping, and the murder of military and police
g) The Court must stay within personnel,289 must also be considered. Indeed, there is some semblance of truth to the contention that Marawi is only
the confines of its power. the start, and Mindanao the end.
Other events also show that the atrocities were not concentrated in Marawi City. Consider these: long as the President complies with all the requirements of Section 18, Article VII, the existence of terrorism cannot
prevent him from exercising his extraordinary power of proclaiming martial ' law or suspending the privilege of the writ
of habeas corpus. After all, the extraordinary powers of the President are bestowed on him by the Constitution. No act
a. On January 13, 2017, an improvised explosive device (IED) exploded in Barangay Campo Uno, Lamita City, of Congress can, therefore, curtail or diminish such powers.
Basilan. A civilian was killed while another was wounded.290

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that rebellion and terrorism are mutuallty
b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan Island, Taganak, Tawi-Tawi.291 exclusive of each other or that they cannot co-exist together. RA 9372 does not expressly or impliedly repeal Art. 134
of the RPC. And while rebellion is one of the predicate crimes of terrorism, one cannot absorb the other as they have
different elements.300
c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, Albarka, Basilan resulting in the death of
two children and the wounding of three others.292
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.
d. From March to May 2017, there were eleven (11) separate instances of IED explosions by the BIFF in Mindanao.
These resulted in the death and wounding of several personalities.293
At the end of the day, however ardently and passionately we may believe in the validity or correctness of the varied
and contentious causes or principles that we espouse, advocate or champion, let us not forget that at this point in
e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner in Sulu. 294 time we, the Filipino people, are confronted with a crisis of such magnitude and proportion that we all need to
summon the spirit of unity and act as one undivided nation, if we are to overcome and prevail in the struggle at hand.
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights between rebels and government
troops.295 Let us face up to the fact that the siege in Marawi City has entered the second month and only God or Allah knows
when it would end. Let us take notice of the fact that the casualties of the war are mounting. To date, 418 have died.
Out of that were 303 Maute rebels as against 71 government troops and 44 civilians.
g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel Besconde. 296

Can we not sheathe our swords and pause for a while to bury our dead, including our differences and prejudices?
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him three days later.297

WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Proclamation No. 216 and DECLARES it
There were also intelligence reports from the military about offensives committed by the ASG and other local rebel as CONSTITUTIONAL. Accordingly, the consolidated Petitions are hereby DISMISSED. SOORDERED.
groups. All these suggest that the rebellion in Marawi has already spilled over to other parts of Mindanao.

Moreover, considering the widespread atrocities in Mindanao and the linkages established among rebel groups, the
armed uprising that was initially staged in Marawi cannot be justified as confined only to Marawi. The Court therefore
will not simply disregard the events that happened during the Davao City bombing, the Mamasapano massacre, the
Zamboanga City siege, and the countless bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among
others.298 The Court cannot simply take the battle of Marawi in isolation. As a crime without predetermined bounds,
the President has reasonable basis to believe that the declaration of martial law, as well as the suspension of the
privilege of the writ of habeas corpus in the whole of Mindanao, is most necessary, effective, and called for by the
circumstances.

i) Terrorism neither negates EN BANC

nor absorbs rebellion.
G.R. No. 243522, February 19, 2019
It is also of judicial notice that the insurgency in Mindanao has been ongoing for decades. While some groups have
sought legal and peaceful means, others have resorted to violent extremism and terrorism. Rebellion may be
subsumed under the crime of terrorism, which has a broader scope covering a wide range of predicate crimes. In fact, REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, TEDDY BRAWNER
rebellion is only one of the various means by which terrorism can be committed.299 However, while the scope of BAGUILAT, JR., EDGAR R. ERICE, GARY C. ALEJANO, JOSE CHRISTOPHER Y. BELMONTE AND
terrorism may be comprehensive, its purpose is distinct and well-defined. The objective of a "'terrorist" is to sow and ARLENE "KAKA" J. BAG-AO, PETITIONERS, v. HON. SALVADOR C. MEDIALDEA, EXECUTIVE
create a condition of widespread fear among the populace in order to coerce the government to give in to an unlawful SECRETARY, HON. DELFIN N. LORENZANA, SECRETARY OF THE DEPARTMENT OF NATIONAL
demand. This condition of widespread fear is traditionally achieved through bombing, kidnapping, mass killing, and DEFENSE AND MARTIAL LAW ADMINISTRATOR; GEN. BENJAMIN MADRIGAL, JR., CHIEF OF
beheading, among others. In contrast, the purpose of rebellion, as previously discussed, is political, i.e., (a) to remove STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND MARTIAL LAW IMPLEMENTOR;
from the allegiance to the Philippine Government or its laws: (i) the territory of the Philippines or any part thereof; (ii) AND HON. BENJAMIN E. DIOKNO, SECRETARY OF THE DEPARTMENT OF BUDGET AND
any body of land, naval, or armed forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of any MANAGEMENT; AND THE HOUSE OF REPRESENTATIVES AND THE SENATE OF THE
of their powers and prerogatives. PHILIPPINES AS COMPONENT HOUSES OF THE CONGRESS OF THE PHILIPPINES,
RESPECTIVELY REPRESENTED BY HON. SPEAKER GLORIA MACAPAGAL-ARROYO AND HON.
SENATE PRESIDENT VICENTE C. SOTTO III, RESPONDENTS.
In determining what crime was committed, we have to look into the main objective of the malefactors. If it is political,
such as for the purpose of severing the allegiance of Mindanao to the Philippine Government to establish
G.R. No. 243677, February 19, 2019
a wilayat therein, the crime is rebellion. If, on the other hand, the primary objective is to sow and create a condition of
widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an
unlawful demand, the crime is terrorism. Here, we have already explained and ruled that the President did not err in BAYAN MUNA PARTYLIST REPRESENTATIVE CARLOS ISAGANI T. ZARATE, GABRIELA
believing that what is going on in Marawi City is one contemplated under the crime of rebellion. WOMEN'S PARTY REPRESENTATIVES, EMERENCIANA A. DE JESUS, AND ARLENE D. BROSAS,
ANAKPAWIS REPRESENTATIVE ARIEL B. CASILAO, ACT TEACHERS REPRESENTATIVES
ANTONIO L. TINO AND FRANCE L. CASTRO, AND KABATAAN PARTYLIST REPRESENTATIVE
In any case, even assuming that the insurgency in Marawi City can also be characterized as terrorism, the same will SARAH JANE I. ELAGO, PETITIONERS, v. PRESIDENT RODRIGO DUTERTE, CONGRESS OF THE
not in any manner affect Proclamation No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the PHILIPPINES, REPRESENTED BY SENATE PRESIDENT VICENTE C. SOTTO III AND HOUSE
Human Security Act of 2007 expressly provides that "[n]othing in this Act shall be interpreted as a curtailment, SPEAKER GLORIA MACAPAGAL-ARROYO, EXECUTIVE SECRETARY SALVADOR MEDIALDEA,
restriction or diminution of constitutionally recognized powers of the executive branch of the government." Thus, as
DEFENSE SECRETARY DELFIN LORENZANA, ARMED FORCES OF THE PHILIPPINES CHIEFOF-
STAFF LIEUTENANT GENERAL BENJAMIN MADRIGAL, JR., PHILIPPINE NATIONAL POLICE x x x x.4
DIRECTOR-GENERAL OSCAR DAVID ALBAYALDE, RESPONDENTS.
On May 25, 2017, within the 48-hour period set in Section 18, Article VII of the 1987 Constitution, the
G.R. No. 243745, February 19, 2019 President submitted to the Senate and the House of Representatives his written Report, citing the
factual events and reasons that impelled him to issue the said Proclamation. Both Houses expressed
CHRISTIAN S. MONSOD, RAY PAOLO J. SANTIAGO, NOLASCO RITZ LEE B. SANTOS III, their full support to the Proclamation, under the Senate P.S. Resolution No. 388 and House Resolution
MARIE HAZEL E. LAVITORIA, DOMINIC AMON R. LADEZA, AND XAMANTHA XOFIA A. No. 1050, finding no cause to revoke the same.5
SANTOS, PETITIONERS, v. SENATE OF THE PHILIPPINES (REPRESENTED BY SENATE
PRESIDENT VICENTE C. SOTTO III), HOUSE OF REPRESENTATIVES (REPRESENTED BY Subsequently, three (3) consolidated petitions assailing the sufficiency of the factual basis of
GLORIA MACAPAGAL-ARROYO), EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, Proclamation No. 216 were filed before this Court.
DEPARTMENT OF NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT (DILG) SECRETARY EDUARDO M. In a Decision dated July 4, 2017, the Court in Representative Edcel C. Lagman, et al. v. Hon. Salvador
AÑO, ARMED FORCES OF THE PHILIPPINES (AFP) CHIEF OF STAFF GENERAL BENJAMIN R. C. Medialdea, et al.,6 found sufficient factual bases for the issuance of Proclamation No. 216 and
MADRIGAL, JR., PHILIPPINE NATIONAL POLICE (PNP) DIRECTOR GENERAL OSCAR D. declared it constitutional.
ALBAYALDE, NATIONAL SECURITY ADVISER HERMOGENES C. ESPERON, JR., RESPONDENTS.
On July 18, 2017, the President requested Congress to extend the effectivity of Proclamation No. 216.
G.R. No. 243797, February 19, 2019 In a Special Joint Session on July 22, 2017, the Congress adopted Resolution of Both Houses No. 2,
which extended Proclamation No. 216 until December 31, 2017. 7
RIUS VALLE, JHOSA MAE PALOMO, JEANY ROSE HAYAHAY AND RORELYN MANDACAWAN,
PETITIONERS, v. THE SENATE OF THE PHILIPPINES REPRESENTED BY THE SENATE Acting on the recommendations of the Department of National Defense (DND) Secretary Delfm N.
PRESIDENT VICENTE C. SOTTO III, THE HOUSE OF REPRESENTATIVES, REPRESENTED BY Lorenzana (Secretary Lorenzana) and the then Armed Forces of the Philippines (AFP) Chief of Staff
THE HOUSE SPEAKER GLORIA MACAPAGAL-ARROYO, THE EXECUTIVE SECRETARY, THE General Rey Leonardo Guerrero (General Guerrero) in a letter dated December 8, 2017, the President
SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL again asked both the Senate and the House of Representatives to extend the Proclamation of martial
GOVERNMENT, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE DIRECTOR law and the suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one
GENERAL, PHILIPPINE NATIONAL POLICE, AND ALL PERSONS ACTING UNDER THEIR year, from January 1, 2018 to December 31, 2018.8
CONTROL, DIRECTION, INSTRUCTION, AND/OR SUPERVISION, RESPONDENTS.
Thereafter, four (4) consolidated petitions were filed before this Court assailing the constitutionality of
the second extension of Proclamation No. 216.

In a Decision dated February 6, 2018, this Court in Representative Edcel C. Lagman, et al. v. Senate
President Aquilino Pimentel III, et al.,9 found sufficient factual bases for the second extension of the
Proclamation from January 1 to December 31, 2018, and declared it constitutional.
DECISION
Before the expiration of the second extension of Proclamation No. 216 or on December 4, 2018,
Secretary Lorenzana in a letter10 to the President, recommended the third extension of martial law and
CARANDANG, J.: the suspension of the privilege of the writ of habeas corpus in the entire Mindanao for one year from
January 1, 2019 up to December 31, 2019.11 Secretary Lorenzana wrote the recommendation to the
President primarily to put an end to the continuing rebellion in Mindanao waged by the DAESH-inspired
These are consolidated petitions1 filed under Section 18,2 Article VII of the Constitution, assailing the
constitutionality of the third extension from January 1, 2019 to December 31, 2019, of the declaration groups and its local and foreign allies, particularly the Daulah Islamiyah (DI), and the threat posed by
the Communist Party of the Philippines-New People's Army Terrorists (CNTs).12
of martial law and suspension of the privilege of the writ of habeas corpus in the entire Mindanao.

Petitioners further pray for the issuance of a Temporary Restraining Order (TRO) or a Writ of Likewise, the AFP Chief of Staff General Carolito G. Galvez, Jr. (General Galvez) and Chief of the
Preliminary Injunction (WPI) to enjoin the respondents from implementing the one-year extension. Philippine National Police (PNP) Director-General Oscar D. Albayalde (Director-General Albayalde)
recommended the further extension of martial law and the suspension of the privilege of the writ
of habeas corpus in the entire Mindanao for one year beginning January 1, 2019 up to December 31,
The Antecedents 2019, based on current security assessment for the total eradication of the Local Terrorist Groups
(LTG), ASG, Bangsamoro Islamic Freedom Fighters (BIFF), DI, and other lawless armed groups and
On May 23, 2017, President Rodrigo Roa Duterte issued Proclamation No. 216, declaring a state of the CNTs, their foreign and local allies, supporters, financiers, in order to fully contain the continuing
martial law and suspending the privilege of the writ of habeas corpus in the whole of Mindanao to rebellion in Mindanao and to prevent it from escalating to other parts of the country, and to ensure
address the rebellion mounted by members of the Maute Group and Abu Sayyaf Group (ASG), for a complete rehabilitation and reconstruction of the most affected areas, as well as to attain lasting
period not exceeding sixty (60) days. 3 peace and order, and to preserve the socio-economic growth and development of the entire
Mindanao.13
Proclamation No. 216 cited the following justifications for the declaration of martial law and
suspension of the privilege of the writ of habeas corpus: Acting on these recommendations, the President, in a letter14 dated December 6, 2018 to the Senate
xxxx and the House of Representatives, requested for the third extension of Proclamation No. 216 from
January 1, 2019 to December 31, 2019.15 The President stated in his letter that, although there has
WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over a hospital in Marawi been significant progress in putting rebellion under control and ushering in substantial economic gains
City, Lanao del Sur, established several checkpoints within the City, burned down certain government in Mindanao, the joint security assessment submitted by General Galvez of the AFP and Director-
and private facilities and inflicted casualties on the part of Government forces, and started [the] flying General Albayalde of the PNP highlighted essential facts indicating that rebellion still persists in
[of] the flag of the Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly attempting Mindanao and that public safety requires the continuation of martial law in the whole of
to remove from the allegiance to the Philippine Government this part of Mindanao and deprive the Mindanao.16 Private sectors, Regional and Provincial Peace and Order Councils, and local government
Chief Executive of his powers and prerogatives to enforce the laws of the land and to maintain public units in Mindanao were also clamoring for a further extension of the proclamation. 17 The President
order and safety in Mindanao, constituting the crime of rebellion; and cited the following essential facts to extend the proclamation:
The Abu Sayyaf Group, Bangsamoro Islamic Freedom Fighters, Daulah Islamiyah (DI), and other
WHEREAS, this recent attack shows the capability of the Maute group and other rebel groups to sow terrorist groups (collectively labeled as LTG) which seek to promote global rebellion, continue to defy
terror, and cause death and damage to property not only in Lanao del Sur but also in other parts of the government by perpetrating hostile activities during the extended period of Martial Law. At least
Mindanao. four (4) bombings/ Improvised Explosive Device (IED) explosions had been cited in the AFP report.
The Lamitan City bombing on 31 July 2018 that killed eleven (11) individuals and wounded ten (10) cited in the AFP report: (1) the Lamitan City bombing on July 31, 2018 that killed eleven (11)
others, the Isulan, Sultan Kudarat IED explosion on 28 August and 02 September 2018 that killed five individuals and wounded ten (10) others; (2) the Isulan, Sultan Kudarat improvised explosive device
(5) individuals and wounded forty-five (45) others, and the Barangay Apopong IED explosion that left (IED) explosion on August 28 and September 2, 2018 that killed five (5) individuals and wounded
eight (8) individuals wounded. forty-five (45) others; and (3) the Barangay Apopong IED explosion that left eight (8) individuals
wounded; (b) the DI forces also continue to pursue their rebellion against the government by
.The DI forces continue to pursue their rebellion against the government by furthering the conduct of furthering the conduct of their radical ization activities and continuing to recruit new members
their radicalization activities, and continuing to recruit new members, especially in vulnerable Muslim especially in vulnerable Muslim communities; and (c) the CTG, which publicly declared its intention to
communities. seize political power through violent means and supplant the country's democratic form of government
with communist rule which posed serious security concerns;
While the government was preoccupied in addressing the challenges posed by said groups, the CTG,
which has publicly declared its intention to seize political power through violent means and supplant WHEREAS, the President also reported that at least three hundred forty-two (342) violent incidents,
the country's democratic form of government with Communist rule, took advantage and likewise ranging from harassments against government installations, liquidation operations and arson attacks
posed serious security concerns. Records disclosed that at least three hundred forty-two (342) violent occurred in Mindanao, killing eighty-seven (87) military personnel and wounding four hundred eight
incidents, ranging from harassments against government installations, liquidation operations, and (408) others causing One Hundred fifty-six million pesos (P156,000,000.00) worth of property
arson attacks as part of extortion schemes, which occurred mostly in Eastern Mindanao, had been damages;
perpetrated from 01 January 2018 to 30 November 2018. About twenty-three (23) arson incidents had
been recorded and it had been estimated that the amount of the properties destroyed in Mindanao WHEREAS, the Senate and the House of Representatives are one in the belief that the security
alone has reached One Hundred Fifty-Six (156) Million Pesos. On the part of the military, the atrocities assessment submitted by the AFP and the PNP to the President indubitably confirms the continuing
resulted in the killing of eighty-seven (87) military personnel and wounding of four hundred eight rebellion in Mindanao which compels further extension of the implementation of Martial Law and the
(408) others. suspension of the privilege of the writ of habeas corpus for a period of one (1) year, from January 1,
2019 to December 31, 2019, to enable the AFP, the PNP, and all other law enforcement agencies, to
Apart from these, major Abu Sayyaf Group factions in Sulu continue to pursue kidnap for ransom finally put an end to the ongoing rebellion and to continue to prevent the same from escalating in
activities to finance their operations. As of counting, there are a total of eight (8) kidnappings that other parts of the country;
have occurred involving a Dutch, a Vietnamese, two (2) Indonesians, and four (4) Filipinos.
WHEREAS, Section 18, Article VII of the 1987 Philippine Constitution authorizes the Congress of the
The foregoing merely illustrates in general terms the continuing rebellion in Mindanao. I will be Philippines to extend, at the initiative of the President, the proclamation or suspension of the privilege
submitting a more detailed report on the subsisting rebellion in the next few days. of the writ of habeas corpus for a period to be determined by the Congress of the Philippines, if the
invasion or rebellion shall persist and public safety requires it;
A further extension of the implementation of Martial Law and suspension of the privilege of the writ
of habeas corpus in Mindanao will enable the AFP, the PNP, and all other law enforcement agencies to WHEREAS, after thorough discussion and extensive debate, the Congress of the Philippines in a Joint
finally put an end to the on-going rebellion in Mindanao and continue to prevent the same from Session, by two hundred thirty-five (235) affirmative votes comprising the majority of all its Members,
escalating in other parts of the country. We cannot afford to give the rebels any further breathing has determined that rebellion and lawless violence still persist in Mindanao and public safety
room to regroup and strengthen their forces. Public safety indubitably requires such further extension indubitably requires further extension of the Proclamation of Martial Law and the suspension of the
in order to avoid the further loss of lives and physical harm, not only to our soldiers and the police, privilege of the writ of habeas corpus in the whole of Mindanao: Now, therefore, be it Resolved by the
but also to our civilians. Such extension will also enable the government and the people of Mindanao Senate and the House of Representatives in a Joint Session assembled, To further extend Proclamation
to sustain the gains we have achieved thus far, ensure the complete rehabilitation of the most affected No. 216, series of 2017, entitled "Declaring a State of Martial Law and Suspending the Privilege of the
areas therein, and preserve the socio-economic growth and development now happening in Writ of Habeas Corpus in the Whole of Mindanao" for another period of one (1) year from January 1,
Mindanao.18 2019 to December 31, 2019.20
On December 12, 2018, the Senate and the House of Representatives, in a joint session, adopted The Parties' Arguments
Resolution No. 6, entitled "Declaring a State of Martial Law and Suspending the Privilege of the Writ
of Habeas Corpus in the Whole of Mindanao for another period of one (1) year from January 1, 2019 to A. Petitioners' Case
December 31, 2019."19 Joint Resolution No. 6, partly states:
xxxx Based on their respective petitions and memoranda21 and their oral arguments before this Court on
January 29, 2019, petitioners' arguments are summarized as follows:
WHEREAS, on December 10, 2018, the House of Representatives received a communication dated
December 6, 2018 from President Rodrigo Roa Duterte, informing the Senate and the House of a) The Court is mandated to independently determine the sufficiency of factual bases of the extension
Representatives, that on December 5, 2018, he received a letter from Secretary of National Defense of martial law and it must not limit its review on the basis of the declaration presented by the
Delfin N. Lorenzana, as Martial Law Administrator, requesting for further extension of Martial Law and Executive and Legislative branches of the government.22 Given the Court's critical role in the system of
the suspension of the privilege of the writ of habeas corpus in Mindanao up to December 31, 2019; checks and balances, it must be proactive and in keeping with the Constitutional mandate that the
Supreme Court is the ultimate guardian of the Constitution, particularly of the allocation of powers,
WHEREAS, in the same letter, the President cited the joint security report of the Armed Forces of the the guarantee of individual liberties and the assurance of the people's sovereignty. 23
Philippines (AFP) Chief of Staff, General Carlito G. Galvez, Jr., and the Philippine National Police (PNP)
Director- General, Oscar D. Albayalde, which highlighted the accomplishment owing to the b) The present factual situation of Mindanao no longer calls for a third extension of martial law and the
implementation of Martial Law in Mindanao, particularly the reduction of the capabilities of different suspension of the privilege of the writ of habeas corpus because no actual rebellion persists in
terrorist groups, the neutralization of six hundred eighty-five (685) members of the local terrorist Mindanao.24 The acts of lawlessness and terrorism by the remnants of terrorist groups and by the
groups (LTGs) and one thousand seventy-three (1,073) members of the communist terrorist' group communist insurgents enumerated in the letter of the President were not established to be related or
(CTG); dismantling of seven (7) guerilla fronts and weakening of nineteen (19) others; surrender of connected to the crime of rebellion, and can all be subdued and suppressed under the calling out
unprecedented number of loose firearms; nineteen percent (19%) reduction of atrocities committed by power of the President.25
CTG in 2018 compared to those inflicted in 2017; twenty-nine percent (29%) reduction of terrorist
acts committed by LTGs in 2018 compared to 2017; and substantial decrease in crime incidence; c) The absence of the requirement of public safety is underscored by the very absence of an actual
rebellion consisting of an armed uprising against the government for the purpose of removing
WHEREAS, the President nevertheless pointed out that notwithstanding these gains, there are certain Mindanao or a portion thereof from the allegiance to the Republic. More so, the alleged rebellion in
essential facts proving that rebellion still persists in the whole of Mindanao and that public safety Mindanao does not endanger public safety.26 The threat to public safety contemplated under the
requires the continuation of Martial Law, among others: (a) the Abu Sayyaf Group, Bangsamoro Constitution is one where the government cannot sufficiently or effectively govern, as when the courts
Islamic Freedom Fighters, Daulah Islamiyah (DI), and other terrorist groups, collectively labeled as or government offices cannot operate or perform their functions.27
LTGs which seek to promote global rebellion, continue to defy the government by perpetrating hostile
activities during the extended period of Martial Law that at least four (4) bombing incidents had been d) Proclamation No. 216 has become functus officio and the extension is no longer necessary,
considering the deaths of the leaders of the ASG and the Maute brothers, and the cessation of combat 3. Whether the further extension of martial law has not been necessary to meet the
operations and the liberation of Marawi City.28 situation in Mindanao.

e) Congress committed grave abuse of discretion in approving the third extension hastily despite the
absence of sufficient factual basis.29 B. Whether the Constitution limits the number of extensions and the duration for which Congress can
extend the proclamation of martial law and the suspension of the privilege of the writ of habeas
f) The third extension violates the constitutional proscription against a long duration of martial law or corpus.
the suspension of the privilege of the writ of habeas corpus.30 The constitutional limitations on the
period of martial law must be for a short or limited duration, which must not exceed sixty (60) days, C. Whether Proclamation No. 216 has become functus officio with the cessation of Marawi siege that it
and should the third extension be granted, the martial law regime would have lasted 951 days. 31 may no longer be extended.

g) The "justifications" proffered by the President in his letter merely illustrates in general terms, D. Whether the manner by which Congress approved the extension of martial law is a political
lacking in specifics to support the claim that rebellion persists in Mindanao, and the President question and is not reviewable by the Court [E]n [B]anc.
undertook to submit to the Congress a more detailed report which he failed to do.32
1. Whether Congress has the power to determine its own rules of proceedings in
h) The resolutions and recommendations for martial law extension by the Regional and Provincial
conducting the joint session under Section 18, Article VII of the Constitution.
Peace and Order Councils were due only to their desire for peace and order, economic development,
and not because rebellion persists in Mindanao.33
2. Whether Congress has the discretion as to how it will respond to the President's
i) The third extension of martial law will lead to further violation of citizens' political, civil, and human request for the extension of martial law in Mindanao - including the length of the
rights.34 period of deliberation and interpellation of the executive branch's resource
persons.
B. Respondents' Case

Respondents, through the Office of the Solicitor General (OSG), argue that: E. Whether the declaration of martial law and the suspension of the privilege of the writ of habeas
corpus or extension thereof may be reversed by a finding of grave abuse of discretion on the part of
a) The Court's power of judicial review under Section 18, Article VII is limited to the determination of Congress. If so, whether the extension of martial law was attended by grave abuse of discretion.
the sufficiency of the factual basis of the extension of martial law and suspension of the privilege of
the writ of habeas corpus.35 F. Whether the allegations of human rights violations in the implementation of martial law in Mindanao
is sufficient to warrant nullification of its extension.
b) There is sufficient factual basis to extend the effectivity of Proclamation No. 216 as rebellion
persists in Mindanao, and public safety requires it.36 The President and both Houses of Congress found xxxx
that there is probable cause or evidence to show that rebellion persists in Mindanao. 37
Ruling of the Court
c) The events happening in Mindanao strongly indicate that the continued implementation of martial
The requirements of rebellion and public safety are present to uphold the extension of
law is necessary to protect and insure public safety.38
martial law in Mindanao from January 1, 2019 to December 31, 2019.
d) The deaths of the leaders of the ASG, the Maute brothers and the cessation of the Marawi siege did
Since the Court must determine the sufficiency of the factual basis for the declaration as well as the
not render functus officio the declaration of martial law under Proclamation No. 216.39 Although the
extension of martial law and suspension of the writ of habeas corpus, the standard of review under
Marawi siege ended, the factual circumstances which became the basis for the second extension still
Section 18, Article VII is not grave abuse of discretion.
exists and continuously threaten the peace and order situation in Mindanao.40
The sufficiency of the factual basis for the extension of martial law in Mindanao must be determined
e) Congress has the sole prerogative to extend martial law and the suspension of the privilege of the
from the facts and information contained in the President's request, supported by reports submitted by
writ of habeas corpus since the 1987 Constitution does not limit the period of extension and
his alter egos to Congress. These are the bases upon which Congress granted the extension. The
suspension, nor prohibit further extensions or suspensions.41
Court cannot expect exactitude and preciseness of the facts and information stated in these reports,
as the Court's review is confined to the sufficiency and reasonableness thereof. While there may be
f) Congress has the absolute discretion in determining the rules of procedure with regard to the
inadequacies in some of the facts, i.e., facts which are not fully explained in the reports, these are not
conduct and manner by which Congress deliberates on the President's request for extension of martial
reasons enough for the Court to invalidate the extension as long as there are other related and
law, and therefore is not subject to judicial review.42
relevant circumstances that support the finding that rebellion persists and public safety requires it.
g) The alleged human rights violations do not warrant the nullification of martial law and the
Contrary to Monsod, et al., the Court need not make an independent determination of the factual basis
suspension of the privilege of the writ of habeas corpus. There are sufficient legal safeguards to
for the proclamation or extension of martial law and the suspension of the privilege of the writ
address human rights abuses.43
of habeas corpus. The Court is not a fact-finding body required to make a determination of the
correctness of the factual basis for the declaration or extension of martial law and suspension of the
h) Petitioners failed to prove that they are entitled of injunctive relief.44
writ of habeas corpus. It would be impossible for the Court to go on the ground to conduct an
independent investigation or factual inquiry, since it is not equipped with resources comparable to that
The Issues of the Commander-in-Chief to ably and properly assess the ground conditions.

The following are the issues to be resolved as identified by the Court: 45 Thus, in determining the sufficiency of the factual basis for the extension of martial law, the Court
A. Whether there exists sufficient factual basis for the extension of martial law in Mindanao. needs only to assess and evaluate the written reports of the government agencies tasked in enforcing
and implementing martial law in Mindanao.

1. Whether rebellion exists and persists in Mindanao. Indeed, in Montenegro v. Castañeda,46 the Court pronounced that:
[W]hereas the Executive branch of the Government is enabled thru its civil and military branches to
2. Whether public safety requires the extension of martial law in Mindanao. obtain information about peace and order from every quarter and corner of the nation, the judicial
department, with its very limited machinery cannot be in better position to ascertain or evaluate the
conditions prevailing in the Archipelago.
 IED/Landmining Explosion 31
But even supposing the President's appraisal of the situation is merely prima facie, we see that
petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary
Attempted Kidnapping 1
accords to acts of the Executive and Legislative Departments of our Government.
The quantum of proof applied by the President in his determination of the existence of rebellion is Kidnapping 19
probable cause. The Court in Lagman v. Medialdea47 held that "in determining the existence of
rebellion, the President only needs to convince himself that there is probable cause or evidence Liquidation 9
showing that more likely than not a rebellion was committed or is being committed. To require him to
satisfy a higher standard of proof would restrict the exercise of his emergency powers." Murder 4

Shooting 3
The Court need not delve into the accuracy of the reports upon which the President's decision is
based, or the correctness of his decision to declare martial law or suspend the writ, for this is an
Total 137
executive function. The threshold or level (degree) of sufficiency is, after all, an executive call. The
President, who is running the government and to whom the executive power is vested, is the one In the same Reference Material, the DND reported the following violent incidents for the period of
tasked or mandated to assess and make the judgment call which was not exercised arbitrarily. January 1 to November 30, 2018 relative to the continuing rebellion being conducted by the CTRGs: 50

The Court in the case of David v. Macapagal-Arroyo48 held that: Type of Incident Number of Incidents
As to how the Court may inquire into the President's exercise of power, the Court through the case
of Lansang [v. Garcia], adopted the test that "judicial inquiry can go no further than to satisfy the Ambush 15
Court not that the President's decision is correct," but that "the President did not act arbitrarily." Thus,
the standard laid down is not correctness, but arbitrariness. In the case of Integrated Bar of the Raid 14
Philippines [v. Zamora], this Court added that "it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his Nuisance Harassment 41
assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."
Harassment 29
(Citations omitted)
In finding sufficiency of the factual basis for the third extension, the Court has to give due regard to Disarming 5
the military and police reports which are not palpably false, contrived and untrue; consider the full
complement or totality of the reports submitted, and not make a piecemeal or individual appreciation Landmining 8
of the facts and the incidents reported. The President's decision to extend the declaration and the
suspension of the Writ, when it goes through the review of the Legislative branch, must be accorded a SPARU Operations 18
weightier and more consequential basis. Under these circumstances, the President's decision or
judgment call is affirmed by the representatives of the People. Liquidation 23

The December 6, 2018 letter of the President to the Congress is not a mere repetition of his previous Kidnapping 5
letters requesting for extensions as petitioners would like Us to believe. Although couched in general
terms, specific updates on the current state of violence and what the government has done to Robbery/Hold-up 1
eradicate the current threats waged by different rebel groups were reported. These updates are
periodically reviewed by the martial law implementers and are presented to the President in order to Bombing 1
ensure the responsiveness and suitability of measures undertaken by the government.
Arson 27
While the primary justification for the President's request for extension is the on-going rebellion in
Total 177
Mindanao, the situation remains the same despite the death of the leaders, and the addition of rebel
groups whose activities were intensified and pronounced after the first and second extensions. From the slides presented by respondents during the Oral Arguments on January 29, 2019, and as
summarized by respondents in their Memorandum, the following events transpired in Mindanao: 51
The factual basis for the extension of martial law is the continuing rebellion being waged in Mindanao a) No less than 181 persons in the martial law Arrest Orders have remained at large.
by Local Terrorist Rebel Groups (LTRG) - identified as the ASG, BIFF, DI, and other groups that have
established affiliation with ISIS/DAESH, and by the Communist Terrorist Rebel Groups (CTRG) - the b) Despite the dwindling strength and capabilities of the local terrorist rebel groups, the recent
components of which are the Communist Party of the Philippines (CPP), New People's Army (NPA), and bombings that transpired in Mindanao that collectively killed 16 people and injured 63 others in less
the National Democratic Front (NDF). than 2 months is a testament on how lethal and ingenious terrorist attacks have become.

The Department of National Defense's (DND's) "Reference Material, Joint Session on the Extension of c) On October 5, 2018, agents from the Philippine Drug Enforcement Agency (PDEA) who conducted
Martial Law in Mindanao," which was presented during the Joint Session of Congress, and offered in an anti-drug symposium in Tagoloan II, Lanao Del Sur, were brutally ambushed, in which five (5) were
evidence as Slides during this Court's Oral Arguments on January 29, 2019, shows the following killed and two (2) were wounded.
violent incidents from January 1 to November 30, 2018 as part of the continuing rebellion being waged
by the LTRGs:49 d) The DI vulnerable Muslim continues to conduct radicalization activities in communities and
recruitment of new members, targeting relatives and orphans of killed DI members. Its presence in
Type of Incident Number of Incidents
these areas immensely disrupted the government's delivery of basic services and clearly needs
military intervention.
Ambuscade 6

Arson 2 e) Major ASG factions in Sulu and Basilan have fully embraced the DAESH ideology and continue their
express kidnappings. As of December 6, 2018, there are still seven (7) remaining kidnap victims under
Firefighting/Attack 4 captivity.

Grenade Throwing 4 f) Despite the downward trend of insurgency parameters, Mindanao remains to be the hotbed of
communist rebel insurgency in the country. Eight (8) out the 14 active provinces in terms of
Harassment 54 communist rebel insurgency are in Mindanao.
 objective of the malefactors is to seize power from the government, and specifically "for the purpose
g) The Communist Terrorist Rebel Group in Mindanao continues its hostile activities while conducting of removing from the allegiance to said Government or its laws, the territory of the Philippine Islands
its organization, consolidation and recruitment. In fact, from January to November 2018, the number or any part thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or
of Ideological, Political and Organization (IPO) efforts of this group amounted to 1,420, which indicates the Legislature, wholly or partially, of any of their powers or prerogatives."55
their continuing recruitment of new members. Moreover, it is in Mindanao where the most violent
incidents initiated by this group transpire. Particularly, government forces and business establishment The visible and invisible facets of rebellion is accurately depicted in Lagman v. Medialdea:56
are being subjected to harassment, arson and liquidations when they defy their extortion demands. In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in direct
proportion to the "range" of actual rebellion and public safety simply because rebellion and
h) The CTRG's exploitation of indigenous people is so rampant that Lumad schools are being used as public safety have no fixed physical dimensions. Their transitory and abstract nature defies
recruiting and training grounds for their armed rebellion and anti-government propaganda. On precise measurements; hence, the determination of the territorial scope of martial law could only
November 28, 2018, Satur Ocampo and 18 others were intercepted by the Talaingod PNP checkpoint be drawn from arbitrary, not fixed, variables. The Constitution must have considered these limitations
in Davao del Norte for unlawfully taking into custody 14 minors who are students of a learning school when it granted the President wide leeway and flexibility in determining the territorial scope of martial
in Sitio Dulyan, Palma Gil in Talaingod town. Cases were filed against Ocampo's camp for violations of law.57 (Emphasis ours)
Republic Act (R.A.) No. 10364, in relation to R.A. No. 7610, as well as violation of Article 270 of the
Revised Penal Code (RPC), due to the Philippine National Police's (PNP) reasonable belief that the The nuance added to the concept of rebellion under the 1987 Constitution was amplified in Justice
school is being used to manipulate the minds of the students' rebellious ideas against the government. Presbiterio Velasco, Jr.'s Dissenting Opinion in Fortun v. Macapagal-Arroyo,58 citing the excerpts from
the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. where it was stated:
The cited events demonstrate the spate of violence of rebel groups in Mindanao in pursuit of the From all these it is submitted that the focus on public safety adds a nuance to the meaning of rebellion
singular objective to seize power over parts of Mindanao or deprive the President or Congress of their in the Constitution which is not found in the meaning of the same word in Article 134 of the Penal
power and prerogatives over these areas. The absence of motives indicated in several reports does not Code. The concern of the Penal Code, after all, is to punish acts of the past. But the concern of the
mean that these violent acts and hostile activities committed are not related to rebellion which Constitution is to counter threat to public safety both in the present and in the future arising from
absorbs other common crimes. present and past acts. Such nuance, it is submitted, gives to the President a degree of flexibility for
determining whether rebellion constitutionally exists as basis for martial law even if facts cannot
In addition, these violent incidents should not be viewed as isolated events but in their totality, obviously satisfy the requirements of the Penal Code whose concern is about past acts. To require that
showing a consistent pattern of rebellion in Mindanao. As explained by the AFP Office of Deputy Chief the President must first convince herself that there can be proof beyond reasonable doubt of the
of Staff for Intelligence (OJ2) in its letter to the OSG, the violent incidents cannot be viewed in existence of rebellion as defined in the Penal Code and jurisprudence can severely restrict the
isolation: President's capacity to safeguard public safety for the present and the future and can defeat the
[T]he events in the lists were not selected but rather constitute the complete record of all violent purpose of the Constitution.
incidents that occurred in 2018 that are attributed to a specific threat group or any of its members.
The argument advanced is that these incidents should be viewed in their totality and not as What all these point to are that the twin requirements of actual rebellion or invasion and the demand
unrelated, isolated events. These violent incidents, when combined with the recorded armed of public safety are inseparably entwined. But whether there exists a need to take action in favour of
encounters or clashes between government troops and rebel groups, and taking into account the public safety is a factual issue different in nature from trying to determine whether rebellion exists. x x
substantial casualties resulting from these combined events, show a consistent pattern of armed x.59 (Italics in the original)
uprising or rebellion in Mindanao.52 (Emphasis Ours)
In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino v. Enrile,60 which was decided in
The test of sufficiency is not accuracy nor preciseness but reasonableness of the factual basis adopted 1974 under the 1973 Constitution, the Court has already acknowledged that:
by the Executive in ascertaining the existence of rebellion and the necessity to quell it. The state of rebellion continues up to the present. The argument that while armed hostilities go on in
several provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and
REBELLION EXISTS AND PERSISTS IN MINDANAO that therefore there is no need to maintain martial law all over the country, ignores the sophisticated
nature and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes
Essential to the declaration of martial law and suspension of the privilege of the writ of habeas between organized and identifiable groups on fields of their own choosing. It includes subversion of
corpus is rebellion defined under Article 134 of the Revised Penal Code, as applied in the cases the most subtle kind, necessarily clandestine and operating precisely where there is no actual fighting.
of Lagman v. Medialdea and Lagman v. Pimentel III: Underground propaganda, through printed news sheets or rumors disseminated in whispers;
Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or insurrection is recruitment of armed and ideological adherents, raising of funds, procurement of arms and material,
committed by rising publicly and taking arms against the Government for the purpose of removing fifth-column activities including sabotage and intelligence — all these are part of the rebellion which by
from the allegiance to said Government or its laws, the territory of the Philippine Islands or any part their nature are usually conducted far from the battle fronts. They cannot be counteracted effectively
thereof, of any body of land, naval or other armed forces, depriving the Chief Executive or the unless recognized and dealt with in that context.61
Legislature, wholly or partially, of any of their powers or prerogatives.
Equally relevant is the very early pronouncement by this Court in Montenegro v. Castañeda62 in
Thus, for rebellion to exist, the following elements must be present, to wit: "(1) there is a (a) public relation to the suspension of the privilege of the writ of habeas corpus under Proclamation No. 210, s.
uprising and (b) taking arms against the Government; and (2) the purpose of the uprising or 1950, describing the nature of rebellious acts:
movement is either (a) to remove from the allegiance to the Government or its laws: (i) the territory To the petitioner's unpracticed eye the repeated encounters between dissident elements and military
of the Philippines or any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security,
deprive the Chief Executive or Congress, wholly or partially, of any of their powers and analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are
prerogatives."53 warp and woof of a general scheme to overthrow his government vi et armis, by force and arms.63

And it was emphasized in Lagman v. Medialdea54 that: Recognizing the political realities in the country, the geography of Mindanao, the increasing number of
It has been said that the "gravamen of the crime of rebellion is an armed public uprising against the local and foreign sympathizers who provide financial support, and the advances in technology that
government;" and that by nature, "rebellion is x x x a crime of masses or multitudes, involving crowd have emboldened and reinforced the terrorists' and extremists' capabilities to disturb peace and order,
action, that cannot be confined a priori, within predetermined bounds." We understand this to mean the declaration of martial law cannot be restricted only to areas where actual fighting continue to
that the precise extent or range of the rebellion could not be measured by exact metes and bounds. occur. As a result, rebels have become more cunning and instigating rebellion from a distance is now
(Citations omitted) more attainable, perpetrating acts of violence clandestinely in several areas of Mindanao.

