EXECUTIVE DEPARTMENT Court by the same Constitution is plenary.

And under the doctrine of necessary

implication, the additional jurisdiction bestowed by the last paragraph of Section
Macalintal vs PET, GR 191618, June 7, 2011 4, Article VII of the Constitution to decide presidential and vice-presidential
elections contests includes the means necessary to carry it into effect.
(Admin Law, PET, Quasi-judicial power)
No. The traditional grant of judicial power is found in Section 1, Article VIII of the
Facts: Par 7, Sec 4, Art VII of the 1987 Constitution provides: “The Supreme Constitution which provides that the power “shall be vested in one Supreme Court
Court, sitting en banc, shall be the sole judge of all contests relating to the and in such lower courts as may be established by law.” The set up embodied in
election, returns, and qualifications of the President or Vice-President, and may the Constitution and statutes characterize the resolution of electoral contests as
promulgate its rules for the purpose.” essentially an exercise of judicial power. When the Supreme Court, as PET,
resolves a presidential or vice-presidential election contest, it performs what is
Sec 12, Art. VIII of the Constitution provides: The Members of the Supreme Court essentially a judicial power.
and of other courts established by law shall not be designated to any agency
performing quasi-judicial or administrative functions. The COMELEC, HRET and SET are not, strictly and literally speaking, courts of law.
Although not courts of law, they are, nonetheless, empowered to resolve election
The case at bar is a motion for reconsideration filed by petitioner of the SC’s contests which involve, in essence, an exercise of judicial power, because of the
decision dismissing the former’s petition and declaring the establishment of the explicit constitutional empowerment found in Section 2(2), Article IX-C (for the
respondent PET as constitutional. COMELEC) and Section 17, Article VI (for the Senate and House Electoral
Tribunals) of the Constitution.
Petitioner argues that PET is unconstitutional on the ground that Sec 4, Art VII of
the Constitution does not provide for the creation of the PET, and it violates Sec
12, Art VIII of the Constitution.

The Solicitor General maintains that the constitution of the PET is on firm footing
on the basis of the grant of authority to the Supreme Court to be the sole judge of
all election contests for the President or Vice-President under par 7, Sec 4, Art VII
of the Constitution.

Issue:

Whether or not PET is constitutional.

Whether or not PET exercises quasi-judicial power.

Held:

Yes. The explicit reference of the Members of the Constitutional Commission to a

Presidential Electoral Tribunal, with Fr. Joaquin Bernas categorically declaring that
in crafting the last paragraph of Sec. 4, Art VII of the 1987 Constitution, they
“constitutionalized what was statutory.” Judicial power granted to the Supreme
 An action is considered moot when it no longer presents a justiciable controversy
because the issues involved have become academic or dead or when the matter
in dispute has already been resolved and hence, one is not entitled to judicial
intervention unless the issue is likely to be raised again between the parties.
Pormento vs. Estrada
There is nothing for the court to resolve as the determination thereof has been
Facts: Estrada was elected President of the Republic of the Philippines in the May overtaken by subsequent events.
1998 elections. He sought the presidency again in the May 2010 elections.
Pormento opposed Estrada’s candidacy and filed a petition for disqualification.
COMELEC (Division) denied his petition as well as his subsequent Motion for Assuming an actual case or controversy existed prior to the proclamation of a
Reconsideration (En Banc). Pormento then filed the present petition for certiorari President who has been duly elected in the May 10, 2010 elections, the same is
before the Court. In the meantime, Estrada was able to participate as a candidate no longer true today. Following the results of that elections, private respondent
for President in the May 10, 2010 elections where he garnered the second highest was not elected President for the second time. Thus, any discussion of his
number of votes. reelection will simply be hypothetical and speculative. It will serve no useful or
practical purpose. (Pormento vs. Estrada, G.R. No. 191988, August 31, 2010)

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

Held: Private respondent was not elected President the second time he ran. Since
the issue on the proper interpretation of the phrase any reelection will be
premised on a persons second (whether immediate or not) election as President,
there is no case or controversy to be resolved in this case. No live conflict of legal
rights exists. There is in this case no definite, concrete, real or substantial
controversy that touches on the legal relations of parties having adverse legal
interests. No specific relief may conclusively be decreed upon by this Court in this
case that will benefit any of the parties herein. As such, one of the essential
requisites for the exercise of the power of judicial review, the existence of an
actual case or controversy, is sorely lacking in this case.