Rebellion, within the context of the situation in Mindanao, encompasses no definite time nor particular PUBLIC SAFETY REQUIRES THE EXTENSION OF MARTIAL LAW IN MINDANAO
locality of actual war and continues even when actual fighting has ceased. Therefore, it is not
restricted as to the time and locality of actual war nor does it end when actual fighting has ended. The The Resolutions coming from the Regional Peace and Order Council (RPOC) of Region XI (Davao
state of rebellion results from the commission of a series or combination of acts and events, past, City)63 and Region XIII (Caraga);64 the Provincial Peace and Order Council (PPOC) of the Province of
present and future, primarily motivated by ethnic, religious, political or class divisions which incites Agusan del Norte,65 Agusan del Sur,66 and Dinagat Islands;67 and the Office of the Governor, Province
violence, disturbs peace and order, and poses serious threat to the security of the nation. The ultimate of Saranggani,68 expressing support for the President's declaration of martial law and its extension,
reflect the public sentiment for the restoration of peace and order in Mindanao. These resolutions are In the first situation where the President declares martial law, there had to be a prescribed period
initiated by the people of Mindanao, the very same people who live through the harrows of war, things because there was no initial concurrence requirement. And if there was no concurrence, the martial
and experiences that we can only read about. Importance must be given to these resolutions as they law period ends at 60 days. Thereafter, if they intend to extend the same suspension of the privilege
are in the best position to determine their needs. of the writ or the proclamation of martial law, it is upon the initiative of the President this time, and
with the prior concurrence of Congress. So, the period of extension has already been taken into
Citing the Brief of Amicus Curiae of Fr. Joaquin Bernas, S.J. in Justice Velasco, Jr.'s Dissenting Opinion account by both the Executive and the Legislative, unlike the first situation where the President acted
in Fortun v. Macapagal-Arroyo,69 the demands of public safety is determined through the application of alone without prior concurrence. The reason for the limitation in the first does not apply to the
prudential estimation, thus: extension.
The need of public safety is an issue whose existence, unlike the existence of rebellion, is not
verifiable through the visual or tactile sense. Its existence can only be determined through the MR. SUAREZ.
application of prudential estimation of what the consequences might be of existing armed movements. We are afraid of a situation that may develop where the extended period would be even longer than
Thus, in deciding whether the President acted rightly or wrongly in finding that public safety called for the initial period, Madam President. It is only reasonable to suggest that we have to put a restriction
the imposition of martial law, the Court cannot avoid asking whether the President acted wisely and on the matter of the exercise of this right within a reasonable period.
prudently and not in grave abuse of discretion amounting to lack or excess of jurisdiction. Such MR. REGALADO.
decision involves the verification of factors not as easily measurable as the demands of Article 134 of Madam President, following that is the clause "extend the same if the invasion or rebellion shall persist
the Penal Code and can lead to a prudential judgment in favour of the necessity of imposing martial and public safety requires it." That by itself suggests a period within which the suspension shall be
law to ensure public safety even in the face of uncertainty whether the Penal Code has been violated. extended, if the invasion is still going on. But there is already the cut-off 60-day period. Do they have
This is the reason why courts in earlier jurisprudence were reluctant to override the executive's to meet all over again and agree to extend the same?
judgment.
MR. SUAREZ.
In sum, since the President should not be bound to search for proof beyond reasonable doubt of the That is correct. I think the two of them must have to agree on the period; but it is theoretically
existence of rebellion and since deciding whether public safety demands action is a prudential matter, possible that when the President writes a note to the Congress, because it would be at the instance of
the function of the President is far different from the function of a judge trying to decide whether to the President that the extension would have to be granted by Congress, it is possible that the period
convict a person for rebellion or not. Put differently, looking for rebellion under the Penal Code is for the extension may be there. It is also possible that it may not be there. That is the reason why we
different from looking for rebellion under the Constitution. want to make it clear that there must by a reasonable period for the extension. So, if my suggestion is
not acceptable to the Committee, may I request that a voting be held on it Madam President.
Ultimately, it is the Commander-in-Chief, aided by the police and military, who is the guardian and
keeper of public safety. FR. BERNAS.
Madam President, may I just propose something because I see the problem. Suppose we were to say:
The Congress has the prerogative to extend the martial law and the suspension of the "or extend the same FOR A PERIOD TO BE DETERMINED BY CONGRESS" — that gives Congress a little
privilege of the writ of habeas corpus as the Constitution does not limit the period for which flexibility on just how long the extension should be. x x x x x x x x x
it can extend the same.
THE PRESIDENT.
Is that accepted by Commissioner Suarez?
This Court in the case of Lagman v. Medialdea71 explained the only limitations to the exercise of
congressional authority to extend such proclamation or suspension: a) the extension should be upon MR. SUAREZ.
the President's initiative; b) it should be grounded on the persistence of the invasion or rebellion and Yes, Madam President.
the demands of public safety; and c) it is subject to the Court's review of the sufficiency of its factual
basis upon the petition of any citizen. MR. OPLE.
May I just pose a question to the Committee in connection with the Suarez amendment? Earlier
Why Section 18 of Article VII of the Constitution did not fix the period of the extension of martial law Commissioner Regalado: said that that point was going to be a collective judgment between the
and the suspension of the privilege of the writ of habeas corpus and granted Congress the authority to President: and the Congress. Are we departing from that now in favor, of giving Congress the
decide its duration is fully explained in the deliberations of the Constitutional Commission on the plenipotentiary power to determine the period?
matter, viz:
FR. BERNAS.
MR. SUAREZ.
Not really, Madam President, because Congress would be doing this in consultation with the President,
Thank you, Madam President. I concur with the proposal of Commissioner Azcuna but may I suggest
and the President would be outvoted by 300 Members.
that we fix a period for the duration of the extension, because it could very well happen that the initial
period may be shorter than the extended period and it could extend indefinitely. So if Commissioner MR. OPLE.
Azcuna could put a certain limit to the extended period, I would certainly appreciate that, Madam Yes, but still the idea is to preserve the principle of collective judgment of that point upon the
President. x x x x x x x x x expiration of the 60 days when, upon his own initiative, the President seeks for an extension of the
proclamation of martial law or the suspension of the privilege of the writ.
MR. SUAREZ.
Thank you Madam President. May we suggest that on line 7, between the words "same" and "if," we FR. BERNAS.
insert the phrase FOR A PERIOD OF NOT MORE THAN SIXTY DAYS, which would equal the initial period Yes, the participation of the President, is that when we put all of these encumbrances on the President
for the first declaration just so it will keep going. and Commander-in-Chief during an actual invasion and rebellion, given an intractable Congress that
may be dominated by opposition parties, we may be actually impelling the President to use the sword
THE PRESIDENT.
of Alexander to cut the Gordian knot by just declaring a revolutionary government that sets him free
What does the Committee say?
to deal with the invasion or the insurrection. That is the reason I am in favor of the present
MR. REGALADO. formulation. However, if Commissioner Suarez insists on his amendment, I do not think I will stand in
May we request a clarification from Commissioner Suarez on this proposed amendment? This the way.
extension is already a joint act upon the initiative of the President and with the concurrence of the
Thank you, Madam President.
Congress. It is assumed that they have already agreed not only on the fact of extension but on the
period of extension. If we put it at 60 days only, then thereafter they have to meet again to agree MR. SUAREZ.
jointly on a further extension. We will accept the committee suggestion, subject to style later on. x x x xxx x x x.72
MR. SUAREZ. The records of the Constitutional Commission show that Commissioner Suarez's proposal to add a
That is precisely intended to safeguard the interests and protect the lives of citizens. similar 60-day limitation to the extension of an initial proclamation of martial law was not adopted by
a majority of the members of the Commission. The framers evidently gave enough flexibility on
MR. REGALADO.
Congress to determine the duration of the extension.
The Constitutional limits/checks set by the Constitution to guard against the whimsical or arbitrary use Section 16. (3) Each House may determine the rules of its proceedings, punish its Members for
of the extra ordinary powers of the Chief Executive under Section 18, Article VII are well in place and disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a
are working. At the initial declaration of the martial law, the President observed the 60-day limit and Member. A penalty of suspension, when imposed, shall not exceed sixty days. (Emphasis ours)
the requirement to report to Congress. In this initial declaration as well as in the extensions, the
President's decision was based on the reports prepared by the different specialized agencies of the In Pimentel, Jr., et al. v. Senate Committee of the Whole, this constitutionally-vested authority is
Executive branch charged with external and internal security of the whole country. These were the recognized as a grant of foil discretionary authority to each House of Congress in the formulation,
same reports submitted to Congress which were deliberated on, no matter how brief the time adoption and promulgation of its own rules. As such, the exercise of this power is generally exempt
allotment was for each of the law makers' interpellations. Yet the evidence or basis to support the from judicial supervision and interference, except on a clear showing of such arbitrary and improvident
extension of martial law passed through the scrutiny of the Chief Executive and through several more use of the power as will constitute a denial of due process.
of the House of Representatives and the Senate. The Court must remember that We are called upon to
rule on whether the President, and this time with the concurrence of the two Houses of Congress, This freedom from judicial interference was explained in the 1997 case of Arroyo v. De Venecia,
acted with sufficient basis in approving anew the extension of martial law. We must not fall into or be wherein the Court declared that:
tempted to substitute Our own judgment to that of the People's President and the People's But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power
representatives. We must not forget that the Constitution has given us separate and quite distinct to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own
roles to fill up in our respective branches of government. rules, in the absence of showing that there was a violation of a constitutional provision or the rights of
private individuals.
Proclamation No. 216 has not become functus officio with the cessation of the Marawi In other words, the Court cannot review the rules promulgated by Congress in the absence of any
siege. constitutional violation. Petitioners have not shown that the above-quoted rules of the Joint Session
violated any provision or right under the Constitution.
While Proclamation No. 216 specifically cited the attack of the Maute group in Marawi City as basis for
the declaration of martial law, rebellion was not necessarily ended by the cessation of the Marawi Construing the full discretionary power granted to the Congress in promulgating its rules, the Court, in
siege. Rebellion in Mindanao still continues, as shown by the violent incidents stated in reports to the the case of Spouses Dela Paz (Ret.) v. Senate Committee on Foreign Relations, et al. explained that
President, and was made basis by the Congress in approving the third extension of martial law. These the limitation of this unrestricted power deals only with the imperatives of quorum, voting and
violent incidents continuously pose a serious threat to security and the peace and order situation in publication. It should be added that there must be a reasonable relation between the mode or method
Mindanao. of proceeding established by the rule and the result which is sought to be attained.79 (Citations
omitted)
Martial law in Mindanao should not be confined to the Marawi siege. Despite the death of Hapilon and
the Maute brothers, the remnants of their groups have continued to rebuild their organization through The allegations of human rights violations in the implementation of martial law in Mindanao
the recruitment and training of new members and fighters to carry on the rebellion. Clashes between is not sufficient to warrant a nullification of its extension.
rebels and government forces continue to take place in other parts of Mindanao. Kidnapping, arson,
robbery, bombings, murder - crimes which are absorbed in rebellion - continue to take place therein. All forms of human rights violations and abuses during the implementation of martial law and
These crimes are part and parcel of the continuing rebellion in Mindanao. suspension of powers should not go unpunished. Nonetheless, consistent with the previous rulings of
the Court in Lagman v. Medialdea and Lagman v. Pimentel III, the alleged violations and abuses
The report of the military shows that the reported IED incidents, ambuscade, murder, kidnapping, should be resolved in a separate proceeding. Therefore, the purported human rights abuses mentioned
shooting and harassment in 2018 were initiated by ASG members and the BIFF. 72 in the petitions, particularly in the Bayan Muna and Valle Petitions, fail to persuade that these are
sufficient to warrant a nullification of the extension.
Be it noted that rebellion is a continuing crime.73 It does not necessarily follow that with the liberation
of Marawi, rebellion no longer exists. It will be a tenuous proposition to confine rebellion simply to a A declaration of martial law does not suspend fundamental civil rights of individuals as the Bill of
resounding clash of arms with government forces.74 It was held in Lagman v. Pimentel75 that: Rights enshrined in the Constitution remain effective. Civil courts and legislative bodies remain open.
We recognized that "rebellion is not confined within predetermined bounds," and "for the crime of While it is recognized that, in the declaration of martial law and the suspension of the privilege of the
rebellion to be consummated, it is not required that all armed participants should congregate writ of habeas corpus, the powers given to officials tasked with its implementation are susceptible to
in one place x x x and publicly rise in arms against the government for the attainment of their culpable abuses, these instances have already been taken into consideration when the pertinent provisions on
purpose." We held that the grounds on which the armed public uprising actually took place should not martial law were drafted. Safeguards within the 1987 Constitution and existing laws are available to
be the measure of the extent, scope or range of the actual rebellion when there are other rebels protect the people from these abuses. In Lagman v. Medialdea,80 the Court emphasized that:
positioned elsewhere, whose participation did not necessarily involve the publicity aspect of rebellion, It was the collective sentiment of the framers of the 1987 Constitution that sufficient safeguards
as they may also be considered as engaged in the crime of rebellion. against possible misuse and abuse by the Commander-in-Chief of his extraordinary powers are already
in place and that no further emasculation of the presidential powers is called for in the guise of
In a similar vein, the termination of armed combat in Marawi does not conclusively indicate that the additional safeguards.
rebellion has ceased to exist. It will be a tenuous proposition to confine rebellion simply to a
In Lagman v. Pimentel III,81 the Court discussed these safeguards to wit:
resounding clash of arms with government forces. As noted in Aquino, Jr. v. Enrile, modern day
Nevertheless, cognizant of such possibility of abuse, the framers of the 1987 Constitution endeavored
rebellion has other facets than just the taking up of arms, including financing, recruitment and
to institute a system of checks and balances to limit the President's exercise of the martial law and
propaganda, that may not necessarily be found or occurring in the place of the armed
suspension powers, and to establish safeguards to protect civil liberties. Thus, pursuant to Section 18,
conflict.76 (Citations omitted)
Article VII of the 1987 Constitution:
In sum, Proclamation No. 216 did not become functus officio with the cessation of the Marawi siege.
Considering that rebellion persists and that the public safety requires it, there is sufficient factual basis (a) The President may declare martial law or suspend of the privilege of the writ of the privilege
to extend martial law in Mindanao for the third time. of habeas corpus only when there is an invasion or rebellion and public safety requires such
declaration or suspension.
The manner by which Congress approved the extension of martial law and the suspension of
the privilege of the writ of habeas corpus is a political question that is not reviewable by the (b) The President's proclamation or suspension shall be for a period not exceeding 60 days.
Court.
(c) Within 48 hours from the proclamation or suspension, the President must submit a Report in
We cannot say anything more than what has been expounded and find no reason to deviate from the person or in writing to Congress.
ruling on this matter in the case of Lagman v. Pimentel III:77
No less than the Constitution, under Section 16 of Article VI, grants the Congress the right to (d) The Congress, voting jointly and by a vote of at least a majority of all its Members, can revoke the
promulgate its own rules to govern its proceedings, to wit: proclamation or suspension.

(e) The President cannot set aside the Congress' revocation of his proclamation or suspension.
 experience and wait until a city is overrun before declaring martial law. The Constitutional safeguards
(f) The President cannot, by himself, extend his proclamation or suspension. He should ask the found in Section 18, Article VII does not demand that a city be first taken over or people get killed and
Congress' approval. billions of properties go up in smoke before the President may be justified to use his options under
Section 18. What the Constitution asks is only that there be actual rebellion, an existing rebellion in
(g) Upon such initiative or request from the President, the Congress, voting jointly and by a vote of at the territory where Martial rule is to be imposed. The declaration should not be arbitrary or whimsical,
least a majority of all its Members, can extend the proclamation or suspension for such period as it but its basis should not also be so accurate that there is no room for changes or correction.
may determine. Considering the volatility of conflict, situations may change at the blink of an eye. And the Executive is
burdened with such responsibility to act decisively.
(h) The extension of the proclamation or suspension shall only be approved when the invasion or
rebellion persists and public safety requires it. WHEREFORE, the Court FINDS sufficient factual bases for the issuance of Resolution of Both Houses
No. 6 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated petitions are
(i) The Supreme Court may review the sufficiency of the factual basis of the proclamation or hereby DISMISSED.
suspension or the extension thereof, in an appropriate proceeding filed by any citizen.
SO ORDERED.
(j) The Supreme Court must promulgate its decision within 30 days from the filing of the appropriate
proceeding.

(k) Martial law does not suspend the operation of the Constitution.

Accordingly, the Bill of Rights remains effective under a state of martial law. Its implementers must
adhere to the principle that civilian authority is supreme over the military and the armed forces is the
protector of the people. They must also abide by the State's policy to value the dignity of every human
person and guarantee full respect for human rights.

(l) Martial law does not supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function.

(m) The suspension of the privilege of the writ applies only to persons judicially charged for rebellion
or offenses inherent in or directly connected with invasion.

(n) Finally, during the suspension of the privilege of the writ, any person thus arrested or detained
should be judicially charged within three days, otherwise he should be released.82
In addition to the safeguards provided by the Constitution, adequate remedies in the ordinary course
of law against abuses and violations of human rights committed by erring public officers are available
including the following:
1. R.A. No. 7438 (An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial
Investigation as Well as the Duties of the Arresting, Detaining and Investigating Officers, and
Providing Penalties for Violations Thereof);

2. R.A. No. 9372 or the Human Security Act of 2007;

3. R.A. No. 9745 or the Anti-Torture Act of 2009; and

4. Writs of Amparo (A.M. No. 07-9-12-SC) and Habeas Data (A.M. No. 08-1-16-SC); and

5. Universal Declaration of Human Rights (UDHR).

In relation to the international human rights principles established under the Universal Declaration of
Human Rights (UDHR), the law enforcement officials are also guided by the principles and safeguards
declared in the International Covenant on Civil and Political Rights. Soft law instruments of particular
relevance to law enforcement include United Nations' (UN) Basic Principles [o]n the Use of Force and
Firearms by Law Enforcement Officials (BPUFF),83 Code of Conduct for Law Enforcement Officials
(CCLEO),84 Standard Minimum Rules for the Treatment of Prisoners (SMR),85 Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), 85 and
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Victims
Declaration).86 These instruments uphold the principles of legality, proportionality, necessity, and
accountability in situations involving the use of force by law enforcers.

A Final Word

While the Maute uprising was the immediate concern at that time, We must not forget that the country
was confronted with not just one or two rebel bands but several rebel groups or anti-government
entities. The country faced rebellion from several fronts. The extensions of Proclamation No. 216 are
the Chief Executive's decisive response to several existing rebellions throughout Mindanao. Each of
these persisting challenges to the authority of the legitimate government is certainly a basis sufficient
to warrant the declaration of martial law. Surely, the President does not want a repeat of the Maute
 Republic of the Philippines On July 9, 2008, the CA rendered its Decision,7 denying on formal and substantial grounds the reliefs prayed for in the
SUPREME COURT petition and dropping former President Gloria Macapagal Arroyo as a respondent. The CA ratiocinated:
Manila

There was no attempt at all to clarify how petitioner came to know about Zaldy Osio’s presence at their pier if the
EN BANC former had not gone home since the petition was filed and what Zaldy Osio was doing there to constitute violation or
threat to violate petitioner’s right to life, liberty or security. This Court cannot just grant the privilege of the writs without
substantial evidence to establish petitioner’s entitlement thereto. This Court cannot grant the privilege of the writs
G.R. No. 183533 September 25, 2012 applied for on mere speculation or conjecture. This Court is convinced that the Supreme Court did not intend it to be
so when the rules on the writs of Amparo and Habeas Data were adopted. It is the impression of this Court that the
privilege of the writs herein prayed for should be considered as extraordinary remedies available to address the
IN THE MATTER OF THE PETITION FOR THE WRIT OF AMPARO AND THE WRIT OF HABEAS DATA IN specific situations enumerated in the rules and no other.
FAVOR OF FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, xxxx
CAPT. LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL GUTIERREZ, CAPT. JAKE OBLIGADO, CPL.
ROMAN ITO QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA, A CERTAIN CAPT. ALCA YDO, A
CERTAIN FIRST SERGEANT, PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL. JAMES, A Not only did the petition and the supporting affidavit x x x fail to allege how the supposed threat or violation of
CERTAIN JOEL, RODERICK CLANZA and JEFFREY GOMEZ, Respondents. petitioner’s [right to] life, liberty and security is committed. Neither is there any narration of any circumstances
attendant to said supposed violation or threat to violatepetitioner’s right to life, liberty or security to warrant entitlement
to the privilege of the writs prayed for.
For action by the Court is the Motion for Reconsideration1 dated September 26, 2010 filed by petitioner Francis Saez
of our Resolution2 dated August 31, 2010 denying the Petition for Review3 he filed on July 21, 2008.
xxxx
4
The Office of the Solicitor General (OSG) filed its Comment thereon stating that it does not find cogent grounds to
warrant setting aside our decision. A reading of the petition will show that the allegations therein do not comply with the aforestated requirements of
Section 6 Rule on the Writ of Habeas Data of the pertinent rule. The petition is bereft of any allegation stating with
specific definiteness as to how petitioner’s right to privacy was violated or threatened to be violated. He did not
Antecedent Facts include any allegation as to what recourses he availed of to obtain the alleged documents from respondents. Neither
did petitioner allege what specific documents he prays for and from whom or [sic] from what particular office of the
government he prays to obtain them. The petition prays "to order respondents to produce any documents submitted
On March 6, 2008, the petitioner filed with the Court a petition to be granted the privilege of the writs of amparo and to any of them in the matter of any report on the case of FRANCIS SAEZ, including all military intelligence reports."
habeas data with prayers for temporary protection order, inspection of place and production of documents. 5 In the
petition, he expressed his fear of being abducted and killed; hence, he sought that he be placed in a sanctuary
appointed by the Court. He likewise prayed for the military to cease from further conducting surveillance and xxxx
monitoring of his activities and for his name to be excluded from the order of battle and other government records
connecting him to the Communist Party of the Philippines (CPP).
Both the rules on the writs of Amparo and Habeas Data (Section 17, A.M. No. 07-9-12-SC and Section 16, A.M. No.
08-1-16-SC) provide that the parties shall establish their claims by substantial evidence. Not only was petitioner
Without necessarily giving due course to the petition, the Court issued the writ of amparo commanding the unable to establish his entitlement to the privilege of the writs applied for, the exigency thereof was negated by his
respondents to make a verified return, and referred the case to the Court of Appeals (CA) for hearing and own admission that nothing happened between him and Joel after July 21, 2007. The filing of the petition appears to
decision.The case before the CA was docketed as CA-G.R. SP No. 00024 WOA. have been precipitated by his fear that something might happen to him, not because of any apparent violation or
visible threat to violate his right to life, liberty or security. Petitioner was, in fact, unable to establish likewise who
among the respondents committed specific acts defined under the rules on both writs to constitute violation or threat
In the Return of the Writ,6 the respondents denied the assignment in the units of Captains Lawrence Banaag and to violate petitioner’s rights to life, liberty or security or his right to privacy thereof.
Rommel Gutierrez and Corporal Ariel Fontanilla. The respondents also alleged that the names and descriptions of
"Capt. Alcaydo," "a certain First Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient to properly identify
some of the persons sought to be included as among the respondents in the petition. xxxx

On the other hand, respondents General Hermogenes Esperon, Jr. (Gen. Esperon), Capt. Jacob Thaddeus Obligado, x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al. (G.R. No. 171396, May 3, 2006, 489 SCRA 160,
Pvt. Rizaldy A. Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico Duquil submitted their affidavits. 224) is aptly instructive:

The CA conducted hearings with an intent to clarify what actually transpired and to determine specific acts which "Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any
threatened the petitioner’s right to life, liberty or security. civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to
During the hearings, the petitioner narrated that starting April 16, 2007, he noticed that he was always being followed fully attend to the performance of his official duties and functions. x x x."
by a certain "Joel," a former colleague at Bayan Muna. "Joel" pretended peddling pandesal in the vicinity of the
petitioner’s store. Three days before the petitioner was apprehended, "Joel" approached and informed him of his
marital status and current job as a baker in xxxx
C]]y666666666666666666666666666666666666666666666666666666666666666666666666666666666666666666
666666666666666666666666666666666666666666666666666666666666666666666666666666666666666666666
6666666666666666666666666666666666666.0 alapan, Mindoro Oriental. "Joel" inquired if the petitioner was still IV. The petition lacks proper verification in violation of Section 12, 2004 Rules on Notarial Practice.8
involved with ANAKPAWIS. When asked by the CA justices during the hearing if the petitioner had gone home to
Calapan after having filed the petition, he answered in the negative explaining that he was afraid of Pvt. Osio who
was always at the pier. On July 21, 2008, Petition for Review was filed assailing the foregoing CA decision with the following issues
submitted for resolution:

CA-G.R. SP No. 00024 WOA

WHETHER OR NOT THE CA COMMITTED REVERSIBLE ERROR IN DISMISSING THE PETITION AND
DROPPING GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF REQUIRING FROM THE PETITIONER Sadly, in the petitioner’s case, the court not only demanded a greater quantum of proof than what the rules require,
IDENTIFICATION CARDS RELATIVE TO THE LATTER’S EXECUTION OF THE VERIFICATION AND but it also accorded special preference for the respondents’ evidence.
CERTIFICATION OF NON-FORUM SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.

The petitioner also cites a speech delivered in Siliman University by former Chief Justice Reynato Puno who
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF DISCRETION WHEN IT FAILED TO CONCLUDE expressed that "the remedy of habeas data can be used by any citizen against any governmental agency or register
FROM THE EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT BY BEING PLACED IN THE ORDER to find out what information is held about his or her person." The person can likewise "request the rectification or even
OF BATTLE LIST, THREATS AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY AND SECURITY WERE the destruction of erroneous data gathered and kept against him or her." In the petitioner’s case, he specifically
ACTUALLY COMMITTED BY THE RESPONDENTS.9 sought the production of the order of battle, which allegedly included his name, and other records which supposedly
contain erroneous data relative to his involvement with the CPP.

Court’s Resolution dated August 31, 2010

OSG’s Comment

On August 31, 2010, the Court issued the Resolution10 denying the petition for review for the following reasons, viz:
In the respondents’ comment16 filed by the OSG, it is generally claimed that the petitioner advances no cogent
grounds to justify the reversal of the Court’s Resolution dated August 31, 2010.
A careful perusal of the subject petition shows that the CA correctly found that the petition was bereft of any allegation
as to what particular acts or omission of respondents violated or threatened petitioner’s right to life, liberty and
security. His claim that he was incommunicado lacks credibility as he was given a cellular phone and allowed to go The Court’s Disquisition
back to Oriental Mindoro. The CA also correctly held that petitioner failed to present substantial evidence that his right
to life, liberty and security were violated, or how his right to privacy was threatened by respondents. He did not
specify the particular documents to be secured, their location or what particular government office had custody While the issuance of the writs sought by the petitioner cannot be granted, the Court nevertheless finds ample
thereof, and who has possession or control of the same. He merely prayed that the respondents be ordered "to grounds to modify the Resolution dated August 31, 2010.
produce any documents submitted to any of them in the matter of any report on the case of FRANCIS SAEZ,
including all military intelligence reports."
The petition conforms to the
requirements of the Rules on the
Petitioner assails the CA in failing to appreciate that in his Affidavit and Fact Sheet, he had specifically detailed the Writs of Amparo and Habeas Data
violation of his right to privacy as he was placed in the Order of Battle and promised to have his record cleared if he
would cooperate and become a military asset. However, despite questions propounded by the CA Associate Justices
during the hearing, he still failed to enlighten the appellate court as to what actually transpired to enable said court to Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo) and Section 618 of A.M. 08-1-16-SC (Rule on the
determine whether his right to life, liberty or security had actually been violated or threatened. Records bear out the Writ of Habeas Data) provide for what the said petitions should contain.
unsubstantiated claims of petitioner which justified the appellate court’s dismissal of the petition.
In the present case, the Court notes that the petition for the issuance of the privilege of the writs of amparo and
As to petitioner’s argument that the CA erred in deleting the President as party-respondent, we find the same also to habeas data is sufficient as to its contents. The petitioner made specific allegations relative to his personal
be without merit. The Court has already made it clear in David v. Macapagal-Arroyo that the President, during his or circumstances and those of the respondents. The petitioner likewise indicated particular acts, which are allegedly
her tenure of office or actual incumbency, may not be sued in any civil or criminal case, and there is no need to violative of his rights and the participation of some of the respondents in their commission. As to the pre-requisite
provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, conduct and result of an investigation prior to the filing of the petition, it was explained that the petitioner expected no
if the President can be dragged into court litigations while serving as such. Furthermore, it is important that the relief from the military, which he perceived as his oppressors, hence, his request for assistance from a human rights
President be freed from any form of harassment, hindrance or distraction to enable the President to fully attend to the organization, then a direct resort to the court. Anent the documents sought to be the subject of the writ of habeas data
performance of official duties and functions.11 (Citation omitted) prayed for, the Court finds the requirement of specificity to have been satisfied. The documents subject of the petition
include the order of battle, those linking the petitioner to the CPP and those he signed involuntarily, and military
intelligence reports making references to him. Although the exact locations and the custodians of the documents were
Hence, the petitioner filed the instant motion for reconsideration. 12 not identified, this does not render the petition insufficient. Section 6(d) of the Rule on the Writ of Habeas Data is
clear that the requirement of specificity arises only when the exact locations and identities of the custodians are
known. The Amparo Rule was not promulgated with the intent to make it a token gesture of concern for constitutional
Petitioner’s Arguments rights.19 Thus, despite the lack of certain contents, which the Rules on the Writs of Amparo and Habeas Data
generally require, for as long as their absence under exceptional circumstances can be reasonably justified, a petition
should not be susceptible to outright dismissal.
Contrary to the CA’s findings, it had been shown by substantial evidence and even by the respondents’ own
admissions that the petitioner’s life, liberty and security were threatened. Military personnel, whom the petitioner had
named and described, knew where to get him and they can do so with ease. He also became a military asset, but From the foregoing, the Court holds that the allegations stated in the petition for the privilege of the writs of amparo
under duress, as the respondents had documents allegedly linking him to the CPP and including him in the order of and habeas data filed conform to the rules. However, they are mere allegations, which the Court cannot accept "hook,
battle. The petitioner claims that the foregoing circumstances were not denied by the respondents. line and sinker", so to speak, and whether substantial evidence exist to warrant the granting of the petition is a
different matter altogether.

The petitioner likewise challenges the CA’s finding that he was not rendered incommunicado as he was even
provided with a cellular phone. The petitioner argues that the phone was only given to him for the purpose of No substantial evidence exists to
communicating with the respondents matters relative to his infiltration activities of target legal organizations. prove the petitioner’s claims

The petitioner cites Secretary of National Defense v. Manalo,13 which pronounced that "in the amparo context, it is The Court has ruled that in view of the recognition of the evidentiary difficulties attendant to the filing of a petition for
more correct to say that the ‘right to security’ is actually the ‘freedom from threat’".14 According to the petitioner, his the privilege of the writs of amparo and habeas data, not only direct evidence, but circumstantial evidence, indicia,
freedom from fear was undoubtedly violated, hence, to him pertains a cause of action. Anent the quantum of proof and presumptions may be considered, so long as they lead to conclusions consistent with the admissible evidence
required in a petition for the issuance of the writ of amparo, mere substantial evidence is sufficient. The petition "is not adduced.20
an action to determine criminal guilt requiring proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings".15 With the foregoing in mind, the Court still finds that the CA did not commit a reversible error in declaring that no
substantial evidence exist to compel the grant of the reliefs prayed for by the petitioner. The Court took a second look
on the evidence on record and finds no reason to reconsider the denial of the issuance of the writs prayed for.
In the hearing before the CA, it was claimed that "Joel" once inquired from the petitioner if the latter was still involved allegation by the petitioner, however, is, at best, a conclusion on his part, a mere impression that the petitioner had,
with ANAKPAWIS. By itself, such claim cannot establish with certainty that the petitioner was being monitored. The based on his personal assessment of the circumstances. The petitioner even admitted in his testimony before the CA
encounter happened once and the petitioner, in his pleadings, nowhere stated that subsequent to the time he was that when he had a conversation with "Joel" sometime in July 2007, the latter merely asked him whether he was still
asked about his involvement with ANAKPAWIS, he still noticed "Joel" conducting surveillance operations on him. He connected with ANAKPAWIS, but he was not threatened "with anything" and no other incident occurred between
alleged that he was brought to the camp of the 204th Infantry Brigade in Naujan, Oriental Mindoro but was sent home them since then.29 There is clearly nothing on record which shows that "Joel" committed overt acts that will
at 5:00 p.m. The petitioner and the respondents have conflicting claims about what transpired thereafter. The unequivocally lead to the conclusion arrived at by the petitioner, especially since the alleged acts committed by "Joel"
petitioner insisted that he was brought against his will and was asked to stay by the respondents in places under the are susceptible of different interpretations.
latter’s control. The respondents, on the other hand, averred that it was the petitioner who voluntarily offered his
service to be a military asset, but was rejected as the former still doubted his motives and affiliations.
Given that the totality of the evidence presented by the petitioner failed to support his claims, the reliefs prayed for,
therefore, cannot be granted. The liberality accorded to amparo and habeas data cases does not mean that a
Section 19 of both the Rules on the Writ of Amparo and Habeas Data is explicit that questions of fact and law can be claimant is dispensed with the onus of proving his case. "Indeed, even the liberal standard of substantial evidence
raised before the Court in a petition for review on certiorari under Rule 45. As a rule then, the Court is not bound by demands some adequate evidence."30
the factual findings made by the appellate court which rendered the judgment in a petition for the issuance of the writs
of amparo and habeas data. Be that as it may, in the instant case, the Court agrees with the CA that the petitioner
failed to discharge the burden of proof imposed upon him by the rules to establish his claims. It cannot be The President cannot be
overemphasized that Section 1 of both the Rules on the Writ of Amparo and Habeas Data expressly include in their automatically dropped as a
coverage even threatened violations against a person’s right to life, liberty or security. Further, threat and intimidation respondent pursuant to the doctrine
that vitiate the free will – although not involving invasion of bodily integrity – nevertheless constitute a violation of the of command responsibility
right to security in the sense of "freedom from threat".21

In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court stated:

It must be stressed, however, that such "threat" must find rational basis on the surrounding circumstances of the
case. In this case, the petition was mainly anchored on the alleged threats against his life, liberty and security by
reason of his inclusion in the military’s order of battle, the surveillance and monitoring activities made on him, and the a. Command responsibility of the President
intimidation exerted upon him to compel him to be a military asset. While as stated earlier, mere threats fall within the
mantle of protection of the writs of amparo and habeas data, in the petitioner’s case, the restraints and threats
allegedly made allegations lack corroborations, are not supported by independent and credible evidence, and thus Having established the applicability of the doctrine of command responsibility in amparo proceedings, it must now be
stand on nebulous grounds. resolved whether the president, as commander-in-chief of the military, can be held responsible or accountable for
extrajudicial killings and enforced disappearances. We rule in the affirmative.

The Court is cognizant of the evidentiary difficulties attendant to a petition for the issuance of the writs. Unlike,
however, the unique nature of cases involving enforced disappearances or extra-judicial killings that calls for flexibility To hold someone liable under the doctrine of command responsibility, the following elements must obtain:
in considering the gamut of evidence presented by the parties, this case sets a different scenario and a significant
portion of the petitioner’s testimony could have been easily corroborated. In his Sinumpaang Salaysay22 dated March
a. the existence of a superior-subordinate relationship between the accused as superior and the
5, 2008 and the Fact Sheet dated December 9, 200723 executed before the Alliance for the Advancement of People’s
perpetrator of the crime as his subordinate;
Rights-Southern Tagalog (KARAPATAN-ST), the petitioner stated that when he was invited and interrogated at the
military camp in Naujan, Oriental Mindoro, he brought with him his uncle Norberto Roxas, Barangay Captain Mario
Ilagan and two of his bodyguards, and Edwardo Estabillo – five witnesses who can attest and easily corroborate his b. the superior knew or had reason to know that the crime was about to be or had been committed; and
statement – but curiously, the petitioner did not present any piece of evidence, whether documentary or testimonial,
to buttress such claim nor did he give any reason for their non-presentation.This could have made a difference in light
of the denials made by the respondents as regards the petitioner’s claims. c. the superior failed to take the necessary and reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.
The existence of an order of battle and inclusion of the petitioner’s name in it is another allegation by the petitioner
that does not find support on the evidence adduced. The Court notes that such allegation was categorically denied by The president, being the commander-in-chief of all armed forces, necessarily possesses control over the military that
respondent Gen. Avelino I. Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that he "does not have qualifies him as a superior within the purview of the command responsibility doctrine.
knowledge about any Armed Forces of the Philippines (AFP) ‘order of battle’ which allegedly lists the petitioner as a
member of the CPP."24 This was also denied by Pvt. Osio, who the petitioner identified as the one who told him that
he was included in the order of battle.25 The 2nd Infantry (Jungle Fighter) Division of the Philippine Army also On the issue of knowledge, it must be pointed out that although international tribunals apply a strict standard of
conducted an investigation pursuant to the directive of AFP Chief of Staff Gen. Esperon, 26 and it was shown that the knowledge, i.e., actual knowledge, such may nonetheless be established through circumstantial evidence. In the
persons identified by the petitioners who allegedly committed the acts complained of were not connected or assigned Philippines, a more liberal view is adopted and superiors may be charged with constructive knowledge. This view is
to the 2nd Infantry Division.27 buttressed by the enactment of Executive Order No. 226, otherwise known as the Institutionalization of the Doctrine
of ‘Command Responsibility’ in all Government Offices, particularly at all Levels of Command in the

Moreover, the evidence showed that the petitioner’s mobility was never curtailed. From the time he was allegedly
brought to Batangas in August of 2007 until the time he sought the assistance of KARAPATAN-ST, there was no Philippine National Police and other Law Enforcement Agencies (E.O. 226). Under E.O. 226, a government official
restraint upon the petitioner to go home, as in fact, he went home to Mindoro on several instances. And while he may may be held liable for neglect of duty under the doctrine of command responsibility if he has knowledge that a crime
have been wary of Pvt. Osio’s presence at the pier, there was no claim by the petitioner that he was threatened or or offense shall be committed, is being committed, or has been committed by his subordinates, or by others within his
prevented by Pvt. Osio from boarding any vehicle that may transport him back home. The petitioner also admitted area of responsibility and, despite such knowledge, he did not take preventive or corrective action either before,
that he had a mobile phone; hence, he had unhampered access to communication and can readily seek assistance during, or immediately after its commission. Knowledge of the commission of irregularities, crimes or offenses is
from non-governmental organizations and even government agencies. presumed when (a) the acts are widespread within the government official’s area of jurisdiction; (b) the acts have
been repeatedly or regularly committed within his area of responsibility; or (c) members of his immediate staff or
office personnel are involved.
The respondents also belied the petitioner’s claim that they forced him to become a military informant and instead,
alleged that it was the petitioner who volunteered to be one. Thus, in his Sinumpaang Salaysay28 executed on March
25, 2008, Pvt. Osio admitted that he actually knew the petitioner way back in 1998 when they were still students. He Meanwhile, as to the issue of failure to prevent or punish, it is important to note that as the commander-in-chief of the
also stated that when he saw the petitioner again in 2007, the latter manifested his intention to become a military armed forces, the president has the power to effectively command, control and discipline the military. (Citations
informant in exchange for financial and other forms of assistance. omitted)

The petitioner also harps on the alleged "monitoring" activities being conducted by a certain "Joel", e.g., the latter’s Pursuant to the doctrine of command responsibility, the President, as the Commander-in-Chief of the AFP, can be
alleged act of following him, pretending to peddle pandesal and asking him about his personal circumstances. Such held liable for affront against the petitioner’s rights to life, liberty and security as long as substantial evidence exist to
show that he or she had exhibited involvement in or can be imputed with knowledge of the violations, or had failed to
exercise necessary and reasonable diligence in conducting the necessary investigations required under the
rules.1âwphi1

The Court also stresses that rule that the presidential immunity from suit exists only in concurrence with the
president’s incumbency.32

Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.33 Courts look with disfavor upon the presidential privilege of immunity, especially
when it impedes the search for truth or impairs the vindication of a right.34 EN BANC

The petitioner, however, is not exempted from the burden of proving by substantial evidence his allegations against G.R. No. 163193 June 15, 2004
the President to make the latter liable for either acts or omissions violative of rights against life, liberty and security. In
the instant case, the petitioner merely included the President’s name as a party respondent without any attempt at all
to show the latter’s actual involvement in, or knowledge of the alleged violations. Further, prior to the filing of the SIXTO S. BRILLANTES, JR., petitioner,
petition, there was no request or demand for any investigation that was brought to the President’s attention. Thus, JOSE CONCEPCION, JR., JOSE DE VENECIA, EDGARDO J. ANGARA, DR. JAIME Z. GALVEZ-TAN, FRANKLIN
while the President cannot be completely dropped as a respondent in a petition for the privilege of the writs of amparo M. DRILON, FRISCO SAN JUAN, NORBERTO M. GONZALES, HONESTO M. GUTIERREZ, ISLETA, AND JOSE
and habeas data merely on the basis of the presidential immunity from suit, the petitioner in this case failed to A. BERNAS, Petitioners-in-Intervention,
establish accountability of the President, as commander-in-chief, under the doctrine of command responsibility. vs.
COMMISSION ON ELECTIONS, respondent.

Compliance with technical rules of

procedure is ideal but it cannot be DECISION
accorded primacy

CALLEJO, SR., J.:

Among the grounds cited by the CA in denying the petition for the issuance of the writs of amparo and habeas data
was the defective verification which was attached to the petition. In Tagitis,35 supporting affidavits required under
Section 5(c) of the Rule on the Writ of Amparo were not submitted together with the petition and it was ruled that the Before us is the petition for certiorari and prohibition under Rule 65 of the Rules of Court filed by Atty. Sixto S.
defect was fully cured when the petitioner and the witness personally testified to prove the truth of their allegations in Brillantes, Jr., a voter and taxpayer, seeking to nullify, for having been issued with grave abuse of discretion
the hearings held before the CA. In the instant case, the defective verification was not the sole reason for the CA’s amounting to lack or excess of jurisdiction, Resolution No. 6712 dated April 28, 2004 approved by the Commission on
denial of the petition for the issuance of the writs of amparo and habeas data. Nonetheless, it must be stressed that Elections
although rules of procedure play an important rule in effectively administering justice, primacy should not be accorded
to them especially in the instant case where there was at least substantial compliance with the requirements and
where petitioner himself testified in the hearings to attest to the veracity of the claims which he stated in his petition. (COMELEC) En Banc captioned GENERAL INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND
CONSOLIDATION OF ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS.1 The petitioner, likewise, prays
for the issuance of a temporary restraining order and, after due proceedings, a writ of prohibition to permanently
To conclude, compliance with technical rules of procedure is ideal but it cannot be accorded primacy. In the enjoin the respondent COMELEC from enforcing and implementing the questioned resolution.
proceedings before the CA, the petitioner himself testified to prove the veracity of his allegations which he stated in
the petition. Hence, the defect in the verification attached to the petition. Hence, the defect in the verification attached
to the petition was deemed cured. After due deliberation, the Court resolved to require the respondent to comment on the petition and to require the
parties to observe the status quo prevailing before the issuance by the COMELEC of the assailed resolution. The
parties were heard on oral arguments on May 8, 2004. The respondent COMELEC was allowed during the hearing to
WHEREFORE, premises considered, the petitioner's motion for reconsideration is DENIED WITH FINALITY. make a presentation of the Electronic Transmission, Consolidation and Dissemination (PHASE III) program of the
COMELEC, through Mr. Renato V. Lim of the Philippine Multi-Media System, Inc. (PMSI).

SO ORDERED.
The Court, thereafter, resolved to maintain the status quo order issued on May 6, 2004 and expanded it to cover any
and all other issuances related to the implementation of the so-called election quick count project. In compliance with
the resolution of the Court, the respondent, the petitioner and the petitioners-in-intervention submitted the documents
required of them.

The Antecedents

On December 22, 1997, Congress enacted Republic Act No. 84362 authorizing the COMELEC to use an automated
election system (AES) for the process of voting, counting of votes and canvassing/consolidating the results of the
national and local elections. It also mandated the COMELEC to acquire automated counting machines (ACMs),
computer equipment, devices and materials; and to adopt new electoral forms and printing materials.

The COMELEC initially intended to implement the automation during the May 11, 1998 presidential elections,
particularly in the Autonomous Region in Muslim Mindanao (ARMM). The failure of the machines to read correctly
some automated ballots, however, deferred its implementation.3
In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done Chairman Benjamin Abalos of his position during their meeting on January 28, 2004. He also wrote Chairman Abalos
manually, as no additional ACMs had been acquired for that electoral exercise because of time constraints. on February 2, 2004. The letter reads:

On October 29, 2002, the COMELEC adopted, in its Resolution No. 02-0170, a modernization program for the 2004 Dear Chairman Abalos,
elections consisting of three (3) phases, to wit:

This is to confirm my opinion which I relayed to you during our meeting on January 28th that the
(1) PHASE I – Computerized system of registration and voters validation or the so-called "biometrics" Commission on Elections cannot and should not conduct a "quick count" on the results of the elections
system of registration; for the positions of President and Vice-President.

(2) PHASE II – Computerized voting and counting of votes; and Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive
authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted
by the Commission on said positions would in effect constitute a canvass of the votes of the President
(3) PHASE III – Electronic transmission of results. and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also would
be lacking of any Constitutional authority. You conceded the validity of the position we have taken on this
point.
It resolved to conduct biddings for the three phases.

In view of the foregoing, we asked the COMELEC during that meeting to reconsider its plan to include
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172,4 which allocated the sum the votes for President and Vice-President in the "quick count", to which you graciously consented.
of ₱2,500,000,000 to exclusively fund the AES in time for the May 10, 2004 elections. Thank you very much.9

On January 28, 2003, the COMELEC issued an Invitation to Bid5 for the procurement of supplies, equipment, The COMELEC approved a Resolution on February 10, 2004 referring the letter of the Senate President to the
materials and services needed for the complete implementation of all three phases of the AES with an approved members of the COMELEC and its Law Department for study and recommendation. Aside from the concerns of the
budget of ₱2,500,000,000. Senate President, the COMELEC had to contend with the primal problem of sourcing the money for the
implementation of the project since the money allocated by the Office of the President for the AES had already been
spent for the acquisition of the equipment. All these developments notwithstanding, and despite the explicit
On February 10, 2003, upon the request of the COMELEC, President Gloria Macapagal-Arroyo issued Executive specification in the project contract for Phase III that the same was functionally intended to be an interface of Phases
Order No. 175,6 authorizing the release of a supplemental ₱500 million budget for the AES project of the COMELEC. I and II of the AES modernization program, the COMELEC was determined to carry out Phase III of the AES. On April
The said issuance, likewise, instructed the Department of Budget and Management (DBM) to ensure that the 6, 2004, the COMELEC, in coordination with the project contractor PMSI, conducted a field test of the electronic
aforementioned additional amount be used exclusively for the AES prescribed under Rep. Act No. 8436, particularly transmission of election results.
"the process of voting, counting of votes and canvassing/consolidation of results of the national and local elections."7

On April 27, 2004, the COMELEC met en banc to update itself on and resolve whether to proceed with its
On April 15, 2003, the COMELEC promulgated Resolution No. 6074 awarding the contract for Phase II of the AES to implementation of Phase III of the AES.10 During the said meeting, COMELEC Commissioner Florentino Tuason, Jr.
Mega Pacific Consortium and correspondingly entered into a contract with the latter to implement the project. On the requested his fellow Commissioners that "whatever is said here should be confined within the four walls of this room
same day, the COMELEC entered into a separate contract with Philippine Multi-Media System, Inc. (PMSI) and the minutes so that walang masyadong problema.11 Commissioner Tuason, Jr. stated that he had no objection as
denominated "ELECTRONIC TRANSMISSION, CONSOLIDATION & DISSEMINATION OF ELECTION RESULTS to the Phase III of the modernization project itself, but had concerns about the budget. He opined that other funds of
PROJECT CONTRACT.8 The contract, by its very terms, pertains to Phase III of the respondent COMELEC’s AES the COMELEC may not be proper for realignment. Commissioners
modernization program. It was predicated on a previous bid award of the contract, for the lease of 1,900 units of Resurreccion Z. Borra and Virgilio Garcillano also expressed their concerns on the budget for the project.
satellite-based Very Small Aperture Terminals (VSAT) each unit consisting of an indoor and outdoor equipment, to Commissioner Manuel Barcelona, Jr. shared the sentiments of Commissioners Garcillano and Tuason, Jr. regarding
PMSI for possessing the legal, financial and technical expertise necessary to meet the project’s objectives. The personnel and budgetary problems. Commissioner Sadain then manifested that the consideration for the contract for
COMELEC bound and obliged itself to pay PMSI the sum of ₱298,375,808.90 as rentals for the leased equipment Phase III had already been almost fully paid even before the Court’s nullification of the contract for Phase II of the
and for its services. AES, but he was open to the possibility of the realignment of funds of the COMELEC for the funding of the project. He
added that if the implementation of Phase III would not be allowed to continue just because Phase II was nullified,
then it would be ₱300,000,000 down the drain, in addition to the already allocated disbursement on Phase II of the
In the meantime, the Information Technology Foundation of the Philippines (ITFP), filed a petition for certiorari and
AES.12 Other concerns of the Commissioners were on the legality of the project considering the scrapping of Phase II
prohibition in this Court for the nullification of Resolution No. 6074 approving the contract for Phase II of AES to Mega
of the AES, as well as the operational constraints related to its implementation.
Pacific Consortium, entitled and docketed as Information Technology Foundation of the Philippines, et al. vs.
COMELEC, et al., G.R. No. 159139. While the case was pending in this Court, the COMELEC paid the contract fee to
the PMSI in trenches. Despite the dire and serious reservations of most of its members, the COMELEC, the next day, April 28, 2004, barely
two weeks before the national and local elections, approved the assailed resolution declaring that it "adopts the policy
that the precinct election results of each city and municipality shall be immediately transmitted electronically in
On January 13, 2004, this Court promulgated its Decision nullifying COMELEC Resolution No. 6074 awarding the
advance to the COMELEC, Manila."13 For the purpose, respondent COMELEC established a National Consolidation
contract for Phase II of the AES to Mega Pacific Consortium. Also voided was the subsequent contract entered into
Center (NCC), Electronic Transmission Centers (ETCs) for every city and municipality, and a special ETC at the
by the respondent COMELEC with Mega Pacific Consortium for the purchase of computerized voting/counting
COMELEC, Manila, for the Overseas Absentee Voting.14
machines for the purpose of implementing the second phase of the modernization program. Phase II of the AES was,
therefore, scrapped based on the said Decision of the Court and the COMELEC had to maintain the old manual
voting and counting system for the May 10, 2004 elections. Briefly, the procedure for this electronic transmission of precinct results is outlined as follows:

On the other hand, the validation scheme under Phase I of the AES apparently encountered problems in its I. The NCC shall receive and consolidate all precinct results based on the data transmitted to it by each
implementation, as evinced by the COMELEC’s pronouncements prior to the elections that it was reverting to the old ETC;15
listing of voters. Despite the scrapping of Phase II of the AES, the COMELEC nevertheless ventured to implement
Phase III of the AES through an electronic transmission of advanced "unofficial" results of the 2004 elections for
national, provincial and municipal positions, also dubbed as an "unofficial quick count." II. Each city and municipality shall have an ETC "where votes obtained by each candidate for all
positions shall be encoded, and shall consequently be transmitted electronically to the NCC, through
Very Small Aperture Terminal (VSAT) facilities."16 For this purpose, personal computers shall be
Senate President Franklin Drilon had misgivings and misapprehensions about the constitutionality of the proposed allocated for all cities and municipalities at the rate of one set for every one hundred seventy-five (175)
electronic transmission of results for the positions of President and Vice-President, and apprised COMELEC precincts;17
III. A Department of Education (DepEd) Supervisor shall be designated in the area who will be assigned in each c) The instruction contained in Resolution 6712, to break the seal of the envelope containing copies Nos.
polling center for the purpose of gathering from all Board of Election Inspectors (BEI) therein the envelopes 2 and 3 will introduce a break in the chain of custody prior to its opening by the Commission on
containing the Copy 3 of the Election Returns (ER) for national positions and Copy 2 of the ER for local positions, Election[s]. In the process of prematurely breaking the seal of the Board of Election Inspectors, the
both intended for the COMELEC, which shall be used as basis for the encoding and transmission of advanced integrity of the Commission’s copy is breached, thereby rendering it void of any probative value.
precinct results.18

To us, it does appear that the use of election returns as prescribed in Resolution 6712 departs from the letters and
The assailed resolution further provides that written notices of the date, time and place of the electronic transmission spirit of the law, as well as previous practice. More importantly, questions of legalities aside, the conduct of an
of advanced precinct results shall be given not later than May 5, 2004 to candidates running for local positions, and advanced count by the COMELEC may affect the credibility of the elections because it will differ from the results
not later than May 7, 2004 to candidates running for national positions, as well as to political parties fielding obtained from canvassing. Needless to say, it does not help either that Resolution 6712 was promulgated only
candidates, and parties, organizations/coalitions participating under the party-list system.19 recently, and perceivably, on the eve of the elections.

In relation to this, Section 13 of the assailed resolution provides that the encoding proceedings were ministerial and In view of the foregoing, we respectfully request the Commission to reconsider Resolution 6712 which authorizes the
the tabulations were "advanced unofficial results." The entirety of Section 13, reads: use of election returns for the consolidation of the election results for the May 10, 2004 elections.22

Sec. 13. Right to observe the ETC proceedings. – Every registered political party or coalition of parties, The Present Petition
accredited political party, sectoral party/organization or coalition thereof under the party-list, through its
representative, and every candidate for national positions has the right to observe/witness the encoding
and electronic transmission of the ERs within the authorized perimeter. On May 4, 2004, the petition at bar was filed in this Court.

Provided, That candidates for the sangguniang panlalawigan, sangguniang panglungsod or sangguniang Jose Concepcion, Jr., Jose De Venecia, Edgardo J. Angara, Dr. Jaime Z. Galvez-Tan, Franklin M. Drilon, Frisco San
bayan belonging to the same slate or ticket shall collectively be entitled to only one common observer at the ETC. Juan, Norberto M. Gonzales, Honesto M. Isleta and Jose A. Bernas, filed with this Court their Motion to Admit
Attached Petition-in-Intervention. In their petition-in-intervention, movants-petitioners urge the Court to declare as null
and void the assailed resolution and permanently enjoin the respondent COMELEC from implementing the same. The
The citizens’ arm of the Commission, and civic, religious, professional, business, service, youth and other similar Court granted the motion of the petitioners-in-intervention and admitted their petition.
organizations collectively, with prior authority of the Commission, shall each be entitled to one (1) observer. Such fact
shall be recorded in the Minutes.
In assailing the validity of the questioned resolution, the petitioner avers in his petition that there is no provision under
Rep. Act No. 8436 which authorizes the COMELEC to engage in the biometrics/computerized system of validation of
The observer shall have the right to observe, take note of and make observations on the proceedings of the team. voters (Phase I) and a system of electronic transmission of election results (Phase III). Even assuming for the nonce
Observations shall be in writing and, when submitted, shall be attached to the Minutes. that all the three (3) phases are duly authorized, they must complement each other as they are not distinct and
separate programs but mere stages of one whole scheme. Consequently, considering the failed implementation of
Phases I and II, there is no basis at all for the respondent COMELEC to still push through and pursue with Phase III.
The encoding proceedings being ministerial in nature, and the tabulations being advanced unofficial results, no The petitioner essentially posits that the counting and consolidation of votes contemplated under Section 6 of Rep.
objections or protests shall be allowed or entertained by the ETC. Act No. 8436 refers to the official COMELEC count under the fully automated system and not any kind of "unofficial"
count via electronic transmission of advanced results as now provided under the assailed resolution.

In keeping with the "unofficial" character of the electronically transmitted precinct results, the assailed resolution
expressly provides that "no print-outs shall be released at the ETC and at the NCC."20 Instead, consolidated and per- The petitioners-in-intervention point to several constitutional infractions occasioned by the assailed resolution. They
precinct results shall be made available via the Internet, text messaging, and electronic billboards in designated advance the view that the assailed resolution effectively preempts the sole and exclusive authority of Congress under
locations. Interested parties may print the result published in the COMELEC web site.21 Article VII, Section 4 of the Constitution to canvass the votes for President and Vice-President. Further, as there has
been no appropriation by Congress for the respondent COMELEC to conduct an "unofficial" electronic transmission of
results of the May 10, 2004 elections, any expenditure for the said purpose contravenes Article VI, Section 29 (par. 1)
When apprised of the said resolution, the National Citizens Movement for Free Elections (NAMFREL), and the heads of the Constitution.
of the major political parties, namely, Senator Edgardo J. Angara of the Laban ng Demokratikong Pilipino (LDP) and
Chairman of the Koalisyon ng mga Nagkakaisang Pilipino (KNP) Executive Committee, Dr. Jaime Z. Galvez Tan of
the Aksyon Demokratiko, Frisco San Juan of the Nationalist People’s Coalition (NPC), Gen. Honesto M. Isleta of On statutory grounds, the petitioner and petitioners-in-intervention contend that the assailed resolution encroaches
Bangon Pilipinas, Senate President Franklin Drilon of the Liberal Party, and Speaker Jose de Venecia of the Lakas- upon the authority of NAMFREL, as the citizens’ accredited arm, to conduct the "unofficial" quick count as provided
Christian Muslim Democrats (CMD) and Norberto M. Gonzales of the Partido Demokratiko Sosyalista ng Pilipinas, under pertinent election laws. It is, likewise, impugned for violating Section 52(i) of the Omnibus Election Code,
wrote the COMELEC, on May 3, 2004 detailing their concerns about the assailed resolution: relating to the requirement of notice to the political parties and candidates of the adoption of technological and
electronic devices during the elections.

This refers to COMELEC Resolution 6712 promulgated on 28 April 2004.

For its part, the COMELEC preliminarily assails the jurisdiction of this Court to pass upon the assailed resolution’s
validity claiming that it was promulgated in the exercise of the respondent COMELEC’s executive or administrative
NAMFREL and political parties have the following concerns about Resolution 6712 which arose during consultation power. It asserts that the present controversy involves a "political question;" hence, beyond the ambit of judicial
over the past week[:] review. It, likewise, impugns the standing of the petitioner to file the present petition, as he has not alleged any injury
which he would or may suffer as a result of the implementation of the assailed resolution.
a) The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizen’s arm to use an
election return for an unofficial count; other unofficial counts may not be based on an election return; On the merits, the respondent COMELEC denies that the assailed resolution was promulgated pursuant to Rep. Act
Indeed, it may be fairly inferred from the law that except for the copy of the citizen’s arm, election returns No. 8436, and that it is the implementation of Phase III of its modernization program. Rather, as its bases, the
may only be used for canvassing or for receiving dispute resolutions. respondent COMELEC invokes the general grant to it of the power to enforce and administer all laws relative to the
conduct of elections and to promulgate rules and regulations to ensure free, orderly and honest elections by the
Constitution, the Omnibus Election Code, and Rep. Acts Nos. 6646 and 7166. The COMELEC avers that
b) The Commission’s copy, the second or third copy of the election return, as the case may be, has granting arguendo that the assailed resolution is related to or connected with Phase III of the modernization program,
always been intended to be an archived copy and its integrity preserved until required by the no specific law is violated by its implementation. It posits that Phases I, II and III are mutually exclusive schemes such
Commission to resolve election disputes. Only the Board of Election Inspectors is authorized to have that, even if the first two phases have been scrapped, the latter phase may still proceed independently of and
been in contact with the return before the Commission unseals it. separately from the others. It further argues that there is statutory basis for it to conduct an "unofficial" quick count.
Among others, it invokes the general grant to it of the power "to ensure free, orderly, honest, peaceful and credible
elections." Finally, it claims that it had complied with Section 52(i) of the Omnibus Election Code, as the political quick count during the said elections. They have sufficient, direct and personal interest in the manner by which the
parties and all the candidates of the 2004 elections were sufficiently notified of the electronic transmission of respondent COMELEC would conduct the elections, including the counting and canvassing of the votes cast therein.
advanced election results.

Moreover, the petitioners-in-intervention Drilon and De Venecia are, respectively, President of the Senate and
The COMELEC trivializes as "purely speculative" these constitutional concerns raised by the petitioners-in- Speaker of the House of Representatives, the heads of Congress which is exclusively authorized by the Constitution
intervention and the Senate President. It maintains that what is contemplated in the assailed resolution is not a to canvass the votes for President and Vice-President. They have the requisite standing to prevent the usurpation of
canvass of the votes but merely consolidation and transmittal thereof. As such, it cannot be made the basis for the the constitutional prerogative of Congress.
proclamation of any winning candidate. Emphasizing that the project is "unofficial" in nature, the COMELEC opines
that it cannot, therefore, be considered as preempting or usurping the exclusive power of Congress to canvass the
votes for President and Vice-President. The Issue Raised By The Petition Is Justiciable

The Issues Article VIII, Section 1 of the 1987 Constitution expands the concept of judicial review by providing that:

At the said hearing on May 8, 2004, the Court set forth the issues for resolution as follows: SEC. 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

1. Whether the petitioner and the petitioners-intervenors have standing to sue;

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been grave
2. Assuming that they have standing, whether the issues they raise are political in nature over which the abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
Court has no jurisdiction; of the Government.

3. Assuming the issues are not political, whether Resolution No. 6712 is void: The Court does not agree with the posture of the respondent COMELEC that the issue involved in the
present petition is a political question beyond the jurisdiction of this Court to review. As the leading case
of Tañada vs. Cuenco26 put it, political questions are concerned with "issues dependent upon
(a) for preempting the sole and exclusive authority of Congress under Art. VII, Sec. 4 of the the wisdom, not legality of a particular measure."
1987 Constitution to canvass the votes for the election of President and Vice-President;

The issue raised in the present petition does not merely concern the wisdom of the assailed resolution but focuses on
(b) for violating Art. VI, Sec. 29 (par. 1) of the 1987 Constitution that "no money shall be paid its alleged disregard for applicable statutory and constitutional provisions. In other words, that the petitioner and the
out of the treasury except in pursuance of an appropriation made by law;" petitioners-in-intervention are questioning the legality of the respondent COMELEC’s administrative issuance will not
preclude this Court from exercising its power of judicial review to determine whether or not there was grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the respondent COMELEC in issuing Resolution
(c) for disregarding Rep. Acts Nos. 8173, 8436 and 7166 which authorize only the citizens’ No. 6712. Indeed, administrative issuances must not override, supplant or modify the law, but must remain consistent
arm to use an election return for an "unofficial" count; with the law they intend to carry out.27 When the grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have been met or the limitations respected, is justiciable –
the problem being one of legality or validity, not its wisdom.28 In the present petition, the Court must pass upon the
(d) for violation of Sec. 52(i) of the Omnibus Election Code, requiring not less than thirty (30) petitioner’s contention that Resolution No. 6712 does not have adequate statutory or constitutional basis.
days notice of the use of new technological and electronic devices; and,

Although not raised during the oral arguments, another procedural issue that has to be addressed is whether the
(e) for lack of constitutional or statutory basis; and, substantive issues had been rendered moot and academic. Indeed, the May 10, 2004 elections have come and gone.
Except for the President and Vice-President, the newly- elected national and local officials have been proclaimed.
Nonetheless, the Court finds it necessary to resolve the merits of the substantive issues for future guidance of both
4. Whether the implementation of Resolution No. 6712 would cause trending, confusion and chaos.
the bench and bar.29 Further, it is settled rule that courts will decide a question otherwise moot and academic if it is
"capable of repetition, yet evading review."30
The Ruling of the Court
The Respondent COMELEC Committed Grave Abuse Of Discretion Amounting To Lack Or Excess Of
The issues, as earlier defined, shall now be resolved in seriatim: Jurisdiction In Issuing Resolution No. 6712

The Petitioners And Petitioners-In-Intervention Possess The Locus Standi To Maintain The Present Action The preliminary issues having been thus resolved, the Court shall proceed to determine whether the respondent
COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating the
assailed resolution.
The gist of the question of standing is whether a party has "alleged such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions. 23 Since the implementation of the assailed The Court rules in the affirmative.
resolution obviously involves the expenditure of funds, the petitioner and the petitioners-in-intervention, as taxpayers,
possess the requisite standing to question its validity as they have sufficient interest in preventing the illegal
An administrative body or tribunal acts without jurisdiction if it does not have the legal power to determine the matter
expenditure of money raised by taxation.24 In essence, taxpayers are allowed to sue where there is a claim of illegal
before it; there is excess of jurisdiction where the respondent, being clothed with the power to determine the matter,
disbursement of public funds, or that public
oversteps its authority as determined by law.31 There is grave abuse of discretion justifying the issuance of the writ of
money is being deflected to any improper purpose, or where the petitioners seek to restrain the respondent from
certiorari when there is a capricious and whimsical exercise of his judgment as is equivalent to lack of jurisdiction.32
wasting public funds through the enforcement of an invalid or unconstitutional law.25

First. The assailed resolution usurps, under the guise of an "unofficial" tabulation of election results based on a copy
Most of the petitioners-in-intervention are also representatives of major political parties that have participated in the
of the election returns, the sole and exclusive authority of Congress to canvass the votes for the election of President
May 10, 2004 elections. On the other hand, petitioners-in-intervention Concepcion and Bernas represent the National
and Vice-President. Article VII, Section 4 of the Constitution provides in part:
Citizens Movement for Free Elections (NAMFREL), which is the citizens’ arm authorized to conduct an "unofficial"
 The returns of every election for President and Vice-President duly certified by the board of canvassers So as far as the Senatorial candidates involved are concerned, but you don’t give this assurance with
of each province or city, shall be transmitted to the Congress, directed to the President of the Senate. respect to the Presidential and Vice-Presidential elections which are more important?
Upon receipt of the certificates of canvass, the President of the Senate shall, not later than thirty days
after the day of the election, open all the certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon determination of the authenticity and COMM. SADAIN:
due execution thereof in the manner provided by law, canvass the votes.

In deference to the request of the Senate President and the House Speaker, Your Honor. According to
As early as January 28, 2004, Senate President Franklin M. Drilon already conveyed to Chairman Benjamin S. them, they will be the ones canvassing and proclaiming the winner, so it is their view that we will be pre-
Abalos, Sr. his deep-seated concern that the respondent COMELEC could not and should not conduct any "quick empting their canvassing work and the proclamation of the winners and we gave in to their request. 35
count" of the votes cast for the positions of President and Vice-President. In his Letter dated February 2,
200433 addressed to Chairman Abalos, Senate President Drilon reiterated his position emphasizing that "any quick
count to be conducted by the Commission on said positions would in effect constitute a canvass of the votes of the …
President and Vice-President, which not only would be pre-emptive of the authority of Congress, but would also be
lacking of any constitutional authority."34
JUSTICE CALLEJO, [SR.]:

Nonetheless, in disregard of the valid objection of the Senate President, the COMELEC proceeded to promulgate the
assailed resolution. Such resolution directly infringes the authority of Congress, considering that Section 4 thereof Perhaps what you are saying is that the system will minimize "dagdag-bawas" but not totally eradicate
allows the use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators "dagdag-bawas"?
and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and
transmission of advanced precinct results, and in the process, canvass the votes for the President and Vice-
COMM. SADAIN:
President, ahead of the canvassing of the same votes by Congress.

Yes, Your Honor.

Parenthetically, even the provision of Rep. Act No. 8436 confirms the constitutional undertaking of Congress as the
sole body tasked to canvass the votes for the President and Vice-President. Section 24 thereof provides:
JUSTICE CALLEJO, [SR.]:
SEC. 24. Congress as the National Board of Canvassers for President and Vice-President. -- The Senate
and the House of Representatives, in joint public session, shall compose the national board of Now, I heard either Atty. Bernas or Atty. Brillantes say (sic) that there was a conference between the
canvassers for president and vice-president. The returns of every election for president and vice- Speaker and the Senate President and the Chairman during which the Senate President and the
president duly certified by the board of canvassers of each province or city, shall be transmitted to the Speaker voice[d] their objections to the electronic transmission results system, can you share with us the
Congress, directed to the president of the Senate. Upon receipt of the certificates of canvass, the objections of the two gentlemen?
president of the Senate shall, not later than thirty (30) days after the day of the election, open all the
certificates in the presence of the Senate and the House of Representatives in joint public session, and
the Congress upon determination of the authenticity and the due execution thereof in the manner COMM. SADAIN:
provided by law, canvass all the results for president and vice-president by consolidating the results
contained in the data storage devices submitted by the district, provincial and city boards of canvassers
and thereafter, proclaim the winning candidates for president and vice-president. These was relayed to us Your Honor and their objection or request rather was for us to refrain from
consolidating and publishing the results for presidential and vice-presidential candidates which we have
already granted Your Honors. So, there is going to be no consolidation and no publication of the …
The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and Rep. Act No.
8436 as such tabulation is "unofficial," is puerile and totally unacceptable. If the COMELEC is proscribed from
conducting an official canvass of the votes cast for the President and Vice-President, the COMELEC is, with more COMM. SADAIN:
reason, prohibited from making an "unofficial" canvass of said votes.

Reason behind being that it is actually Congress that canvass that the official canvass for this and
The COMELEC realized its folly and the merits of the objection of the Senate President on the constitutionality of the proclaims the winner.36
resolution that it decided not to conduct an "unofficial" quick count of the results of the elections for President and
Vice-President. Commissioner Sadain so declared during the hearing:
Second. The assailed COMELEC resolution contravenes the constitutional provision that "no money shall be paid out
of the treasury except in pursuance of an appropriation made by law."37
JUSTICE PUNO:

By its very terms, the electronic transmission and tabulation of the election results projected under Resolution No.
The word you are saying that within 36 hours after election, more or less, you will be able to tell the 6712 is "unofficial" in character, meaning "not emanating from or sanctioned or acknowledged by the government or
people on the basis of your quick count, who won the election, is that it? government body.38 Any disbursement of public funds to implement this project is contrary to the provisions of the
Constitution and Rep. Act No. 9206, which is the 2003 General Appropriations Act. The use of the COMELEC of its
funds appropriated for the AES for the "unofficial" quick count project may even be considered as a felony under
COMM. SADAIN: Article 217 of the Revised Penal Code, as amended.39

Well, it’s not exactly like that, Your Honor. Because the fact of winning the election would really depend Irrefragably, the implementation of the assailed resolution would entail, in due course, the hiring of additional
on the canvassed results, but probably, it would already give a certain degree of comfort to certain manpower, technical services and acquisition of equipment, including computers and software, among others.
politicians to people rather, as to who are leading in the elections, as far as Senator down are concerned, According to the COMELEC, it needed ₱55,000,000 to operationalize the project, including the encoding
but not to President and Vice-President. process.40 Hence, it would necessarily involve the disbursement of public funds for which there must be the
corresponding appropriation.
JUSTICE PUNO:
The COMELEC posited during the hearing that the 2003 General Appropriations Act has appropriated the amount
needed for its "unofficial" tabulation. We quote the transcript of stenographic notes taken during the hearing:
 JUSTICE VITUG: Yes.42

And you mentioned earlier something about 55 million not being paid as yet? Inexplicably, Commissioner Sadain contradicted himself when he said that its Financial Department had already
found the money, but that proper documentation was forthcoming:

COMM. SADAIN:
JUSTICE CARPIO:

This is an extra amount that we will be needing to operationalize.

Just a clarification. You stated that you signed already the main contract for 300 million but you have not
signed the 55 million supplemental contract for the encoding?
JUSTICE VITUG:

COMM. SADAIN:
And this has not yet been done?

Yes, Your Honor.

COMM. SADAIN:

JUSTICE CARPIO:
It has not yet been done, Your Honor.

Because you still don’t have the money for that?

JUSTICE VITUG:

COMM. SADAIN:
Would you consider the funds that were authorized by you under the General Appropriations Act as
capable of being used for this purpose?
Well, yes, we are trying to determine where we can secure the money.

COMM. SADAIN:
JUSTICE CARPIO:

Yes, that’s our position, Your Honor. 41

Now, the encoding is crucial; without the encoding, the entire project collapses?

But then the COMELEC, through Commissioner Sadain, admitted during the said hearing that although it had already
approved the assailed resolution, it was still looking for the ₱55,000,000 needed to operationalize the project: COMM. SADAIN:

JUSTICE CARPIO: Yes.

Just a clarification. You stated that you signed already the main contract for 300 million but you have not JUSTICE CARPIO:
signed the 55 million supplemental contract for the encoding?

So, you have two (2) days to look for the 55 million, you have signed the contract on the main contract
COMM. SADAIN: and if you don’t get that 55 million, that 300 million main contract goes to waste, because you cannot
encode?

Yes, Your Honor.

COMM. SADAIN:

JUSTICE CARPIO:
It’s just a matter of proper documentation, Your Honor, because I was informed by our Finance
Department that the money is there.
Because you still don’t have the money for that?

JUSTICE CARPIO:
COMM. SADAIN:

So, you have found the money already?

Well, yes, we are trying to determine where we can secure the money.

COMM. SADAIN:
JUSTICE CARPIO:

Yes, Your Honor.43

Now, the encoding is crucial; without the encoding, the entire project collapses?

Earlier, during the April 27, 2004 meeting of the COMELEC En Banc, the Commissioners expressed their serious
COMM. SADAIN: concerns about the lack of funds for the project, the propriety of using the funds for Phase III of its modernization, and
the possibility of realigning funds to finance the project:
Comm. Tuason: For the minutes, my memo is already prepared. I will submit it in detail. On three counts naman yan eh –
legal, second is technical/operational and third is financial.

May I just request all the parties who are in here na whatever is said here should be confined within the
four walls of this room and the minutes so that walang masyadong problema. Comm. Sadain:

Comm. Borra: Ako naman, for my part as the CIC for Phase III, we were left with no choice but to implement Phase III
inasmuch as expenses has already been incurred in Phase III to the tune of almost 100% at the time
when the Phase II contract was nullified. So if we stop the implementation of Phase III just because
Sa akin lang, we respect each other’s opinion. I will not make any observations. I will just submit my own Phase II was nullified, which means that there would be no consolidation and accounting – consolidation
memo to be incorporated in the minutes. for the machines, then it would be again 300 million pesos down the drain. Necessarily there would be
additional expense but we see this as a consequence of the loss of Phase II. I share the view of Comm.
Tuason that as much as possible this should be taken from the modernization fund as much as this is
Comm. Tuason: properly modernization concern. However, I would like to open myself to the possibility na in case wala
talaga, we might explore the possibility of realigning funds although that might not …(inaudible). Now
with regards the legality, I think what Commissioner Borra has derived his opinion but I would like to think
Commissioner Borra will submit a comment to be attached to the minutes but not on the resolution. Ako the legality issue must have been settled already as early as when we approved the modernization
naman, I will just make it on record my previous reservation. I do not have any objection as to the Phase program involving all three phases although we also grant the benefit of the argument for Commissioner
III modernization project itself. My main concern is the budget. I would like to make it on record that the Borra if he thinks that there is going to be a legal gap for the loss of Phase II. With regards the concern
budget for Phase III should be taken from the modernization program fund because Phase III is definitely with the Election Officers, I also share the same concern. In fact, on this matter alone, we try to make the
part of the modernization project. Other funds, for instance other funds to be used for national elections GI as simple as possible so that whatever burden we will be giving to the EOs and EAs will be minimized.
may not be proper for realignment. That is why I am saying that the funds to be used for Phase III should As in fact, we will be recommending that the EOs will no longer be bothered to attend the training. They
properly come from the modernization. The other reservation is that the Election Officers are now can probably just sit in for the first hour and then they can go on with their normal routine and then leave
plagued with so much work such as the preparation of the list of voters and their concern in their the encoders as well as the reception officers to attend the training because there (sic) are the people
respective areas. They were saying to me, specially so in my own region, that to burden them with who will really be doing the ministerial, almost mechanical, work of encoding and transmitting the election
another training at this point in time will make them loose (sic) focus on what they are really doing for the results. Yun lang.44
national elections and what they are saying is that they should not be subjected to any training
anymore. And they also said that come canvassing time, their priority would be to canvass first before
they prepare the certificate of votes to be fed to the encoders [to be fed to the encoders] for electronic We have reviewed Rep. Act No. 9206, the General Appropriations Act, which took effect on April 23, 2003 and find no
transmission. I share the sentiments of our people in the field. That is also one of my reservations. Thank appropriation for the project of the COMELEC for electronic transmission of "unofficial" election results. What is
you. appropriated therein is the amount of ₱225,000,000 of the capital outlay for the modernization of the electoral system.

Comm. Garcillano:
B. PROJECTS Maintenance & Other Operating
I also have my observations regarding the financial restraint that we are facing if the money that is going Expenses
to be used for this is taken from the Phase II, I don’t think there is money left. I. Locally-Funded Projects
a. For the Modernization of Electoral System
Comm. Borra:
b. FY 2003 Preparatory Activities for National Elections 250,000,000

There is no more money in Phase II because the budget for Phase II is 1.3 Billion. The award on the c. Upgrading of Voters’ Database 125,000,000
contract for Phase II project is 1.248 billion. So the remaining has been allocated for additional expenses d. Conduct of Special Election to fill the vacancy in the Third District of
for the technical working group and staff for Phase II. 6,500,000
Cavite
e. Implementation of Absentee Voting Act of 2003 (RA 9189) 300,000,000
Comm. Garcillano:
==========
Sub-Total, Locally-Funded Projects 681,500,000
I also have one problem. We have to have additional people to man this which I think is already being
taken cared of. Third is, I know that this will disrupt the canvassing that is going to be handled by our EO
and Election Assistant. I do not know if it is given to somebody (inaudible) Under paragraph 3 of the special provisions of Rep. Act No. 9206, the amount of ₱225,000,000 shall be used
primarily for the establishment of the AES prescribed under Rep. Act No. 8436, viz:

Comm. Tuason:
3. Modernization of Electoral System. The appropriations herein authorized for the Modernization of the
Electoral System in the amount of Two Hundred Twenty-Five Million Pesos (₱225,000,000.00) shall be
Those are your reservations. used primarily for the establishment of the automated election system, prescribed under Republic Act No.
8436, particularly for the process of voting, counting of votes and canvassing/consolidation of results of
the national and local elections.46
Comm. Barcelona:

Section 52 of Rep. Act No. 9206 proscribes any change or modification in the expenditure items authorized
As far as I am concerned, I also have my reservations because I have the same experience as thereunder. Thus:
Commissioner Tuason when I went to Region IX and Caraga. Our EOs and PES’ expressed
apprehension over the additional training period that they may have to undergo although, they say, that if
that is an order they will comply but it will be additional burden on them. I also share the concern of Sec. 52. Modification of Expenditure Components. Unless specifically authorized in this Act, no change
Commissioner Tuason with regard to the budget that should be taken from the modernization budget. or modification shall be made in the expenditure items in this Act and other appropriations laws unless in
cases of augmentation from savings in appropriations as authorized under Section 25(5), Article VI of the
1987 Philippine Constitution.
Comm. Borra:
Neither can the money needed for the project be taken from the COMELEC’s savings, if any, because it would be (b) Notify the authorized representatives of accredited political parties and candidates in areas affected
violative of Article VI, Section 25 (5)47 of the 1987 Constitution. by the use or adoption of technological and electronic devices not less than thirty days prior to the
effectivity of the use of such devices.

The power to augment from savings lies dormant until authorized by law.48 In this case, no law has, thus, far been
enacted authorizing the respondent COMELEC to transfer savings from another item in its appropriation, if there are It is quite obvious that the purpose of this provision is to accord to all political parties and all candidates the
any, to fund the assailed resolution. No less than the Secretary of the Senate certified that there is no law opportunity to object to the effectiveness of the proposed technology and devices, and, if they are so minded not to
appropriating any amount for an "unofficial" count and tabulation of the votes cast during the May 10, 2004 elections: object, to allow them ample time to field their own trusted personnel especially in far flung areas and to take other
necessary measures to ensure the reliability of the proposed electoral technology or device.

CERTIFICATION
As earlier pointed out, the assailed resolution was issued by the COMELEC despite most of the Commissioners’
apprehensions regarding the legal, operational and financial impediments thereto. More significantly, since Resolution
I hereby certify that per records of the Senate, Congress has not legislated any appropriation intended to No. 6712 was made effective immediately a day after its issuance on April 28, 2004, the respondent COMELEC could
defray the cost of an unofficial count, tabulation or consolidation of the votes cast during the May 10, not have possibly complied with the thirty-day notice requirement provided under Section 52(i) of the Omnibus
2004 elections. Election Code. This indubitably violates the constitutional right to due process of the political parties and candidates.
The Office of the Solicitor General (OSG) concedes this point, as it opines that "the authorized representatives of
accredited political parties and candidates should have been notified of the adoption of the electronic transmission of
May 11, 2004. Pasay City, Philippines. election returns nationwide at the latest on April 7, 2004, April 8 and 9 being Holy Thursday and Good Friday,
pursuant to Section 52(i) of the Omnibus Election Code."51 Furthermore, during the hearing on May 18, 2004,
Commissioner Sadain, who appeared for the COMELEC, unabashedly admitted that it failed to notify all the
What is worrisome is that despite the concerns of the Commissioners during its En Banc meeting on April 27, 2004, candidates for the 2004 elections, as mandated by law:
the COMELEC nevertheless approved the assailed resolution the very next day. The COMELEC had not executed
any supplemental contract for the implementation of the project with PMSI. Worse, even in the absence of a
certification of availability of funds for the project, it approved the assailed resolution. JUSTICE CARPIO:

Third. The assailed resolution disregards existing laws which authorize solely the duly-accredited citizens’ arm to You stated that you have notified in writing all the political parties and candidates as required in Section
conduct the "unofficial" counting of votes. Under Section 27 of Rep. Act No. 7166, as amended by Rep. Act No. 52 (i)?
8173,49 and reiterated in Section 18 of Rep. Act No. 8436,50 the accredited citizen’s arm - in this case, NAMFREL - is
exclusively authorized to use a copy of the election returns in the conduct of an "unofficial" counting of the votes,
whether for the national or the local elections. No other entity, including the respondent COMELEC itself, is COMM. SADAIN:
authorized to use a copy of the election returns for purposes of conducting an "unofficial" count. In addition, the
second or third copy of the election returns, while required to be delivered to the COMELEC under the
aforementioned laws, are not intended for undertaking an "unofficial" count. The aforesaid COMELEC copies are Yes, Your Honor.
archived and unsealed only when needed by the respondent COMELEC to verify election results in connection with
resolving election disputes that may be imminent. However, in contravention of the law, the assailed Resolution
authorizes the so-called Reception Officers (RO), to open the second or third copy intended for the respondent JUSTICE CARPIO:
COMELEC as basis for the encoding and transmission of advanced "unofficial" precinct results. This not only violates
the exclusive prerogative of NAMFREL to conduct an "unofficial" count, but also taints the integrity of the envelopes
containing the election returns, as well as the returns themselves, by creating a gap in its chain of custody from the Now, how many candidates are there nationwide now?
Board of Election Inspectors to the COMELEC.
COMM. SADAIN:
Fourth. Section 52(i) of the Omnibus Election Code, which is cited by the COMELEC as the statutory basis for the
assailed resolution, does not cover the use of the latest technological and election devices for "unofficial" tabulations
of votes. Moreover, the COMELEC failed to notify the authorized representatives of accredited political parties and all I must admit you Honor we were not able to notify the candidates but we notified the politicians.
candidates in areas affected by the use or adoption of technological and electronic devices not less than thirty days
prior to the effectivity of the use of such devices. Section 52(i) reads:
JUSTICE CARPIO:

SEC. 52. Powers and functions of the Commission on Elections. – In addition to the powers and
Yes, but what does the law state? Read the law please.
functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring
free, orderly and honest elections, and shall : COMM. SADAIN:

… Yes, Your Honor. I understand that it includes candidates.

(i) Prescribe the use or adoption of the latest technological and electronic devices, taking JUSTICE CARPIO:
into account the situation prevailing in the area and the funds available for the purpose:
Provided, That the Commission shall notify the authorized representatives of accredited
political parties and candidates in areas affected by the use or adoption of technological and And there are how many candidates nationwide running in this election?
electronic devices not less than thirty days prior to the effectivity of the use of such devices.

COMM. SADAIN:
From the clear terms of the above provision, before the COMELEC may resort to and adopt the latest technological
and electronic devices for electoral purposes, it must act in accordance with the following conditions:
Hundreds of thousands, Your Honor.

(a) Take into account the situation prevailing in the area and the funds available for the purpose; and,
JUSTICE CARPIO:
 Hundreds of thousands, so you mean you just notified the political parties not the candidates? Fifth. The assailed resolution has no constitutional and statutory basis. That respondent COMELEC is the sole body
tasked to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall"56 and to ensure "free, orderly, honest, peaceful and credible elections" 57 is beyond cavil. That
COMM. SADAIN: it possesses the power to promulgate rules and regulations in the performance of its constitutional duties is, likewise,
undisputed. However, the duties of the COMELEC under the Constitution, Rep. Act No. 7166, and other election laws
are carried out, at all times, in its official capacity. There is no constitutional and statutory basis for the respondent
Yes, Your Honor. COMELEC to undertake a separate and an "unofficial" tabulation of results, whether manually or electronically.
Indeed, by conducting such "unofficial" tabulation of the results of the election, the COMELEC descends to the level
of a private organization, spending public funds for the purpose. Besides, it is absurd for the COMELEC to conduct
JUSTICE CARPIO: two kinds of electoral counts – a slow but "official" count, and an alleged quicker but "unofficial" count, the results of
each may substantially differ.
And you think that is substantial compliance, you would notify how many political parties as against
hundreds of thousands of candidates? Clearly, the assailed resolution is an implementation of Phase III of the modernization program of the COMELEC
under Rep. Act No. 8436. Section 2 of the assailed resolution expressly refers to the Phase III-Modernization Project
of the COMELEC. Since this Court has already scrapped the contract for Phase II of the AES, the COMELEC cannot
COMM. SADAIN:
as yet implement the Phase III of the program. This is so provided in Section 6 of Rep. Act No. 8436.

Yes, Your Honor, we notified the major political parties, Your Honor.
SEC. 6. Authority to Use an Automated Election System. -- To carry out the above-stated policy, the Commission on
Elections, herein referred to as the Commission, is hereby authorized to use an automated election system, herein
JUSTICE CARPIO: referred to as the System, for the process of voting, counting of votes and canvassing/consolidation of results of the
national and local elections: Provided, however, That for the May 11, 1998 elections, the System shall be applicable
in all areas within the country only for the positions of president, vice-president, senators and parties, organizations or
Only the major political parties? coalitions participating under the party-list system.

COMM. SADAIN: To achieve the purpose of this Act, the Commission is authorized to procure by purchase, lease or otherwise, any
supplies, equipment, materials and services needed for the holding of the elections by an expedited process of public
bidding of vendors, suppliers or lessors: Provided, That the accredited political parties are duly notified of and allowed
Including party list? to observe but not to participate in the bidding. If in spite of its diligent efforts to implement this mandate in the
exercise of this authority, it becomes evident by February 9, 1998 that the Commission cannot fully implement the
automated election system for national positions in the May 11, 1998 elections, the elections for both national and
JUSTICE CARPIO: local positions shall be done manually except in the Autonomous Region in Muslim Mindanao (ARMM) where the
automated election system shall be used for all positions.

But not the candidates, individual candidates?

The AES provided in Rep. Act No. 8436 constitutes the entire "process of voting, counting of votes and
canvassing/consolidation of results of the national and local elections" corresponding to the Phase I, Phase II and
COMM. SADAIN: Phase III of the AES of the COMELEC. The three phases cannot be effected independently of each other. The
implementation of Phase II of the AES is a condition sine qua non to the implementation of Phase III. The nullification
by this Court of the contract for Phase II of the System effectively put on hold, at least for the May 10, 2004 elections,
We were not able to do that, Your Honor, I must admit. the implementation of Phase III of the AES.

JUSTICE CARPIO: Sixth. As correctly observed by the petitioner, there is a great possibility that the "unofficial" results reflected in the
electronic transmission under the supervision and control of the COMELEC would significantly vary from the results
reflected in the COMELEC official count. The latter follows the procedure prescribed by the Omnibus Election Code,
So, you did not notify hundreds of thousands of candidates? which is markedly different from the procedure envisioned in the assailed resolution.

COMM. SADAIN: Under the Omnibus Election Code, after the votes are cast and the polls closed, the Board of Election Inspectors
(BEI) for each precinct is enjoined to publicly count the votes and record the same simultaneously on the tally boards
and on two sets of ERs. Each set of the ER is prepared in eight (8) copies. After the ERs are accomplished, they are
No, Your Honors.52
forwarded to the Municipal Board of Canvassers (MBC), which would canvass all the ERs and proclaim the elected
municipal officials. All the results in the ERs are transposed to the statements of votes (SOVs) by precinct. These
The respondent COMELEC has, likewise, failed to submit any resolution or document to prove that it had notified all SOVs are then transferred to the certificates of canvass (COCs) which are, in turn, brought to the Provincial Board of
political parties of the intended adoption of Resolution No. 6712, in compliance with Section 52(i) of the Omnibus Canvassers (PBC). Subsequently, the PBC would canvass all the COCs from various municipalities and proclaim the
Election Code. This notwithstanding the fact that even long before the issuance of the assailed resolution, it had elected provincial officials, including those to the House of Representatives. The PBC would then prepare two sets of
admittedly entered into a contract on April 15, 200353 and acquired facilities pertaining to the implementation of the Provincial Certificates of Canvass (PCOCs). One set is forwarded to Congress for its canvassing of the results for the
electronic transmission and official tabulation of election results. As correctly pointed out by the petitioners-in- President and Vice-President. The other set is forwarded to the COMELEC for its canvassing of the results for
intervention, the invitations dated January 15, 2004 regarding the January 20, 2004 COMELEC Conference with the Senators.
political parties on election security measures did not mention electronic transmission of advanced results, much less
the formal adoption of the purpose of the conference. Such "notices" merely invited the addressee thereof or its/his
As the results are transposed from one document to another, and as each document undergoes the procedure of
authorized representative to a conference where the COMELEC would show a sample of the official ballot to be used
canvassing by various Boards of Canvassers, election returns and certificates of canvass are objected to and at
in the elections, discuss various security measures that COMELEC had put in place, and solicit suggestions to
times excluded and/or deferred and not tallied, long after the pre-proclamation controversies are resolved by the
improve the administration of the polls.54 Further, the invitations purportedly sent out to the political parties regarding
canvass boards and the COMELEC.
the April 6, 2004 Field Test of the Electronic Transmission, Consolidation and Dissemination System to be conducted
by the COMELEC appear to have been sent out in the late afternoon of April 5, 2004, after office hours. There is no
showing that all the political parties attended the Field Test, or received the invitations. More importantly, the said On the other hand, under the assailed resolution, the precinct results of each city and municipality received by the
invitations did not contain a formal notice of the adoption of a technology, as required by Section 52(i) of the Omnibus ETCs would be immediately electronically transmitted to the NCC. Such data, which have not undergone the process
Election Code.55 of canvassing, would expectedly be dissimilar to the data on which the official count would be based.
Resultantly, the official and unofficial canvass, both to be administered by the respondent COMELEC, would most Republic of the Philippines
likely not tally. In the past elections, the "unofficial" quick count conducted by the NAMFREL had never tallied with SUPREME COURT
that of the official count of the COMELEC, giving rise to allegations of "trending" and confusion. With a second Manila
"unofficial" count to be conducted by the official election body, the respondent COMELEC, in addition to its official
count, allegations of "trending," would most certainly be aggravated. As a consequence, the electoral process would
be undermined. EN BANC

The only intimated utility claimed by the COMELEC for the "unofficial" electronic transmission count is to avert the so- G.R. No. 83896 February 22, 1991
called "dagdag-bawas." The purpose, however, as the petitioner properly characterizes it, is a total sham. The Court
cannot accept as tenable the COMELEC’s profession that from the results of the "unofficial" count, it would be able to
validate the credibility of the official tabulation. To sanction this process would in effect allow the COMELEC to CIVIL LIBERTIES UNION, petitioner,
preempt or prejudge an election question or dispute which has not been formally brought before it for quasi-judicial vs.
cognizance and resolutions. THE EXECUTIVE SECRETARY, respondent.

Moreover, the Court doubts that the problem of "dagdag-bawas" could be addressed by the implementation of the G.R. No. 83815 February 22, 1991
assailed resolution. It is observed that such problem arises because of the element of human intervention. In the
prevailing set up, there is human intervention because the results are manually tallied, appreciated, and canvassed.
On the other hand, the electronic transmission of results is not entirely devoid of human intervention. The crucial ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,
stage of encoding the precinct results in the computers prior to the transmission requires human intervention. Under vs.
the assailed resolution, encoding is accomplished by employees of the PMSI. Thus, the problem of "dagdag-bawas" PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture;
could still occur at this particular stage of the process. LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as
Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY
ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS
As it stands, the COMELEC "unofficial" quick count would be but a needless duplication of the NAMFREL "quick" SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO
count, an illegal and unnecessary waste of government funds and effort. F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO
ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and
Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of
Conclusion Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development
Authority, respondents.
The Court is mindful of the salutary goals that the respondent COMELEC had envisioned in promulgating the assailed
resolution, to wit: [t]o renew the public’s confidence in the Philippine Electoral System by:
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
1. Facilitating transparency in the process;

2. Ensuring the integrity of the results;

3. Reducing election results manipulation; FERNAN, C.J.:p

4. Providing timely, fast and accurate information to provide the public re election results; These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both
seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on
July 25, 1987. The pertinent provisions of the assailed Executive Order are:
5. Enabling the validation of its own official count and other counts;

Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet,
6. Having an audit trail in its own account.58 undersecretary or assistant secretary or other appointive officials of the Executive Department may, in
addition to his primary position, hold not more than two positions in the government and government
corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not
Doubtless, these are laudable intentions. But the rule of law requires that even the best intentions must be carried out apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
within the parameters of the Constitution and the law. Verily, laudable purposes must be carried out by legal Chairman.
methods.59

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the
WHEREFORE, the petition is GRANTED. The assailed Resolution No. 6712 dated April 28, 2004 issued by the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must
Commission on Elections (COMELEC) En Banc is hereby declared NULL AND VOID. relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary position.
SO ORDERED.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled
corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a
secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries
and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which
provides as follows:
 Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants and cannot be extended to Section 13, Article VII which applies specifically to the President, Vice-President,
shall not, unless otherwise provided in this Constitution, hold any other office or employment during their Members of the Cabinet and their deputies or assistants.
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- There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their
owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the deputies or assistants from holding dual or multiple positions in the Government admits of certain exceptions. The
conduct of their office. disagreement between petitioners and public respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President being allowed to
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, become a Member of the Cabinet under the second paragraph of Section 3, Article VII or the Secretary of Justice
along with the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No. being designated an ex-officio member of the Judicial and Bar Council under Article VIII, Sec. 8 (1). Public
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure. In respondents, on the other hand, maintain that the phrase "unless otherwise provided in the Constitution" in Section
addition to seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein
the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, are concerned.
as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in
addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and
from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as
questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or Cabinet members, their deputies or assistants are concerned admit of the broad exceptions made for appointive
benefits that they may have received from such positions. officials in general under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including government-owned or
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute controlled corporation or their subsidiaries."
and self-executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section
13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of
1987,5 declaring that Cabinet members, their deputies (undersecretaries) and assistant secretaries may hold other We rule in the negative.
public office, including membership in the boards of government corporations: (a) when directly provided for in the
Constitution as in the case of the Secretary of Justice who is made an ex-officio member of the Judicial and Bar
Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the primary functions of A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus,
their respective positions; and that on the basis of this Opinion, the President of the Philippines, on July 25, 1987 or it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished
two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No. 284. 6 by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the
light of the history of the times, and the condition and circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to
they allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. that reason and calculated to effect that purpose.11
(2), Article I-XB. This "strained linkage" between the two provisions, each addressed to a distinct and separate group
of public officers –– one, the President and her official family, and the other, public servants in general –– allegedly
"abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to the prohibition The practice of designating members of the Cabinet, their deputies and assistants as members of the governing
against multiple jobs for the President, the Vice-President, the members of the Cabinet, and their deputies and bodies or boards of various government agencies and instrumentalities, including government-owned and controlled
subalterns, who are the leaders of government expected to lead by example."7 Article IX-B, Section 7, par. corporations, became prevalent during the time legislative powers in this country were exercised by former President
(2)8 provides: Ferdinand E. Marcos pursuant to his martial law authority. There was a proliferation of newly-created agencies,
instrumentalities and government-owned and controlled corporations created by presidential decrees and other
modes of presidential issuances where Cabinet members, their deputies or assistants were designated to head or sit
Sec. 7. . . . . . as members of the board with the corresponding salaries, emoluments, per diems, allowances and other perquisites
of office. Most of these instrumentalities have remained up to the present time.

Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the government or any subdivision, agency or instrumentality This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public
thereof, including government-owned or controlled corporations or their subsidiaries. officials who took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang Pambansa.12 This condemnation came in reaction
to the published report of the Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated Owned and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its Figure No. 4 a
and clarified by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first "Roaster of Membership in Governing Boards of Government-Owned and Controlled Corporations as of December
official construction and interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, 31, 1983."
Article I-XB of the Constitution, involving the same subject of appointments or designations of an appointive executive
official to positions other than his primary position, is "reasonably valid and constitutionally firm," and that Executive
Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth Particularly odious and revolting to the people's sense of propriety and morality in government service were the data
noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation contained therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental
imposed by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so designated agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two
as ex-officio are allowed by the primary functions of the public official, but only to the holding of multiple positions (22); Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
which are not related to or necessarily included in the position of the public official concerned (disparate positions). Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O.
Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each.13

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission
that it adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It
petitioners, by virtue of the phrase "unless otherwise provided in this Constitution," the only exceptions against was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986
holding any other office or employment in Government are those provided in the Constitution, namely: (1) The Vice- Constitutional Commission, convened as it was after the people successfully unseated former President Marcos,
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII thereof; and (2) the should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not
Secretary of Justice is an ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII. correct, the evils that flow from the holding of multiple governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the assurance given by its proponents that the
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service scandalous practice of Cabinet members holding multiple positions in the government and collecting unconscionably
Commission applies to officers and employees of the Civil Service in general and that said exceptions do not apply excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition Sec. 7, par. (1) of Article I-XB is absolutely ineligible "for appointment or designation in any capacity to any public
against the holding of multiple offices or employment in the government subsuming both elective and appointive office or position during his tenure." Surely, to say that the phrase "unless otherwise provided in this Constitution"
public officials, the Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB would render meaningless the
specifically prohibiting the President, Vice-President, members of the Cabinet, their deputies and assistants from specific provisions of the Constitution authorizing the Vice-President to become a member of the Cabinet,15 and to act
holding any other office or employment during their tenure, unless otherwise provided in the Constitution itself. as President without relinquishing the Vice-Presidency where the President shall not nave been chosen or fails to
qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions under consideration as
one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13, Article VII as
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-
intent of the framers of the Constitution was to impose a stricter prohibition on the President and his official family in vis Section 13, Article VII.
so far as holding other offices or employment in the government or elsewhere is concerned.