As a rule, this Court may only adjudicate actual, ongoing controversies.The Court
is not empowered to decide moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the result as to the thing in issue in
the case before it. In other words, when a case is moot, it becomes non-
justiciable.
 The fact that Bautista was extended an appointment naming her as OIC of
MARINA shows that she does not occupy it in an ex-officio capacity since an ex-
officio position does not require any "further warrant or appoint.

Petitioner further contends that even if Bautista's appointment or designation as

OIC of MARINA was intended to be merely temporary, still, such designation must
DENNIS A. B. FUNA v. EXECUTIVE SECRETARY EDUARDO R. ERMITA, GR
not violate a standing constitutional prohibition
No. 184740, 2010-02-11

Facts: On October 4, 2006, President Gloria Macapagal-Arroyo appointed

respondent Maria Elena H. Bautista (Bautista) as Undersecretary of the Petitioner likewise asserts the incompatibility between the posts of DOTC
Department of Transportation and Communications (DOTC) Undersecretary and MARINA Administrator... respondents submit that the petition
should still be dismissed for being unmeritorious considering that Bautista's
Bautista was designated as Undersecretary for Maritime
concurrent designation as MARINA OIC and DOTC Undersecretary was...
Transport of the department under Special Order No. 2006-171 dated October 23, constitutional. There was no violation of Section 13, Article VII of the 1987
2006 Constitution because respondent Bautista was merely designated acting head of
MARINA on September 1, 2008. She was designated MARINA OIC, not appointed
On September 1, 2008, following the resignation of then MARINA Administrator MARINA Administrator.
Vicente T. Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of
the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary The sole issue to be resolved is whether or not the designation of respondent
Bautista as OIC of MARINA, concurrent with the position of DOTC Undersecretary
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned for Maritime Transport to which she had been appointed, violated the
citizen and lawyer, filed the instant petition challenging the constitutionality of constitutional proscription against dual or multiple... offices for Cabinet Members
Bautista's appointment/designation, which is proscribed by the prohibition on the and their deputies and assistants.
President, Vice-President, the
Ruling:
Members of the Cabinet, and their deputies and assistants to hold any other office
or employment These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public
Issues: Petitioner argues that Bautista's concurrent positions as DOTC officials or employees such as the Members of Congress, members of the civil
Undersecretary and MARINA OIC is in violation of Section 13, Article VII of the service in general and members of... the armed forces, are proof of the intent of
1987 Constitution the 1987 Constitution to treat the President and his official family as a class by
itself and to impose upon said class stricter prohibitions.
He points out that while it was clarified in Civil Liberties Union that the prohibition
does not apply to those... positions held in ex-officio capacities, the position of Thus, while all other appointive officials in the civil service are allowed to hold
MARINA Administrator is not ex-officio to the post of DOTC Undersecretary other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and... assistants may do so only when expressly
authorized by the Constitution itself.
Since the evident purpose of the framers of the 1987 Constitution is to impose a Appointment may be defined as the selection, by the authority vested with the
stricter prohibition on the President, Vice-President, members of the Cabinet, their power, of an individual who is to exercise the functions of a given office. When
deputies and assistants with respect to holding multiple offices or employment in completed, usually with its confirmation, the appointment results in security of
the government during... their tenure, the exception to this prohibition must be tenure for the... person chosen unless he is replaceable at pleasure because of
read with equal severity. On its face, the language of Section 13, Article VII is the nature of his office. Designation, on the other hand, connotes merely the
prohibitory so that it must be understood as intended to be a positive and imposition by law of additional duties on an incumbent official, as where, in the
unequivocal negation of the privilege of holding multiple... government offices or case before us, the Secretary of Tourism is designated
employment.
Chairman of the Board of Directors of the Philippine Tourism Authority, or where,
Respondent Bautista being then the appointed Undersecretary of DOTC, she was under the Constitution, three Justices of the Supreme Court are designated by the
thus covered by the stricter prohibition under Section 13, Article VII and Chief Justice to sit in the Electoral Tribunal of the Senate or the House of
consequently she cannot invoke the exception provided in Section 7, paragraph 2, Representatives. It is said that... appointment is essentially executive while
Article IX-B where holding another... office is allowed by law or the primary designation is legislative in nature.
functions of the position.
Designation may also be loosely defined as an appointment because it likewise
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena involves the naming of a particular person to a specified public office. That is the
H. Bautista as Officer-in-Charge, Office of the Administrator, Maritime Industry common understanding of the term. However, where the person is merely
Authority, in a concurrent capacity with her position as DOTC Undersecretary for designated and not appointed, the... implication is that he shall hold the office
Maritime Transport, is... hereby declared UNCONSTITUTIONAL for being violative only in a temporary capacity and may be replaced at will by the appointing
of Section 13, Article VII of the 1987 Constitution and therefore, NULL and VOID. authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the... person named.
Principles:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure,... directly or indirectly practice any other profession, participate in
any business, or be financially interested in any contract with, or in any franchise,
or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including... government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