It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be
Constitution on the disqualifications of certain public officials or employees from holding other offices or employment. brought into view and to be so interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on
Under Section 13, Article VI, "(N)o Senator or Member of the House of Representatives may hold any other office or a particular subject should be considered and interpreted together as to effectuate the whole purpose of the
employment in the Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active Constitution18 and one section is not to be allowed to defeat another, if by any reasonable construction, the two can
service shall, at any time, be appointed in any capacity to a civilian position in the Government, including government- be made to stand together.19
owned or controlled corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by
respondents provides "(U)nless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government." In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will
render every word operative, rather than one which may make the words idle and nugatory.20

It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition
pertains to an office or employment in the government and government-owned or controlled corporations or their Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President,
subsidiaries. In striking contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice- Vice-President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or
President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this employment in the government during their tenure, the exception to this prohibition must be read with equal severity.
Constitution, hold any other office or employment during their tenure." In the latter provision, the disqualification is On its face, the language of Section 13, Article VII is prohibitory so that it must be understood as intended to be a
absolute, not being qualified by the phrase "in the Government." The prohibition imposed on the President and his positive and unequivocal negation of the privilege of holding multiple government offices or employment. Verily,
official family is therefore all-embracing and covers both public and private office or employment. wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation.21 The phrase "unless otherwise provided in this Constitution" must be given a literal
interpretation to refer only to those particular instances cited in the Constitution itself, to wit: the Vice-President being
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those instances
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
or in any franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
thereof, including government-owned or controlled corporations or their subsidiaries." 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 The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution
of the armed forces, are proof of the intent of the 1987 Constitution to treat the President and his official family as a must not, however, be construed as applying to posts occupied by the Executive officials specified therein without
class by itself and to impose upon said class stricter prohibitions. additional compensation in an ex-officio capacity as provided by law and as required22 by the primary functions of said
officials' office. The reason is that these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on said officials.23 To
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also characterize these posts otherwise would lead to absurd consequences, among which are: The President of the
succinctly articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor Philippines cannot chair the National Security Council reorganized under Executive Order No. 115 (December 24,
deliberations and debate that there was no symmetry between the Civil Service prohibitions, originally found in the 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of National Defense, Justice,
General Provisions and the anticipated report on the Executive Department. Commissioner Foz Commented, "We Labor and Employment and Local Government sit in this Council, which would then have no reason to exist for lack of
actually have to be stricter with the President and the members of the Cabinet because they exercise more powers a chairperson and members. The respective undersecretaries and assistant secretaries, would also be prohibited.
and, therefore, more cheeks and restraints on them are called for because there is more possibility of abuse in their
case."14
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth
Council (NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the department for policy coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair
government during their tenure when such is allowed by law or by the primary functions of their positions, members of these agencies.
the Cabinet, their deputies and assistants may do so only when expressly authorized by the Constitution itself. In
other words, Section 7, Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception applicable only to the The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective
President, the Vice- President, Members of the Cabinet, their deputies and assistants. undersecretaries and assistant secretaries. The Central Bank Governor would then be assisted by lower ranking
employees in providing policy direction in the areas of money, banking and credit.25

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII
cannot possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed
construe said qualifying phrase as respondents would have us do, would render nugatory and meaningless the as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the
manifest intent and purpose of the framers of the Constitution to impose a stricter prohibition on the President, Vice- impracticable; and unreasonable or absurd consequences, if possible, should be avoided.26
President, Members of the Cabinet, their deputies and assistants with respect to holding other offices or employment
in the government during their tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully set by the framers of To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without
the Constitution as to when the high-ranking officials of the Executive Branch from the President to Assistant additional compensation in ex-officio capacities as provided by law and as required by the primary functions of the
Secretary, on the one hand, and the generality of civil servants from the rank immediately below Assistant Secretary concerned official's office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived
downwards, on the other, may hold any other office or position in the government during their tenure. from official character merely, not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence of office, and without
any other appointment or authority than that conferred by the office."27 An ex-officio member of a board is one who is
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution a member by virtue of his title to a certain office, and without further warrant or appointment.28 To illustrate, by
inoperative. This observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed express provision of law, the Secretary of Transportation and Communications is the ex-officio Chairman of the Board
to hold other office or employment when so authorized by the Constitution, but who as an elective public official under of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control been approved on third reading on July 22, 1986,40 while the article on the Executive Department, containing the
and Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the more specific prohibition in Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was
chairman and members of the Board to qualify they need only be designated by the respective department heads. only after the draft Constitution had undergone reformatting and "styling" by the Committee on Style that said Section
With the exception of the representative from the private sector, they sit ex-officio. In order to be designated they 3 of the General Provisions became Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by law
must already be holding positions in the offices mentioned in the law. Thus, for instance, one who does not hold a or by the primary functions of his position. . . ."
previous appointment in the Bureau of Customs, cannot, under the act, be designated a representative from that
office. The same is true with respect to the representatives from the other offices. No new appointments are
necessary. This is as it should be, because the representatives so designated merely perform duties in the Board in What was clearly being discussed then were general principles which would serve as constitutional guidelines in the
addition to those already performed under their original appointments."32 absence of specific constitutional provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary functions" as the basis of an exception to
the general rule covering all appointive public officials. Had the Constitutional Commission intended to dilute the
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal specific prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform to the wider
function. The term is not restricted to the singular but may refer to the plural.33 The additional duties must not only be exceptions provided in then Section 3 of the proposed general Provisions, later placed as Section 7, par. (2) of Article
closely related to, but must be required by the official's primary functions. Examples of designations to positions by IX-B on the Civil Service Commission.
virtue of one's primary functions are the Secretaries of Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and Communications acting as Chairman of the Maritime Industry
Authority34 and the Civil Aeronautics Board. That this exception would in the final analysis apply also to the President and his official family is by reason of the
legal principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2,
Article IX-B At any rate, we have made it clear that only the additional functions and duties "required," as opposed to
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or "allowed," by the primary functions may be considered as not constituting "any other office."
otherwise alien to the primary function of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the Press Undersecretary sitting as a member
of the Board of the Philippine Amusement and Gaming Corporation. The same rule applies to such positions which While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in
confer on the cabinet official management functions and/or monetary compensation, such as but not limited to order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries. guides fail42 as said proceedings are powerless to vary the terms of the Constitution when the meaning is
clear.1âwphi1 Debates in the constitutional convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or talk, much less of the mass of our fellow citizens whose votes at the polls gave that instrument the force of
assistants which are not inconsistent with those already prescribed by their offices or appointments by virtue of their fundamental law. We think it safer to construe the constitution from what appears upon its face." 43 The proper
special knowledge, expertise and skill in their respective executive offices is a practice long-recognized in many interpretation therefore depends more on how it was understood by the people adopting it than in the framers's
jurisdictions. It is a practice justified by the demands of efficiency, policy direction, continuity and coordination among understanding thereof.44
the different offices in the Executive Branch in the discharge of its multifarious tasks of executing and implementing
laws affecting national interest and general welfare and delivering basic services to the people. It is consistent with
the power vested on the President and his alter egos, the Cabinet members, to have control of all the executive It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President,
departments, bureaus and offices and to ensure that the laws are faithfully executed.35 Without these additional duties Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices
and functions being assigned to the President and his official family to sit in the governing bodies or boards of or employment in the government, except in those cases specified in the Constitution itself and as above clarified with
governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as required by their respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by
primary functions, they would be supervision, thereby deprived of the means for control and resulting in an unwieldy the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the
and confused bureaucracy. debate and deliberation on the general rule laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof.

It bears repeating though that in order that such additional duties or functions may not transgress the prohibition
embodied in Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
the primary functions of the official concerned, who is to perform the same in an ex-officio capacity as provided by Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
law, without receiving any additional compensation therefor. positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary
position to not more than two (2) positions in the government and government corporations, Executive Order No. 284
actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official 13, Article VII of the 1987 Constitution prohibiting them from doing so, unless otherwise provided in the 1987
concerned has no right to receive additional compensation for his services in the said position. The reason is that Constitution itself.
these services are already paid for and covered by the compensation attached to his principal office. It should be
obvious that if, say, the Secretary of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary function of his principal office in defining The Court is alerted by respondents to the impractical consequences that will result from a strict application of the
policy in monetary and banking matters, which come under the jurisdiction of his department. For such attendance, prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet
therefore, he is not entitled to collect any extra compensation, whether it be in the form of a per them or an members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by
honorarium or an allowance, or some other such euphemism. By whatever name it is designated, such additional virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without
compensation is prohibited by the Constitution. additional compensation as provided by law and as required by the primary functions of his office do not fall under the
definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or
employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than
Section 7, par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention,
by the functions of his position,"36 express reference to certain high-ranking appointive public officials like members of specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability
the Cabinet were made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other
there are instances when although not required by current law, membership of certain high-ranking executive officials governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy
in other offices and corporations is necessary by reason of said officials' primary functions. The example given by among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the
Commissioner Monsod was the Minister of Trade and Industry.38 advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that may be gained from a department
head spreading himself too thin and taking in more than what he can handle.
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional
functions and duties flowing from the primary functions of the official may be imposed upon him without offending the
constitutional prohibition under consideration, it cannot, however, be taken as authority for saying that this exception Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of
is by virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the Environment and Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis Santos, Secretary
plenary session of September 27, 1986. Under consideration then was Section 3 of Committee Resolution No. 531 of National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget
which was the proposed article on General Provisions.39 At that time, the article on the Civil Service Commission had Guillermo Carague to immediately relinquish their other offices or employment, as herein defined, in the government,
including government-owned or controlled corporations and their subsidiaries. With respect to the other named From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but surely
respondents, the petitions have become moot and academic as they are no longer occupying the positions eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor, Luis "Chavit"
complained of. Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.1

During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled
to emoluments for actual services rendered.46 It has been held that "in cases where there is no de jure, officer, a de The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona, Jr.,
facto officer, who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse." He accused
legally entitled to the emoluments of the office, and may in an appropriate action recover the salary, fees and other the petitioner of receiving some P220 million in jueteng money from Governor Singson from November 1998 to
compensations attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it seems August 2000. He also charged that the petitioner took from Governor Singson P70 million on excise tax on cigarettes
unjust that the public should benefit by the services of an officer de facto and then be freed from all liability to pay any intended for Ilocos Sur. The privilege speech was referred by then Senate President Franklin Drilon, to the Blue
one for such services.47 Any per diem, allowances or other emoluments received by the respondents by virtue of Ribbon Committee (then headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by
actual services rendered in the questioned positions may therefore be retained by them. Senator Renato Cayetano) for joint investigation.2

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is The House of Representatives did no less. The House Committee on Public Order and Security, then headed by
hereby declared null and void and is accordingly set aside. Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach the
petitioner.
SO ORDERED.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step down
from the presidency as he had lost the moral authority to govern. 3 Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for the resignation of the petitioner. 4 Four days later, or on
October 17, former President Corazon C. Aquino also demanded that the petitioner take the "supreme self-sacrifice"
of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo
resigned as Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.
EN BANC

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior Economic
G.R. No. 146710-15 March 2, 2001 Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata, former Senator
Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also resigned from the Department
of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and House Speaker Manuel Villar,
JOSEPH E. ESTRADA, petitioner, together with some 47 representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME
AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker Villar
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent. transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the members of the
House of Representatives to the Senate. This caused political convulsions in both houses of Congress. Senator
Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by Representative
---------------------------------------- Fuentebella.12 On November 20, the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21)
senators took their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

G.R. No. 146738 March 2, 2001

The political temperature rose despite the cold December. On December 7, the impeachment trial started.14 The
battle royale was fought by some of the marquee names in the legal profession. Standing as prosecutors were then
JOSEPH E. ESTRADA, petitioner, House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Tañada, Sergio
vs. Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
GLORIA MACAPAGAL-ARROYO, respondent. Antonio Nachura. They were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando
Perez and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice Andres
Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
PUNO, J.: Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund
Fortun. The day to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high
and low points were the constant conversational piece of the chattering classes. The dramatic point of the December
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he is the hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring personalities was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on documents involving a
are important enough but more transcendental are the constitutional issues embedded on the parties' dispute. While P500 million investment agreement with their bank on February 4, 2000.15
the significant issues are many, the jugular issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it resumed on
January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty. Edgardo Espiritu who
First, we take a view of the panorama of events that precipitated the crisis in the office of the President.
served as petitioner's Secretary of Finance took the witness stand. He alleged that the petitioner jointly owned BW
Resources Corporation with Mr. Dante Tan who was facing charges of insider trading.16 Then came the fateful day of
January 16, when by a vote of 11-1017 the senator-judges ruled against the opening of the second envelope which
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent Gloria
allegedly contained evidence showing that petitioner held P3.3 billion in a secret bank account under the name "Jose
Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner believing he
Velarde." The public and private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned
would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-year term
as Senate President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the streets
commencing on June 30, 1998.
of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective resignation. (Sgd.) JOSEPH EJERCITO ESTRADA"
They also filed their Manifestation of Withdrawal of Appearance with the impeachment tribunal.19 Senator Raul Roco
quickly moved for the indefinite postponement of the impeachment proceedings until the House of Representatives
shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide granted the motion. 20 It also appears that on the same day, January 20, 2001, he signed the following letter:31

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of people "Sir:
holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in Makati City to
the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation. Students and teachers
walked out of their classes in Metro Manila to show their concordance. Speakers in the continuing rallies at the EDSA By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
Shrine, all masters of the physics of persuasion, attracted more and more people.21 declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the (Sgd.) JOSEPH EJERCITO ESTRADA"
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where he
would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando
Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA Shrine.22 In the A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy was
presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering demonstrators, General transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m. 33
Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government." 23 A little later, PNP Chief, Director General Panfilo
On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the duties of
Lacson and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries,
the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter No. 01-1-05-SC,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for the
to wit:
resignation of the petitioner exploded in various parts of the country. To stem the tide of rage, petitioner announced
he was ordering his lawyers to agree to the opening of the highly controversial second envelope.26 There was no
turning back the tide. The tide had become a tsunami. "A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of
Office as President of the Republic of the Philippines before the Chief Justice — Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,
orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary Edgardo
2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm
Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary
the authority given by the twelve (12) members of the Court then present to the Chief Justice on January
Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff, negotiated for the petitioner.
20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the
Respondent Arroyo was represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto
Philippines, at noon of January 20, 2001.
Romulo and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola
between pro and anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the oath to respondent This resolution is without prejudice to the disposition of any justiciable case that may be filed by a proper
Arroyo at high noon at the EDSA Shrine. party."

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34 Recognition of
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the following press respondent Arroyo's government by foreign governments swiftly followed. On January 23, in a reception or vin d'
statement:30 honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a
hundred foreign diplomats recognized the government of respondent Arroyo. 35 US President George W. Bush gave
the respondent a telephone call from the White House conveying US recognition of her government. 36
"20 January 2001

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of Representatives.37 The
STATEMENT FROM
House then passed Resolution No. 175 "expressing the full support of the House of Representatives to the
administration of Her Excellency, Gloria Macapagal-Arroyo, President of the Philippines."38 It also approved
PRESIDENT JOSEPH EJERCITO ESTRADA Resolution No. 176 "expressing the support of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its congratulations and
expressing its support for her administration as a partner in the attainment of the nation's goals under the
At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Constitution."39
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society. On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she also signed
into law the Political Advertising ban and Fair Election Practices Act.41

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42 The next day,
with gratitude for the opportunities given to me for service to our people. I will not shirk from any future February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona, Jr.43 Senators
challenges that may come ahead in the same service of our country. Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations, citing as reason
therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the Supreme Court.
Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of Representatives also approved
I call on all my supporters and followers to join me in to promotion of a constructive national spirit of Senator Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two
reconciliation and solidarity. (2) days later.46

May the Almighty bless our country and beloved people. On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus officio and has
been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted against the closure of the
impeachment court on the grounds that the Senate had failed to decide on the impeachment case and that the
MABUHAY! resolution left open the question of whether Estrada was still qualified to run for another elective post.48
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from 16% on The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for decision.
January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-CBN/SWS from February
2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as replacement of
petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also 60% The bedrock issues for resolution of this Court are:
in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her
presidency is accepted by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or
mass class, and 54% among the E's or very poor class.50 I

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases previously Whether the petitions present a justiciable controversy.
filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No. 0-00-1629, filed
by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed
by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft and corruption, II
bribery, perjury, serious misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case
No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President
and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on leave while respondent Arroyo is an Acting President.
on November 28, 2000 for malversation of public funds, illegal use of public funds and property, plunder, etc.; (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for bribery, plunder, indirect
bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. III
Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

Whether conviction in the impeachment proceedings is a condition precedent for the criminal prosecution
A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the charges of petitioner Estrada. In the negative and on the assumption that petitioner is still President, whether he
against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the following as is immune from criminal prosecution.
members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel
Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the aforementioned complaints against IV
him.

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15, a
petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman
from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any We shall discuss the issues in seriatim.
other criminal complaint that may be filed in his office, until after the term of petitioner as President is over and only if
legally warranted." Thru another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He
prayed for judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the Philippines I
temporarily unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting capacity pursuant to the provisions of the Constitution." Acting on
GR Nos. 146710-15, the Court, on the same day, February 6, required the respondents "to comment thereon within a Whether or not the cases
non-extendible period expiring on 12 February 2001." On February 13, the Court ordered the consolidation of GR
Nos. 146710-15 and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15." At bar involve a political question

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief Justice Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are beyond
Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's counsel, the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar assail the
former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have "compromised "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the presidency through
themselves by indicating that they have thrown their weight on one side" but nonetheless inhibited themselves. people power; that she has already taken her oath as the 14th President of the Republic; that she has exercised the
Thereafter, the parties were given the short period of five (5) days to file their memoranda and two (2) days to submit powers of the presidency and that she has been recognized by foreign governments. They submit that these realities
their simultaneous replies. on ground constitute the political thicket, which the Court cannot enter.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for "Gag We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on
Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved: political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th century,
the political question doctrine which rests on the principle of separation of powers and on prudential considerations,
continue to be refined in the mills of constitutional law.55 In the United States, the most authoritative guidelines to
"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the office determine whether a question is political were spelled out by Mr. Justice Brennan in the 1962 case or Baker v.
of the President vacant and that neither did the Chief Justice issue a press statement justifying the Carr,56 viz:
alleged resolution;

"x x x Prominent on the surface of any case held to involve a political question is found a textually
(2) to order the parties and especially their counsel who are officers of the Court under pain of being demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
cited for contempt to refrain from making any comment or discussing in public the merits of the cases at judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without
bar while they are still pending decision by the Court, and an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from potentiality of embarrassment from multifarious pronouncements by various departments on question.
resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for
Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman non justiciability on the ground of a political question's presence. The doctrine of which we treat is one of
may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing 'political questions', not of 'political cases'."
held on February 15, 2001, which action will make the cases at bar moot and academic."53
In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation of the adaptable and hence, a more stable community of maintaining the precarious balance between healthy cleavage and
inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this Court, necessary consensus."69 In this sense, freedom of speech and of assembly provides a framework in which the
through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions which, under "conflict necessary to the progress of a society can take place without destroying the society."70 In Hague v.
the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary Committee for Industrial Organization,71 this function of free speech and assembly was echoed in the amicus
authority has been delegated to the legislative or executive branch of the government. It is concerned with issues curiae filed by the Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has right of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this
narrowed the reach of the political question doctrine when it expanded the power of judicial review of this court not means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar
only to settle actual controversies involving rights which are legally demandable and enforceable but also to stressed that "… it should be clear even to those with intellectual deficits that when the sovereign people assemble to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of petition for redress of grievances, all should listen. For in a democracy, it is the people who count; those who are
jurisdiction on the part of any branch or instrumentality of government.59 Heretofore, the judiciary has focused deaf to their grievances are ciphers."
on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60 With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution require
new provision did not just grant the Court power of doing nothing. In sync and symmetry with this intent are the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article II,74 and section
other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is 875 of Article VII, and the allocation of governmental powers under section 11 76 of Article VII. The issues likewise call
section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate proceeding for a ruling on the scope of presidential immunity from suit. They also involve the correct calibration of the right of
filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the petitioner against prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
privilege of the writ (of habeas corpus) or the extension thereof x x x." down that "it is emphatically the province and duty of the judicial department to say what the law is . . ." Thus,
respondent's in vocation of the doctrine of political question is but a foray in the dark.

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v. President
Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar involve II
the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A more cerebral
reading of the cited cases will show that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign people, albeit a peaceful one. Whether or not the petitioner
No less than the Freedom Constitution63 declared that the Aquino government was installed through a direct Resigned as President
exercise of the power of the Filipino people "in defiance of the provisions of the 1973 Constitution, as
amended." In is familiar learning that the legitimacy of a government sired by a successful revolution by people
power is beyond judicial scrutiny for that government automatically orbits out of the constitutional loop. In checkered We now slide to the second issue. None of the parties considered this issue as posing a political question. Indeed, it
contrast, the government of respondent Arroyo is not revolutionary in character. The oath that she took at the involves a legal question whose factual ingredient is determinable from the records of the case and by resort to
EDSA Shrine is the oath under the 1987 Constitution. 64 In her oath, she categorically swore to preserve and judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent disability. Hence, he
defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under submits that the office of the President was not vacant when respondent Arroyo took her oath as President.
the authority of the 1987 Constitution.1âwphi1.nêt
The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:
In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves the
exercise of the people power of revolution which overthrew the whole government. EDSA II is an exercise
"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the
of people power of freedom of speech and freedom of assembly to petition the government for redress of
Vice President shall become the President to serve the unexpired term. In case of death, permanent
grievances which only affected the office of the President. EDSA I is extra constitutional and the legitimacy of
disability, removal from office, or resignation of both the President and Vice President, the President of
the new government that resulted from it cannot be the subject of judicial review, but EDSA II is intra
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
constitutional and the resignation of the sitting President that it caused and the succession of the Vice President as
President until the President or Vice President shall have been elected and qualified.
President are subject to judicial review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the government for
redress of grievance which are the cutting edge of EDSA People Power II is not inappropriate. x x x."

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the The issue then is whether the petitioner resigned as President or should be considered resigned as of January 20,
reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level legal
recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to resign and the
non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill of intent must be coupled by acts of relinquishment.78 The validity of a resignation is not government by any formal
Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in writing, requirement as to form. It can be oral. It can be written. It can be express. It can be implied. As long as the
through the use of the press or other similar means; (2) of the right of association for purposes of human life and resignation is clear, it must be given legal effect.
which are not contrary to public means; and (3) of the right to send petitions to the authorities, individually or
collectively." These fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he evacuated
is specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of the rights of Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent Arroyo. Consequently,
the people to peaceably assemble and petition the Government for redress of grievances." The guaranty was carried whether or not petitioner resigned has to be determined from his act and omissions before, during and after January
over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial evidence bearing
1966.66 a material relevance on the issue.

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These rights are Using this totality test, we hold that petitioner resigned as President.
now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the succession of
"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee investigated. The more detailed
right of the people peaceably to assemble and petition the government for redress of grievances." revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The
Articles of Impeachment filed in the House of Representatives which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the signatures of 115 representatives or more than 1/3 of the
The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The House of Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as
reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in
fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is essential to tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and Industry.
provide for participation in decision-making by all members of society; and fourth, it is a method of achieving a more
As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call reached a 7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this
new crescendo when the eleven (11) members of the impeachment tribunal refused to open the second envelope. It round, I am accompanied by Dondon Bagatsing and Macel.
sent the people to paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was swarming
with people crying for redress of their grievance. Their number grew exponentially. Rallies and demonstration quickly
spread to the countryside like a brush fire. Rene pulls out a document titled "Negotiating Points." It reads:

As events approached January 20, we can have an authoritative window on the state of mind of the petitioner. The '1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective
window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive Secretary Angara serialized on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the
in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning of January 19, petitioner's loyal Republic of the Philippines.
advisers were worried about the swelling of the crowd at EDSA, hence, they decided to create an ad hoc committee
to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the
presidential residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo 2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and administration shall commence, and persons designated by the Vice President to various positions and
stressed he would not be a candidate. The proposal for a snap election for president in May where he would offices of the government shall start their orientation activities in coordination with the incumbent officials
not be a candidate is an indicium that petitioner had intended to give up the presidency even at that time. At concerned.
3:00 p.m., General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and
dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he asked 3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
Senator Pimentel to advise petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not President as national military and police authority effective immediately.
disagree but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel repeated
to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a sweetener by saying that
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
petitioner would be allowed to go abroad with enough funds to support him and his family.83 Significantly, the
President and his family as approved by the national military and police authority (Vice President).
petitioner expressed no objection to the suggestion for a graceful and dignified exit but said he would never
leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I
would have five days to a week in the palace."85 This is proof that petitioner had reconciled himself to the reality 5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
that he had to resign. His mind was already concerned with the five-day grace period he could stay in the account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant
palace. It was a matter of time. to the request to the Senate President.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and requested, Our deal
"Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and orderly transfer of
power."86 There was no defiance to the request. Secretary Angara readily agreed. Again, we note that at this
stage, the problem was already about a peaceful and orderly transfer of power. The resignation of the We bring out, too, our discussion draft which reads:
petitioner was implied.

The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:
The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of January 20,
that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of five days after the
petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and (3) the agreement to open '1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
the second envelope to vindicate the name of the petitioner.87 Again, we note that the resignation of petitioner Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.
was not a disputed point. The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at
2:30 a.m., he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz: '2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the private sector throughout their natural
"x x x lifetimes.

I explain what happened during the first round of negotiations. The President immediately stresses This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of
that he just wants the five-day period promised by Reyes, as well as to open the second envelope to Staff, as approved by the national military and police authorities – Vice President (Macapagal).
clear his name.

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize
If the envelope is opened, on Monday, he says, he will leave by Monday. the opening of the second envelope in the impeachment trial as proof that the subject savings account
does not belong to President Estrada.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful. I'm '4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition
tired of the red tape, the bureaucracy, the intrigue.) Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.

I just want to clear my name, then I will go."88

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.
Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he said "x x
x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and observance
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following happened: thereof.

"Opposition's deal
 Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for I ask him: Di yung transition period, moot and academic na?'
in "Annex A" heretofore attached to this agreement."89

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'
The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that during this
second round of negotiation, the resignation of the petitioner was again treated as a given fact. The only unsettled
points at that time were the measures to be undertaken by the parties during and after the transition period. Contrary to subsequent reports, I do not react and say that there was a double cross.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner was But I immediately instruct Macel to delete the first provision on resignation since this matter is already
further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator Pimentel to moot and academic. Within moments, Macel erases the first provision and faxes the documents, which
await the signature of the United Opposition. However, the signing by the party of the respondent Arroyo was aborted have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.
by her oath-taking. The Angara diary narrates the fateful events, viz;90

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other
"xxx side, as it is important that the provisions on security, at least, should be respected.

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect a I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the
peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices oath to Gloria at 12 noon.
in the background.

The President is too stunned for words:

Agreement.

Final meal
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice President will assume the presidency of the
Republic of the Philippines. 12 noon – Gloria takes her oath as president of the Republic of the Philippines.

xxx 12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The rest of the agreement follows: The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.

2. The transition process for the assumption of the new administration shall commence on 20 January
2001, wherein persons designated by the Vice President to various government positions shall start By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
orientation activities with incumbent officials. PSG is there to protect the Palace, since the police and military have already withdrawn their support for
the President.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security
of the President and his families throughout their natural lifetimes as approved by the national military 1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal
and police authority – Vice President. possessions as they can.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving
military and police authorities. Malacañang.

'5. Both parties request the impeachment court to open the second envelope in the impeachment trial, The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her
the contents of which shall be offered as proof that the subject savings account does not belong to the oath as President of the Republic of the Philippines. While along with many other legal minds of our
President. country, I have strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil
society.
The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side with gratitude for the opportunities given to me for service to our people. I will not shirk from any future
and awaiting the signature of the United opposition. challenges that may come ahead in the same service of our country.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
Macapagal-Arroyo is President and will be sworn in at 12 noon. reconciliation and solidarity.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the May the Almighty bless our country and our beloved people.
agreement)?' I asked.

MABUHAY!"'
Reyes answered: 'Wala na, sir (it's over, sir).'
It was curtain time for the petitioner. The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of the
provision and insisted that the President's immunity should extend after his tenure.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving Malacañang.
In the press release containing his final statement, (1) he acknowledged the oath-taking of the respondent as Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15 above
President of the Republic albeit with reservation about its legality; (2) he emphasized he was leaving the Palace, the became section 13 under the new bill, but the deliberations on this particular provision mainly focused on the
seat of the presidency, for the sake of peace and in order to begin the healing process of our nation. He did not say immunity of the President, which was one of the reasons for the veto of the original bill. There was hardly any debate
he was leaving the Palace due to any kind inability and that he was going to re-assume the presidency as soon as the on the prohibition against the resignation or retirement of a public official with pending criminal and administrative
disability disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he cases against him. Be that as it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or
was referring to the past opportunity given him to serve the people as President (4) he assured that he will not shirk retirement from being used by a public official as a protective shield to stop the investigation of a pending criminal or
from any future challenge that may come ahead in the same service of our country. Petitioner's reference is to a administrative case against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery
future challenge after occupying the office of the president which he has given up; and (5) he called on his supporters under the Revised Penal Code. To be sure, no person can be compelled to render service for that would be a
to join him in the promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the national spirit violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire or resign.
of reconciliation and solidarity could not be attained if he did not give up the presidency. The press release was Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal investigation or
petitioner's valedictory, his final act of farewell. His presidency is now in the part tense. prosecution, such resignation or retirement will not cause the dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or retirement to avoid prosecution.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001 of the
petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the said letter, viz: There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show that
when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were OMB Case
Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been filed, the respondent
"Sir. Ombudsman refrained from conducting the preliminary investigation of the petitioner for the reason that as the sitting
President then, petitioner was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this petitioner for it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the obstacle like the immunity from suit of a sitting President.
Constitution, the Vice President shall be the Acting president.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12 of RA
(Sgd.) Joseph Ejercito Estrada" 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is debatable. But
even assuming arguendo that it is an administrative proceeding, it can not be considered pending at the time
petitioner resigned because the process already broke down when a majority of the senator-judges voted against the
To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the cases at bar did opening of the second envelope, the public and private prosecutors walked out, the public prosecutors filed their
not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of the petitioner Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no
reveal to the Court these circumstances during the oral argument. It strikes the Court as strange that the letter, impeachment case pending against petitioner when he resigned.
despite its legal value, was never referred to by the petitioner during the week-long crisis. To be sure, there was not
the slightest hint of its existence when he issued his final press release. It was all too easy for him to tell the Filipino
people in his press release that he was temporarily unable to govern and that he was leaving the reins of government III
to respondent Arroyo for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If,
however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's resignation Whether or not the petitioner Is only temporarily unable to Act as President.
from the presidency cannot be the subject of a changing caprice nor of a whimsical will especially if the resignation is
the result of his reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision. We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers and
duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained in the
January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker Fuentebella.
After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt Practices Act,
which allegedly prohibits his resignation, viz: Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the petitioner
to discharge the powers and duties of the presidency. His significant submittal is that "Congress has the ultimate
authority under the Constitution to determine whether the President is incapable of performing his functions in the
"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or manner provided for in section 11 of article VII."95 This contention is the centerpiece of petitioner's stance that he is
administrative, or pending a prosecution against him, for any offense under this Act or under the a President on leave and respondent Arroyo is only an Acting President.
provisions of the Revised Penal Code on bribery."

An examination of section 11, Article VII is in order. It provides:

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No. 3019
originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did not contain
a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech, Senator Arturo "SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the
Tolentino, the author of the bill, "reserved to propose during the period of amendments the inclusion of a provision to House of Representatives his written declaration that he is unable to discharge the powers and duties of
the effect that no public official who is under prosecution for any act of graft or corruption, or is under administrative his office, and until he transmits to them a written declaration to the contrary, such powers and duties
investigation, shall be allowed to voluntarily resign or retire."92 During the period of amendments, the following shall be discharged by the Vice-President as Acting President.
provision was inserted as section 15:

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the
"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an Speaker of the House of Representatives their written declaration that the President is unable to
investigation, criminal or administrative, or pending a prosecution against him, for any offense under the discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
Act or under the provisions of the Revised Penal Code on bribery. and duties of the office as Acting President.

The separation or cessation of a public official form office shall not be a bar to his prosecution under this Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House
Act for an offense committed during his incumbency."93 of Representatives his written declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five
 days to the President of the Senate and to the Speaker of the House of Representatives their written congratulations and to express its support for her administration as a partner in the attainment of the
declaration that the President is unable to discharge the powers and duties of his office, the Congress Nation's goals under the Constitution.
shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.
Adopted,

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting (Sgd.) FELICIANO BELMONTE JR.
separately, that the President is unable to discharge the powers and duties of his office, the Vice- Speaker
President shall act as President; otherwise, the President shall continue exercising the powers and
duties of his office."
This Resolution was adopted by the House of Representatives on January 24, 2001.

That is the law. Now, the operative facts:

(Sgd.) ROBERTO P. NAZARENO
Secretary General"
1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001
House Resolution No. 175;96 "RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF
SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
On the same date, the House of the Representatives passed House Resolution No. 17697 which states:
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE Presidency of Vice President Gloria Macapagal-Arroyo;
ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND
EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
OF THE NATION'S GOALS UNDER THE CONSTITUTION vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him; WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence
Hilario G. Davide, Jr.; and courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, immediately thereafter, members of the international community had extended their WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines; served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the Philippines – qualities which merit his nomination to the position of Vice President of the Republic:
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national Now, therefore, be it
healing and reconciliation with justice for the purpose of national unity and development;
Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
by reason of the constitutional duty of the House of Representatives as an institution and that of the Philippines.
individual members thereof of fealty to the supreme will of the people, the House of Representatives
must ensure to the people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof; Adopted,

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the (Sgd.) FELICIANO BELMONTE JR.
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of Speaker
national reconciliation and solidarity as it is a direct representative of the various segments of the whole
nation;
This Resolution was adopted by the House of Representatives on February 7, 2001.

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the
(Sgd.) ROBERTO P. NAZARENO
House of Representatives to extend its support and collaboration to the administration of Her Excellency,
Secretary General"
President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national
interest demanding no less: Now, therefore, be it
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate
signed the following:
Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
 "RESOLUTION Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officio and has been terminated.

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change
and challenge; Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will; Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the
Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity Senate president.
despite diversities in perspectives;

Resolved, finally. That all parties concerned be furnished copies of this Resolution.
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99
Adopted,

On February 7, the Senate also passed Senate Resolution No. 82100 which states:
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF
SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
This Resolution was adopted by the Senate on February 7, 2001.

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo; (Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of (5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the Senate
Representatives who shall assume office upon confirmation by a majority vote of all members of both and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with the regular
Houses voting separately; election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th) highest number of votes shall
serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines; (6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as President.

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and (7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector of
courage; who has served the Filipino people with dedicated responsibility and patriotism; government, and without any support from the Armed Forces of the Philippines and the Philippine National Police, the
petitioner continues to claim that his inability to govern is only momentary.

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having
served the government in various capacities, among others, as Delegate to the Constitutional What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of
the land - which qualities merit his nomination to the position of Vice President of the Republic: Now, petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability.
therefore, be it

The question is whether this Court has jurisdiction to review the claim of temporary inability of petitioner
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona, Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent Arroyo as
Jr. as Vice President of the Republic of the Philippines. president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot exercise its judicial power
or this is an issue "in regard to which full discretionary authority has been delegated to the Legislative xxx branch of
the government." Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially
Adopted, discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature and addressed
solely to Congress by constitutional fiat. It is a political issue, which cannot be decided by this Court without
(Sgd.) AQUILINO Q. PIMENTEL JR. transgressing the principle of separation of powers.
President of the Senate

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is a
This Resolution was adopted by the Senate on February 7, 2001. President on leave on the ground that he is merely unable to govern temporarily. That claim has been laid to
rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-equal
branch of government cannot be reviewed by this Court.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
IV
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states:
Whether or not the petitioner enjoys immunity from suit.
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent Ombudsman "In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
should be prohibited because he has not been convicted in the impeachment proceedings against him; and second, absolute immunity concept. First, we extended it to shield the President not only form civil claims but also
he enjoys immunity from all kinds of suit, whether criminal or civil. from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts of
the President outside the scope of official duties. And third, we broadened its coverage so as to include
not only the President but also other persons, be they government officials or private individuals, who
Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most enlightening. acted upon orders of the President. It can be said that at that point most of us were suffering from AIDS
The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910 case of Forbes, etc. vs. (or absolute immunity defense syndrome)."
Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes,
Governor-General of the Philippine Islands. J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret
Service of the City of Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive immunity in
writ of prohibition, this Court, speaking thru Mr. Justice Johnson, held: the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of Finance, Alberto Romulo,
who argued that the after incumbency immunity granted to President Marcos violated the principle that a public office
is a public trust. He denounced the immunity as a return to the anachronism "the king can do no wrong." 107 The effort
" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to failed.
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power revolution
from interference of courts or legislatures. This does not mean, either that a person injured by the in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity provision of the
executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108
contrary, it means, simply, that the governors-general, like the judges if the courts and the members of
the Legislature, may not be personally mulcted in civil damages for the consequences of an act executed
in the performance of his official duties. The judiciary has full power to, and will, when the mater is "Mr. Suarez. Thank you.
properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal
and void and place as nearly as possible in status quo any person who has been deprived his liberty or
his property by such act. This remedy is assured to every person, however humble or of whatever The last question is with reference to the Committee's omitting in the draft proposal the immunity
country, when his personal or property rights have been invaded, even by the highest authority of the provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
state. The thing which the judiciary can not do is mulct the Governor-General personally in damages striking out second sentence, at the very least, of the original provision on immunity from suit under the
which result from the performance of his official duty, any more than it can a member of the Philippine 1973 Constitution. But would the Committee members not agree to a restoration of at least the first
Commission of the Philippine Assembly. Public policy forbids it. sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's almost daily?
Neither does this principle of nonliability mean that the chief executive may not be personally sued at all
in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion which touched the liability of judges and drew an Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a during his tenure he is immune from suit.
case so plainly outside of his power and authority that he can not be said to have exercised discretion in
determining whether or not he had the right to act. What is held here is that he will be protected from
personal liability for damages not only when he acts within his authority, but also when he is without Mr. Suarez. So there is no need to express it here.
authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, in determining the question of his authority. If he
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution
decide wrongly, he is still protected provided the question of his authority was one over which two men,
was to make that explicit and to add other things.
reasonably qualified for that position, might honestly differ; but he s not protected if the lack of authority
to act is so plain that two such men could not honestly differ over its determination. In such case, be acts,
not as Governor-General but as a private individual, and as such must answer for the consequences of Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
his act."

I think the Commissioner for the clarifications."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief executive spent in
wrangling litigation; disrespect engendered for the person of one of the highest officials of the state and for the office We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he cannot be
he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the integrity of government prosecuted for the reason that he must first be convicted in the impeachment proceedings. The impeachment trial of
itself."105 petitioner Estrada was aborted by the walkout of the prosecutors and by the events that led to his loss of the
presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for
Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then came the petitioner to demand that he should first be impeached and then convicted before he can be prosecuted. The plea if
tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973 Constitution was born. In granted, would put a perpetual bar against his prosecution. Such a submission has nothing to commend itself for it
1981, it was amended and one of the amendments involved executive immunity. Section 17, Article VII stated: will place him in a better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the resignation of the
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
President, the proper criminal and civil cases may already be filed against him, viz:110
official acts done by him or by others pursuant to his specific orders during his tenure.

"xxx
The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.
Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the
In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's Men: The
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former Dean of the UP
necessarily dropped?
College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this constitutional amendment on the
existing law on executive privilege. To quote his disquisition:
 Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation of an accused to fair trial suffers a threat.126 The American approach is different. US courts assume a skeptical
would render the case moot and academic. However, as the provision says, the criminal and civil aspects approach about the potential effect of pervasive publicity on the right of an accused to a fair trial. They have
of it may continue in the ordinary courts." developed different strains of tests to resolve this issue, i.e., substantial; probability of irreparable harm, strong
likelihood, clear and present danger, etc.

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit or
from being brought to court during the period of their incumbency and tenure" but not beyond. Considering the This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul
peculiar circumstance that the impeachment process against the petitioner has been aborted and thereafter he lost convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of Larranaga
the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal prosecution before the vs. court of Appeals, et al.,129 we laid down the doctrine that:
Ombudsman that he be convicted in the impeachment proceedings. His reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for they have a different factual milieu.
"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all
We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases filed high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial
against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and corruption. By no is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a fair
stretch of the imagination can these crimes, especially plunder which carries the death penalty, be covered by the trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx. The
alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court licensing the press does not simply publish information about trials but guards against the miscarriage of justice by
President to commit criminal acts and wrapping him with post-tenure immunity from liability. It will be anomalous to subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
hold that immunity is an inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of
public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same
footing as any trespasser.114 Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to
Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand the seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal
privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974 case of US v. cases. The state of the art of our communication system brings news as they happen straight to our
Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain recordings and breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and
documents relating to his conversations with aids and advisers. Seven advisers of President Nixon's associates were fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
facing charges of conspiracy to obstruct Justice and other offenses, which were committed in a burglary of the with the world. We have not installed the jury system whose members are overly protected from publicity
Democratic National Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the subpoena on the off-court evidence and on-camera performances of parties to litigation. Their mere exposure to
ground, among others, that the President was not subject to judicial process and that he should first be impeached publications and publicity stunts does not per se fatally infect their impartiality.
and removed from office before he could be made amenable to judicial proceedings. The claim was rejected by the
US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed materials sought for
use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage
demands of due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v. of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil damages covers only al., we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we
"official acts." Recently, the US Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges
Jones117 where it held that the US President's immunity from suits for money damages arising out of their official acts have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at a
is inapplicable to unofficial conduct. bar, the records do not show that the trial judge developed actual bias against appellants as a
consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of
There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust.118 It declared as a has the burden to prove this actual bias and he has not discharged the burden.'
state policy that "the State shall maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruptio."119 it ordained that "public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency act with patriotism We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130 and its
and justice, and lead modest lives."120 It set the rule that 'the right of the State to recover properties unlawfully companion cases, viz:
acquired by public officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of
the Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on complaint "Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
by any person, any act or omission of any public official, employee, office or agency, when such act or omission preliminary investigation. We find no procedural impediment to its early invocation considering the
appears to be illegal, unjust improper or inefficient." 123 The Office of the Ombudsman was also given fiscal substantial risk to their liberty while undergoing a preliminary investigation.
autonomy.124 These constitutional policies will be devalued if we sustain petitioner's claim that a non-sitting president
enjoys immunity from suit for criminal acts committed during his incumbency.
xxx

V
The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications
Whether or not the prosecution of petitioner industry. For sure, few cases can match the high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues
unabated even today. Commentators still bombard the public with views not too many of which are sober
Estrada should be enjoined due to prejudicial publicity and sublime. Indeed, even the principal actors in the case – the NBI, the respondents, their lawyers and
their sympathizers have participated in this media blitz. The possibility of media abuses and their threat
to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the
Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation of the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the respondent
Ombudsman has developed bias and is all set file the criminal cases violation of his right to due process.
xxx

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of unrestrained
publicity during the investigation and trial of high profile cases.125 The British approach the problem with the a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
 trials both here and in England had long been presumptively open, thus giving assurance Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news reports
that the proceedings were conducted fairly to all concerned and discouraging perjury, the referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of the denials of the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and regularity in the
significant community therapeutic value of public trials was recognized when a shocking performance of official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of
crime occurs a community reaction of outrage and public protest often follows, and petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised
thereafter the open processes of justice serve an important prophylactic purpose, providing Rules of Criminal Procedure, give investigation prosecutors the independence to make their own findings and
an outlet for community concern, hostility and emotion. To work effectively, it is important recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can not be
that society's criminal process satisfy the appearance of justice,' Offutt v. United States, 348 compelled cases which they believe deserve dismissal. In other words, investigating prosecutors should not be
US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by allowing people to treated like unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the
observe such process. From this unbroken, uncontradicted history, supported by reasons as petitioner and the latter believes that the findings of probable cause against him is the result of bias, he still has the
valid today as in centuries past, it must be concluded that a presumption of openness remedy of assailing it before the proper court.
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First VI.
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as those of
speech and press, the First Amendment can be read as protecting the right of everyone to Epilogue
attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different dimension and
which had long been open to the public at the time the First Amendment was adopted. then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the majority for instant justice
Moreover, the right of assembly is also relevant, having been regarded not only as an will hit a higher decibel while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of the
independent right but also as a catalyst to augment the free exercise of the other First respondent Ombudsman to balance the right of the State to prosecute the guilty and the right of an accused to a fair
Amendment rights with which the draftsmen deliberately linked it. A trial courtroom is a investigation and trial which has been categorized as the "most fundamental of all freedoms."135 To be sure, the duty
public place where the people generally and representatives of the media have a right to be of a prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the preliminary
present, and where their presence historically has been thought to enhance the integrity and investigation of the petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord
quality of what takes place. Bryce calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob whose
c. Even though the Constitution contains no provision which be its terms guarantees to the judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power of number for in a
public the right to attend criminal trials, various fundamental rights, not expressly democracy, the dogmatism of the majority is not and should never be the definition of the rule of law. If democracy
guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. has proved to be the best form of government, it is because it has respected the right of the minority to convince the
The right to attend criminal trial is implicit in the guarantees of the First Amendment: without majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's
the freedom to attend such trials, which people have exercised for centuries, important progress from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.
aspects of freedom of speech and of the press be eviscerated.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-Arroyo
Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can as the de jure 14th President of the Republic are DISMISSED.
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges
SO ORDERED.
have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the publicity that attended
the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners
cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these
are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a
factor to consider in determining whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note,
did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting
from their bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more than
hostile headlines to discharge his burden of proof.131 He needs to show more weighty social science evidence to
successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members
of this special panel have already been infected by bias because of the pervasive prejudicial publicity against him.
Indeed, the special panel has yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote petitioner's
submission, the respondent Ombudsman "has been influenced by the barrage of slanted news reports, and he has
buckled to the threats and pressures directed at him by the mobs."132 News reports have also been quoted to
establish that the respondent Ombudsman has already prejudged the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner will be influenced by this bias of their superior.
 This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after
SUPREME COURT causing twenty years of political, economic and social havoc in the country and who within the short space of three
Manila years seeks to return, is in a class by itself.

EN BANC This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr.
Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar
their return to the Philippines.
G.R. No. 88211 September 15, 1989

The Issue
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the
ESTRELLA, petitioners, President may prohibit the Marcoses from returning to the Philippines.
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive According to the petitioners, the resolution of the case would depend on the resolution of the following issues:
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.
1. Does the President have the power to bar the return of former President Marcos and
family to the Philippines?

a. Is this a political question?

CORTES, J.:

2. Assuming that the President has the power to bar former President Marcos and his family
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the from returning to the Philippines, in the interest of "national security, public safety or public
Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects of health
national life.

a. Has the President made a finding that the return of former President Marcos and his
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people family to the Philippines is a clear and present danger to national security, public safety or
power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under public health?
a revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed
Manila Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel
troops led by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to b. Assuming that she has made that finding
surreptitiously return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila
Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to
the fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the (1) Have the requirements of due process been complied with in
victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did making such finding?
not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the
major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians,
(2) Has there been prior notice to petitioners?
dead. There were several other armed sorties of lesser significance, but the message they conveyed was the same
— a split in the ranks of the military establishment that thraetened civilian supremacy over military and brought to the
fore the realization that civilian government could be at the mercy of a fractious military. (3) Has there been a hearing?

But the armed threats to the Government were not only found in misguided elements and among rabid followers of (4) Assuming that notice and hearing may be dispensed with, has
Mr. Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained the President's decision, including the grounds upon which it was
ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their based, been made known to petitioners so that they may controvert
own on the areas they effectively control while the separatist are virtually free to move about in armed bands. There the same?
has been no let up on this groups' determination to wrest power from the govermnent. Not only through resort to arms
but also to through the use of propaganda have they been successful in dreating chaos and destabilizing the country.
c. Is the President's determination that the return of former President Marcos and his family
to the Philippines is a clear and present danger to national security, public safety, or public
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation health a political question?
attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the
recovery of the ill-gotten wealth of the Marcoses has remained elusive. d. Assuming that the Court may inquire as to whether the return of former President Marcos
and his family is a clear and present danger to national security, public safety, or public
health, have respondents established such fact?
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is threatened
from various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision 3. Have the respondents, therefore, in implementing the President's decision to bar the
to bar the return of Mr. Marcos and his family. return of former President Marcos and his family, acted and would be acting without
jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing any
act which would effectively bar the return of former President Marcos and his family to the
The Petition Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is It may be conceded that as formulated by petitioners, the question is not a political question
guaranteed under the following provisions of the Bill of Rights, to wit: as it involves merely a determination of what the law provides on the matter and application
thereof to petitioners Ferdinand E. Marcos and family. But when the question is whether the
two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with
Section 1. No person shall be deprived of life, liberty, or property without due process of law, the more primordial and transcendental right of the State to security and safety of its
nor shall any person be denied the equal protection of the laws. nationals, the question becomes political and this Honorable Court can not consider it.

xxx xxx xxx There are thus gradations to the question, to wit:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and
shall not be impaired except upon lawful order of the court. Neither shall the right to travel be reestablish their residence here? This is clearly a justiciable question which this Honorable
impaired except in the interest of national security, public safety, or public health, as may be Court can decide.
provided by law.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines
The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because and reestablish their residence here even if their return and residence here will endanger
only a court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because national security and public safety? this is still a justiciable question which this Honorable
no law has authorized her to do so. They advance the view that before the right to travel may be impaired by any Court can decide.
authority or agency of the government, there must be legislation to that effect.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and
The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the family shall return to the Philippines and establish their residence here? This is now a
Philippines is guaranteed. political question which this Honorable Court can not decide for it falls within the exclusive
authority and competence of the President of the Philippines. [Memorandum for
Respondents, pp. 9-11; Rollo, pp. 297-299.]
The Universal Declaration of Human Rights provides:

Respondents argue for the primacy of the right of the State to national security over individual rights. In support
Article 13. (1) Everyone has the right to freedom of movement and residence within the thereof, they cite Article II of the Constitution, to wit:
borders of each state.

Section 4. The prime duty of the Government is to serve and protect the people. The
(2) Everyone has the right to leave any country, including his own, and to return to his Government may call upon the people to defend the State and, in the fulfillment thereof, all
country. citizens may be required, under conditions provided by law, to render personal, military, or
civil service.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:
Section 5. The maintenance of peace and order, the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by all the people of
Article 12 the blessings of democracy.

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for
liberty of movement and freedom to choose his residence. reasons of national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic,
Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt,
Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed
2) Everyone shall be free to leave any country, including his own.
dictators whose return to their homelands was prevented by their governments. [See Statement of Foreign Affairs
Secretary Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
3) The above-mentioned rights shall not be subject to any restrictions except those which
are provided by law, are necessary to protect national security, public order (order public),
The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We,
public health or morals or the rights and freedoms of others, and are consistent with the
however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we
other rights recognized in the present Covenant.
are not bound by its narrow confines in arriving at a solution to the controversy.

4) No one shall be arbitrarily deprived of the right to enter his own country.
At the outset, we must state that it would not do to view the case within the confines of the right to travel and the
import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113,
On the other hand, the respondents' principal argument is that the issue in this case involves a political question 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel
which is non-justiciable. According to the Solicitor General: and recognized exceptions to the exercise thereof, respectively.

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries
E. Marcos and his family have the right to travel and liberty of abode. Petitioners invoke or within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is
these constitutional rights in vacuo without reference to attendant circumstances. the right to return to one's country, a totally distinct right under international law, independent from although related to
the right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a
Respondents submit that in its proper formulation, the issue is whether or not petitioners country, and the right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to
Ferdinand E. Marcos and family have the right to return to the Philippines and reside here at freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave
this time in the face of the determination by the President that such return and residence will any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees
endanger national security and public safety. the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave
any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect
national security, public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily Article II is the most loosely drawn chapter of the Constitution. To those who think that a
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to return to one's constitution ought to settle everything beforehand it should be a nightmare; by the same
country in the same context as those pertaining to the liberty of abode and the right to travel. token, to those who think that constitution makers ought to leave considerable leeway for the
future play of political forces, it should be a vision realized.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats
only of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be We encounter this characteristic of Article 11 in its opening words: "The executive power
considered, as a generally accepted principle of international law and, under our Constitution, is part of the law of the shall be vested in a President of the United States of America." . . .. [The President: Office
land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a and Powers, 17871957, pp. 3-4.]
different protection under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily
deprived" thereof [Art. 12 (4).]
Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from
Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively concluded that "what the presidency is at any particular moment depends in important measure on who is President."
exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate [At 30.]
to a conflict between executive action and the exercise of a protected right. The issue before the Court is novel and
without precedent in Philippine, and even in American jurisprudence.
This view is shared by Schlesinger who wrote in The Imperial Presidency:

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right
to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will For the American Presidency was a peculiarly personal institution. it remained of course, an
have to be awaited. agency of government subject to unvarying demands and duties no remained, of cas
President. But, more than most agencies of government, it changed shape, intensity and
ethos according to the man in charge. Each President's distinctive temperament and
Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. character, his values, standards, style, his habits, expectations, Idiosyncrasies, compulsions,
Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has phobias recast the WhiteHouse and pervaded the entire government. The executive branch,
the power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, said Clark Clifford, was a chameleon, taking its color from the character and personality of
pursuant to the express power of the Court under the Constitution in Article VIII, Section 1, whether or not the the President. The thrust of the office, its impact on the constitutional order, therefore altered
President acted arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she from President to President. Above all, the way each President understood it as his personal
determined that the return of the Marcose's to the Philippines poses a serious threat to national interest and welfare obligation to inform and involve the Congress, to earn and hold the confidence of the
and decided to bar their return. electorate and to render an accounting to the nation and posterity determined whether he
strengthened or weakened the constitutional order. [At 212- 213.]

Executive Power
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration
of tradition and the development of presidential power under the different constitutions are essential for a complete
The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935
recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution
blocked but with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial attempted to modify the system of government into the parliamentary type, with the President as a mere figurehead,
departments of the government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power but through numerous amendments, the President became even more powerful, to the point that he was also the de
shall be vested in the Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the facto Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored
President of the Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in the separation of legislative, executive and judicial powers by their actual distribution among three distinct branches
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of of government with provision for checks and balances.
powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and
judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President
a grant of the judicial power means a grant of all the judicial power which may be exercised under the government." is head of state as well as head of government and whatever powers inhere in such positions pertain to the office
[At 631-632.1 If this can be said of the legislative power which is exercised by two chambers with a combined unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is
membership of more than two hundred members and of the judicial power which is vested in a hierarchy of courts, it only one of the powers of the President. It also grants the President other powers that do not involve the execution of
can equally be said of the executive power which is vested in one official the President. any provision of law, e.g., his power over the country's foreign relations.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same of specific powers of the President, it maintains intact what is traditionally considered as within the scope of
article it touches on the exercise of certain powers by the President, i.e., the power of control over all executive "executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers
departments, bureaus and offices, the power to execute the laws, the appointing power, the powers under the enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so
commander-in-chief clause, the power to grant reprieves, commutations and pardons, the power to grant amnesty enumerated,
with the concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into treaties or
international agreements, the power to submit the budget to Congress, and the power to address Congress [Art. VII,
Sec. 14-23]. It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928),
on the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of
The inevitable question then arises: by enumerating certain powers of the President did the framers of the stock held by the Government to elect directors in the National Coal Company and the Philippine National Bank, the
Constitution intend that the President shall exercise those specific powers and no other? Are these se enumerated U.S. Supreme Court, in upholding the power of the Governor-General to do so, said:
powers the breadth and scope of "executive power"? Petitioners advance the view that the President's powers are
limited to those specifically enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for ...Here the members of the legislature who constitute a majority of the "board" and
Petitioners, p. 4- Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is "committee" respectively, are not charged with the performance of any legislative functions
legally patterned.** or with the doing of anything which is in aid of performance of any such functions by the
legislature. Putting aside for the moment the question whether the duties devolved upon
these members are vested by the Organic Act in the Governor-General, it is clear that they
Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said: are not legislative in character, and still more clear that they are not judicial. The fact that
they do not fall within the authority of either of these two constitutes logical ground for
 concluding that they do fall within that of the remaining one among which the powers of attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when
government are divided ....[At 202-203; Emphasis supplied.] no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief
provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces, or
the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and
specifically mentioned in the Constitution: maintain public order and security.

The great ordinances of the Constitution do not establish and divide fields of black and That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by
white. Even the more specific of them are found to terminate in a penumbra shading memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and
gradually from one extreme to the other. .... signed by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine
unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p.
xxx xxx xxx 321.1 The Resolution does not question the President's power to bar the Marcoses from returning to the Philippines,
rather, it appeals to the President's sense of compassion to allow a man to come home to die in his country.
It does not seem to need argument to show that however we may disguise it by veiling
words we do not and cannot carry out the distinction between legislative and executive What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines
action with mathematical precision and divide the branches into watertight compartments, cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to
were it ever so desirable to do so, which I am far from believing that it is, or that the travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar
Constitution requires. [At 210- 211.] to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of
the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and
protect general welfare. In that context, such request or demand should submit to the exercise of a broader discretion
The Power Involved on the part of the President to determine whether it must be granted or denied.

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and The Extent of Review
protect the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy."
[Art. II, Secs. 4 and 5.] Under the Constitution, judicial power includes the duty to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government."
[Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political
Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty question which is beyond the jurisdiction of the Court to decide.
and property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such
does not mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of
government, and in directing implementing action for these plans, or from another point of view, in making any The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into
decision as President of the Republic, the President has to consider these principles, among other things, and adhere areas which the Court, under previous constitutions, would have normally left to the political departments to decide.
to them. But nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the
President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example,
question the President's recognition of a foreign government, no matter how premature or improvident such action
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally
President is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us
that, having sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to because the power is reserved to the people.
protect the people, promote their welfare and advance the national interest. It must be borne in mind that the
Constitution, aside from being an allocation of power is also a social contract whereby the people have surrendered
their sovereign powers to the State for the common good. Hence, lest the officers of the Government exercising the There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The
powers delegated by the people forget and the servants of the people become rulers, the Constitution reminds deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope
everyone that "[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.] of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If
The resolution of the problem is made difficult because the persons who seek to return to the country are the grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a
deposed dictator and his family at whose door the travails of the country are laid and from whom billions of dollars matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second
believed to be ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the
absolute nor inflexible. For the exercise of even the preferred freedoms of speech and ofexpression, although courts to determine whether or not there has been a grave abuse of discretion on the part of any branch or
couched in absolute terms, admits of limits and must be adjusted to the requirements of equally important public instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-
interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.] 33964, December 11, 1971, 42 SCRA 4481 that:]

To the President, the problem is one of balancing the general welfare and the common good against the exercise of Article VII of the [1935] Constitution vests in the Executive the power to suspend the
rights of certain individuals. The power involved is the President's residual power to protect the general welfare of the privilege of the writ of habeas corpus under specified conditions. Pursuant to the principle of
people. It is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is separation of powers underlying our system of government, the Executive is supreme within
not only the power of the President but also his duty to do anything not forbidden by the Constitution or the laws that his own sphere. However, the separation of powers, under the Constitution, is not absolute.
the needs of the nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve What is more, it goes hand in hand with the system of checks and balances, under which the
and defend the Constitution. It also may be viewed as a power implicit in the President's duty to take care that the Executive is supreme, as regards the suspension of the privilege, but only if and when he
laws are faithfully executed [see Hyman, The American President, where the author advances the view that an acts within the sphere alloted to him by the Basic Law, and the authority to determine
allowance of discretionary power is unavoidable in any government and is best lodged in the President]. whether or not he has so acted is vested in the Judicial Department, which, in this respect,
is, in turn, constitutionally supreme. In the exercise of such authority, the function of the
Court is merely to check — not to supplant the Executive, or to ascertain merely whether he
More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The
has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested
American Presidency].The power of the President to keep the peace is not limited merely to exercising the
in him or to determine the wisdom of his act [At 479-480.]
commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do
exist, it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding
to bar their return. Republic of the Philippines
SUPREME COURT

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the
briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, EN BANC
wherein petitioners and respondents were represented, there exist factual bases for the President's decision..
G.R. No. 164978 October 13, 2005
The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-
organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. EJERCITO-ESTRADA,
documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, and SERGIO R.
this ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify OSMEÑA III, Petitioners
the violence directed against the State and instigate more chaos. vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., MICHAEL T.
DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C. VILLA, and
As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given ARTHUR C. YAP, Respondents.
assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her,
the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return DECISION
of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.
CARPIO, J.:
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against
the State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her
by the Constitution to suppress or stamp out such violence. The State, acting through the Government, is not The Case
precluded from taking pre- emptive action against threats to its existence if, though still nascent they are perceived as
apt to become serious and direct. Protection of the people is the essence of the duty of government. The preservation
This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of preliminary injunction to
of the State the fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to
declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo ("President Arroyo") through
preserve and defend the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T.
Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap
We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought ("respondents") as acting secretaries of their respective departments. The petition also seeks to prohibit respondents
about by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of from performing the duties of department secretaries.
whom are still here in the Philippines in a position to destabilize the country, while the Government has barely
scratched the surface, so to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in
Antecedent Facts
foreign jurisdictions. Then, We cannot ignore the continually increasing burden imposed on the economy by the
excessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of the
root causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy is of The Senate and the House of Representatives ("Congress") commenced their regular session on 26 July 2004. The
common knowledge and is easily within the ambit of judicial notice. Commission on Appointments, composed of Senators and Representatives, was constituted on 25 August 2004.

The President has determined that the destabilization caused by the return of the Marcoses would wipe away the Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries of their respective
gains achieved during the past few years and lead to total economic collapse. Given what is within our individual and departments.
common knowledge of the state of the economy, we cannot argue with that determination.

Appointee Department Date of Appointment

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse
of discretion in determining that the return of former President Marcos and his family at the present time and under Arthur C. Yap Agriculture 15 August 2004
present circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Alberto G. Romulo Foreign Affairs 23 August 2004
Philippines, the instant petition is hereby DISMISSED. Raul M. Gonzalez Justice 23 August 2004
Florencio B. Abad Education 23 August 2004
SO ORDERED. Avelino J. Cruz, Jr. National Defense 23 August 2004
Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004

The appointment papers are uniformly worded as follows:

Sir:

Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY, DEPARTMENT OF
(appropriate department) vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing On the Nature of the Power to Appoint
this Office and the Civil Service Commission with copies of your Oath of Office.

The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this
(signed) executive power except in those instances when the Constitution expressly allows it to interfere.6 Limitations on the
executive power to appoint are construed strictly against the legislature.7 The scope of the legislature’s interference in
the executive’s power to appoint is limited to the power to prescribe the qualifications to an appointive office.
Gloria Arroyo Congress cannot appoint a person to an office in the guise of prescribing qualifications to that office. Neither may
Congress impose on the President the duty to appoint any particular person to an office.8

Respondents took their oath of office and assumed duties as acting secretaries.
However, even if the Commission on Appointments is composed of members of Congress, the exercise of its powers
is executive and not legislative. The Commission on Appointments does not legislate when it exercises its power to
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara ("Senator Angara"), Juan give or withhold consent to presidential appointments. Thus:
Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator
Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator
Madrigal"), and Sergio R. Osmeña, III ("Senator Osmeña") ("petitioners") filed the present petition as Senators of the xxx The Commission on Appointments is a creature of the Constitution. Although its membership is confined to
Republic of the Philippines. members of Congress, said Commission is independent of Congress. The powers of the Commission do not come
from Congress, but emanate directly from the Constitution. Hence, it is not an agent of Congress. In fact, the
functions of the Commissioner are purely executive in nature. xxx9
Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad
interim appointments3 to respondents as secretaries of the departments to which they were previously appointed in
an acting capacity. The appointment papers are uniformly worded as follows: On Petitioners’ Standing

Sir: The Solicitor General states that the present petition is a quo warranto proceeding because, with the exception of
Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully exercising the powers of department
secretaries. The Solicitor General further states that petitioners may not claim standing as Senators because no
Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM], DEPARTMENT power of the Commission on Appointments has been "infringed upon or violated by the President. xxx If at all, the
OF (appropriate department). Commission on Appointments as a body (rather than individual members of the Congress) may possess standing in
this case."10
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the office, furnishing
this Office and the Civil Service Commission with copies of your oath of office. Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over unconstitutional acts of
the President.11 Petitioners further contend that they possess standing because President Arroyo’s appointment of
department secretaries in an acting capacity while Congress is in session impairs the powers of Congress. Petitioners
(signed) cite Sanlakas v. Executive Secretary12 as basis, thus:

Gloria Arroyo To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.
Issue
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a
The petition questions the constitutionality of President Arroyo’s appointment of respondents as acting secretaries
resort to the courts.
without the consent of the Commission on Appointments while Congress is in session.

Considering the independence of the Commission on Appointments from Congress, it is error for petitioners to claim
The Court’s Ruling
standing in the present case as members of Congress. President Arroyo’s issuance of acting appointments while
Congress is in session impairs no power of Congress. Among the petitioners, only the following are members of the
The petition has no merit. Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as
Assistant Minority Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmeña as members.

Preliminary Matters
Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only Senators Enrile,
Lacson, Angara, Ejercito-Estrada, and Osmeña have standing in the present petition. This is in contrast to Senators
On the Mootness of the Petition Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in protecting their perceived prerogatives as members of
Congress, possess no standing in the present petition.

The Solicitor General argues that the petition is moot because President Arroyo had extended to respondents ad
interim appointments on 23 September 2004 immediately after the recess of Congress. The Constitutionality of President Arroyo’s Issuance

As a rule, the writ of prohibition will not lie to enjoin acts already done.4 However, as an exception to the rule on of Appointments to Respondents as Acting Secretaries
mootness, courts will decide a question otherwise moot if it is capable of repetition yet evading review.5
Petitioners contend that President Arroyo should not have appointed respondents as acting secretaries because "in
In the present case, the mootness of the petition does not bar its resolution. The question of the constitutionality of case of a vacancy in the Office of a Secretary, it is only an Undersecretary who can be designated as Acting
the President’s appointment of department secretaries in an acting capacity while Congress is in session will arise in Secretary."13 Petitioners base their argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO
every such appointment. 292"),14 which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section 10 reads:

SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
 xxx Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary
as her temporary alter ego. An alter ego, whether temporary or permanent, holds a position of great trust and
confidence. Congress, in the guise of prescribing qualifications to an office, cannot impose on the President who
(5) Temporarily discharge the duties of the Secretary in the latter’s absence or inability to discharge his duties for any her alter ego should be.
cause or in case of vacancy of the said office, unless otherwise provided by law. Where there are more than one
Undersecretary, the Secretary shall allocate the foregoing powers and duties among them. The President shall
likewise make the temporary designation of Acting Secretary from among them; and The office of a department secretary may become vacant while Congress is in session. Since a department secretary
is the alter ego of the President, the acting appointee to the office must necessarily have the President’s confidence.
Thus, by the very nature of the office of a department secretary, the President must appoint in an acting capacity a
xxx person of her choice even while Congress is in session. That person may or may not be the permanent appointee,
but practical reasons may make it expedient that the acting appointee will also be the permanent appointee.

Petitioners further assert that "while Congress is in session, there can be no appointments, whether regular or acting,
to a vacant position of an office needing confirmation by the Commission on Appointments, without first having The law expressly allows the President to make such acting appointment. Section 17, Chapter 5, Title I, Book III of
obtained its consent."15 EO 292 states that "[t]he President may temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive branch." Thus, the President may
even appoint in an acting capacity a person not yet in the government service, as long as the President deems that
In sharp contrast, respondents maintain that the President can issue appointments in an acting capacity to person competent.
department secretaries without the consent of the Commission on Appointments even while Congress is in session.
Respondents point to Section 16, Article VII of the 1987 Constitution. Section 16 reads:
Petitioners assert that Section 17 does not apply to appointments vested in the President by the Constitution,
because it only applies to appointments vested in the President by law. Petitioners forget that Congress is not the
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads only source of law. "Law" refers to the Constitution, statutes or acts of Congress, municipal ordinances, implementing
of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from rules issued pursuant to law, and judicial decisions.17
the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to abuse. Petitioners
officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or fail to consider that acting appointments cannot exceed one year as expressly provided in Section 17(3), Chapter 5,
boards. Title I, Book III of EO 292. The law has incorporated this safeguard to prevent abuses, like the use of acting
appointments as a way to circumvent confirmation by the Commission on Appointments.

The President shall have the power to make appointments during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only until disapproval by the Commission on Appointments or In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook writer on
until the next adjournment of the Congress. constitutional law has observed:

Respondents also rely on EO 292, which devotes a chapter to the President’s power of appointment. Sections 16 and Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective
17, Chapter 5, Title I, Book III of EO 292 read: upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting
appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the
Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission
SEC. 16. Power of Appointment. — The President shall exercise the power to appoint such officials as on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also
provided for in the Constitution and laws. be a way of circumventing the need for confirmation by the Commission on Appointments.18

SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily designate an officer However, we find no abuse in the present case. The absence of abuse is readily apparent from President Arroyo’s
already in the government service or any other competent person to perform the functions of an office in the issuance of ad interim appointments to respondents immediately upon the recess of Congress, way before the lapse
executive branch, appointment to which is vested in him by law, when: (a) the officer regularly appointed to of one year.
the office is unable to perform his duties by reason of illness, absence or any other cause; or (b) there exists
a vacancy[.]
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.

(2) The person designated shall receive the compensation attached to the position, unless he is already in the
government service in which case he shall receive only such additional compensation as, with his existing salary, SO ORDERED.
shall not exceed the salary authorized by law for the position filled. The compensation hereby authorized shall be paid
out of the funds appropriated for the office or agency concerned.

(3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)

Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert that the President
cannot issue appointments in an acting capacity to department secretaries while Congress is in session because the
law does not give the President such power. In contrast, respondents insist that the President can issue such
appointments because no law prohibits such appointments.

The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap measure intended to fill
an office for a limited time until the appointment of a permanent occupant to the office.16 In case of vacancy in an
office occupied by an alter ego of the President, such as the office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting secretary before the permanent appointee of her choice could
assume office.
 NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will reduce the incidence of crimes
specially those perpetrated by active or former police/military personnel.

4. MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM visibility patrols to keep Metro
EN BANC Manila streets crime-free, through a sustained street patrolling to minimize or eradicate all forms of high-profile crimes
especially those perpetrated by organized crime syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.
G.R. No. 141284 August 15, 2000

5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN. ANGELO a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital Regional Police Office]
REYES, respondents. and the Philippine Marines to curb criminality in Metro Manila and to preserve the internal security of the
state against insurgents and other serious threat to national security, although the primary responsibility
over Internal Security Operations still rests upon the AFP.
DECISION

b. The principle of integration of efforts shall be applied to eradicate all forms of high-profile crimes
KAPUNAN, J.: perpetrated by organized crime syndicates operating in Metro Manila. This concept requires the military
and police to work cohesively and unify efforts to ensure a focused, effective and holistic approach in
addressing crime prevention. Along this line, the role of the military and police aside from neutralizing
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a temporary restraining order crime syndicates is to bring a wholesome atmosphere wherein delivery of basic services to the people
seeking to nullify on constitutional grounds the order of President Joseph Ejercito Estrada commanding the and development is achieved. Hand-in-hand with this joint NCRPO-Philippine Marines visibility patrols,
deployment of the Philippine Marines (the "Marines") to join the Philippine National Police (the "PNP") in visibility local Police Units are responsible for the maintenance of peace and order in their locality.
patrols around the metropolis.

c. To ensure the effective implementation of this project, a provisional Task Force "TULUNGAN" shall be
In view of the alarming increase in violent crimes in Metro Manila, like robberies, kidnappings and carnappings, the organized to provide the mechanism, structure, and procedures for the integrated planning, coordinating,
President, in a verbal directive, ordered the PNP and the Marines to conduct joint visibility patrols for the purpose of monitoring and assessing the security situation.
crime prevention and suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces of the
Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential mandate, the PNP Chief, through Police xxx.8
Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction 02/2000 1 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task Force Tulungan, would be conducted.2 Task
Force Tulungan was placed under the leadership of the Police Chief of Metro Manila. The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM City), Araneta Shopping
Center, Greenhills, SM Megamall, Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.9
Subsequently, the President confirmed his previous directive on the deployment of the Marines in a Memorandum,
dated 24 January 2000, addressed to the Chief of Staff of the AFP and the PNP Chief.3 In the Memorandum, the
President expressed his desire to improve the peace and order situation in Metro Manila through a more effective On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant petition to annul LOI 02/2000
crime prevention program including increased police patrols.4 The President further stated that to heighten police and to declare the deployment of the Philippine Marines, null and void and unconstitutional, arguing that:
visibility in the metropolis, augmentation from the AFP is necessary.5 Invoking his powers as Commander-in-Chief
under Section 18, Article VII of the Constitution, the President directed the AFP Chief of Staff and PNP Chief to
coordinate with each other for the proper deployment and utilization of the Marines to assist the PNP in preventing or I
suppressing criminal or lawless violence.6 Finally, the President declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until such time when the situation
shall have improved.7 THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS VIOLATIVE OF THE CONSTITUTION,
IN THAT:

The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as follows:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD JUSTIFY, EVEN ONLY
REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
xxx DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION;

2. PURPOSE: B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE MILITARY IN A CIVILIAN

FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI,
SECTION 5 (4), OF THE CONSTITUTION;
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the Philippine Marines partnership in
the conduct of visibility patrols in Metro Manila for the suppression of crime prevention and other serious threats to
national security. C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE MILITARY TO
PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.

3. SITUATION:
II

Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals but also by organized
syndicates whose members include active and former police/military personnel whose training, skill, discipline and IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE ADMINISTRATION IS UNWITTINGLY MAKING
firepower prove well-above the present capability of the local police alone to handle. The deployment of a joint PNP THE MILITARY MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden duty to uphold the rule of law by the deployment of the Marines. What the IBP projects as injurious is the supposed "militarization" of law
and the Constitution, the IBP questions the validity of the deployment and utilization of the Marines to assist the PNP enforcement which might threaten Philippine democratic institutions and may cause more harm than good in the long
in law enforcement. run. Not only is the presumed "injury" not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not successfully established a direct and
personal injury as a consequence of the questioned act, it does not possess the personality to assail the validity of
Without granting due course to the petition, the Court in a Resolution, 11 dated 25 January 2000, required the Solicitor the deployment of the Marines. This Court, however, does not categorically rule that the IBP has absolutely no
General to file his Comment on the petition. On 8 February 2000, the Solicitor General submitted his Comment. standing to raise constitutional issues now or in the future. The IBP must, by way of allegations and proof, satisfy this
Court that it has sufficient stake to obtain judicial resolution of the controversy.

The Solicitor General vigorously defends the constitutionality of the act of the President in deploying the Marines,
contending, among others, that petitioner has no legal standing; that the question of deployment of the Marines is not Having stated the foregoing, it must be emphasized that this Court has the discretion to take cognizance of a suit
proper for judicial scrutiny since the same involves a political question; that the organization and conduct of police which does not satisfy the requirement of legal standing when paramount interest is involved.16 In not a few cases, the
visibility patrols, which feature the team-up of one police officer and one Philippine Marine soldier, does not violate Court has adopted a liberal attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
the civilian supremacy clause in the Constitution. transcendental significance to the people.17 Thus, when the issues raised are of paramount importance to the public,
the Court may brush aside technicalities of procedure.18 In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their seriousness, novelty and
The issues raised in the present petition are: (1) Whether or not petitioner has legal standing; (2) Whether or not the weight as precedents. Moreover, because peace and order are under constant threat and lawless violence occurs in
President’s factual determination of the necessity of calling the armed forces is subject to judicial review; and, (3) increasing tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal controversy raised in the
Whether or not the calling of the armed forces to assist the PNP in joint visibility patrols violates the constitutional petition almost certainly will not go away. It will stare us in the face again. It, therefore, behooves the Court to relax
provisions on civilian supremacy over the military and the civilian character of the PNP. the rules on standing and to resolve the issue now, rather than later.

The petition has no merit. The President did not commit grave abuse of discretion in calling out the Marines.

First, petitioner failed to sufficiently show that it is in possession of the requisites of standing to raise the issues in the In the case at bar, the bone of contention concerns the factual determination of the President of the necessity of
petition. Second, the President did not commit grave abuse of discretion amounting to lack or excess of jurisdiction calling the armed forces, particularly the Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
nor did he commit a violation of the civilian supremacy clause of the Constitution. the deployment of the military personnel falls under the Commander-in-Chief powers of the President as stated in
Section 18, Article VII of the Constitution, specifically, the power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP questions, however, is the basis for the calling of the Marines
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to wit: under the aforestated provision. According to the IBP, no emergency exists that would justify the need for the calling
of the military to assist the police force. It contends that no lawless violence, invasion or rebellion exist to warrant the
calling of the Marines. Thus, the IBP prays that this Court "review the sufficiency of the factual basis for said troop
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established
[Marine] deployment."19
by law.

The Solicitor General, on the other hand, contends that the issue pertaining to the necessity of calling the armed
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally
forces is not proper for judicial scrutiny since it involves a political question and the resolution of factual issues which
demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting
are beyond the review powers of this Court.
to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

As framed by the parties, the underlying issues are the scope of presidential powers and limits, and the extent of
When questions of constitutional significance are raised, the Court can exercise its power of judicial review only if the
judicial review. But, while this Court gives considerable weight to the parties’ formulation of the issues, the resolution
following requisites are complied with, namely: (1) the existence of an actual and appropriate case; (2) a personal and
of the controversy may warrant a creative approach that goes beyond the narrow confines of the issues raised. Thus,
substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the
while the parties are in agreement that the power exercised by the President is the power to call out the armed forces,
earliest opportunity; and (4) the constitutional question is the lis mota of the case.12
the Court is of the view that the power involved may be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the ground do not show that there exist a state of warfare,
The IBP has not sufficiently complied with the requisites of standing in this case. widespread civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the citizenry, a point
discussed in the latter part of this decision. In the words of the late Justice Irene Cortes in Marcos v. Manglapus:

"Legal standing" or locus standi has been defined as a personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. 13 The term More particularly, this case calls for the exercise of the President’s powers as protector of the peace. [Rossiter, The
"interest" means a material interest, an interest in issue affected by the decree, as distinguished from mere interest in American Presidency]. The power of the President to keep the peace is not limited merely to exercising the
the question involved, or a mere incidental interest.14 The gist of the question of standing is whether a party alleges commander-in-chief powers in times of emergency or to leading the State against external and internal threats to its
"such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the existence. The President is not only clothed with extraordinary powers in times of emergency, but is also tasked with
presentation of issues upon which the court depends for illumination of difficult constitutional questions."15 attending to the day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when
no foreign foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in
times of peace is not in any way diminished by the relative want of an emergency specified in the commander-in-chief
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law and the provision. For in making the President commander-in-chief the enumeration of powers that follow cannot be said to
Constitution. Apart from this declaration, however, the IBP asserts no other basis in support of its locus standi. The exclude the President’s exercising as Commander-in-Chief powers short of the calling of the armed forces, or
mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and
sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the maintain public order and security.
whole citizenry. Based on the standards above-stated, the IBP has failed to present a specific and substantial interest
in the resolution of the case. Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice is alien to, and cannot be xxx21
affected by the deployment of the Marines. It should also be noted that the interest of the National President of the
IBP who signed the petition, is his alone, absent a formal board resolution authorizing him to file the present action.
Nonetheless, even if it is conceded that the power involved is the President’s power to call out the armed forces to
To be sure, members of the BAR, those in the judiciary included, have varying opinions on the issue. Moreover, the
prevent or suppress lawless violence, invasion or rebellion, the resolution of the controversy will reach a similar result.
IBP, assuming that it has duly authorized the National President to file the petition, has not shown any specific injury
which it has suffered or may suffer by virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of the operation of the joint visibility We now address the Solicitor General’s argument that the issue involved is not susceptible to review by the judiciary
patrols. Neither is it alleged that any of its members has been arrested or that their civil liberties have been violated because it involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is appropriate for court review.22 It xxx
pertains to issues which are inherently susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases brought before it even in instances
that are ripe for resolution. One class of cases wherein the Court hesitates to rule on are "political questions." The The full discretionary power of the President to determine the factual basis for the exercise of the calling out power is
reason is that political questions are concerned with issues dependent upon the wisdom, not the legality, of a also implied and further reinforced in the rest of Section 18, Article VII which reads, thus:
particular act or measure being assailed. Moreover, the political question being a function of the separation of
powers, the courts will not normally interfere with the workings of another co-equal branch unless the case shows a
clear need for the courts to step in to uphold the law and the Constitution. xxx

As Tañada v. Cuenco23 puts it, political questions refer "to those questions which, under the Constitution, are to be Within forty-eight hours from the proclamation of martial law or the suspension of the privilege of the writ of habeas
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated corpus, the President shall submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
to the legislative or executive branch of government." Thus, if an issue is clearly identified by the text of the vote of at least a majority of all its Members in regular or special session, may revoke such proclamation or
Constitution as matters for discretionary action by a particular branch of government or to the people themselves then suspension, which revocation shall not be set aside by the President. Upon the initiative of the President, the
it is held to be a political question. In the classic formulation of Justice Brennan in Baker v. Carr,24 "[p]rominent on the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the
surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of Congress, if the invasion or rebellion shall persist and public safety requires it.
the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension, convene in
due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision accordance with its rules without need of a call.
already made; or the potentiality of embarassment from multifarious pronouncements by various departments on the
one question."
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis
of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must
The 1987 Constitution expands the concept of judicial review by providing that "(T)he Judicial power shall be vested promulgate its decision thereon within thirty days from its filing.
in one Supreme Court and in such lower courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to
A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
the part of any branch or instrumentality of the Government."25 Under this definition, the Court cannot agree with the
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.
Solicitor General that the issue involved is a political question beyond the jurisdiction of this Court to review. When
the grant of power is qualified, conditional or subject to limitations, the issue of whether the prescribed qualifications
or conditions have been met or the limitations respected, is justiciable - the problem being one of legality or validity, The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
not its wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has been given to this Court. 27 When inherent in or directly connected with invasion.
political questions are involved, the Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being
questioned.28 During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.
By grave abuse of discretion is meant simply capricious or whimsical exercise of judgment that is patent and gross as
to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in Under the foregoing provisions, Congress may revoke such proclamation or suspension and the Court may review
contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or the sufficiency of the factual basis thereof. However, there is no such equivalent provision dealing with the revocation
hostility.29 Under this definition, a court is without power to directly decide matters over which full discretionary or review of the President’s action to call out the armed forces. The distinction places the calling out power in a
authority has been delegated. But while this Court has no power to substitute its judgment for that of Congress or of different category from the power to declare martial law and the power to suspend the privilege of the writ of habeas
the President, it may look into the question of whether such exercise has been made in grave abuse of discretion. 30 A corpus, otherwise, the framers of the Constitution would have simply lumped together the three powers and provided
showing that plenary power is granted either department of government, may not be an obstacle to judicial inquiry, for for their revocation and review without any qualification. Expressio unius est exclusio alterius. Where the terms are
the improvident exercise or abuse thereof may give rise to justiciable controversy.31 expressly limited to certain matters, it may not, by interpretation or construction, be extended to other matters. 33 That
the intent of the Constitution is exactly what its letter says, i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the Constitutional Commission, to wit:
When the President calls the armed forces to prevent or suppress lawless violence, invasion or rebellion, he
necessarily exercises a discretionary power solely vested in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the President’s wisdom FR. BERNAS. It will not make any difference. I may add that there is a graduated power of the President as
or substitute its own. However, this does not prevent an examination of whether such power was exercised within Commander-in-Chief. First, he can call out such Armed Forces as may be necessary to suppress lawless violence;
permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of discretion. In then he can suspend the privilege of the writ of habeas corpus, then he can impose martial law. This is a graduated
view of the constitutional intent to give the President full discretionary power to determine the necessity of calling out sequence.
the armed forces, it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual
basis. The present petition fails to discharge such heavy burden as there is no evidence to support the assertion that
there exist no justification for calling out the armed forces. There is, likewise, no evidence to support the proposition When he judges that it is necessary to impose martial law or suspend the privilege of the writ of habeas corpus, his
that grave abuse was committed because the power to call was exercised in such a manner as to violate the judgment is subject to review. We are making it subject to review by the Supreme Court and subject to concurrence
constitutional provision on civilian supremacy over the military. In the performance of this Court’s duty of "purposeful by the National Assembly. But when he exercises this lesser power of calling on the Armed Forces, when he says it is
hesitation"32 before declaring an act of another branch as unconstitutional, only where such grave abuse of discretion necessary, it is my opinion that his judgment cannot be reviewed by anybody.
is clearly shown shall the Court interfere with the President’s judgment. To doubt is to sustain.

xxx
There is a clear textual commitment under the Constitution to bestow on the President full discretionary power to call
out the armed forces and to determine the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-Chief, provides in part: FR. BERNAS. Let me just add that when we only have imminent danger, the matter can be handled by the first
sentence: "The President may call out such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger.
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. In case
of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the matter can be handled by
privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law. the First Sentence: "The President....may call out such Armed Forces to prevent or suppress lawless violence,
invasion or rebellion." So we feel that that is sufficient for handling imminent danger, of invasion or rebellion, instead
of imposing martial law or suspending the writ of habeas corpus, he must necessarily have to call the Armed Forces of the PNP-Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are tasked to brief or orient the
of the Philippines as their Commander-in-Chief. Is that the idea? soldiers on police patrol procedures.38 It is their responsibility to direct and manage the deployment of the Marines.39 It
is, likewise, their duty to provide the necessary equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued that military authority is supreme over civilian
MR. REGALADO. That does not require any concurrence by the legislature nor is it subject to judicial review.34 authority. Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian character of the
police force. Neither does it amount to an "insidious incursion" of the military in the task of law enforcement in
violation of Section 5(4), Article XVI of the Constitution.41
The reason for the difference in the treatment of the aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using the power to call out because it is considered as the
lesser and more benign power compared to the power to suspend the privilege of the writ of habeas corpus and the In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged involvement
power to impose martial law, both of which involve the curtailment and suppression of certain basic civil rights and in civilian law enforcement, has been virtually appointed to a civilian post in derogation of the aforecited provision.
individual freedoms, and thus necessitating safeguards by Congress and review by this Court. The real authority in these operations, as stated in the LOI, is lodged with the head of a civilian institution, the PNP,
and not with the military. Such being the case, it does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or control over the same. Since none of the Marines
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power to suspend the privilege of the was incorporated or enlisted as members of the PNP, there can be no appointment to civilian position to speak of.
writ of habeas corpus or to impose martial law, two conditions must concur: (1) there must be an actual invasion or Hence, the deployment of the Marines in the joint visibility patrols does not destroy the civilian character of the PNP.
rebellion and, (2) public safety must require it. These conditions are not required in the case of the power to call out
the armed forces. The only criterion is that "whenever it becomes necessary," the President may call the armed
forces "to prevent or suppress lawless violence, invasion or rebellion." The implication is that the President is given Considering the above circumstances, the Marines render nothing more than assistance required in conducting the
full discretion and wide latitude in the exercise of the power to call as compared to the two other powers. patrols. As such, there can be no "insidious incursion" of the military in civilian affairs nor can there be a violation of
the civilian supremacy clause in the Constitution.

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 It is worth mentioning that military assistance to civilian authorities in various forms persists in Philippine jurisdiction.
armed forces is not easily quantifiable and cannot be objectively established since matters considered for satisfying The Philippine experience reveals that it is not averse to requesting the assistance of the military in the
the same is a combination of several factors which are not always accessible to the courts. Besides the absence of implementation and execution of certain traditionally "civil" functions. As correctly pointed out by the Solicitor General,
textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might some of the multifarious activities wherein military aid has been rendered, exemplifying the activities that bring both
also prove unmanageable for the courts. Certain pertinent information might be difficult to verify, or wholly unavailable the civilian and the military together in a relationship of cooperation, are:
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.
1. Elections;42

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 2. Administration of the Philippine National Red Cross; 43
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. Such a scenario is not farfetched when we 3. Relief and rescue operations during calamities and disasters;44
consider the present situation in Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected to unfettered judicial scrutiny could
be a veritable prescription for disaster, as such power may be unduly straitjacketed by an injunction or a temporary 4. Amateur sports promotion and development;45
restraining order every time it is exercised.
5. Development of the culture and the arts;46
Thus, it is the unclouded intent of the Constitution to vest upon the President, as Commander-in-Chief of the Armed
Forces, full discretion to call forth the military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show that the exercise of such discretion 6. Conservation of natural resources;47
was gravely abused, the President’s exercise of judgment deserves to be accorded respect from this Court.
7. Implementation of the agrarian reform program;48
The President has already determined the necessity and factual basis for calling the armed forces. In his
Memorandum, he categorically asserted that, "[V]iolent crimes like bank/store robberies, holdups, kidnappings and
8. Enforcement of customs laws;49
carnappings continue to occur in Metro Manila..."35 We do not doubt the veracity of the President’s assessment of the
situation, especially in the light of present developments. The Court takes judicial notice of the recent bombings
perpetrated by lawless elements in the shopping malls, public utilities, and other public places. These are among the 9. Composite civilian-military law enforcement activities;50
areas of deployment described in the LOI 2000. Considering all these facts, we hold that the President has sufficient
factual basis to call for military aid in law enforcement and in the exercise of this constitutional power.
10. Conduct of licensure examinations;51
The deployment of the Marines does not violate the civilian supremacy clause nor does it infringe the civilian
character of the police force. 11. Conduct of nationwide tests for elementary and high school students;52

Prescinding from its argument that no emergency situation exists to justify the calling of the Marines, the IBP asserts 12. Anti-drug enforcement activities;53
that by the deployment of the Marines, the civilian task of law enforcement is "militarized" in violation of Section 3,
Article II36 of the Constitution.
13. Sanitary inspections;54

We disagree. The deployment of the Marines does not constitute a breach of the civilian supremacy clause. The
calling of the Marines in this case constitutes permissible use of military assets for civilian law enforcement. The 14. Conduct of census work;55
participation of the Marines in the conduct of joint visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI itself, which sufficiently provides the metes and
bounds of the Marines’ authority. It is noteworthy that the local police forces are the ones in charge of the visibility 15. Administration of the Civil Aeronautics Board;56
patrols at all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader
 16. Assistance in installation of weather forecasting devices;57 One last point. Since the institution of the joint visibility patrol in January, 2000, not a single citizen has complained
that his political or civil rights have been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
17. Peace and order policy formulation in local government units.58 and democracy will be in full bloom only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

This unquestionably constitutes a gloss on executive power resulting from a systematic, unbroken, executive practice,
long pursued to the knowledge of Congress and, yet, never before questioned. 59 What we have here is mutual WHEREFORE, premises considered, the petition is hereby DISMISSED.
support and cooperation between the military and civilian authorities, not derogation of civilian supremacy.

SO ORDERED.
In the United States, where a long tradition of suspicion and hostility towards the use of military force for domestic
purposes has persisted,60 and whose Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of
the military in civilian law enforcement is generally prohibited, except in certain allowable circumstances. A provision
of the Act states:

§ 1385. Use of Army and Air Force as posse comitatus

SECOND DIVISION

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress,
willfully uses any part of the Army or the Air Force as posse comitatus or otherwise to execute the laws shall be fined G.R. No. 135457 September 29, 2000
not more than $10,000 or imprisoned not more than two years, or both.62

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

To determine whether there is a violation of the Posse Comitatus Act in the use of military personnel, the US vs.
courts63 apply the following standards, to wit: JOSE PATRIARCA, JR., alias "KA DJANGO," CARLOS NARRA, alias "KA JESSIE" and TEN (10) JOHN
DOES, accused-appellant.

Were Army or Air Force personnel used by the civilian law enforcement officers at Wounded Knee in such a manner
that the military personnel subjected the citizens to the exercise of military power which was regulatory, proscriptive, DECISION
or compulsory64 George Washington Law Review, pp. 404-433 (1986), which discusses the four divergent standards
for assessing acceptable involvement of military personnel in civil law enforcement. See likewise HONORED IN THE
BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, BUENA, J.:
pp. 130-152, 1973. 64 in nature, either presently or prospectively?

Accused-appellant Jose Patriarca, Jr., with the aliases of "Ka Django," "Carlos Narra" and "Ka Jessie," appeals the
xxx decision of the Regional Trial Court at Sorsogon, Sorsogon, Branch 52, in Criminal Case No. 2773 entitled "People of
the Philippines versus Jose Patriarca, Jr. alias 'Ka Django,' 'Carlos Narra,' 'Ka Jessie,' and 21 John Does" convicting
him of murder and sentencing him to reclusion perpetua.
When this concept is transplanted into the present legal context, we take it to mean that military involvement, even
when not expressly authorized by the Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming relief.1âwphi1 A mere threat of On August 16, 1990, an information for murder was filed against Jose Patriarca, Jr., alias "Ka Django," "Carlos
some future injury would be insufficient. (emphasis supplied) Narra", "Ka Jessie," et al., charging them of murder committed as follows:

Even if the Court were to apply the above rigid standards to the present case to determine whether there is "That on or about the 30th day of June, 1987 at about 10:00 o'clock in the evening in the Municipality of Donsol,
permissible use of the military in civilian law enforcement, the conclusion is inevitable that no violation of the civilian Province of Sorsogon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused
supremacy clause in the Constitution is committed. On this point, the Court agrees with the observation of the conspiring, confederating and mutually helping one another, armed with guns, forcibly took away ALFREDO
Solicitor General: AREVALO from his residence and brought him to Sitio Abre, Mabini, Donsol, Sorsogon, and did then and there
willfully, unlawfully and feloniously with intent to kill, with treachery and evident premeditation, attack, assault and
shoot ALFREDO AREVALO thereby inflicting upon him mortal wounds, which directly caused his death to the
3. The designation of tasks in Annex A65 does not constitute the exercise of regulatory, proscriptive, or compulsory damage and prejudice of his legal heirs.
military power. First, the soldiers do not control or direct the operation. This is evident from Nos. 6, 66 8(k)67 and
9(a)68 of Annex A. These soldiers, second, also have no power to prohibit or condemn. In No. 9(d) 69 of Annex A, all
arrested persons are brought to the nearest police stations for proper disposition. And last, these soldiers apply no "CONTRARY TO LAW."
coercive force. The materials or equipment issued to them, as shown in No. 8(c) 70 of Annex A, are all low impact and
defensive in character. The conclusion is that there being no exercise of regulatory, proscriptive or compulsory
military power, the deployment of a handful of Philippine Marines constitutes no impermissible use of military power Accused-appellant Jose Patriarca, Jr. was also charged with Murder for the killing of one Rudy de Borja and a certain
for civilian law enforcement.71 Elmer Cadag under Informations docketed as Criminal Cases Nos. 2665 and 2672, respectively.