Sec. 7. x x x

Unless otherwise allowed by law or the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or... their subsidiaries.
 representing a district in Quezon Province in the May 2010 elections; that he then
relinquished his position as the Government Corporate Counsel; and that pending
the appointment of his successor, Agra continued to perform his duties as the
Acting Solicitor General. Notwithstanding the conflict in the versions of the
parties, the fact that Agra has admitted to holding the two offices concurrently in
acting capacities is settled, which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.

Issue: Whether or not Agra’s holding of concurrent position is unconstitutional.

Held: Yes. At the center of the controversy is the correct application of Section
13, Article VII of the 1987 Constitution, viz:

Section 13. The President, Vice-President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise provided in this Constitution,
hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any
business, or be financially interested in any contract with, or in any franchise, or
FUNA VS AGRA (G.R. NO. 191644 FEBRUARY 19, 2013) special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations
Facts: The petitioner alleges that on March 1, 2010, President Gloria M. or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
Macapagal Arroyo appointed Agra as the Acting Secretary of Justice following the their office.
resignation of Secretary Agnes VST Devanadera in order to vie for a congressional
seat in Quezon Province; that on March 5, 2010, President Arroyo designated Agra A relevant and complementing provision is Section 7, paragraph (2), Article IX-B of
as the Acting Solicitor General in a concurrent capacity; that on April 7, 2010, the the 1987 Constitution, to wit:
petitioner, in his capacity as a taxpayer, a concerned citizen and a lawyer,
Section 7. x x x Unless otherwise allowed by law or the primary functions of his
commenced this suit to challenge the constitutionality of Agra’s concurrent
position, no appointive official shall hold any other office or employment in the
appointments or designations, claiming it to be prohibited under Section 13,
Government or any subdivision, agency or instrumentality thereof, including
Article VII of the 1987 Constitution; that during the pendency of the suit, President
government-owned or controlled corporations or their subsidiaries.
Benigno S. Aquino III appointed Atty. Jose Anselmo I. Cadiz as the Solicitor
General; and that Cadiz assumed as the Solicitor General and commenced his Being designated as the Acting Secretary of Justice concurrently with his position
duties as such on August 5, 2010. Agra renders a different version of the of Acting Solicitor General, therefore, Agra was undoubtedly covered by Section
antecedents. He represents that on January 12, 2010, he was then the 13, Article VII, supra, whose text and spirit were too clear to be differently read.
Government Corporate Counsel when President Arroyo designated him as the Hence, Agra could not validly hold any other office or employment during his
Acting Solicitor General in place of Solicitor General Devanadera who had been tenure as the Acting Solicitor General, because the Constitution has not otherwise
appointed as the Secretary of Justice; that on March 5, 2010, President Arroyo so provided.
designated him also as the Acting Secretary of Justice vice Secretary Devanadera
who had meanwhile tendered her resignation in order to run for Congress
It was of no moment that Agra’s designation was in an acting or temporary between two offices was laid out in People v. Green – whether one office is
capacity. The text of Section 13, supra, plainly indicates that the intent of the subordinate to the other, in the sense that one office has the right to interfere
Framers of the Constitution was to impose a stricter prohibition on the President with the other.
and the Members of his Cabinet in so far as holding other offices or employments
in the Government or in government-owned or government controlled-
corporations was concerned. In this regard, to hold an office means to possess or
to occupy the office, or to be in possession and administration of the office, which
implies nothing less than the actual discharge of the functions and duties of the
office. Indeed, in the language of Section 13 itself, supra, the Constitution makes
no reference to the nature of the appointment or designation. The prohibition
against dual or multiple offices being held by one official must be construed as to
apply to all appointments or designations, whether permanent or temporary, for it
is without question that the avowed objective of Section 13, supra, is to prevent
the concentration of powers in the Executive Department officials, specifically the
President, the Vice-President, the Members of the Cabinet and their deputies and
assistants. To construe differently is to “open the veritable floodgates of
circumvention of an important constitutional disqualification of officials in the
Executive Department and of limitations on the Presidents power of appointment
in the guise of temporary designations of Cabinet Members, undersecretaries and
assistant secretaries as officers-in-charge of government agencies,
instrumentalities, or government-owned or controlled corporations.