It appears that the present petition is anchored on fear that once the armed forces are deployed, the military will gain Upon arraignment on November 25, 1993, accused-appellant, assisted by his counsel de parte, pleaded not guilty to
ascendancy, and thus place in peril our cherished liberties. Such apprehensions, however, are unfounded. The power the crimes charged. Joint trial of the three cases was conducted considering the substantial identity of the facts and
to call the armed forces is just that - calling out the armed forces. Unless, petitioner IBP can show, which it has not, circumstances of the case.
that in the deployment of the Marines, the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule the President’s determination of the
factual basis for the calling of the Marines to prevent or suppress lawless violence. Prosecution witness Nonito Malto testified that on June 30, 1987, the accused, with ten (10) armed companions,
requested permission to rest in his house, which was granted. They had with them a person who was hogtied.
Accused Patriarca asked that the lights in Malto's house be extinguished and Malto complied.
Around 2:00 o'clock in the early morning of July 1, 1987, Malto was awakened by a gunshot. When he looked out, he "Quoted below is a resolution of the National Amnesty Commission dated 22 October 1998.2
saw Patriarca holding a gun and ordering the person who was hogtied to lie down. After several minutes, Malto heard
two gunshots. He then heard the accused direct his companions to carry away the dead man.
'RESOLUTION NO. D-99-8683 refers to Application No. 02125 of MR. JOSE NARRA PATRIARCA filed with the
Local Amnesty Board of Legazpi City on 18 February 1997.
Nonito Malto, later on, learned that the dead man was Alfredo Arevalo when Patriarca went back to his place,
together with the military, on March 29, 1990.
'Applicant admitted joining the NPA in 1977. He served under the Sandatahang Yunit Pampropaganda and
participated in the following armed activities:
The skeletal remains of Alfredo Arevalo were recovered in the property of a Rubuang Tolosa and were identified by
Elisa Arevalo, the mother of the victim.
'a) Encounter with the Philippine Army forces at Barangay Hirawon, Donsol, Sorsogon on 14 February
1986;
The second witness for the prosecution was Elisa Arevalo. She knew Patriarca, alias "Ka Django", as he told her on
March 10, 1987 not to let her son join the military. She, however, replied that they were only seeking employment.
Her son Alfredo was her companion in attending to their farm and he was a member of the Civilian Home Defense 'b) Encounter with elements of the Philippine Constabulary at Barangay Godon, Donsol, Sorsogon on 15
Force (CHDF) in their locality. February 1986;

After she was informed by her tenant Alegria Moratelio Alcantara that her son was abducted by the New People's 'c) Encounter with the Philippine Army forces at Barangay Banwang, Gurang, Donsol, Sorsogon in 1987;
Army (NPA) led by Patriarca, she reported the matter to the military and looked for him. She was informed by the
residents of the place where the NPA passed, that they saw her son hogtied, that her son even asked for drinking
water, and complained that he was being maltreated by the NPA. After three days of searching, a certain Walter 'd) Liquidation of ELMER CADAG an alleged military informer at Barangay Boroan, Donsol, Sorsogon, on
Ricafort, an NPA member and a relative of hers, notified her that her son Alfredo was killed by Jose Patriarca, Jr. 21 March 1987, in which a case of Murder in Criminal Case No. 2672 was filed against him before the
Regional Trial Court, Branch 52, Sorsogon, Sorsogon;

In the municipal building, Nonito Malto likewise informed her of her son's death in the hands of Ka Django.
Consequently, a Death Certificate was issued by the Local Civil Registrar. 'e) Liquidation of a certain RUDY DEBORJA, a thief and nuisance of the community, at Donsol,
Sorsogon, on 09 March 1984, in which a case of Murder in Criminal Case No. 2665 was filed against him
before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;
When the skeletal remains of a man were recovered, she was able to identify them as belonging to her son by reason
of the briefs found in the burial site. Her son, Alfredo Arevalo, used to print his name on the waistband of his briefs so
that it would not get lost. 'f) Liquidation of a certain ALEJANDRINO MILITANTE for his misconducts at San Antonio, Donsol,
Sorsogon, on 12 February 1986, in which a case of Murder in Criminal Case No. 2664 was filed against
him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;
The defense presented accused Jose Patriarca, Jr. and Francisco Derla who admitted that accused is a member of
the NPA operating in Donsol, Sorsogon, but denied ever abducting the victims in the three criminal cases filed against
him. 'g) Liquidation of a certain ALFREDO AREVALO, a former member of the CHDF at Sitio Abe (sic),
Mabini, Donsol, Sorsogon, on 30 June 1987, in which a case of Murder in Criminal Case No. 2773 was
filed against him before the Regional Trial Court, Branch 52, Sorsogon, Sorsogon;
On January 20, 1998, a decision was rendered convicting the accused and imposing the following penalty:

'h) Liquidation of one DOMINGO DONQUILLO, a barangay captain, at Barangay Tinanogan, Donsol,
"WHEREFORE, premises considered, the Court finds accused Jose Patriarca, Jr. alias Ka Django, alias Carlos Narra Sorsogon, on 20 September 1986 in which a (sic) Criminal Case No. 2663 was filed against him.
guilty beyond reasonable doubt of the crime of Murder for the death of Alfredo Arevalo and hereby sentences him to
suffer an imprisonment of reclusion perpetua with all the accessory provided by law and to pay the amount of
P50,000.00 as civil indemnity to the heirs of the victim Alfredo Arevalo, without subsidiary imprisonment in case of 'After a careful verification and evaluation on (sic) the claims of the applicant, the Local Amnesty Board concluded
insolvency and as regards Crim. Case No. 2665 and Crim. Case No. 2672, for failure of the prosecution to prove the that his activities were done in the pursuit of his political beliefs. It thus recommended on 20 May 1998 the grant of his
guilt of the accused beyond reasonable doubt, said Jose Patriarca alias Carlos Narra, Ka Django, is hereby acquitted. application for amnesty.

"In the service of his sentence, the accused shall be given full credit of his period of detention. 'The Commission, in its deliberation on the application on 22 October 1999, resolved to approve the recommendation
of the Local Amnesty Board.

"With cost de-oficio.

'WHEREFORE, the application for amnesty of MR. JOSE NARRA PATRIARCA under Proclamation No. 724 is
hereby GRANTED for rebellion constituted by the acts detailed above, provided they were committed on or before the
1 date he was captured on 22 June 1988. Let a Certificate of Amnesty be issued in his favor as soon as this Resolution
"SO ORDERED."
becomes final. It shall become final after the lapse of fifteen (15) calendar days from receipt of this Notice, unless a
Motion for Reconsideration is filed with the Commission by any party within said period.'"3
Hence, this appeal where accused-appellant assigns the following lone error allegedly committed by the trial court:

On March 9, 2000, Hon. Alfredo F. Tadiar, Chairman of the National Amnesty Commission, wrote the following letter
THE TRIAL COURT ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF THE CRIME OF MURDER, AN to the Provincial Prosecutor of Sorsogon, Sorsogon:
OFFENSE COMMITTED IN PURSUANCE OR IN FURTHERANCE OF REBELLION.

"Notice of Amnesty Grant to Jose N. Patriarca"

Accused-appellant applied for amnesty under Proclamation No. 724 amending Proclamation No. 347, dated March
25, 1994, entitled "Granting Amnesty to Rebels, Insurgents, and All Other Persons Who Have or May Have
Committed Crimes Against Public Order, Other Crimes Committed in Furtherance of Political Ends, and Violations of "Pursuant to NAC Action No. 95-358-C, we are transmitting herewith the attached copy of RESOLUTION NO. D-99-
the Article of War, and Creating a National Amnesty Commission." His application was favorably granted by the 8683 granting amnesty to JOSE N. PATRIARCA. The grantee was accused of the following cases:
National Amnesty Board. Attached to appellant's brief is the Notice of Resolution of the National Amnesty
Commission (NAC) dated November 17, 1999 which states:
 "1. Murder in Criminal Case No. 2672 filed before the Regional Trial Court, Branch 52, Sorsogon, "Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the
Sorsogon. person pardoned, because the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive
with the concurrence of Congress, is a public act of which the courts should take judicial notice. Pardon is granted to
one after conviction; while amnesty is granted to classes of persons or communities who may be guilty of political
"2. Murder in Criminal Case No. 2665 filed before the Regional Trial Court, Branch 52, Sorsogon, offenses, generally before or after the institution of the criminal prosecution and sometimes after conviction. Pardon
Sorsogon. looks forward and relieves the offender from the consequences of an offense of which he has been convicted, that is,
it abolishes or forgives the punishment, and for that reason it does 'not work the restoration of the rights to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon,' and it 'in no case
"3. Murder in Criminal Case No. 2664 filed before the Regional Trial Court, Branch 52, Sorsogon, exempts the culprit from the payment of the civil indemnity imposed upon him by the sentence' (Article 36, Revised
Sorsogon. Penal Code). While amnesty looks backward and abolishes and puts into oblivion the offense itself, it so overlooks
and obliterates the offense with which he is charged that the person released by amnesty stands before the law
precisely as though he had committed no offense."
"4. Murder in Criminal Case No. 2773 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
This Court takes judicial notice of the grant of amnesty upon accused-appellant Jose N. Patriarca, Jr. Once granted, it
is binding and effective. It serves to put an end to the appeal.10
"5. Murder in Criminal Case No. 2663 filed before the Regional Trial Court, Branch 52, Sorsogon,
Sorsogon.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the Regional Trial Court at Sorsogon, Sorsogon,
Branch 52 in Criminal Case No. 2773 is REVERSED and SET ASIDE. Accused-appellant Jose N. Patriarca, Jr. is
"He is currently detained at the Provincial Jail, Sorsogon, Sorsogon. hereby ACQUITTED of the crime of murder.

"The purpose of this transmittal is to provide you, as the chief prosecutor of the province, the opportunity to take Pursuant to Resolution No. D-99-8683,11 Criminal Case Nos. 2663 and 2664, which are both filed in the Regional Trial
whatever action you may deem appropriate from receipt of this note. This grant of amnesty shall become final after Court, Branch 53, Sorsogon, Sorsogon,12 are ordered DISMISSED. The release of Jose N. Patriarca who is presently
the lapse of fifteen (15) calendar days from receipt of this Notice, unless a Motion for Reconsideration is filed with the detained at the Provincial Jail of Sorsogon is likewise ORDERED unless he is being detained for some other legal
Commission by any party within said period. cause.

"Thank you for your continued support for the Peace Process."4 The Director of Prisons is ordered to report within ten (10) days his compliance with this decision.

The Office of the Solicitor General, in its letter dated June 23, 2000 to the National Amnesty Commission, requested SO ORDERED.
information as to whether or not a motion for reconsideration was filed by any party, and the action, if there was any,
taken by the NAC.5

In his reply dated June 28, 2000, NAC Chairman Tadiar wrote, among other things, that there has been no motion for
reconsideration filed by any party.6

Accused-appellant Jose N. Patriarca, Jr. was granted amnesty under Proclamation No. 724 dated May 17, 1996. It
amended Proclamation No. 347 dated March 25, 1994.

Section 1 of Proclamation No. 724 reads thus:

"Section 1. Grant of Amnesty. - Amnesty is hereby granted to all persons who shall apply therefor and who have or
may have committed crimes, on or before June 1, 1995, in pursuit of their political beliefs, whether punishable under
the Revised Penal Code or special laws, including but not limited to the following: rebellion or insurrection; coup
d'etat; conspiracy and proposal to commit rebellion, insurrection, or coup d'etat; disloyalty of public officers or
employees; inciting to rebellion or insurrection; sedition; conspiracy to commit sedition; inciting to sedition; illegal
assembly; illegal association; direct assault; indirect assault; resistance and disobedience to a person in authority or
agents of such person; tumults and other disturbances of public order; unlawful use of means of publication and
unlawful utterances; alarms and scandals; illegal possession of firearms, ammunitions, and explosives, committed in
furtherance of, incident to, or in connection with the crimes of rebellion and insurrection; and violations of Articles 59
(desertion), 62 (absence without leave), 67 (mutiny or sedition), 68 (failure to suppress mutiny or sedition), 94
(various crimes), 96 (conduct unbecoming an officer and gentleman), and 97 (general article) of the Articles of War;
Provided, That the amnesty shall not cover crimes against chastity and other crimes for personal ends."1âwphi1

Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the
forgiveness which one sovereign grants to the subjects of another, who have offended, by some breach, the law of
nations.7 Amnesty looks backward, and abolishes and puts into oblivion, the offense itself; it so overlooks and
obliterates the offense with which he is charged, that the person released by amnesty stands before the law precisely
as though he had committed no offense.8

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

In the case of People vs. Casido,9 the difference between pardon and amnesty is given:
 Republic of the Philippines At the same time, the investigation was claimed to be relevant to the consideration of three (3) pending bills in the
SUPREME COURT Senate, to wit:
Manila

1. Senate Bill No. 1793, introduced by Senator Mar Roxas, entitled AN ACT SUBJECTING TREATIES,
EN BANC INTERNATIONAL OR EXECUTIVE AGREEMENTS INVOLVING FUNDING IN THE PROCUREMENT
OF INFRASTRUCTURE PROJECTS, GOODS, AND CONSULTING SERVICES TO BE INCLUDED IN
THE SCOPE AND APPLICATION OF PHILIPPINE PROCUREMENT LAWS, AMENDING FOR THE
G.R. No. 180643 March 25, 2008 PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE KNOWN AS THE GOVERNMENT
PROCUREMENT REFORM ACT, AND FOR OTHER PURPOSES;

ROMULO L. NERI, petitioner,

vs. 2. Senate Bill No. 1794, introduced by Senator Mar Roxas, entitled AN ACT IMPOSING SAFEGUARDS
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE IN CONTRACTING LOANS CLASSIFIED AS OFFICIAL DEVELOPMENT ASSISTANCE, AMENDING
COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE AND FOR THE PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY REPUBLIC ACT NO. 8555,
SECURITY, respondents. OTHERWISE KNOWN AS THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF 1996, AND FOR
OTHER PURPOSES; and

DECISION
3. Senate Bill No. 1317, introduced by Senator Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL AGREEMENTS AND EXECUTIVE
LEONARDO-DE CASTRO, J.: AGREEMENTS.

At bar is a petition for certiorari under Rule 65 of the Rules of Court assailing the show cause Letter1 dated Respondent Committees initiated the investigation by sending invitations to certain personalities and cabinet officials
November 22, 2007 and contempt Order2 dated January 30, 2008 concurrently issued by respondent involved in the NBN Project. Petitioner was among those invited. He was summoned to appear and testify on
September 18, 20, and 26 and October 25, 2007. However, he attended only the September 26 hearing, claiming he
was "out of town" during the other dates.
Senate Committees on Accountability of Public Officers and Investigations,3 Trade and Commerce,4 and National
Defense and Security5 against petitioner Romulo L. Neri, former Director General of the National Economic and
Development Authority (NEDA). In the September 18, 2007 hearing, businessman Jose de Venecia III testified that several high executive officials
and power brokers were using their influence to push the approval of the NBN Project by the NEDA. It appeared that
the Project was initially approved as a Build-Operate-Transfer (BOT) project but, on March 29, 2007, the NEDA
The facts, as culled from the pleadings, are as follows: acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese
Government.
On April 21, 2007, the Department of Transportation and Communication (DOTC) entered into a contract with Zhong
Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband On September 26, 2007, petitioner testified before respondent Committees for eleven (11) hours. He disclosed that
Network (NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be then Commission on Elections (COMELEC) Chairman Benjamin Abalos offered him P200 Million in exchange for his
financed by the People's Republic of China. approval of the NBN Project. He further narrated that he informed President 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
In connection with this NBN Project, various Resolutions were introduced in the Senate, as follows:
on (a) whether or not President Arroyo followed up the NBN Project,6 (b) whether or not she directed him to prioritize
it,7 and (c) whether or not she directed him to approve.8
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q. Pimentel, Jr., entitled RESOLUTION
DIRECTING THE BLUE RIBBON COMMITTEE AND THE COMMITTEE ON TRADE AND INDUSTRY
Unrelenting, respondent Committees issued a Subpoena Ad Testificandum to petitioner, requiring him to appear and
TO INVESTIGATE, IN AID OF LEGISLATION, THE CIRCUMSTANCES LEADING TO THE APPROVAL
testify on November 20, 2007.
OF THE BROADBAND CONTRACT WITH ZTE AND THE ROLE PLAYED BY THE OFFICIALS
CONCERNED IN GETTING IT CONSUMMATED AND TO MAKE RECOMMENDATIONS TO HALE TO
THE COURTS OF LAW THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN CONNECTION However, in the Letter dated November 15, 2007, Executive Secretary Eduardo R. Ermita requested respondent
THEREWITH AND TO PLUG THE LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER PERTINENT Committees to dispense with petitioner's testimony on the ground of executive privilege. The pertinent portion of the
LEGISLATIONS. letter reads:

(2) P.S. Res. No. 144, introduced by Senator Mar Roxas, entitled Á RESOLUTION URGING With reference to the subpoena ad testificandum issued to Secretary Romulo Neri to appear and testify
PRESIDENT GLORIA MACAPAGAL ARROYO TO DIRECT THE CANCELLATION OF THE ZTE again on 20 November 2007 before the Joint Committees you chair, it will be recalled that Sec. Neri had
CONTRACT already testified and exhaustively discussed the ZTE / NBN project, including his conversation with the
President thereon last 26 September 2007.
(3) P.S. Res. No. 129, introduced by Senator Panfilo M. Lacson, entitled RESOLUTION DIRECTING
THE COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO CONDUCT AN INQUIRY IN AID OF Asked to elaborate further on his conversation with the President, Sec. Neri asked for time to consult with
LEGISLATION INTO THE NATIONAL SECURITY IMPLICATIONS OF AWARDING THE NATIONAL his superiors in line with the ruling of the Supreme Court in Senate v. Ermita, 488 SCRA 1 (2006).
BROADBAND NETWORK CONTRACT TO THE CHINESE FIRM ZHONG XING
TELECOMMUNICATIONS EQUIPMENT COMPANY LIMITED (ZTE CORPORATION) WITH THE END
IN VIEW OF PROVIDING REMEDIAL LEGISLATION THAT WILL PROTECT OUR NATIONAL Specifically, Sec. Neri sought guidance on the possible invocation of executive privilege on the following
SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY. questions, to wit:

(4) P.S. Res. No. 136, introduced by Senator Miriam Defensor Santiago, entitled RESOLUTION a) Whether the President followed up the (NBN) project?
DIRECTING THE PROPER SENATE COMMITTEE TO CONDUCT AN INQUIRY, IN AID OF
LEGISLATION, ON THE LEGAL AND ECONOMIC JUSTIFICATION OF THE NATIONAL BROADBAND
NETWORK (NBN) PROJECT OF THE NATIONAL GOVERNMENT. b) Were you dictated to prioritize the ZTE?
 c) Whether the President said to go ahead and approve the project after being told In the interim, on December 7, 2007, petitioner filed with this Court the present petition for certiorari assailing the
about the alleged bribe? show cause Letter dated November 22, 2007.

Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and Respondent Committees found petitioner's explanations unsatisfactory. Without responding to his request for
correspondence between the President and public officials which are considered executive privilege advance notice of the matters that he should still clarify, they issued the Order dated January 30, 2008, citing him in
(Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9, 2002). contempt of respondent Committees and ordering his arrest and detention at the Office of the Senate Sergeant-At-
Maintaining the confidentiality of conversations of the President is necessary in the exercise of her Arms until such time that he would appear and give his testimony. The said Order states:
executive and policy decision making process. The expectation of a President to the confidentiality of her
conversations and correspondences, like the value which we accord deference for the privacy of all
citizens, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh ORDER
opinions in Presidential decision-making. Disclosure of conversations of the President will have a chilling
effect on the President, and will hamper her in the effective discharge of her duties and responsibilities, if
she is not protected by the confidentiality of her conversations. For failure to appear and testify in the Committee's hearing on Tuesday, September 18, 2007; Thursday,
September 20, 2007; Thursday, October 25, 2007; and Tuesday, November 20, 2007, despite personal
notice and Subpoenas Ad Testificandum sent to and received by him, which thereby delays, impedes
The context in which executive privilege is being invoked is that the information sought to be disclosed and obstructs, as it has in fact delayed, impeded and obstructed the inquiry into the subject reported
might impair our diplomatic as well as economic relations with the People's Republic of China. Given the irregularities, AND for failure to explain satisfactorily why he should not be cited for contempt (Neri letter
confidential nature in which these information were conveyed to the President, he cannot provide the of 29 November 2007), herein attached) ROMULO L. NERI is hereby cited in contempt of this (sic)
Committee any further details of these conversations, without disclosing the very thing the privilege is Committees and ordered arrested and detained in the Office of the Senate Sergeant-At-Arms until
designed to protect. such time that he will appear and give his testimony.

In light of the above considerations, this Office is constrained to invoke the settled doctrine of executive The Sergeant-At-Arms is hereby directed to carry out and implement this Order and make a return hereof
privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. within twenty four (24) hours from its enforcement.

Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour SO ORDERED.
hearing, wherein he has answered all questions propounded to him except the foregoing questions
involving executive privilege, we therefore request that his testimony on 20 November 2007 on the ZTE /
NBN project be dispensed with. On the same date, petitioner moved for the reconsideration of the above Order. 9 He insisted that he has not shown
"any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters,
however, respondent Committees did not respond to his request for advance notice of questions. He also mentioned
On November 20, 2007, petitioner did not appear before respondent Committees. Thus, on November 22, 2007, the the petition for certiorari he filed on December 7, 2007. According to him, this should restrain respondent Committees
latter issued the show cause Letter requiring him to explain why he should not be cited in contempt. The Letter reads: from enforcing the show cause Letter "through the issuance of declaration of contempt" and arrest.

Since you have failed to appear in the said hearing, the Committees on Accountability of Public Officers In view of respondent Committees' issuance of the contempt Order, petitioner filed on February 1, 2008
and Investigations (Blue Ribbon), Trade and Commerce and National Defense and Security require you a Supplemental Petition for Certiorari (With Urgent Application for TRO/Preliminary Injunction), seeking to restrain the
to show cause why you should not be cited in contempt under Section 6, Article 6 of the Rules of the implementation of the said contempt Order.
Committee on Accountability of Public Officers and Investigations (Blue Ribbon).

On February 5, 2008, the Court issued a Status Quo Ante Order (a) enjoining respondent Committees from
The Senate expects your explanation on or before 2 December 2007. implementing their contempt Order, (b) requiring the parties to observe the status quo prevailing prior to the issuance
of the assailed order, and (c) requiring respondent Committees to file their comment.

On November 29, 2007, petitioner replied to respondent Committees, manifesting that it was not his intention to
ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by Petitioner contends that respondent Committees' show cause Letter and contempt Order were issued with grave
executive privilege, thus: abuse of discretion amounting to lack or excess of jurisdiction. He stresses that his conversations with President
Arroyo are "candid discussions meant to explore options in making policy decisions." According to him, these
discussions "dwelt on the impact of the bribery scandal involving high government officials on the country's
It was not my intention to snub the last Senate hearing. In fact, I have cooperated with the task of the diplomatic relations and economic and military affairs and the possible loss of confidence of foreign
Senate in its inquiry in aid of legislation as shown by my almost 11 hours stay during the hearing on 26 investors and lenders in the Philippines." He also emphasizes that his claim of executive privilege is upon the
September 2007. During said hearing, I answered all the questions that were asked of me, save for order of the President and within the parameters laid down in Senate v. Ermita10 and United States v.
those which I thought was covered by executive privilege, and which was confirmed by the Executive Reynolds.11 Lastly, he argues that he is precluded from disclosing communications made
Secretary in his Letter 15 November 2007. In good faith, after that exhaustive testimony, I thought that
what remained were only the three questions, where the Executive Secretary claimed executive
privilege. Hence, his request that my presence be dispensed with. to him in official confidence under Section 712 of Republic Act No. 6713, otherwise known as Code of Conduct and
Ethical Standards for Public Officials and Employees, and Section 2413 (e) of Rule 130 of the Rules of Court.

Be that as it may, should there be new matters that were not yet taken up during the 26 September 2007
hearing, may I be furnished in advance as to what else I need to clarify, so that as a resource person, I Respondent Committees assert the contrary. They argue that (1) petitioner's testimony is material and pertinent in the
may adequately prepare myself. investigation conducted in aid of legislation; (2) there is no valid justification for petitioner to claim executive privilege;
(3) there is no abuse of their authority to order petitioner's arrest; and (4) petitioner has not come to court with clean
hands.
In addition, petitioner submitted a letter prepared by his counsel, Atty. Antonio R. Bautista, stating, among others that:
(1) his (petitioner) non-appearance was upon the order of the President; and (2) his conversation with President
Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery In the oral argument held last March 4, 2008, the following issues were ventilated:
scandal involving high government officials and the possible loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioner's request that he "be furnished in advance" as to what else
he needs to clarify so that he may adequately prepare for the hearing. 1. What communications between the President and petitioner Neri are covered by the principle of
'executive privilege'?
 1.a Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by The Court granted the OSG's motion the next day, March 18, 2008.
order of the President, to cover (i) conversations of the President in the exercise of her
executive and policy decision-making and (ii) information, which might impair our diplomatic
as well as economic relations with the People's Republic of China? As the foregoing facts unfold, related events transpired.

1.b. Did petitioner Neri correctly invoke executive privilege to avoid testifying on his On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking Executive Order No. 464 and
conversations with the President on the NBN contract on his assertions that the said Memorandum Circular No. 108. She advised executive officials and employees to follow and abide by the
conversations "dealt with delicate and sensitive national security and diplomatic Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita17 when they are
matters relating to the impact of bribery scandal involving high government officials invited to legislative inquiries in aid of legislation.
and the possible loss of confidence of foreign investors and lenders in the
Philippines" x x x within the principles laid down in Senate v. Ermita (488 SCRA 1 [2006])?
At the core of this controversy are the two (2) crucial queries, to wit:

1.c Will the claim of executive privilege in this case violate the following provisions of the
Constitution: First, are the communications elicited by the subject three (3) questions covered by executive privilege?

Sec. 28, Art. II (Full public disclosure of all transactions involving public And second, did respondent Committees commit grave abuse of discretion in issuing the
interest) contempt Order?

Sec. 7, Art. III (The right of the people to information on matters of public We grant the petition.
concern)
At the outset, a glimpse at the landmark case of Senate v. Ermita18 becomes imperative. Senate draws in bold
Sec. 1, Art. XI (Public office is a public trust) strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections
21 and 22, respectively, of Article VI of the Constitution, to wit:

Sec. 17, Art. VII (The President shall ensure that the laws be faithfully
executed) SECTION 21. The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The
rights of persons appearing in or affected by such inquiries shall be respected.
and the due process clause and the principle of separation of powers?

SECTION 22. The heads of department may upon their own initiative, with the consent of the President,
2. What is the proper procedure to be followed in invoking executive privilege? or upon the request of either House, or as the rules of each House shall provide, appear before and be
heard by such House on any matter pertaining to their departments. Written questions shall be submitted
to the President of the Senate or the Speaker of the House of Representatives at least three days before
3. Did the Senate Committees gravely abuse their discretion in ordering the arrest of petitioner for non- their scheduled appearance. Interpellations shall not be limited to written questions, but may cover
compliance with the subpoena? matters related thereto. When the security of the state or the public interest so requires and the President
so states in writing, the appearance shall be conducted in executive session.

After the oral argument, the parties were directed to manifest to the Court within twenty-four (24) hours if they are
amenable to the Court's proposal of allowing petitioner to immediately resume his testimony before the Senate Senate cautions that while the above provisions are closely related and complementary to each other, they should not
Committees to answer the other questions of the Senators without prejudice to the decision on the merits of this be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in
pending petition. It was understood that petitioner may invoke executive privilege in the course of the Senate aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22
Committees proceedings, and if the respondent Committees disagree thereto, the unanswered questions will be the pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress'
subject of a supplemental pleading to be resolved along with the three (3) questions subject of the present oversight function.19 Simply stated, while both powers allow Congress or any of its committees to conduct inquiry,
petition.14 At the same time, respondent Committees were directed to submit several pertinent documents.15 their objectives are different.

The Senate did not agree with the proposal for the reasons stated in the Manifestation dated March 5, 2008. As to the This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21,
required documents, the Senate and respondent Committees manifested that they would not be able to submit the Congress cannot compel the appearance of executive officials under Section 22. The Court's pronouncement
latter's "Minutes of all meetings" and the "Minute Book" because it has never been the "historical and traditional in Senate v. Ermita20 is clear:
legislative practice to keep them."16 They instead submitted the Transcript of Stenographic Notes of respondent
Committees' joint public hearings.
When Congress merely seeks to be informed on how department heads are implementing the statutes
which it has issued, its right to such information is not as imperative as that of the President to whom, as
On March 17, 2008, the Office of the Solicitor General (OSG) filed a Motion for Leave to Intervene and to Admit Chief Executive, such department heads must give a report of their performance as a matter of duty. In
Attached Memorandum, founded on the following arguments: such instances, Section 22, in keeping with the separation of powers, states that Congress may
only request their appearance. Nonetheless, when the inquiry in which Congress requires their
appearance is 'in aid of legislation' under Section 21, the appearance is mandatory for the same reasons
(1) The communications between petitioner and the President are covered by the principle of "executive stated in Arnault.
privilege."

In fine, the oversight function of Congress may be facilitated by compulsory process only to the
(2) Petitioner was not summoned by respondent Senate Committees in accordance with the law-making extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from
body's power to conduct inquiries in aid of legislation as laid down in Section 21, Article VI of the the deliberations of the Constitutional Commission
Constitution and Senate v. Ermita.

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and
(3) Respondent Senate Committees gravely abused its discretion for alleged non-compliance with the lack of it under Section 22 find their basis in the principle of separation of powers. While the
the Subpoena dated November 13, 2007.
 executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to 'advisory opinions, recommendations and deliberations comprising part of a process by which governmental
legislate by refusing to comply with its demands for information. (Emphasis supplied.) decisions and policies are formulated."

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies
v. Ermita, when it held: to decision-making of the President while, the deliberative process privilege, to decision-making of executive
officials. The first is rooted in the constitutional principle of separation of power and the President's unique
constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential
As evidenced by the American experience during the so-called "McCarthy era," however, the right of communications privilege applies to documents in their entirety, and covers final and post-decisional
Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than materials as well as pre-deliberative ones31 As a consequence, congressional or judicial negation of
executive or judicial power. It may thus be subjected to judicial review pursuant to the Court's certiorari the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative
powers under Section 1, Article VIII of the Constitution. process privilege.

Hence, this decision. Turning on who are the officials covered by the presidential communications privilege, In Re: Sealed
Case confines the privilege only to White House Staff that has "operational proximity" to direct presidential decision-
making. Thus, the privilege is meant to encompass only those functions that form the core of presidential authority,
I involving what the court characterized as "quintessential and non-delegable Presidential power," such as
commander-in-chief power, appointment and removal power, the power to grant pardons and reprieves, the sole-
authority to receive ambassadors and other public officers, the power to negotiate treaties, etc.32
The Communications Elicited by the Three (3) Questions are Covered by Executive Privilege

The situation in Judicial Watch, Inc. v. Department of Justice33 tested the In Re: Sealed Case principles. There, while
We start with the basic premises where the parties have conceded. the presidential decision involved is the exercise of the President's pardon power, a non-delegable, core-presidential
function, the Deputy Attorney General and the Pardon Attorney were deemed to be too remote from the President
and his senior White House advisors to be protected. The Court conceded that
The power of Congress to conduct inquiries in aid of legislation is broad. This is based on the proposition that a
legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change.21 Inevitably, adjunct thereto is the compulsory process to enforce it. But, functionally those officials were performing a task directly related to the President's pardon power, but concluded that
the power, broad as it is, has limitations. To be valid, it is imperative that it is done in accordance with the Senate or an organizational test was more appropriate for confining the potentially broad sweep that would result from the In
House duly published rules of procedure and that the rights of the persons appearing in or affected by such inquiries Re: Sealed Case's functional test. The majority concluded that, the lesser protections of the deliberative process
be respected. privilege would suffice. That privilege was, however, found insufficient to justify the confidentiality of the 4,341
withheld documents.
The power extends even to executive officials and the only way for them to be exempted is through a valid claim of
executive privilege.22 This directs us to the consideration of the question -- is there a recognized claim of executive But more specific classifications of communications covered by executive privilege are made in older cases. Courts
privilege despite the revocation of E.O. 464? ruled early that the Executive has a right to withhold documents that might reveal military or state secrets,34 identity
of government informers in some circumstances,,35 and information related to pending investigations.36 An
area where the privilege is highly revered is in foreign relations. In United States v. Curtiss-Wright Export Corp.37 the
A- There is a Recognized Claim
U.S. Court, citing President George Washington, pronounced:
of Executive Privilege Despite the
Revocation of E.O. 464
The nature of foreign negotiations requires caution, and their success must often depend on secrecy,
and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
At this juncture, it must be stressed that the revocation of E.O. 464 does not in any way diminish our concept of
concessions which may have been proposed or contemplated would be extremely impolitic, for this might
executive privilege. This is because this concept has Constitutional underpinnings. Unlike the United States which
have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps
has further accorded the concept with statutory status by enacting the Freedom of Information Act23 and the Federal
danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one
Advisory Committee Act,24 the Philippines has retained its constitutional origination, occasionally interpreted only by
cogent reason for vesting the power of making treaties in the President, with the advice and consent of
this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared
the Senate, the principle on which the body was formed confining it to a small number of members. To
unconstitutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita's Letter
admit, then, a right in the House of Representatives to demand and to have as a matter of course all the
dated November 15, 2007 limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v.
papers respecting a negotiation with a foreign power would be to establish a dangerous precedent.
Vasquez,25 and Chavez v. PEA.26 There was never a mention of E.O. 464.

Majority of the above jurisprudence have found their way in our jurisdiction. In Chavez v. PCGG38, this Court held that
While these cases, especially Senate v. Ermita,27 have comprehensively discussed the concept of executive privilege,
there is a "governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic
we deem it imperative to explore it once more in view of the clamor for this Court to clearly define the communications
and other security matters." In Chavez v. PEA,39 there is also a recognition of the confidentiality of Presidential
covered by executive privilege.
conversations, correspondences, and discussions in closed-door Cabinet meetings. In Senate v. Ermita, the concept
of presidential communications privilege is fully discussed.
The Nixon and post-Watergate cases established the broad contours of the presidential communications
privilege.28 In United States v. Nixon,29 the U.S. Court recognized a great public interest in preserving "the
As may be gleaned from the above discussion, the claim of executive privilege is highly recognized in cases where
confidentiality of conversations that take place in the President's performance of his official duties." It thus
the subject of inquiry relates to a power textually committed by the Constitution to the President, such as the area of
considered presidential communications as "presumptively privileged." Apparently, the presumption is founded on
military and foreign relations. Under our Constitution, the President is the repository of the commander-in-
the "President's generalized interest in confidentiality." The privilege is said to be necessary to guarantee the
chief,40 appointing,41 pardoning,42 and diplomatic43 powers. Consistent with the doctrine of separation of powers, the
candor of presidential advisors and to provide "the President and those who assist him… with freedom to
information relating to these powers may enjoy greater confidentiality than others.
explore alternatives in the process of shaping policies and making decisions and to do so in a way many
would be unwilling to express except privately."
The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements
of presidential communications privilege, to wit:
In In Re: Sealed Case,30 the U.S. Court of Appeals delved deeper. It ruled that there are two (2) kinds of executive
privilege; one is the presidential communications privilege and, the other is the deliberative process privilege.
The former pertains to "communications, documents or other materials that reflect presidential decision- 1) The protected communication must relate to a "quintessential and non-delegable presidential power."
making and deliberations and that the President believes should remain confidential." The latter includes
 2) The communication must be authored or "solicited and received" by a close advisor of the President or Committee on Presidential Campaign Activities v. Nixon,49 it was held that since an impeachment proceeding had
the President himself. The judicial test is that an advisor must be in "operational proximity" with the been initiated by a House Committee, the Senate Select Committee's immediate oversight need for five presidential
President. tapes should give way to the House Judiciary Committee which has the constitutional authority to inquire into
presidential impeachment. The Court expounded on this issue in this wise:

3) The presidential communications privilege remains a qualified privilege that may be overcome by a
showing of adequate need, such that the information sought "likely contains important evidence" and by It is true, of course, that the Executive cannot, any more than the other branches of government, invoke
the unavailability of the information elsewhere by an appropriate investigating authority.44 a general confidentiality privilege to shield its officials and employees from investigations by the proper
governmental institutions into possible criminal wrongdoing. The Congress learned this as to its own
privileges in Gravel v. United States, as did the judicial branch, in a sense, in Clark v. United States, and
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the the executive branch itself in Nixon v. Sirica. But under Nixon v. Sirica, the showing required to
communications elicited by the three (3) questions "fall under conversation and correspondence between the overcome the presumption favoring confidentiality turned, not on the nature of the presidential
President and public officials" necessary in "her executive and policy decision-making process" and, that "the conduct that the subpoenaed material might reveal, but, instead, on the nature and appropriateness of
information sought to be disclosed might impair our diplomatic as well as economic relations with the People's the function in the performance of which the material was sought, and the degree to which the
Republic of China." Simply put, the bases are presidential communications privilege and executive privilege on material was necessary to its fulfillment. Here also our task requires and our decision implies no
matters relating to diplomacy or foreign relations. judgment whatever concerning possible presidential involvement in culpable activity. On the
contrary, we think the sufficiency of the Committee's showing must depend solely on whether the
subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's
Using the above elements, we are convinced that, indeed, the communications elicited by the three (3) questions are functions.
covered by the presidential communications privilege. First, the communications relate to a "quintessential and
non-delegable power" of the President, i.e. the power to enter into an executive agreement with other countries. This
authority of the President to enter into executive agreements without the concurrence of the Legislature has In its initial briefs here, the Committee argued that it has shown exactly this. It contended that resolution,
traditionally been recognized in Philippine jurisprudence. 45 Second, the communications are "received" by a close on the basis of the subpoenaed tapes, of the conflicts in the testimony before it 'would aid in a
advisor of the President. Under the "operational proximity" test, petitioner can be considered a close advisor, being a determination whether legislative involvement in political campaigns is necessary' and 'could help
member of President Arroyo's cabinet. And third, there is no adequate showing of a compelling need that would engender the public support needed for basic reforms in our electoral system.' Moreover, Congress has,
justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate according to the Committee, power to oversee the operations of the executive branch, to investigate
investigating authority. instances of possible corruption and malfeasance in office, and to expose the results of its investigations
to public view. The Committee says that with respect to Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its power responsibly, it must have access to the
The third element deserves a lengthy discussion. subpoenaed tapes.

United States v. Nixon held that a claim of executive privilege is subject to balancing against other interest. In other We turn first to the latter contention. In the circumstances of this case, we need neither deny that the
words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: Congress may have, quite apart from its legislative responsibilities, a general oversight power, nor
explore what the lawful reach of that power might be under the Committee's constituent resolution. Since
passage of that resolution, the House Committee on the Judiciary has begun an inquiry into presidential
[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level impeachment. The investigative authority of the Judiciary Committee with respect to presidential conduct
communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity has an express constitutional source. x x x We have been shown no evidence indicating that
from judicial process under all circumstances. Congress itself attaches any particular value to this interest. In these circumstances, we think the
need for the tapes premised solely on an asserted power to investigate and inform cannot justify
enforcement of the Committee's subpoena.
The foregoing is consistent with the earlier case of Nixon v. Sirica,46 where it was held that presidential
communications are presumptively privileged and that the presumption can be overcome only by mere showing of
public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether
interests of the political branches of the government "in the manner that preserves the essential functions of each the subpoenaed materials are critical to the performance of its legislative functions. There is a clear
Branch."47 Here, the record is bereft of any categorical explanation from respondent Committees to show a difference between Congress' legislative tasks and the responsibility of a grand jury, or any institution
compelling or citical need for the answers to the three (3) questions in the enactment of a law. Instead, the questions engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its
veer more towards the exercise of the legislative oversight function under Section 22 of Article VI rather than Section task, legislative judgments normally depend more on the predicted consequences of proposed
21 of the same Article. Senate v. Ermita ruled that the "the oversight function of Congress may be facilitated by legislative actions and their political acceptability, than on precise reconstruction of past events;
compulsory process only to the extent that it is performed in pursuit of legislation." It is conceded that it is Congress frequently legislates on the basis of conflicting information provided in its hearings. In contrast,
difficult to draw the line between an inquiry in aid of legislation and an inquiry in the exercise of oversight function of the responsibility of the grand jury turns entirely on its ability to determine whether there is probable
Congress. In this regard, much will depend on the content of the questions and the manner the inquiry is conducted. cause to believe that certain named individuals did or did not commit specific crimes. If, for example, as
in Nixon v. Sirica, one of those crimes is perjury concerning the content of certain conversations, the
grand jury's need for the most precise evidence, the exact text of oral statements recorded in their
Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a
original form, is undeniable. We see no comparable need in the legislative process, at least not in
crime or wrongdoing. We see no dispute on this. It is settled in United States v. Nixon48 that "demonstrated, specific
the circumstances of this case. Indeed, whatever force there might once have been in the Committee's
need for evidence in pending criminal trial" outweighs the President's "generalized interest in confidentiality."
argument that the subpoenaed materials are necessary to its legislative judgments has been
However, the present case's distinction with the Nixon case is very evident. In Nixon, there is a pending criminal
substantially undermined by subsequent events. (Emphasis supplied)
proceeding where the information is requested and it is the demands of due process of law and the fair administration
of criminal justice that the information be disclosed. This is the reason why the U.S. Court was quick to "limit the
scope of its decision." It stressed that it is "not concerned here with the balance between the President's Respondent Committees further contend that the grant of petitioner's claim of executive privilege violates the
generalized interest in confidentiality x x x and congressional demands for information." Unlike in Nixon, the constitutional provisions on the right of the people to information on matters of public concern.50 We might have
information here is elicited, not in a criminal proceeding, but in a legislative inquiry. In this regard, Senate v. Ermita agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to
stressed that the validity of the claim of executive privilege depends not only on the ground invoked but, also, on them during the September 26 hearing, where he was questioned for eleven (11) hours. Not only that, he expressly
the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not manifested his willingness to answer more questions from the Senators, with the exception only of those covered by
interpose any claim of need to protect military, diplomatic or sensitive national security secrets. In the present case, his claim of executive privilege.
Executive Secretary Ermita categorically claims executive privilege on the grounds of presidential communications
privilege in relation to her executive and policy decision-making process and diplomatic secrets.
The right to public information, like any other right, is subject to limitation. Section 7 of Article III provides:
The respondent Committees should cautiously tread into the investigation of matters which may present a conflict of
interest that may provide a ground to inhibit the Senators participating in the inquiry if later on an impeachment The right of the people to information on matters of public concern shall be recognized. Access to official
proceeding is initiated on the same subject matter of the present Senate inquiry. Pertinently, in Senate Select records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
 government research data used as basis for policy development, shall be afforded the citizen, subject to II
such limitations as may be provided by law.

Respondent Committees Committed Grave Abuse of Discretion

The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are in Issuing the Contempt Order
Section 7 of Republic Act (R.A.) No. 6713,51 Article 22952 of the Revised Penal Code, Section 3 (k)53 of R.A. No. 3019,
and Section 24(e)54 of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence
classifies as confidential55 and what our Constitution considers as belonging to the larger concept of executive Grave abuse of discretion means "such capricious and whimsical exercise of judgment as is equivalent to lack of
privilege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner by reason of passion
information subject of this case belonging to such kind. or personal hostility and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law."60

More than anything else, though, the right of Congress or any of its Committees to obtain information in aid of
legislation cannot be equated with the people's right to public information. The former cannot claim that every It must be reiterated that when respondent Committees issued the show cause Letter dated November 22, 2007,
legislative inquiry is an exercise of the people's right to information. The distinction between such rights is laid down petitioner replied immediately, manifesting that it was not his intention to ignore the Senate hearing and that he
in Senate v. Ermita: thought the only remaining questions were the three (3) questions he claimed to be covered by executive privilege. In
addition thereto, he submitted Atty. Bautista's letter, stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations with President Arroyo are covered by executive
There are, it bears noting, clear distinctions between the right of Congress to information which underlies privilege. Both correspondences include an expression of his willingness to testify again, provided he "be
the power of inquiry and the right of people to information on matters of public concern. For one, the furnished in advance" copies of the questions. Without responding to his request for advance list of questions,
demand of a citizen for the production of documents pursuant to his right to information does not have respondent Committees issued the Order dated January 30, 2008, citing him in contempt of respondent Committees
the same obligatory force as a subpoena duces tecum issued by Congress. Neither does the right to and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would
information grant a citizen the power to exact testimony from government officials. These powers belong appear and give his testimony. Thereupon, petitioner filed a motion for reconsideration, informing respondent
only to Congress, not to an individual citizen. Committees that he had filed the present petition for certiorari.

Thus, while Congress is composed of representatives elected by the people, it does not follow, Respondent Committees committed grave abuse of discretion in issuing the contempt Order in view of five (5)
except in a highly qualified sense, that in every exercise of its power of inquiry, the people are reasons.
exercising their right to information.

First, there being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from
The members of respondent Committees should not invoke as justification in their exercise of power a right properly constitutional infirmity.
belonging to the people in general. This is because when they discharge their power, they do so as public officials
and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in
appropriate cases, to constitutional precepts particularly those pertaining to delicate interplay of executive-legislative Second, respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the
powers and privileges which is the subject of careful review by numerous decided cases. invitations should contain the "possible needed statute which prompted the need for the inquiry," along with "the usual
indication of the subject of inquiry and the questions relative to and in furtherance thereof." Compliance with this
requirement is imperative, both under Sections 21 and 22 of Article VI of the Constitution. This must be so to ensure
B- The Claim of Executive Privilege that the rights of both persons appearing in or affected by such inquiry are respected as mandated by said Section
is Properly Invoked 21 and by virtue of the express language of Section 22. Unfortunately, despite petitioner's repeated demands,
respondent Committees did not send him an advance list of questions.

We now proceed to the issue -- whether the claim is properly invoked by the President. Jurisprudence teaches
that for the claim to be properly invoked, there must be a formal claim of privilege, lodged by the head of the Third, a reading of the transcript of respondent Committees' January 30, 2008 proceeding reveals that only a minority
department which has control over the matter."56 A formal and proper claim of executive privilege requires a "precise of the members of the Senate Blue Ribbon Committee was present during the deliberation. 61 Section 18 of the Rules
and certain reason" for preserving their confidentiality.57 of Procedure Governing Inquiries in Aid of Legislation provides that:

The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal "The Committee, by a vote of majority of all its members, may punish for contempt any witness before it
claim of privilege. There, he expressly states that "this Office is constrained to invoke the settled doctrine of who disobeys any order of the Committee or refuses to be sworn or to testify or to answer proper
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly." Obviously, he questions by the Committee or any of its members."
is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less
categorical letter was even adjudged to be sufficient.
Clearly, the needed vote is a majority of all the members of the Committee. Apparently, members who did not
actually participate in the deliberation were made to sign the contempt Order. Thus, there is a cloud of doubt as to the
With regard to the existence of "precise and certain reason," we find the grounds relied upon by Executive Secretary validity of the contempt Order dated January 30, 2008. We quote the pertinent portion of the transcript, thus:
Ermita specific enough so as not "to leave respondent Committees in the dark on how the requested information
could be classified as privileged." The case of Senate v. Ermita only requires that an allegation be made "whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc." The particular THE CHAIRMAN (SEN. CAYETANO, A). For clarification. x x x The Chair will call either a caucus
ground must only be specified. The enumeration is not even intended to be comprehensive." 58 The following or will ask the Committee on Rules if there is a problem. Meaning, if we do not have the sufficient
statement of grounds satisfies the requirement: numbers. But if we have a sufficient number, we will just hold a caucus to be able to implement
that right away because…Again, our Rules provide that any one held in contempt and ordered
arrested, need the concurrence of a majority of all members of the said committee and we have
The context in which executive privilege is being invoked is that the information sought to be disclosed three committees conducting this.
might impair our diplomatic as well as economic relations with the People's Republic of China. Given the
confidential nature in which these information were conveyed to the President, he cannot provide the
Committee any further details of these conversations, without disclosing the very thing the privilege is So thank you very much to the members…
designed to protect.

SEN. PIMENTEL. Mr. Chairman.

At any rate, as held further in Senate v. Ermita, 59 the Congress must not require the executive to state the reasons
for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.
This is a matter of respect to a coordinate and co-equal department.
 THE CHAIRMAN (SEN. CAYETANO,A). May I recognize the Minority Leader and give him the floor, And fifth, respondent Committees' issuance of the contempt Order is arbitrary and precipitate. It must be pointed out
Senator Pimentel. that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their
ruling. Instead, they curtly dismissed his explanation as "unsatisfactory" and simultaneously issued the Order citing
him in contempt and ordering his immediate arrest and detention.
SEN. PIMENTEL. Mr. Chairman, there is no problem, I think, with consulting the other committees.
But I am of the opinion that the Blue Ribbon Committee is the lead committee, and therefore, it
should have preference in enforcing its own decisions. Meaning to say, it is not something that is A fact worth highlighting is that petitioner is not an unwilling witness. He manifested several times his readiness to
subject to consultation with other committees. I am not sure that is the right interpretation. I think testify before respondent Committees. He refused to answer the three (3) questions because he was ordered by the
that once we decide here, we enforce what we decide, because otherwise, before we know it, our President to claim executive privilege. It behooves respondent Committees to first rule on the claim of executive
determination is watered down by delay and, you know, the so-called "consultation" that privilege and inform petitioner of their finding thereon, instead of peremptorily dismissing his explanation as
inevitably will have to take place if we follow the premise that has been explained. "unsatisfactory." Undoubtedly, respondent Committees' actions constitute grave abuse of discretion for being arbitrary
and for denying petitioner due process of law. The same quality afflicted their conduct when they (a) disregarded
petitioner's motion for reconsideration alleging that he had filed the present petition before this Court and (b) ignored
So my suggestion, Mr. Chairman, is the Blue Ribbon Committee should not forget it's the lead committee petitioner's repeated request for an advance list of questions, if there be any aside from the three (3) questions as to
here, and therefore, the will of the lead committee prevails over all the other, you, know reservations that which he claimed to be covered by executive privilege.
other committees might have who are only secondary or even tertiary committees, Mr. Chairman.

Even the courts are repeatedly advised to exercise the power of contempt judiciously and sparingly with utmost self-
THE CHAIRMAN (SEN. CAYETANO, A.) Thank you very much to the Minority Leader. And I agree with restraint with the end in view of utilizing the same for correction and preservation of the dignity of the court, not for
the wisdom of his statements. I was merely mentioning that under Section 6 of the Rules of the retaliation or vindication.63 Respondent Committees should have exercised the same restraint, after all petitioner is
Committee and under Section 6, "The Committee by a vote of a majority of all its members may punish not even an ordinary witness. He holds a high position in a co-equal branch of government.
for contempt any witness before it who disobeys any order of the Committee."

In this regard, it is important to mention that many incidents of judicial review could have been avoided if powers are
So the Blue Ribbon Committee is more than willing to take that responsibility. But we only have six discharged with circumspection and deference. Concomitant with the doctrine of separation of powers is the mandate
members here today, I am the seventh as chair and so we have not met that number. So I am to observe respect to a co-equal branch of the government.
merely stating that, sir, that when we will prepare the documentation, if a majority of all members sign
and I am following the Sabio v. Gordon rule wherein I do believe, if I am not mistaken, Chairman Gordon
prepared the documentation and then either in caucus or in session asked the other members to sign. One last word.
And once the signatures are obtained, solely for the purpose that Secretary Neri or Mr. Lozada will not
be able to legally question our subpoena as being insufficient in accordance with law.
The Court was accused of attempting to abandon its constitutional duty when it required the parties to consider a
proposal that would lead to a possible compromise. The accusation is far from the truth. The Court did so, only to test
SEN. PIMENTEL. Mr. Chairman, the caution that the chair is suggesting is very well-taken. But I'd like to a tool that other jurisdictions find to be effective in settling similar cases, to avoid a piecemeal consideration of the
advert to the fact that the quorum of the committee is only two as far as I remember. Any two-member questions for review and to avert a constitutional crisis between the executive and legislative branches of
senators attending a Senate committee hearing provide that quorum, and therefore there is more than a government.
quorum demanded by our Rules as far as we are concerned now, and acting as Blue Ribbon Committee,
as Senator Enrile pointed out. In any event, the signatures that will follow by the additional members will
only tend to strengthen the determination of this Committee to put its foot forward – put down on what is In United States v. American Tel. & Tel Co.,64 the court refrained from deciding the case because of its desire to avoid
happening in this country, Mr. Chairman, because it really looks terrible if the primary Committee of the a resolution that might disturb the balance of power between the two branches and inaccurately reflect their true
Senate, which is the Blue Ribbon Committee, cannot even sanction people who openly defy, you know, needs. Instead, it remanded the record to the District Court for further proceedings during which the parties are
the summons of this Committee. I know that the Chair is going through an agonizing moment here. I required to negotiate a settlement. In the subsequent case of United States v. American Tel. &Tel Co.,65 it was held
know that. But nonetheless, I think we have to uphold, you know, the institution that we are representing that "much of this spirit of compromise is reflected in the generality of language found in the Constitution." It
because the alternative will be a disaster for all of us, Mr. Chairman. So having said that, I'd like to proceeded to state:
reiterate my point.

Under this view, the coordinate branches do not exist in an exclusively adversary relationship to one
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I agree 100 percent with the intentions of the another when a conflict in authority arises. Rather each branch should take cognizance of an implicit
Minority Leader. But let me very respectfully disagree with the legal requirements. Because, yes, constitutional mandate to seek optimal accommodation through a realistic evaluation of the needs of the
we can have a hearing if we are only two but both under Section 18 of the Rules of the Senate and conflicting branches in the particular fact situation.
under Section 6 of the Rules of the Blue Ribbon Committee, there is a need for a majority of all
members if it is a case of contempt and arrest. So, I am simply trying to avoid the court rebuking the
Committee, which will instead of strengthening will weaken us. But I do agree, Mr. Minority Leader, that It thereafter concluded that: "The Separation of Powers often impairs efficiency, in terms of dispatch and the
we should push for this and show the executive branch that the well-decided – the issue has been immediate functioning of government. It is the long-term staying power of government that is enhanced by
decided upon the Sabio versus Gordon case. And it's very clear that we are all allowed to call witnesses. the mutual accommodation required by the separation of powers."
And if they refure or they disobey not only can we cite them in contempt and have them arrested. x x x 62
In rendering this decision, the Court emphasizes once more that the basic principles of constitutional law cannot be
Fourth, we find merit in the argument of the OSG that respondent Committees likewise violated Section 21 of Article subordinated to the needs of a particular situation. As magistrates, our mandate is to rule objectively and
VI of the Constitution, requiring that the inquiry be in accordance with the "duly published rules of procedure." We dispassionately, always mindful of Mr. Justice Holmes' warning on the dangers inherent in cases of this nature, thus:
quote the OSG's explanation:
"some accident of immediate and overwhelming interest…appeals to the feelings and distorts the
The phrase 'duly published rules of procedure' requires the Senate of every Congress to publish its rules judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously
of procedure governing inquiries in aid of legislation because every Senate is distinct from the one before was clear seem doubtful, and before which even well settled principles of law will bend."66
it or after it. Since Senatorial elections are held every three (3) years for one-half of the Senate's
membership, the composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published its Rules of Procedure, the In this present crusade to "search for truth," we should turn to the fundamental constitutional principles which underlie
subject hearings in aid of legislation conducted by the 14th Senate, are therefore, procedurally our tripartite system of government, where the Legislature enacts the law, the Judiciary interprets it and the Executive
infirm. implements it. They are considered separate, co-equal, coordinate and supreme within their respective spheres but,
imbued with a system of checks and balances to prevent unwarranted exercise of power. The Court's mandate is to
preserve these constitutional principles at all times to keep the political branches of government within constitutional
bounds in the exercise of their respective powers and prerogatives, even if it be in the search for truth. This is the only Facts of the Cases
way we can preserve the stability of our democratic institutions and uphold the Rule of Law.

Prior to the conduct of the May 2010 elections, then President Gloria Macapagal-Arroyo (President Macapagal-
WHEREFORE, the petition is hereby GRANTED. The subject Order dated January 30, 2008, citing petitioner Arroyo) issued more than 800 appointments to various positions in several government offices.
Romulo L. Neri in contempt of the Senate Committees and directing his arrest and detention, is hereby nullified.

The ban on midnight appointments in Section 15, Article VII of the 1987 Constitution reads:
SO ORDERED.

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.

Thus, for purposes of the 2010 elections, 10 March 2010 was the cutoff date for valid appointments and the next day,
11 March 2010, was the start of the ban on midnight appointments. Section 15, Article VII of the 1987 Constitution
Republic of the Philippines recognizes as an exception to the ban on midnight appointments only "temporary appointments to executive positions
SUPREME COURT when continued vacancies therein will prejudice public service or endanger public safety." None of the petitioners
Manila claim that their appointments fall under this exception.
EN BANC
G.R. No. 203372 June 16, 2015
ATTY. CHELOY E. VELICARIA-GARAFIL, Petitioner, Appointments
vs.
OFFICE OF THE PRESIDENT and HON. SOLICITOR GENERAL JOSE ANSELMO I. CADIZ, Respondents.
G.R. No. 203372
x-----------------------x
G.R. No. 206290
ATTY. DINDO G. VENTURANZA, Petitioner, The paper evidencing Atty. Velicaria-Garafil's appointment as State Solicitor II at the OSG was dated 5 March
vs. 2010.13 There was a transmittal letter dated 8 March 2010 of the appointment paper from the Office of the President
OFFICE OF THE PRESIDENT, LEILA M. DE LIMA, in her capacity as the Secretary of the Department of (OP), but this transmittal letter was received by the Malacañang Records Office (MRO) only on 13 May 2010. There
Justice, CLARO A. ARELLANO, in his capacity as the Prosecutor General, and RICHARD ANTHONY D. was no indication as to the OSG's date of receipt of the appointment paper. On 19 March 2010, the OSG's Human
FADULLON, in his capacity as the Officer-in-Charge of the Office of the City Prosecutor of Quezon Resources Department called up Atty. Velicaria-Garafil to schedule her oath-taking. Atty. Velicaria-Garafil took her
City, Respondents. oath of office as State Solicitor II on 22 March 2010 and assumed her position on 6 April 2010.
x-----------------------x
G.R. No. 209138
IRMA A. VILLANUEVA and FRANCISCA B. ROSQUITA, Petitioners, G.R. No. 206290
vs.
COURT OF APPEALS and THE OFFICE OF THE PRESIDENT, Respondents.
x-----------------------x The paper evidencing Atty. Venturanza's appointment as Prosecutor IV (City Prosecutor) of Quezon City was dated
G.R. No. 212030 23 February 2010.14 It is apparent, however, that it was only on 12 March 2010 that the OP, in a letter dated 9 March
EDDIE U. TAMONDONG, Petitioner, 2010, transmitted Atty. Venturanza's appointment paper to then Department of Justice (DOJ) Secretary Alberto C.
vs. Agra.15 During the period between 23 February and 12 March 2010, Atty. Venturanza, upon verbal advice from
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., Respondent. Malacañang of his promotion but without an official copy of his appointment paper, secured clearances from the Civil
DECISION Service Commission (CSC),16 Sandiganbayan,17 and the DOJ.18 Atty. Venturanza took his oath of office on 15 March
2010, and assumed office on the same day.

CARPIO, J.:
G.R. No. 209138

The present consolidated cases involve four petitions: G.R. No. 203372 with Atty. Cheloy E. Velicaria-Garafil (Atty.
Velicaria-Garafil), who was appointed State Solicitor II at the Office of the Solicitor General (OSG), as petitioner; G.R. The paper evidencing Villanueva's appointment as Administrator for Visayas of the Board of Administrators of the
No. 206290 with Atty. Dindo G. Venturanza (Atty. Venturanza), who was appointed Prosecutor IV (City Prosecutor) of CDA was dated 3 March 2010.19 There was no transmittal letter of the appointment paper from the OP. Villanueva
Quezon City, as petitioner; G.R. No. 209138 with Irma A. Villanueva (Villanueva), who was appointed Administrator took her oath of office on 13 April 2010.
for Visayas of the Board of Administrators of the Cooperative Development Authority (CDA), and Francisca B.
Rosquita (Rosquita), who was appointed Commissioner of the National Commission of Indigenous Peoples (NCIP),
as petitioners; and G.R. No. 212030 with Atty. Eddie U. Tamondong (Atty. Tamondong), who was appointed member The paper evidencing Rosquita's appointment as Commissioner, representing Region I and the Cordilleras, of the
of the Board of Directors of the Subic Bay Metropolitan Authority (SBMA), as petitioner. All petitions question the NCIP was dated 5 March 2010.20 Like Villanueva, there was no transmittal letter of the appointment paper from the
constitutionality of Executive Order No. 2 (EO 2) for being inconsistent with Section 15, Article VII of the 1987 OP. Rosquita took her oath of office on 18 March 2010. G.R. No. 212030
Constitution.

The paper evidencing Atty. Tamondong's appointment as member, representing the private sector, of the SBMA
Petitioners seek the :reversal of the separate Decisions of the Court of Appeals (CA) that dismissed their petitions Board of Directors was dated 1 March 2010.21 Atty. Tamondong admitted that the appointment paper was received by
and upheld the constitutionality of EO 2. G.R. No. 203372 filed by Atty. Velicaria-Garafil is a Petition for Review on the Office of the SBMA Chair on 25 March 201022 and that he took his oath of office on the same day.23 He took
Certiorari,1 assailing the Decision2 dated 31 August 2012 of the CA in CA-G.R. SP No. 123662. G.R. No. 206290 filed another oath of office on 6 July 2010 as "an act of extra caution because of the rising crescendo of noise from the
by Atty. Venturanza is a Petition for Review on Certiorari,3 assailing the Decision4 dated 31 August 2012 and new political mandarins against the so-called 'midnight appointments."'24
Resolution5 dated 12 March 2013 of the CA in CA-G.R. SP No. 123659. G.R. No. 209138 filed by Villanueva and
Rosquita is a Petition for Certiorari,6 seeking to nullify the Decision7 dated 28 August 2013 of the CA in CA-G.R. SP
Nos. 123662, 123663, and 123664.8 Villanueva and Rosquita filed a Petition-in-Intervention in the consolidated cases To summarize, the pertinent dates for each petitioner are as follows:
before the CA. G.R. No. 212030 is a Petition for Review on Certiorari,9 assailing the Decision10 dated 31 August 2012
of the CA in CAG.R. SP No. 123664 and Resolution11 dated 7 April 2014 of the CA in CAG.R. SP Nos. 123662,
123663, and 123664.12 G.R. No. Date of Appointment Letter Date of Transmittal Letter Date of Receipt by MRO Date of Oath of Office Assumption of Office
 Provided, however, that notice of the appointment shall be given to the Commission within three days
5 March 2010 8 March 2010 13 May 2010 22 March 2010 6 April 2010 from the date of the appointment. Any appointment or hiring in violation of this provision shall be null and
caria-Garafil)
void.

23 February 2010 9 March 2010 12 March 2010 15 March 2010 15 March 2010 (2) Any government official who promotes or gives any increase of salary or remuneration or privilege to
nturanza)
any government official or employee, including those in government-owned or controlled corporations.";

3 March 2010 4 May 2010 13 April 2010 WHEREAS, it appears on record that a number of appointments were made on or about 10 March 2010 in complete
va)
disregard of the intent and spirit of the constitutional ban on midnight appointment and which deprives the new
administration of the power to make its own appointment;

5 March 2010 13 May 2010 18 March 2010

)
WHEREAS, based on established jurisprudence, an appointment is deemed complete only upon acceptance of the
appointee;
25 March 2010 and
1 March 2010
mondong) 6 July 2010
WHEREAS, in order to strengthen the civil service system, it is necessary to uphold the principle that appointments to
the civil service must be made on the basis of merit and fitness, it is imperative to recall, withdraw, and revoke all
appointments made in violation of the letter and spirit of the law;

Issuance of EO 2
NOW, THEREFORE, I, BENIGNO S. AQUINO III, by virtue of the powers vested in me by the Constitution as
President of the Philippines, do hereby order and direct that:
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. SECTION 1. Midnight Appointments Defined. - The following appointments made by the former President and other
appointing authorities in departments, agencies, offices, and instrumentalities, including government-owned or
controlled corporations, shall be considered as midnight appointments:
The entirety of EO 2 reads:

(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to March 11,
EXECUTIVE ORDER NO. 2 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.
RECALLING, WITHDRAWING, AND REVOKING APPOINTMENTS ISSUED BY THE PREVIOUS
ADMINISTRATION IN VIOLATION OF THE CONSTITUTIONAL BAN ON MIDNIGHT APPOINTMENTS, AND FOR
OTHER PURPOSES. (b) Those made prior to March 11, 2010, but to take effect after said date or appointments to office that
would be vacant only after March 11, 2010.

WHEREAS, Sec. 15, Article VII of the 1987 Constitution provides that "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, (c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010 elections
except temporary appointments to executive positions when continued vacancies therein will prejudice public service in violation of Section 261 of the Omnibus Election Code.
or endanger public safety."; WHEREAS, in the case of "In re: Appointments dated March 30, 1998 of Hon. Mateo
Valenzuela and Hon. Vallarta as Judges of the Regional Trial Court of Branch 62 of Bago City and Branch 24 of
Cabanatuan City, respectively" (A.M. No. 98-5-01-SC Nov. 9, 1998), the Supreme Court interpreted this provision to SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as defined under
mean that the President is neither required to make appointments nor allowed to do so during the two months Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise affected are hereby
immediately before the next presidential elections and up to the end of her term. The only known exceptions to this declared vacant.
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; SECTION 3. Temporary designations. - When necessary to maintain efficiency in public service and ensure the
continuity of government operations, the Executive Secretary may designate an officer-in-charge (OIC) to perform the
duties and discharge the responsibilities of any of those whose appointment has been recalled, until the replacement
WHEREAS, Section 261 of the Omnibus Election Code provides that: of the OIC has been appointed and qualified.

"Section 261. Prohibited Acts.-The following shall be guilty of an election offense: SECTION 4. Repealing Clause. - All executive issuances, orders, rules and regulations or part thereof inconsistent
with the provisions of this Executive Order are hereby repealed or modified accordingly.

(g) Appointments of new employees, creation of new position, promotion, or giving salary increases. -
During the period of forty-five days before a regular election and thirty days before a special election. SECTION 5. Separability Clause. - If any section or provision of this executive order shall be declared
unconstitutional or invalid, the other sections or provision not affected thereby shall remain in full force and effect.

(1) Any head, official or appointing officer of a government office, agency or instrumentality, whether
national or local, including government-owned or controlled corporations, who appoints or hires any new SECTION 6. Effectivity. - This Executive order shall take effect immediately.
employee, whether provisional, temporary or casual, or creates and fills any new position, except upon
prior authority to the Commission. The Commission shall not grant the authority sought unless it is
satisfied that the position to be filled is essential to the proper functioning of the office or agency DONE in the City of Manila, this 30th day of July, in the year Two Thousand and Ten.
concerned, and that the position shall not be filled in a manner that may influence the election.

By the President:
As an exception to the foregoing provisions, a new employee may be appointed in the case of urgent
need:
(Sgd.) PAQUITO N. OCHOA, JR. On 31 January 2012, this Court issued a Resolution referring the petitions, motions for intervention, as well as various
Executive Secretary25 letters, to the CA for further proceedings, including the reception and assessment of the evidence from all parties. We
defined the issues as follows:

(Sgd.) BENIGNO S. AQUINO III

1. Whether the appointments of the petitioners and intervenors were midnight appointments within the
coverage of EO 2;
Effect of the Issuance of EO 2

2. Whether all midnight appointments, including those of petitioners and intervenors, were invalid;
G.R. No. 203372

3 . Whether the appointments of the petitioners and intervenors were made with undue haste, hurried
On 5 August 2010, Jose Anselmo Cadiz assumed office as Solicitor General (Sol. Gen. Cadiz). On 6 August 2010, maneuvers, for partisan reasons, and not in accordance with good faith; and
Sol. Gen. Cadiz instructed a Senior Assistant Solicitor General to inform the officers and employees affected by EO 2
that they were terminated from service effective the next day.
4. Whether EO 2 violated the Civil Service Rules on Appointment. 33

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 This Court gave the CA the authority to resolve all pending matters and applications, and to decide the issues as if
August 2010, Atty. Velicaria-Garafil was informed that her former secretary at the OSG received a copy of a these cases were originally filed with the CA.
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.
Rulings of the CA

Atty. Velicaria-Garafil filed a petition for certiorari (G.R. No. 193327) before this Court on 1 September 2010. The
petition prayed for the nullification of EO 2, and for her reinstatement as State Solicitor II without loss of seniority, Even though the same issues were raised in the different petitions, the CA promulgated separate Decisions for the
rights and privileges, and with full backwages from the time that her salary was withheld.26 petitions. The CA consistently ruled that EO 2 is constitutional. The CA, however, issued different rulings as to the
evaluation of the circumstances of petitioners' appointments. 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,
G.R. No. 206290 Rosquita, and Atty. Tamondong, the CA explicitly stated that · the revocation of their appointments was proper
because they were midnight appointees.

On 1 September 2010, 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 G.R. No. 203372 (CA-G.R. SP No. 123662)
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. Atty. Venturanza also asked for a The CA promulgated its Decision in CA-G.R. SP No. 123662 on 31 August 2012. The CA ruled that EO 2 is not
status quo ante order to prevent Pros. Fadullon ·from usurping the position and functions of the City Prosecutor of unconstitutional. However, the CA relied on Sales v. Carreon34 in ruling that the OP should evaluate whether Atty.
Quezon City. Atty. Venturanza also wrote a letter to President Aquino on the same day, and sought reaffirmation of Velicaria-Garafil's appointment had extenuating circumstances that might make it fall outside the ambit of EO 2.
his promotion as City Prosecutor of Quezon City.

The dispositive portion of the CA's Decision reads:

On 6 October 2010, Atty. Venturanza received a letter dated 25 August 2010 from Sec. De Lima which directed him
to relinquish the office to which he was appointed, and to cease from performing its functions.
WHEREFORE, the petition for certiorari and mandamus [is] DENIED.

Atty. Venturanza filed a Petition for Certiorari, Prohibition, Mandamus with Urgent Prayer for Status Quo Ante Order,
Temporary Restraining Order and/or Preliminary Mandatory Injunction (G.R. No. 193 867) before this Court on 14 Executive Order No. 2, dated July 30, 2010, is NOT unconstitutional.
October 2010.27
The issue on whether or not to uphold petitioner's appointment as State Solicitor II at the OSG is hereby referred to
G.R. No. 209138 the Office of the President which has the sole authority and discretion to pass upon the same.

The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3 August 2010, Villanueva and SO ORDERED.35
Rosquita sought to intervene in G.R. No. 192991.28 On 1 October 2010, Executive Secretary Paquito N. Ochoa, Jr.
revoked Rosquita's appointment as NCIP Commissioner.29 On 13 October 2010, Villanueva and Rosquita notified this
Court that they wanted to intervene in Atty. Tamondong's petition (G.R. No. 192987) instead. G.R. No. 212030 (CA-G.R. SP No. 123664)

G.R. No. 212030 On 31 August 2012, the CA promulgated its Decision in CA-G.R. SP No. 123664. The dispositive portion reads as
follows:

Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010. He filed a petition for prohibition,
declaratory relief and preliminary injunction with prayer for temporary restraining order (G.R. No. 192987) before this WHEREFORE, premises considered, the instant Petition is hereby DISMISSED. Executive Order No. 2 is hereby
Court on 9 August 2010. The petition prayed for the prohibition of the implementation of EO 2, the declaration of his declared NOT UNCONSTITUTIONAL. Accordingly, the revocation of Atty. Eddie Tamondong's appointment as
appointment as legal, and the declaration of EO 2 as unconstitutional.30 Director of Subic Bay Metropolitan Authority is VALID for being a midnight appointment.

Referral to CA SO ORDERED.39

There were several petitions31 and motions for intervention32 that challenged the constitutionality of EO 2. The Issues for Resolution
We resolve the following issues in these petitions: (1) whether petitioners' appointments violate Section 15, Article VII the resultant consequences to the dignity and efficiency of the public service. Needless to say, there are instances
of the 1987 Constitution, and (2) whether EO 2 is constitutional. Ruling of the Court wherein not only strict legality, but also fairness, justice and righteousness should be taken into account.43

The petitions have no merit. All of petitioners' appointments are midnight appointments and are void for violation of During the deliberations for the 1987 Constitution, then Constitutional Commissioner (now retired Supreme Court
Section 15, Article VII of the 1987 Constitution. EO 2 is constitutional. Villanueva and Rosquita, petitioners in G.R. Chief Justice) Hilario G. Davide, Jr. referred to this Court's ruling in Aytona and stated that his proposal seeks to
No. 209138, did not appeal the CA's ruling under Rule 45, but instead filed a petition for certiorari under Rule 65. This prevent a President, whose term is about to end, from preempting his successor by appointing his own people to
procedural error alone warrants an outright dismissal of G.R. No. 209138. Even if it were correctly filed under Rule sensitive positions.
45, the petition should still be dismissed for being filed out of time.40 There was also no explanation as to why they did
not file a motion for reconsideration of the CA's Decision. Midnight Appointments
MR. DAVIDE: The idea of the proposal is that about the end of the term of the President, he may prolong his rule
indirectly by appointing people to these sensitive positions, like the commissions, the Ombudsman, the judiciary, so
This ponencia and the dissent both agree that the facts in all these cases show that "none of the petitioners have he could perpetuate himself in power even beyond his term of office; therefore foreclosing the right of his successor
shown that their appointment papers (and transmittal letters) have been issued (and released) before the ban."41 The to make appointments to these positions. We should realize that the term of the President is six years and under what
dates of receipt by the MRO, which in these cases are the only reliable evidence of actual transmittal of the we had voted on, there is no reelection for him. Yet he can continue to rule the country through appointments made
appointment papers by President Macapagal-Arroyo, are dates clearly falling during the appointment ban. Thus, this about the end of his term to these sensitive positions.44
ponencia and the dissent both agree that all the appointments in these cases are midnight appointments in violation
of Section 15, Article VII of the 1987 Constitution.
The 1986 Constitutional Commission put a definite period, or an empirical value, on Aytona's intangible "stratagem to
beat the deadline," and also on the act of "preempting the President's successor," which shows a lack of "good faith,
Constitutionality of EO 2 morality and propriety." Subject to only one exception, appointments made during this period are thus automatically
prohibited under the Constitution, regardless of the appointee's qualifications or even of the President's motives. The
period for prohibited appointments covers two months before the elections until the end of the President's term. The
Based on prevailing jurisprudence, appointment to a government post is a process that takes several steps to Constitution, with a specific exception, ended the President's power to appoint "two months immediately before the
complete. Any valid appointment, including one made under the exception provided in Section 15, Article VII of the next presidential elections." For an appointment to be valid, it must be made outside of the prohibited period or, failing
1987 Constitution, must consist of the President signing an appointee's appointment paper to a vacant office, the that, fall under the specified exception.
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. The dissent insists that, during the prohibited period, an appointment should be viewed in its "narrow sense." 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."45 The dissent makes acceptance of the appointment inconsequential. The
Aytona v. Castillo (Aytona)42 is the basis for Section 15, Article VII of the 1987 Constitution. Aytona defined "midnight dissent holds that an appointment is void if the appointment is made before the ban but the transmittal and
or last minute" appointments for Philippine jurisprudence.1âwphi1 President Carlos P. Garcia submitted on 29 acceptance are made after the ban. However, the dissent holds that an appointment is valid, or "efficacious," if the
December 1961, his last day in office, 350 appointments, including that of Dominador R. Aytona for Central Bank appointment and transmittal are made before the ban even if the acceptance is made after the ban. In short, the
Governor. President Diosdado P. Macapagal assumed office on 30 December 1961, and issued on 31 December dissent allows an appointment to take effect during the ban, as long as the President signed and transmitted the
1961 Administrative Order No. 2 recalling, withdrawing, and cancelling all appointments made by President Garcia appointment before the ban, even if the appointee never received the appointment paper before the ban and
after 13 December 1961 (President Macapagal's proclamation date). President Macapagal appointed Andres V. accepted the appointment only during the ban.
Castillo as Central Bank Governor on 1 January 1962. This Court dismissed Aytona's quo warranto proceeding
against Castillo, and upheld Administrative Order No. 2's cancellation of the "midnight or last minute" appointments.
We wrote: 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
x x x But the issuance of 350 appointments in one night and the planned induction of almost all of them a few hours and nobody else may be appointed to it. Moreover, an incumbent public official, appointed to another public office by
before the inauguration of the new President may, with some reason, be regarded by the latter as an abuse of the President, will automatically be deemed to occupy the new public office and to have automatically resigned from
Presidential prerogatives, the steps taken being apparently a mere partisan effort to fill all vacant positions his first office upon transmittal of his appointment paper, even if he refuses to accept the new appointment. This will
irrespective of fitness and other conditions, and thereby to deprive the new administration of an opportunity to make result in chaos in public service.
the corresponding appointments.

Even worse, a President who is unhappy with an incumbent public official can simply appoint him to another public
x x x Now it is hard to believe that in signing 350 appointments in one night, President Garcia exercised such "double office, effectively removing him from his first office without due process. The mere transmittal of his appointment
care" which was required and expected of him; and therefore, there seems to be force to the contention that these paper will remove the public official from office without due process and even without cause, in violation of the
appointments fall beyond the intent and spirit of the constitutional provision granting to the Executive authority to Constitution.
issue ad interim appointments.

The dissent's proferred excuse (that the appointee is not alluded to in Section 15, Article VII) for its rejection of
Under the circumstances above described, what with the separation of powers, this Court resolves that it must "acceptance by the appointee" as an integral part of the appointment process ignores the reason for the limitation of
decline to disregard the Presidential .Administrative Order No. 2, cancelling such "midnight" or "last-minute" the President's power to appoint, which is .to prevent the outgoing President from continuing to rule the country
appointments. indirectly after the end of his term. The 1986 Constitutional Commission installed a definite cut-off date as an
objective and unbiased marker against which this once-in-every-six-years prohibition should be measured.

Of course the Court is . aware of many precedents to the effect that once an appointment has been issued, it cannot
be reconsidered, specially where the appointee has qualified. But none of them refer to mass ad interim appointments The dissent's assertion that appointment should be viewed in its narrow sense (and is not a process) only during the
(three hundred and fifty), issued in the last hours of an outgoing Chief Executive, in a setting similar to that outlined prohibited period is selective and time-based, and ignores well-settled jurisprudence. For purposes of complying with
herein. On the other hand, the authorities admit of exceptional circumstances justifying revocation and if any the time limit imposed by the appointment ban, the dissent' s position cuts short the appointment process to the
circumstances justify revocation, those described herein should fit the exception. signing of the appointment paper and its transmittal, excluding the receipt of the appointment paper and acceptance
of the appointment by the appointee.

Incidentally, it should be stated that the underlying reason for denying the power to revoke after the appointee has
qualified is the latter's equitable rights. Yet it is doubtful if such equity might be successfully set up in the present The President exercises only one kind of appointing power. There is no need to differentiate the exercise of the
situation, considering the rush conditional appointments, hurried maneuvers and other happenings detracting from President's appointing power outside, just before, or during the appointment ban. The Constitution allows the
that degree of good faith, morality and propriety which form the basic foundation of claims to equitable relief. The President to exercise the power of appointment during the period not covered by the appointment ban, and disallows
appointees, it might be argued, wittingly or unwittingly cooperated with the stratagem to beat the deadline, whatever (subject to an exception) the President from exercising the power of appointment during the period covered by the
appointment ban. 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 The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may
appointment process for appointments just before the start of the appointment ban, or during the appointment ban in exercise freely according to his judgment, deciding for himself who is best qualified among those who have the
appointments falling within the exception. The existence of the appointment ban makes no difference in the power of necessary qualifications and eligibilities. It is a prerogative of the appointing power x x x x
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. Indeed, the power of choice is the heart of the power to appoint. 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.
In attempting to extricate itself from the obvious consequences of its selective application, the dissent glaringly
contradicts itself:
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
Thus, an acceptance is still necessary in order for the appointee to validly assume his post and discharge the President, such conferment necessarily carries the discretion of whom to appoint. Even on the pretext of prescribing
functions of his new office, and thus make the appointment effective. There can never be an instance where the the qualifications of the officer, Congress may not abuse such power as to divest the appointing authority, directly or
appointment of an incumbent will automatically result in his resignation from his present post and his subsequent indirectly, of his discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress can
assumption of his new position; or where the President can simply remove an incumbent from his current office by only be met by one individual, such enactment effectively eliminates the discretion of the appointing power to choose
appointing him to another one. I stress that acceptance through oath or any positive act is still indispensable before and constitutes an irregular restriction on the power of appointment. 50
any assumption of office may occur.46 (Emphasis added)

Transmittal
The dissent proposes that this Court ignore well-settled jurisprudence during the appointment ban, but apply the
same jurisprudence outside of 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
[T]he well-settled rule in our jurisprudence, that an appointment is a process that begins with the selection by the the President months before the appointment ban, but never left his locked drawer for the entirety of his term.
appointing power and ends with acceptance of the appointment by the appointee, stands. As early as the 1949 case Release of the appointment paper through the MRO is an unequivocal act that signifies the President's intent of its
of Lacson v. Romero, this Court laid down the rule that acceptance by the appointee is the last act needed to make issuance.
an appointment complete. The Court reiterated this rule in the 1989 case of Javier v. Reyes. In the 1996 case of
Garces v. Court of Appeals, this Court emphasized that acceptance by the appointee is indispensable to complete an
appointment. The 1999 case of Bermudez v. Executive Secretary, cited in the ponencia, affirms this standing rule in The MRO was created by Memorandum Order No. 1, Series of 1958, Governing the Organization and Functions of
our jurisdiction, to wit: the Executive Office and General Matters of Procedure Therein. Initially called the Records Division, the MRO
functioned as an administrative unit of the Executive Office. Memorandum Order No. 1 assigned the following
functions:
"The appointment is deemed complete once the last act required of the appointing authority has been complied with
and its acceptance thereafter by the appointee in order to render it effective."47
a. Receive, record and screen all incoming correspondence, telegrams, documents and papers, and

The dissent's assertion creates a singular exception to the well-settled doctrine that appointment is a process that
begins with the signing of the appointment paper, followed by the transmittal and receipt of the appointment paper, (1) Forward those of a personal and unofficial nature to the President's Private Office; and
and becomes complete with the acceptance of the appointment. The dissent makes the singular exception that during
the constitutionally mandated ban on appointments, acceptance is not necessary to complete the appointment. The
dissent gives no reason why this Court should make such singular exception, which is contrary to the express (2) Distribute those requiring action within the Office or requiring staff work prior to
provision of the Constitution prohibiting the President from making appointments during the ban. The dissent's presentation to the President to the appropriate units within the Office.
singular exception will allow the President, during the ban on appointments, to remove from office incumbents without
cause by simply appointing them to another office and transmitting the appointment papers the day before the ban
begins, appointments that the incumbents cannot refuse because their acceptance is not required during the ban. b. Follow up on correspondence forwarded to entities outside the Office to assure that prompt replies are
Adoption by this Court of the dissent's singular exception will certainly wreak havoc on the civil service. made and copies thereof furnished the Office.

The following elements should always concur in the making of a valid (which should be understood as both complete c. Dispatch outgoing correspondence and telegrams.
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
d. Have custody of records of the Office, except personal papers of the President, and keep them in such
the appointment paper and acceptance of the appointment by the appointee who possesses all the qualifications and
condition as to meet the documentary and reference requirements of the Office.
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. These steps in the appointment
process should always concur and operate as a single process. There is no valid appointment if the process lacks e. Keep and maintain a filing and records system for acts, memoranda, orders, circulars, correspondence
even one step. And, unlike the dissent's proposal, there is no need to further distinguish between an effective and an and other documents affecting the Office for ready reference and use.
ineffective appointment when an appointment is valid.

f. Issue certified true copies of documents on file in the Division m accordance with prevailing standard
Appointing Authority operating procedure.

The President's exercise of his power to appoint officials is provided for in the Constitution and laws.48 Discretion is an g. Keep a separate record of communications or documents of confidential nature.
integral part in the exercise of the power of appointment. 49 Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion. According to Woodbury, J., "the choice of a person to fill an
office constitutes the essence of his appointment," and Mr. Justice Malcolm adds that an "[a]ppointment to office is h. Have custody of the Great Seal of the Republic of the Philippines.
intrinsically an executive act involving the exercise of discretion." In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court we held:
i. Prepare and submit to the approving authority, periodic disposition schedules of non-current records
which have no historical, legal and/or claim value.
 j. With the approval of the Executive Secretary, assist other offices in the installation or improvement of Q: Is this procedure observed for the release of an appointment paper signed by the President? A: Yes. It is observed
their records management system; and for the release of the original copy of the appointment paper signed by the President.

k. Give instructions or deliver lectures and conduct practical training to in-service trainees from other Q: Can you briefly illustrate the procedure for the release of the original copy of the appointment paper signed by the
offices and to students from educational institutions on records management. 51 President?

The Records Division was elevated to an Office in 1975, with the addition of the following functions: A: After an appointment paper is signed by the President, the Office of the Executive Secretary (OES) forwards the
appointment paper bearing the stamp mark, barcode, and hologram of the Office of the President, together with a
transmittal letter, to the MRO for official release. Within the same day, the MRO sends the original copy of the
1. Maintain and control vital documents and essential records to support the functions of the appointment paper together with the transmittal letter and a delivery receipt which contains appropriate spaces for the
OP in its day to day activities; name of the addressee, the date released, and the date received by the addressee. Only a photocopy of the
appointment is retained for the MRO's official file.

2. Monitor the flow of communications' from their time of receipt up to their dispatch;
Q: What is the basis for the process you just discussed?

3. Service the documentary, information and reference requirements of top management

and action officers of the OP, and the reference and research needs of other government A: The Service Guide of the MRO.
agencies and the general public;

xxxx
4. Ensure the proper storage, maintenance, protection and preservation of vital and
presidential documents, and the prompt disposal of obsolete and valueless records;
Q: What is the legal basis for the issuance of the MRO Service Guide, if any?

5. Effect the prompt publication/dissemination of laws, presidential issuances and classified

documents; A: The MRO Service Guide was issued pursuant to Memorandum Circular No. 35, Series of 2003 and Memorandum
Circular No. 133, Series of 2007.

6. Provide computerized integrated records management support services for easy

reference and retrieval of data and information; and xxxx

7. To be able to represent the OP and OP officials in response to Subpoena Duces Tecum Q: Do you exercise any discretion in the release of documents forwarded to the MRO for transmittal to various
and Testificandum served by courts and other investigating bodies.52 offices?

For purposes of verification of the appointment paper's existence and authenticity, the appointment paper must bear A: No. We are mandated to immediately release all documents and correspondence forwarded to us for transmittal.
the security marks (i.e., handwritten signature of the President, bar code, etc.) and must be accompanied by a
transmittal letter from the MRO.
Q: If a document is forwarded by the OES to the MRO today, when is it officially released by the MRO to the
department or agency concerned?
The testimony of Mr. Mariani to Dimaandal, Director IV of the MRO, underscores the purpose of the release of papers
through his office.
A: The document is released within the day by the MRO if the addressee is within Metro Manila. For example, in the
case of the appointment paper of Dindo Venturanza, the OES forwarded to the MRO on March 12, 2010 his original
Q: What are the functions of the MRO? appointment paper dated February 23, 2010 and the transmittal letter dated March 9, 2010 prepared by the OES. The
MRO released his appointment paper on the same day or on March 12, 2010, and was also received by the DOJ on
March 12, 2010 as shown by the delivery receipt.
A: The MRO is mandated under Memorandum Order No. 1, series of 1958 to (1) receive, record, and screen all
incoming correspondence, telegrams, documents, and papers; (2) follow up on correspondence forwarded to entities
outside the Office of the President ("OP") to assure that prompt replies are made and copies thereof furnished the Q: What is the effect if a document is released by an office or department within Malacañan without going through the
OP; (3) timely dispatch all outgoing documents and correspondence; (4) have custody of records of the OP, except MRO?
personal papers of the President, and keep them in such condition as to meet the documentary and reference
requirements of the Office; (5) keep and maintain a filing and records system for Acts, Memoranda, Orders, Circulars,
correspondence, and other pertinent documents for ready reference and use; ( 6) issue certified copies of documents A: If a document does not pass through the MRO contrary to established procedure, the MRO cannot issue a certified
on file as requested and in accordance with prevailing standard operating procedures; (7) maintain and control vital true copy of the same because as far as the MRO is concerned, it does not exist in our official records, hence, not an
documents and essential records to support the OP in its day-to-day activities; (8) monitor the flow of communications official document from the Malacañang. There is no way of verifying the document's existence and authenticity unless
from the time of receipt up to their dispatch; and (9) other related functions. the document is on file with the MRO even if the person who claims to have in his possession a genuine document
furnished to him personally by the President. As a matter of fact, it is only the MRO which is authorized to issue
certified true copies of documents emanating from Malacañan being the official custodian and central repository of
xxxx said documents. Not even the OES can issue a certified true copy of documents prepared by them.

Q: As you previously mentioned, the MRO is the custodian of all documents emanating from Malacañang pursuant to Q: Why do you say that, Mr. Witness?
its mandate under Memorandum Order No. 1, Series of 1958. Is the MRO required to follow a specific procedure in
dispatching outgoing documents?
A: Because the MRO is the so-called "gatekeeper" of the Malacañang Palace. All incoming and outgoing documents
and correspondence must pass through the MRO. As the official custodian, the MRO is in charge of the official
A: Yes. release of documents.
Q: What if an appointment paper was faxed by the Office of the Executive Secretary to the appointee, is that Q: Out of the more than 800 appointees made in March 2010, how many appointment papers and transmittal letters
considered an official release by the MRO? were released through the MRO?

A: No. It is still the MRO which will furnish the original copy of the appointment paper to the appointee. That A: Only 133 appointment papers were released through the MRO.
appointment paper is, at best, only an "advanced copy."

Q: In some of these transmittal letters and appointment papers which were not released through the MRO but
Q: Assuming the MRO has already received the original appointment paper signed by the President together with the apparently through the OES, there were portions on the stamp of the OES which supposedly indicated the date and
transmittal letter prepared by the OES, you said that the MRO is bound to transmit these documents immediately, that time it was actually received by the agency or office concerned but were curiously left blank, is this regular or
is, on the same day? irregular?

A: Yes. A: It is highly irregular.

Q: Were there instances when the President, after the original appointment paper has already been forwarded to the Q: Why do you say so?
MRO, recalls the appointment and directs the MRO not to transmit the documents?

A: Usually, if the document released by the MRO, the delivery receipt attached to the transmittal letter is filled out
A: Yes, there were such instances. completely because the dates when the original appointment papers were actually received are very material. It is a
standard operating procedure for the MRO personnel to ask the person receiving the documents to write his/her
name, his signature, and the date and time when he/she received it.
Q: How about if the document was already transmitted by the MRO, was there any instance when it was directed to
recall the appointment and retrieve the documents already transmitted? A: Yes, but only in a few instances.
Sometimes, when the MRO messenger is already in transit or while he is already in the agency or office concerned, Q: So, insofar as these transmittal letters and appointment papers apparently released by the OES are concerned,
we get a call to hold the delivery. Q: You previously outlined the procedure governing the transmittal of original copies what is the actual date when the agency or the appointee concerned received it?
of appointment papers to the agency or office concerned. Would you know if this procedure was followed by previous
administrations?
A: I cannot answer. There is no way of knowing when they were actually received because the date and time were
deliberately or inadvertently left blank.
A: Yes. Since I started working in the MRO in 1976, the procedure has been followed. However, it was unusually
disregarded when the appointments numbering more than 800 were made by then President Arroyo in March 2010.
The MRO did not even know about some of these appointments and we were surprised when we learned about them Q: Can we say that the date appearing on the face of the transmittal letters or the appointment papers is the actual
in the newspapers. date when it was released by the OES?

Q: You mentioned that then President Arroyo appointed more than 800 persons in the month of March alone. How A: We cannot say that for sure. That is why it is very unusual that the person who received these documents did not
were you able to determine this number? indicate the date and time when it was received because these details are very important. 53

A: My staff counted all the appointments made by then President An-oyo within the period starting January 2009 until The MRO's exercise of its mandate does not prohibit the President or the Executive Secretary from giving the
June 2010. 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. The appointee would then have
to prove that the appointment paper was directly given to him.
Q: What did you notice, if any, about these appointments?

Dimaandal's counsel made this manifestation about petitioners' appointment papers and their transmittal:
A: There was a steep rise in the number of appointments made by then President Arroyo in the month of March 2010
compared to the other months.
Your Honors, we respectfully request for the following markings to be made:

Q: Do you have any evidence to show this steep rise?

1. A) The Transmittal Letter pertinent to the appointment of petitioner DINDO VENTURANZA dated
March 9, 2010 as Exhibit "2-F" for the respondents;
A: Yes. I prepared a Certification showing these statistics and the graphical representation thereof.

B) The delivery receipt attached in front of the letter bearing the date March 12, 2010 as
Q: If those documents will be shown to you, will you be able to recognize them? Exhibit "2-F-l";

A: Yes. C) The Appointment Paper of DINDO VENTURANZA dated February 23, 2010 as Exhibit "2-
G" for the respondents;

Q: I am showing you a Certification containing the number of presidential appointees per month since January 2009
until June 2010, and a graphical representation thereof. Can you go over these documents and tell us the relation of 2. A) The Transmittal Letter pertinent to the appointment of CHELOY E. VELICARIA-GARAFIL turned
these documents to the ones you previously mentioned? over to the MRO on May 13, 2010 consisting of seven (7) pages as Exhibits "2-H," "2-H-l," "2-H-2," "2-H-
3," "2-H-4," "2-H-5," and "2-H-6" respectively for the respondents;

A: These are [sic] the Certification with the table of statistics I prepared after we counted the appointments, as well as
the graph thereof. i. The portion with the name "CHELOY E. VELICARIAGARAFIL" as "State
Solicitor II, Office of the Solicitor General" located on the first page of the letter
as Exhibit "2-H-7;"
xxxx
 ii. The portion rubber stamped by the Office of the Executive Secretary located A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned over
at the back of the last page of the -letter showing receipt by the DOJ with blank to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped "released"
spaces for the date and time when it was actually received as Exhibit "2-H-8;" by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left
blank.

B) The Appointment Paper of CHELOY E. VELICARIA-GARAFIL dated March 5, 2010 as

Exhibit "2-I" for the respondents; Q: What is your basis?

xxxx A: The transmittal letter and appointment paper turned over to the MRO.

4. A) The Transmittal Letter pertinent to the appointment of EDDIE U. TAMONDONG dated 8 March xxxx
2010 but turned over to the MRO only on May 6, 2010 consisting of two (2) pages as Exhibits "2-L" and
"2-L-l" respectively for the respondents;
Q: In the case of Eddie U. Tamondong, who was appointed as member of the Board of Directors of Subic Bay
Metropolitan Authority, was her [sic] appointment paper released through the MRO?
(a) The portion with the name "EDDIE U. TAMONDONG" as "Member, representing the
Private Sector, Board of Directors" as Exhibit "2-L-2";
A: No. His appointment paper dated March 1, 2010, with its corresponding transmittal letter, was merely turned over
to the MRO on May 6, 2010. The transmittal letter that was turned over to the MRO was already stamped "released"
(b) The portion rubber stamped by the Office of the Executive Secretary located at the back by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left
of the last page of the letter showing receipt by Ma. Carissa O. Coscuella with blank spaces blank.
for the date and time when it was actually received as Exhibit "2-L-3";

Q: What is your basis?

xxxx

A: The transmittal letter and appointment paper turned over to the MRO.
8. A) The Transmittal Letter pertinent to the appointments of x x x FRANCISCA
BESTOYONG-ROSQUITA dated March 8, 2010 but turned over to the MRO on May 13,
2010 as Exhibit "2-T" for the respondents; xxxx

xxxx Q: In the case of Francisca Bestoyong-Resquita who was appointed as Commissioner of the National Commission on
Indigenous Peoples, representing Region 1 and the Cordilleras, was her appointment paper released thru the MRO?

(c) The portion with the name "FRANCISCA BESTOYONGROSQUIT A" as "Commissioner,
Representing Region I and the Cordilleras" as Exhibit "2-T-3·" A: No. Her appointment paper dated March 5, 2010, with its corresponding transmittal letter, was merely turned over
to the MRO on May 13, 2010. The transmittal letter that was turned over to the MRO was already stamped "released"
by the Office of the Executive Secretary and received on March 15, 2010.
(d) The portion rubber stamped by the Office of the Executive Secretary at the back thereof
showing receipt by Masli A. Quilaman of NCIP-QC on March 15, 2010 as Exhibit "2-T-4;"
Q: What is your basis?

xxxx
A: The transmittal letter and appointment paper turned over to the MRO.

D) The Appointment Paper of FRANCISCA BESTOYONGROSQUIT A dated March 5, 2010 as Exhibit

"2-W" for the respondents; xxxx

9. A) The Transmittal Letter pertinent to the appointment of IRMA A. VILLANUEVA as Administrator for Q: In the case of Irma A. Villanueva who was appointed as Administrator for Visayas of the Cooperative Development
Visayas, Board of Administrators, Cooperative Development Authority, Department of Finance dated Authority, was her appointment paper released thru the MRO?
March 8, 2010 as Exhibit "2-X" for the respondents;

A: No. Her appointment paper dated March 3, 2010, with its corresponding transmittal letter, was merely turned over
(a) The portion rubber stamped by the Office of the Executive Secretary at the back thereof to the MRO on May 4, 2010. The transmittal letter that was turned over to the MRO was already stamped "released"
showing receipt by DOF with blank spaces for the date and time when it was actually by the Office of the Executive Secretary, but the date and time as to when it was actually received were unusually left
received as Exhibit "2-X-1 ;" blank.

B) The Appointment Paper of IRMA A. VILLANUEVA dated March 3, 2010 as Exhibit "2-Y" for the Q: What is your basis?
respondents.54

A: The transmittal letter and appointment paper turned over to the MR0.55
The testimony of Ellenita G. Gatbunton, Division Chief of File Maintenance and Retrieval Division of the MRO,
supports Dimaandal's counsel's manifestation that the transmittal of petitioners' appointment papers is questionable.
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,
Q: In the case of Cheloy E. Velicaria-Garafil, who was appointed as State Solicitor II of the Office of the Solicitor accident, fraud, fire or theft, corresponds to a loss of the office.56 However, in case of loss of the original appointment
General, was her appointment paper released through the MRO? 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 Dindo G. Venturanza (G.R. No. 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and Atty.
incumbent must first be legally removed, or his appointment validly terminated, before one could be validly installed to Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that Executive Order No. 2 dated 30 July
succeed him.57 2010 is VALID and CONSTITUTIONAL.

To illustrate: in Lacson v. Romero,58 Antonio Lacson (Lacson) occupied the post of provincial fiscal of Negros SO ORDERED.
Oriental. He was later nominated and confirmed as provincial fiscal of Tarlac. The President nominated and the
Commission on Appointments confirmed Honorio Romero (Romero) as provincial fiscal of Negros Oriental as
Lacson's replacement. Romero took his oath of office, but Lacson neither accepted the appointment nor assumed
office as provincial fiscal of Tarlac. This Court ruled that Lacson remained as provincial fiscal of Negros Oriental,
having declined the appointment as provincial fiscal of Tarlac. There was no vacancy to which Romero could be
legally appointed; hence, Romero's appointment as provincial fiscal ofNegros Oriental vice Lacson was invalid.

The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes Republic of the Philippines
the nomination by the President. Then to make that nomination valid and permanent, the Commission on SUPREME COURT
Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the Manila
appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a EN BANC
post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to G.R. Nos. 184461-62 May 31, 2011
make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO AND LT. FRANCIS MIRABELLE SAMSON, Petitioners,
the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil. 327, "there is no power in this vs.
country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Respondents.
appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal x - - - - - - - - - - - - - - - - - - - - - - -x
of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as such G.R. No. 184495
fiscal of Negros Oriental.59 ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN. ROMEO TOLENTINO, (RET.)
Paragraph (b ), Section 1 of EO 2 considered as midnight appointments those appointments to offices that will only GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE ANOTADO, ET AL., Respondents.
be vacant on or after 11 March 2010 even though the appointments are made prior to 11 March 2010. EO 2 remained x - - - - - - - - - - - - - - - - - - - - - - -x
faithful to the intent of Section 15, Article VII of the 1987 Constitution: the outgoing President is prevented from G.R. No. 187109
continuing to rule the country indirectly after the end of his term. ERLINDA T. CADAPAN AND CONCEPCION E. EMPEñO, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. HERMOGENES ESPERON, P/DIR.GEN. AVELINO RAZON, (RET.) GEN.
Acceptance by the Qualified Appointee ROMEO TOLENTINO, (RET.) GEN. JOVITO PALPARAN, LT. COL. ROGELIO BOAC, LT. COL. FELIPE
ANOTADO, DONALD CAIGAS, A.K.A. ALAN OR ALVIN, ARNEL ENRIQUEZ AND LT. FRANCIS MIRABELLE
SAMSON, Respondents.
Acceptance is indispensable to complete an appointment. Assuming office and taking the oath amount to acceptance
DECISION
of the appointment.60 An oath of office is a qualifying requirement for a public office, a prerequisite to the full
CARPIO MORALES, J.:
investiture of the office.61

At 2:00 a.m. of June 26, 2006, armed men abducted Sherlyn Cadapan (Sherlyn), Karen Empeño (Karen) and Manuel
Javier v. Reyes62 is instructive in showing how acceptance is indispensable to complete an appointment. On 7
Merino (Merino) from a house in San Miguel, Hagonoy, Bulacan. The three were herded onto a jeep bearing license
November 1967, petitioner Isidro M. Javier (Javier) was appointed by then Mayor Victorino B. Aldaba as the Chief of
plate RTF 597 that sped towards an undisclosed location.
Police of Malolos, Bulacan. The Municipal Council confirmed and approved Javier's appointment on the same date.
Javier took his oath of office on 8 November 1967, and subsequently discharged the rights, prerogatives, and duties
of the office. On 3 January 1968, while the approval of Javier's appointment was pending with the CSC, respondent Having thereafter heard nothing from Sherlyn, Karen and Merino, their respective families scoured nearby police
Purificacion C. Reyes (Reyes), as the new mayor of Malolos, sent to the . CSC a letter to recall Javier's appointment. precincts and military camps in the hope of finding them but the same yielded nothing.
Reyes also designated Police Lt. Romualdo F. Clemente as Officer-in-Charge of the police department. The CSC
approved Javier's appointment as permanent on 2 May 1968, and even directed Reyes to reinstate Javier. Reyes, on
the other hand, pointed to the appointment of Bayani Bernardo as Chief of Police of Malolos, Bulacan on 4 On July 17, 2006, spouses Asher and Erlinda Cadapan and Concepcion Empeño filed a petition for habeas
September 1967. This Court ruled that Javier's appointment prevailed over that of Bernardo. It cannot be said that corpus1 before the Court, docketed as G.R. No. 173228, impleading then Generals Romeo Tolentino and Jovito
Bernardo accepted his appointment because he never assumed office or took his oath. Palparan (Gen. Palparan), Lt. Col. Rogelio Boac (Lt. Col. Boac), Arnel Enriquez and Lt. Francis Mirabelle Samson (Lt.
Mirabelle) as respondents. By Resolution of July 19, 2006,2 the Court issued a writ of habeas corpus, returnable to
the Presiding Justice of the Court of Appeals.
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 The habeas corpus petition was docketed at the appellate court as CA-G.R. SP No. 95303.
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. By Return of the Writ dated July 21, 2006,3 the respondents in the habeas corpus petition denied that Sherlyn, Karen
and Merino are in the custody of the military. To the Return were attached affidavits from the respondents, except
Enriquez, who all attested that they do not know Sherlyn, Karen and Merino; that they had inquired from their
Petitioners have failed to show compliance with all four elements of a valid appointment. They cannot prove with subordinates about the reported abduction and disappearance of the three but their inquiry yielded nothing; and that
certainty that their appointment papers were transmitted before the appointment ban took effect. On the other hand, the military does not own nor possess a stainless steel jeep with plate number RTF 597. Also appended to the Return
petitioners admit that they took their oaths of office during the appointment ban. was a certification from the Land Transportation Office (LTO) that plate number RTF 597 had not yet been
manufactured as of July 26, 2006.
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. Trial thereupon ensued at the appellate court.

WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are DENIED, and the petition in G.R. No. Witness Wilfredo Ramos, owner of the house where the three were abducted, recounted that on June 26, 2006, while
209138 is DISMISSED. The appointments of petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. he was inside his house in Hagonoy, he witnessed armed men wearing bonnets abduct Sherlyn and Karen from his
house and also abduct Merino on their way out; and that tied and blindfolded, the three were boarded on a jeep and The Court, however, further resolves to refer the case to the Commission on Human Rights, the National Bureau of
taken towards Iba in Hagonoy.4 Investigation and the Philippine National Police for separate investigations and appropriate actions as may be
warranted by their findings and to furnish the Court with their separate reports on the outcome of their investigations
and the actions taken thereon.
Witness Alberto Ramirez (Ramirez) recalled that on June 28, 2006, while he was sleeping in his house, he was
awakened by Merino who, in the company of a group of unidentified armed men, repaired to his house; that onboard
a stainless jeep bearing plate number RTF 597, he (Ramirez) was taken to a place in Mercado, Hagonoy and was Let copies of this decision be furnished the Commission on Human Rights, the National Bureau of Investigation and
asked by one Enriquez if he knew "Sierra," "Tanya," "Vincent" and "Lisa"; and that Enriquez described the the Philippine National Police for their appropriate actions.
appearance of two ladies which matched those of Sherlyn and Karen, whom he was familiar with as the two had
previously slept in his house.5
SO ORDERED. (emphasis and underscoring supplied)

Another witness, Oscar Leuterio, who was himself previously abducted by armed men and detained for five months,
testified that when he was detained in Fort Magsaysay in Nueva Ecija, he saw two women fitting the descriptions of Petitioners in CA-G.R. SP No. 95303 moved for a reconsideration of the appellate court’s decision. They also moved
Sherlyn and Karen, and also saw Merino, his kumpare.6 to present newly discovered evidence consisting of the testimonies of Adoracion Paulino, Sherlyn’s mother-in-law
who was allegedly threatened by soldiers; and Raymond Manalo who allegedly met Sherlyn, Karen and Merino in the
course of his detention at a military camp.
Lt. Col. Boac, the then commander of Task Force Malolos, a special operations team tasked to neutralize the
intelligence network of communists and other armed groups, declared that he conducted an inquiry on the abduction
of Sherlyn, Karen and Merino but his subordinates denied knowledge thereof. 7 During the pendency of the motion for reconsideration in CA-G.R. SP No. 95303, Erlinda Cadapan and Concepcion
Empeño filed before this Court a Petition for Writ of Amparo14 With Prayers for Inspection of Place and Production of
Documents dated October 24, 2007, docketed as G.R. No. 179994. The petition impleaded the same respondents in
While he denied having received any order from Gen. Palparan to investigate the disappearance of Sherlyn, Karen the habeas corpus petition, with the addition of then President Gloria Macapagal-Arroyo, then Armed Forces of the
and Merino, his assistance in locating the missing persons was sought by the mayor of Hagonoy. Phil. (AFP) Chief of Staff Hermogenes Esperon Jr., then Phil. National Police (PNP) Chief Gen. Avelino Razon (Gen.
Razon), Lt. Col. Felipe Anotado (Lt. Col. Anotado) and Donald Caigas.

Major Dominador Dingle, the then division adjutant of the Philippine Army’s 7th Infantry Division in Fort Magsaysay,
denied that a certain Arnel Enriquez is a member of his infantry as in fact his name did not appear in the roster of Then President Arroyo was eventually dropped as respondent in light of her immunity from suit while in office.
troops.8

Petitioners in G.R. No. 179994 also prayed that they be allowed to inspect the detention areas of the following places:
Roberto Se, a supervisor of the Equipment, Plate Number and Supply Units of the LTO, denied that his office
manufactured and issued a plate number bearing number RTF 597.9
1. 7th Infantry Division at Fort Magsaysay, Laur, Nueva Ecija

On rebuttal, Lt. Mirabelle, Lt. Col. Boac and Gen. Palparan took the witness stand as hostile witnesses.
2. 24th Infantry Batallion at Limay, Bataan

Lt. Mirabelle testified that she did not receive any report on the abduction of Sherlyn, Karen and Merino nor any order
to investigate the matter. And she denied knowing anything about the abduction of Ramirez nor who were Ka Tanya 3. Army Detachment inside Valmocina Farm, Pinaod, San Ildefonso, Bulacan
or Ka Lisa.10

4. Camp Tecson, San Miguel, Bulacan

Gen. Palparan testified that during a debate in a televised program, he mentioned the names of Ka Lisa and Ka
Tanya as the ones involved in revolutionary tax activities; and that he ordered Lt. Col. Boac to conduct an
investigation on the disappearance of Sherlyn, Karen and Merino.11 When pressed to elaborate, he stated: "I said that 5. The Resthouse of Donald Caigas alias Allan or Alvin of the 24th Infantry Batallion at Barangay Banog,
I got the report that it stated that it was Ka Tanya and Ka Lisa that, I mean, that incident happened in Hagonoy, Bolinao, Pangasinan
Bulacan was the abduction of Ka Lisa and Ka Tanya, Your Honor, and another one. That was the report coming from
the people in the area."12
6. 56th Infantry Batallion Headquarters at Iba, Hagonoy, Bulacan

13
By Decision of March 29, 2007, the Court of Appeals dismissed the habeas corpus petition in this wise:
7. Army Detachment at Barangay Mercado, Hagonoy, Bulacan

As Sherlyn Cadapan, Karen Empeño and Manuel Merino are indeed missing, the present petition for habeas
corpus is not the appropriate remedy since the main office or function of the habeas corpus is to inquire into the 8. Beach House [at] Iba, Zambales used as a safehouse with a retired military personnel as a caretaker;
legality of one’s detention which presupposes that respondents have actual custody of the persons subject of the
petition. The reason therefor is that the courts have limited powers, means and resources to conduct an investigation.
By Resolution of October 25, 2007, the Court issued in G.R. No. 179994 a writ of amparo returnable to the Special
x x x.
Former Eleventh Division of the appellate court, and ordered the consolidation of the amparo petition with the pending
habeas corpus petition.
It being the situation, the proper remedy is not a habeas corpus proceeding but criminal proceedings by initiating
criminal suit for abduction or kidnapping as a crime punishable by law. In the case of Martinez v. Mendoza, supra, the
Docketed as CA-G.R. SP No. 002, respondents in the amparo case, through the Solicitor General, filed their Return
Supreme Court restated the doctrine that habeas corpus may not be used as a means of obtaining evidence on the
of the Writ on November 6, 2007.15 In the Return, Gen. Palparan, Lt. Col. Boac and Lt. Mirabelle reiterated their
whereabouts of a person, or as a means of finding out who has specifically abducted or caused the disappearance of
earlier narrations in the habeas corpus case.
a certain person. (emphasis and underscoring supplied)

Gen. Hermogenes Esperon Jr. stated in the Return that he immediately caused to investigate and verify the identities
Thus the appellate court disposed:
of the missing persons and was aware of the earlier decision of the appellate court ordering the police, the
Commission on Human Rights and the National Bureau of Investigation to take further action on the matter. 16
WHEREFORE, the petition for habeas corpus is hereby DISMISSED, there being no strong evidence that the missing
persons are in the custody of the respondents.
Lt. Col. Felipe Anotado, the then battalion commander of the 24th Infantry Battalion based in Balanga City, Bataan, Si Sherlyn ang pinahirapan nina Mickey, Donald at Billy. Sabi ni Sherlyn sa akin na siya’y ginahasa.
denied any involvement in the abduction. While the 24th Infantry Battalion detachment was reported to be a detention
site of the missing persons, Lt. Col. Anotado claimed that he found no untoward incident when he visited said
detachment. He also claimed that there was no report of the death of Merino per his inquiry with the local police.17 xxxx

Police Director General Avelino Razon narrated that he ordered the compilation of pertinent records, papers and 63. x x x x
other documents of the PNP on the abduction of the three, and that the police exhausted all possible actions
available under the circumstances.18
xxxx

In addition to the witnesses already presented in the habeas corpus case, petitioners called on Adoracion Paulino
and Raymond Manalo to testify during the trial. Kaming lima (ako, si Reynaldo, si Sherlyn, si Karen at si [Merino]) ang dinala sa Limay. Sinakay ako, si Reynaldo, si
Sherlyn at si [Merino] sa isang stainless na jeep. Si Karen ay isinakay sa itim na sasakyan ni Donald Caigas. x x x x

Adoracion Paulino recalled that her daughter-in-law Sherlyn showed up at home on April 11, 2007, accompanied by
two men and three women whom she believed were soldiers. She averred that she did not report the incident to the xxxx
police nor inform Sherlyn’s mother about the visit.19
66. Saan pa kayo dinala mula sa Limay, Bataan?
Raymond Manalo (Manalo) claimed that he met the three abducted persons when he was illegally detained by
military men in Camp Tecson in San Miguel, Bulacan. His group was later taken to a camp in Limay, Bataan. He
recalled that Lt. Col. Anotado was the one who interrogated him while in detention.20 Mula sa Limay, kaming 5 (ako, si Reynaldo, si Sherlyn, Si Karen at si Manuel) ay dinala sa isang safehouse sa
Zambales, tabi ng dagat. x x x x (underscoring supplied; italics and emphasis in the original)

In his Sinumpaang Salaysay,21 Manalo recounted:

On rebuttal, Lt. Col. Anotado and Col. Eduardo Boyles Davalan were called to the witness stand.

xxxx
Lt. Col. Anotado denied seeing or meeting Manalo. He posited that Manalo recognized him because he was very
active in conducting lectures in Bataan and even appeared on television regarding an incident involving the 24th
59. Saan ka dinala mula sa Sapang? Infantry Batallion. He contended that it was impossible for Manalo, Sherlyn, Karen and Merino to be detained in the
Limay detachment which had no detention area.

Pagkalipas ng humigit kumulang 3 buwan sa Sapang, dinala ako sa Camp Tecson sa ilalim ng 24th IB.
Col. Eduardo Boyles Davalan, the then chief of staff of the First Scout Ranger Regiment in Camp Tecson, testified
that the camp is not a detention facility, nor does it conduct military operations as it only serves as a training facility
xxxx for scout rangers. He averred that his regiment does not have any command relation with either the 7th Infantry
Division or the 24th Infantry Battalion.22

Sa loob ng barracks ko nakilala si Sherlyn Cadapan, isang estudyante ng UP.

By Decision of September 17, 2008,23 the appellate court granted the Motion for Reconsideration in CA-G.R. SP No.
95303 (the habeas corpus case) and ordered the immediate release of Sherlyn, Karen and Merino in CA-G.R. SP No.
Ipinapalinis din sa akin ang loob ng barracks. Sa isang kwarto sa loob ng barracks, may nakita akong babae na 00002 (the amparo case). Thus it disposed:
nakakadena[.] Noong una, pinagbawalan akong makipag-usap sa kanya. Sa ikatlo o ikaapat na araw, nakausap ko
yung babaeng nagngangalang Sherlyn. Binigyan ko siya ng pagkain. Sinabi niya sa akin na dinukot si[ya] sa
Hagonoy, Bulacan at matindi ang tortyur na dinaranas niya. Sabi niya gusto niyang umuwi at makasama ang WHEREFORE, in CA-G.R. SP NO. 95303 (Habeas Corpus case), the Motion for Reconsideration is GRANTED.
kanyang magulang. Umiiyak siya. Sabi niya sa akin ang buong pangalan niya ay Sherlyn Cadapan, mula sa Laguna.
Sa araw tinatanggal ang kanyang kadena at inuutusan si Sherlyn na maglaba.
Accordingly, in both CA-G.R. SP NO. 95303 (Habeas Corpus case) and in CA-G.R. SP NO. 00002 (Amparo case),
the respondents are thereby ordered to immediately RELEASE, or cause the release, from detention the persons of
x x x x. Sher[lyn] Cadapan, Karen Empeño and Manuel Merino.

61. Sino ang mga nakilala mo sa Camp Tecson? Respondent Director General Avelino Razon is hereby ordered to resume [the] PNP’s unfinished investigation so that
the truth will be fully ascertained and appropriate charges filed against those truly responsible.

Dito sa Camp Tecson naming nakilala si ‘Allan Alvin’ (maya-maya nalaman naming na siya pala si Donald Caigas),
ng 24th IB, na tinatawag na ‘master’ o ‘commander’ ng kanyang mga tauhan. SO ORDERED.

Pagkalipas ng 2 araw matapos dalhin si Reynaldo sa Camp Tecson dumating sina Karen Empeño at Manuel In reconsidering its earlier Decision in the habeas corpus case, the appellate court relied heavily on the testimony of
Merino na mga bihag din. Inilagay si Karen at Manuel sa kwarto ni ‘Allan[.]’ Kami naman ni Reynaldo ay nasa Manalo in this wise:
katabing kwarto, kasama si Sherlyn.

With the additional testimony of Raymond Manalo, the petitioners have been able to convincingly prove the fact of
xxxx their detention by some elements in the military. His testimony is a first hand account that military and civilian
personnel under the 7th Infantry Division were responsible for the abduction of Sherlyn Cadapan, Karen Empeño and
Manuel Merino. He also confirmed the claim of Oscar Leuterio that the latter was detained in Fort Magsaysay. It was
62. x x x x there where he (Leuterio) saw Manuel Merino.

Kaming mga lalake (ako, si Reynaldo at si Manuel) ay ginawang utusan, habang sina Sherlyn at Karen ay ginawang His testimony that Leuterio saw Manuel Merino in Fort Magsaysay may be hearsay but not with respect to his
labandera. meeting with, and talking to, the three desaparecidos. His testimony on those points was no hearsay. Raymond
Manalo saw the three with his very own eyes as they were detained and tortured together. In fact, he claimed to be a Via a petition for certiorari filed on March 30, 2009 before this Court, Erlinda Cadapan and Concepcion Empeño
witness to the burning of Manuel Merino. In the absence of confirmatory proof, however, the Court will presume that challenged the appellate court’s March 5, 2009 Resolution denying their motion to cite respondents in contempt. The
he is still alive. petition was docketed as G.R. No. 187109, the last above-captioned case subject of the present Decision.

The testimony of Raymond Manalo can no longer be ignored and brushed aside. His narration and those of the Only Lt. Col. Anotado and Lt. Mirabelle remained of the original respondents in the amparo and habeas corpus cases
earlier witnesses, taken together, constitute more than substantial evidence warranting an order that the three be as the other respondents had retired from government service.26 The AFP has denied that Arnel Enriquez was a
released from detention if they are not being held for a lawful cause. They may be moved from place to place but still member of the Philippine Army.27 The whereabouts of Donald Caigas remain unknown. 28
they are considered under detention and custody of the respondents.

In G.R. Nos. 184461-62, petitioners posit as follows:

His testimony was clear, consistent and convincing. x x x.

I
xxxx

…THE COURT OF APPEALS GROSSLY MISAPPRECIATED THE VALUE OF THE TESTIMONY OF

The additional testimonies of Lt. Col. Felipe Anotado and Col. Eduardo Boyles Davalan were of no help either. Again, RAYMOND MANALO.
their averments were the same negative ones which cannot prevail over those of Raymond Manalo. Indeed, Camp
Tecson has been utilized as a training camp for army scout rangers. Even Raymond Manalo noticed it but the camp’s
use for purposes other than training cannot be discounted. II

xxxx THE PETITION[S] FOR HABEAS CORPUS AND WRIT OF AMPARO SHOULD BE DISMISSED
BECAUSE RESPONDENTS FAILED TO PROVE BY THE REQUIRED QUANTUM OF EVIDENCE
THAT PETITIONERS HAVE SHERLYN CADAPAN, KAREN EMPEñO AND MANUEL MERINO ARE IN
In view of the foregoing, there is now a clear and credible evidence that the three missing persons, [Sherlyn, Karen THEIR CUSTODY.
and Merino], are being detained in military camps and bases under the 7th Infantry Division. Being not held for a
lawful cause, they should be immediately released from detention. (italic in the original; emphasis and underscoring
supplied) III

Meanwhile, in the amparo case, the appellate court deemed it a superfluity to issue any inspection order or PETITIONERS’ DENIALS PER SE SHOULD NOT HAVE BEEN TAKEN AGAINST THEM BECAUSE
production order in light of the release order. As it earlier ruled in the habeas corpus case, it found that the three THEY DID NOT REALLY HAVE ANY INVOLVEMENT IN THE ALLEGED ABDUCTION; MOREOVER,
detainees’ right to life, liberty and security was being violated, hence, the need to immediately release them, or cause THE SUPPOSED INCONSISTENCIES IN THEIR TESTIMONIES ARE ON POINTS IRRELEVANT TO
their release. The appellate court went on to direct the PNP to proceed further with its investigation since there were THE PETITION.
enough leads as indicated in the records to ascertain the truth and file the appropriate charges against those
responsible for the abduction and detention of the three.
IV

Lt. Col. Rogelio Boac, et al. challenged before this Court, via petition for review, the September 17, 2008 Decision of
the appellate court. This was docketed as G.R. Nos. 184461-62, the first above-captioned case- subject of the THE DISPOSITIVE PORTION OF THE ASSAILED DECISION IS VAGUE AND INCONGRUENT WITH
present Decision. THE FINDINGS OF THE COURT OF APPEALS.

Erlinda Cadapan and Concepcion Empeño, on the other hand, filed their own petition for review also challenging the V
same September 17, 2008 Decision of the appellate court only insofar as the amparo aspect is concerned. Their
petition, docketed as G.R. No. 179994, was redocketed as G.R. No. 184495, the second above-captioned case.
THE COURT OF APPEALS IGNORED AND FAILED TO RULE UPON THE FATAL PROCEDURAL
INFIRMITIES IN THE PETITION FOR WRIT OF AMPARO.29
By Resolution of June 15, 2010, the Court ordered the consolidation of G.R. No. 184495 with G.R. Nos. 1844461-
62.24
In G.R. No. 184495, petitioners posit as follows:

Meanwhile, Erlinda Cadapan and Concepcion Empeño filed before the appellate court a Motion to Cite Respondents
in Contempt of Court for failure of the respondents in the amparo and habeas corpus cases to comply with the 5. The Court of Appeals erred in not granting the Interim Relief for Inspection of Places;
directive of the appellate court to immediately release the three missing persons. By Resolution of March 5,
2009,25 the appellate court denied the motion, ratiocinating thus:
6. The Court of Appeals erred in not granting the Interim Relief for Production of Documents;

While the Court, in the dispositive portion, ordered the respondents "to immediately RELEASE, or cause the release,
7. The Court of Appeals erred in not finding that the Police Director Gen. Avelino Razon did not make
from detention the persons of Sherlyn Cadapan, Karen Empeño and Manuel Merino," the decision is not ipso facto
extraordinary diligence in investigating the enforced disappearance of the aggrieved parties…
executory. The use of the term "immediately" does not mean that that it is automatically executory. There is nothing in
the Rule on the Writ of Amparo which states that a decision rendered is immediately executory. x x x.
8. The Court of Appeals erred in not finding that this was not the command coming from the highest
echelon of powers of the Armed Forces of the Philippines, Philippine Army and the Seventh Infantry
Neither did the decision become final and executory considering that both parties questioned the Decision/Resolution
Division of the Philippine Army to enforcibly disappear [sic] the aggrieved parties…
before the Supreme Court. x x x.

9. The Court of Appeals erred in dropping President Gloria Macapagal Arroyo as party respondent in this
Besides, the Court has no basis. The petitioners did not file a motion for execution pending appeal under Section 2 of
case;
Rule 39. There being no motion, the Court could not have issued, and did not issue, a writ of execution. x x x.
(underscoring supplied)
 10. The Court of Appeals erred in not finding that President Gloria Macapagal Arroyo had command came to know as Donald Caigas, called "master" or "commander" by his men in the 24th Infantry Battalion. Raymond
responsibility in the enforced disappearance and continued detention of the three aggrieved parties… and Reynaldo were put in the adjoining room. At times, Raymond and Reynaldo were threatened, and Reynaldo was
beaten up. In the daytime, their chains were removed, but were put back on at night. They were threatened that if
they escaped, their families would all be killed.
11. The Court of Appeals erred in not finding that the Armed Forces Chief of Staff then Hermogenes
Esperon and the Present Chief of Staff as having command responsibility in the enforced disappearance
and continued detention of the three aggrieved parties…30 On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be thankful they
were still alive and should continue along their "renewed life." Before the hearing of November 6 or 8, 2006,
respondents were brought to their parents to instruct them not to attend the hearing. However, their parents had
In G.R. No. 187109, petitioners raise the following issues: already left for Manila. Respondents were brought back to Camp Tecson. They stayed in that camp from September
2006 to November 2006, and Raymond was instructed to continue using the name "Oscar" and holding himself out as
a military trainee. He got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he
[1] Whether… the decision in the Court of Appeals has become final and executory[.] stated in his affidavit.

[2] Whether…there is a need to file a motion for execution in a Habeas Corpus decision or in an Amparo On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp of the 24th
decision[.] Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that camp until May 8, 2007.
Some soldiers of the battalion stayed with them. While there, battalion soldiers whom Raymond knew as "Mar" and
"Billy" beat him up and hit him in the stomach with their guns. Sherlyn and Karen also suffered enormous torture in
[3] Whether…an appeal can stay the decision of a Habeas Corpus [case] [or] an Amparo case[.] 31 the camp. They were all made to clean, cook, and help in raising livestock.

Essentially, the consolidated petitions present three primary issues, viz: a) whether the testimony of Raymond Manalo Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought him and
is credible; b) whether the chief of the AFP, the commanding general of the Philippine Army, as well as the heads of Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay Bayan-bayanan,
the concerned units had command responsibility over the abduction and detention of Sherlyn, Karen and Merino; and Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he was killed because he had a
c) whether there is a need to file a motion for execution to cause the release of the aggrieved parties. son who was a member of the NPA and he coddled NPA members in his house. Another time, in another "Operation
Lubog," Raymond was brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the
old man of the house who was sick was there. They spared him and killed only his son right before Raymond’s eyes.
G.R. Nos. 184461-62

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a safehouse near
Petitioners Lt. Col. Boac, et al. contend that the appellate court erred in giving full credence to the testimony of
the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge of the house. Like in
Manalo who could not even accurately describe the structures of Camp Tecson where he claimed to have been
Limay, the five detainees were made to do errands and chores. They stayed in Zambales from May 8 or 9, 2007 until
detained along with Sherlyn, Karen and Merino. They underscore that Camp Tecson is not under the jurisdiction of
June 2007.
the 24th Infantry Batallion and that Manalo’s testimony is incredible and full of inconsistencies.32

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were tasked to
In Secretary of National Defense v. Manalo,33 an original petition for Prohibition, Injunction and Temporary
bring food to detainees brought to the camp. Raymond narrated what he witnessed and experienced in the camp, viz:
Restraining Order which was treated as a petition under the Amparo Rule, said Rule having taken effect during the
pendency of the petition, the Court ruled on the truthfulness and veracity of the personal account of Manalo which
included his encounter with Sherlyn, Kara and Merino while on detention. Thus it held: x x x x.34 (emphasis and underscoring supplied)

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo’s affidavit and The Court takes judicial notice of its Decision in the just cited Secretary of National Defense v. Manalo35 which
testimony, viz: assessed the account of Manalo to be a candid and forthright narrative of his and his brother Reynaldo’s abduction by
the military in 2006; and of the corroborative testimonies, in the same case, of Manalo’s brother Reynaldo and a
forensic specialist, as well as Manalo’s graphic description of the detention area. There is thus no compelling reason
x x x x.
for the Court, in the present case, to disturb its appreciation in Manalo’s testimony. The outright denial of petitioners
Lt. Col. Boac, et al. thus crumbles.
We reject the claim of petitioners that respondent Raymond Manalo’s statements were not corroborated by other
independent and credible pieces of evidence. Raymond’s affidavit and testimony were corroborated by the affidavit of
Petitioners go on to point out that the assailed Decision of the appellate court is "vague and incongruent with [its]
respondent Reynaldo Manalo. The testimony and medical reports prepared by forensic specialist Dr. Molino, and the
findings" for, so they contend, while the appellate court referred to the perpetrators as "misguided and self-righteous
pictures of the scars left by the physical injuries inflicted on respondents, also corroborate respondents’ accounts of
civilian and military elements of the 7th Infantry Division," it failed to identify who these perpetrators are. Moreover,
the torture they endured while in detention. Respondent Raymond Manalo’s familiarity with the facilities in Fort
petitioners assert that Donald Caigas and Arnel Enriquez are not members of the AFP. They furthermore point out
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division
that their co-petitioners Generals Esperon, Tolentino and Palparan have already retired from the service and thus
Training Unit," firms up respondents’ story that they were detained for some time in said military facility. (citations
have no more control of any military camp or base in the country.36
omitted; emphasis and underscoring supplied)

There is nothing vague and/or incongruent about the categorical order of the appellate court for petitioners to release
On Manalo’s having allegedly encountered Sherlyn, Karen and Merino while on detention, the Court in the
Sherlyn, Karen and Merino. In its discourse, the appellate court merely referred to "a few misguided self-righteous
immediately cited case synthesized his tale as follows:
people who resort to the extrajudicial process of neutralizing those who disagree with the country’s democratic
system of government." Nowhere did it specifically refer to the members of the 7th Infantry Division as the "misguided
The next day, Raymond’s chains were removed and he was ordered to clean outside the barracks. It was then he self-righteous" ones.
learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them were training. He
was also ordered to clean inside the barracks. In one of the rooms therein, he met Sherlyn Cadapan from
Petitioners finally point out that the parents of Sherlyn and Karen do not have the requisite standing to file the amparo
Laguna. She told him that she was a student of the University of the Philippines and was abducted in Hagonoy,
petition on behalf of Merino. They call attention to the fact that in the amparo petition, the parents of Sherlyn and
Bulacan. She confided that she had been subjected to severe torture and raped. She was crying and longing to go
Karen merely indicated that they were "concerned with Manuel Merino" as basis for filing the petition on his behalf.37
home and be with her parents. During the day, her chains were removed and she was made to do the laundry.

Section 2 of the Rule on the Writ of Amparo38 provides:

After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives, Karen
Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose name they later
The petition may be filed by the aggrieved party or by any qualified person or entity in the following order: An amparo proceeding is not criminal in nature nor does it ascertain the criminal liability of individuals or entities
involved. Neither does it partake of a civil or administrative suit.46 Rather, it is a remedial measure designed to direct
specified courses of action to government agencies to safeguard the constitutional right to life, liberty and security of
(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved aggrieved individuals.47
party;

Thus Razon Jr. v. Tagitis 48 enlightens:

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree
of consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
[An amparo proceeding] does nor determine guilt nor pinpoint criminal culpability for the disappearance [threats
thereof or extrajudicial killings]; it determines responsibility, or at least accountability, for the enforced
(c) Any concerned citizen, organization, association or institution, if there is no known member of the disappearance…for purposes of imposing the appropriate remedies to address the disappearance…49 (emphasis and
immediate family or relative of the aggrieved party. underscoring supplied)

Indeed, the parents of Sherlyn and Karen failed to allege that there were no known members of the immediate family Further, Tagitis defines what constitutes "responsibility" and "accountability," viz:
or relatives of Merino. The exclusive and successive order mandated by the above-quoted provision must be
followed. The order of priority is not without reason—"to prevent the indiscriminate and groundless filing of petitions
for amparo which may even prejudice the right to life, liberty or security of the aggrieved party." 39 x x x. Responsibility refers to the extent the actors have been established by substantial evidence to have
participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this
Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible
The Court notes that the parents of Sherlyn and Karen also filed the petition for habeas corpus on Merino’s behalf. No parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be
objection was raised therein for, in a habeas corpus proceeding, any person may apply for the writ on behalf of the addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their
aggrieved party.40 complicity to the level of responsibility defined above; or who are imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or those who carry, but have failed to discharge, the burden
of extraordinary diligence in the investigation of the enforced disappearance. In all these cases, the issuance of the
It is thus only with respect to the amparo petition that the parents of Sherlyn and Karen are precluded from filing the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is
application on Merino’s behalf as they are not authorized parties under the Rule. preserved and his liberty and security are restored.50 (emphasis in the original; underscoring supplied)

G.R. No. 184495 Rubrico categorically denies the application of command responsibility in amparo cases to determine criminal
liability.51 The Court maintains its adherence to this pronouncement as far as amparo cases are concerned.
Preliminarily, the Court finds the appellate court’s dismissal of the petitions against then President Arroyo well-taken,
owing to her immunity from suit at the time the habeas corpus and amparo petitions were filed.41 Rubrico, however, recognizes a preliminary yet limited application of command responsibility in amparo cases to
instances of determining the responsible or accountable individuals or entities that are duty-bound to abate any
transgression on the life, liberty or security of the aggrieved party.
Settled is the doctrine that the President, during his tenure of office or actual incumbency, may not be sued in any
civil or criminal case, and there is no need to provide for it in the Constitution or law. It will degrade the dignity of the
high office of the President, the Head of State, if he can be dragged into court litigations while serving as such. If command responsibility were to be invoked and applied to these proceedings, it should, at most, be only to
Furthermore, it is important that he be freed from any form of harassment, hindrance or distraction to enable him to determine the author who, at the first instance, is accountable for, and has the duty to address, the disappearance
fully attend to the performance of his official duties and functions. Unlike the legislative and judicial branch, only one and harassments complained of, so as to enable the Court to devise remedial measures that may be appropriate
constitutes the executive branch and anything which impairs his usefulness in the discharge of the many great and under the premises to protect rights covered by the writ of amparo. As intimated earlier, however, the determination
important duties imposed upon him by the Constitution necessarily impairs the operation of the Government. x x x 42 should not be pursued to fix criminal liability on respondents preparatory to criminal prosecution, or as a prelude to
administrative disciplinary proceedings under existing administrative issuances, if there be any. 52 (emphasis and
underscoring supplied)
Parenthetically, the petitions are bereft of any allegation that then President Arroyo permitted, condoned or performed
any wrongdoing against the three missing persons.
In other words, command responsibility may be loosely applied in amparo cases in order to identify those accountable
individuals that have the power to effectively implement whatever processes an amparo court would issue.53 In such
On the issue of whether a military commander may be held liable for the acts of his subordinates in an amparo application, the amparo court does not impute criminal responsibility but merely pinpoint the superiors it considers to
proceeding, a brief discussion of the concept of command responsibility and its application insofar as amparo cases be in the best position to protect the rights of the aggrieved party.
already decided by the Court is in order.

Such identification of the responsible and accountable superiors may well be a preliminary determination of criminal
Rubrico v. Macapagal Arroyo43 expounded on the concept of command responsibility as follows: liability which, of course, is still subject to further investigation by the appropriate government agency.

The evolution of the command responsibility doctrine finds its context in the development of laws of war and armed Relatedly, the legislature came up with Republic Act No. 985154 (RA 9851) to include command responsibility as a
combats. According to Fr. Bernas, "command responsibility," in its simplest terms, means the "responsibility of form of criminal complicity in crimes against international humanitarian law, genocide and other crimes.55 RA 9851 is
commanders for crimes committed by subordinate members of the armed forces or other persons subject to their thus the substantive law that definitively imputes criminal liability to those superiors who, despite their position, still fail
control in international wars or domestic conflict." In this sense, command responsibility is properly a form of criminal to take all necessary and reasonable measures within their power to prevent or repress the commission of illegal acts
complicity. The Hague Conventions of 1907 adopted the doctrine of command responsibility, foreshadowing the or to submit these matters to the competent authorities for investigation and prosecution.
present-day precept of holding a superior accountable for the atrocities committed by his subordinates should he be
remiss in his duty of control over them. As then formulated, command responsibility is "an omission mode of
individual criminal liability," whereby the superior is made responsible for crimes committed by his subordinates The Court finds that the appellate court erred when it did not specifically name the respondents that it found to be
for failing to prevent or punish the perpetrators (as opposed to crimes he ordered). (citations omitted; emphasis in the responsible for the abduction and continued detention of Sherlyn, Karen and Merino. For, from the records, it appears
original; underscoring supplied)44 that the responsible and accountable individuals are Lt. Col. Anotado, Lt. Mirabelle, Gen. Palparan, Lt. Col. Boac,
Arnel Enriquez and Donald Caigas. They should thus be made to comply with the September 17, 2008 Decision of
the appellate court to IMMEDIATELY RELEASE Sherlyn, Karen and Merino.
It bears stressing that command responsibility is properly a form of criminal complicity,45 and thus a substantive rule
that points to criminal or administrative liability.
The petitions against Generals Esperon, Razon and Tolentino should be dismissed for lack of merit as there is no
showing that they were even remotely accountable and responsible for the abduction and continued detention of
Sherlyn, Karen and Merino.

G.R. No. 187109.

Contrary to the ruling of the appellate court, there is no need to file a motion for execution for an amparo or habeas
corpus decision. Since the right to life, liberty and security of a person is at stake, the proceedings should not be
delayed and execution of any decision thereon must be expedited as soon as possible since any form of delay, even
for a day, may jeopardize the very rights that these writs seek to immediately protect.

The Solicitor General’s argument that the Rules of Court supplement the Rule on the Writ of Amparo is misplaced.
The Rules of Court only find suppletory application in an amparo proceeding if the Rules strengthen, rather than
weaken, the procedural efficacy of the writ. As it is, the Rule dispenses with dilatory motions in view of the urgency in
securing the life, liberty or security of the aggrieved party. Suffice it to state that a motion for execution is inconsistent
with the extraordinary and expeditious remedy being offered by an amparo proceeding.

In fine, the appellate court erred in ruling that its directive to immediately release Sherlyn, Karen and Merino was not
automatically executory. For that would defeat the very purpose of having summary proceedings 56 in amparo
petitions. Summary proceedings, it bears emphasis, are immediately executory without prejudice to further appeals
that may be taken therefrom.57

WHEREFORE, in light of the foregoing discussions, the Court renders the following judgment:

1. The Petitions in G.R. Nos. 184461-62 and G.R. No. 184495 are DISMISSED. The Decision of the
Court of Appeals dated September 17, 2008 is AFFIRMED with modification in that respondents in G.R.
No. 184495, namely Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt.
Col. Rogelio Boac, Arnel Enriquez and Donald Caigas are ordered to immediately release Sherlyn
Cadapan, Karen Empeño and Manuel Merino from detention.

The petitions against Generals Esperon, Razon and Tolentino are DISMISSED.

2. The petition in G.R. No. 187109 is GRANTED. The named respondents are directed to forthwith
comply with the September 17, 2008 Decision of the appellate court. Owing to the retirement and/or
reassignment to other places of assignment of some of the respondents herein and in G.R. No. 184495,
the incumbent commanding general of the 7th Infantry Division and the incumbent battalion commander
of the 24th Infantry Battalion, both of the Philippine Army, are enjoined to fully ensure the release of
Sherlyn Cadapan, Karen Empeño and Manuel Merino from detention.1awphi1

Respondents Lt. Col. Felipe Anotado, Lt. Francis Mirabelle Samson, Gen. Jovito Palparan, Lt. Col.
Rogelio Boac, Arnel Enriquez and Donald Caigas shall remain personally impleaded in the petitions to
answer for any responsibilities and/or accountabilities they may have incurred during their incumbencies.

Let copies of this Decision and the records of these cases be furnished the Department of Justice (DOJ), the
Philippine National Police (PNP) and the Armed Forces of the Philippines (AFP) for further investigation to determine
the respective criminal and administrative liabilities of respondents.

All the present petitions are REMANDED to the Court of Appeals for appropriate action, directed at monitoring of the
DOJ, PNP and AFP investigations and the validation of their results.

SO ORDERED.