It is not amiss to observe, lastly, that assuming that Agra, as the Acting Solicitor
General, was not covered by the stricter prohibition under Section 13, supra, due
to such position being merely vested with a cabinet rank under Section 3,
Republic Act No. 9417, he nonetheless remained covered by the general
prohibition under Section 7, supra. Hence, his concurrent designations were still
subject to the conditions under the latter constitutional provision. In this regard,
the Court aptly pointed out in Public Interest Center, Inc. v. Elma:

The general rule contained in Article IX-B of the 1987 Constitution permits an
appointive official to hold more than one office only if “allowed by law or by the
primary functions of his position.” In the case of Quimson v. Ozaeta, this Court
ruled that, “[t]here is no legal objection to a government official occupying two
government offices and performing the functions of both as long as there is no
incompatibility.” The crucial test in determining whether incompatibility exists
 Acting President from making appointments within two months immediately
before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein
will prejudice public service or endanger public safety.

The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start
the process of filling up the position of Chief Justice.

Conformably with its existing practice, the JBC “automatically considered” for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco,
Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two
declined their nomination through letters dated January 18, 2010 and January 25,
2010, respectively.

The OSG contends that the incumbent President may appoint the next Chief
Justice, because the prohibition under Section 15, Article VII of the Constitution
does not apply to appointments in the Supreme Court. It argues that any vacancy
in the Supreme Court must be filled within 90 days from its occurrence, pursuant
to Section 4(1), Article VIII of the Constitution; that had the framers intended the
prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found
in Article VII (Executive Department) was not written in Article VIII (Judicial
Department); and that the framers also incorporated in Article VIII ample
DE CASTRO VS. JBC restrictions or limitations on the President’s power to appoint members of the
Supreme Court to ensure its independence from “political vicissitudes” and its
G.R. No. 191002, March 17, 2010 “insulation from political pressures,” such as stringent qualifications for the
positions, the establishment of the JBC, the specified period within which the
FACTS: The compulsory retirement of Chief Justice Reynato S. Puno by May 17, President shall appoint a Supreme Court Justice.
2010 occurs just days after the coming presidential elections on May 10, 2010.

These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or
seven days after the presidential election. Under Section 4(1), in relation to
Section 9, Article VIII, that “vacancy shall be filled within ninety days from the
occurrence thereof” from a “list of at least three nominees prepared by the
Judicial and Bar Council for every vacancy.” Also considering that Section 15,
Article VII (Executive Department) of the Constitution prohibits the President or
A part of the question to be reviewed by the Court is whether the JBC properly Had the framers intended to extend the prohibition contained in Section 15,
initiated the process, there being an insistence from some of the oppositors- Article VII to the appointment of Members of the Supreme Court, they could have
intervenors that the JBC could only do so once the vacancy has occurred (that is, explicitly done so. They could not have ignored the meticulous ordering of the
after May 17, 2010). Another part is, of course, whether the JBC may resume its provisions. They would have easily and surely written the prohibition made
process until the short list is prepared, in view of the provision of Section 4(1), explicit in Section 15, Article VII as being equally applicable to the appointment of
Article VIII, which unqualifiedly requires the President to appoint one from the Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
short list to fill the vacancy in the Supreme Court (be it the Chief Justice or an Article VIII. That such specification was not done only reveals that the prohibition
Associate Justice) within 90 days from the occurrence of the vacancy. against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the President’s or
ISSUE: Whether the incumbent President can appoint the successor of Chief Acting President’s term does not refer to the Members of the Supreme Court.
Justice Puno upon his retirement.
Section 14, Section 15, and Section 16 are obviously of the same character, in
HELD: Prohibition under Section 15, Article VII does not apply to appointments to that they affect the power of the President to appoint. The fact that Section 14
fill a vacancy in the Supreme Court or to other appointments to the Judiciary. and Section 16 refer only to appointments within the Executive Department
renders conclusive that Section 15 also applies only to the Executive Department.
Two constitutional provisions are seemingly in conflict.
This conclusion is consistent with the rule that every part of the statute must be
The first, Section 15, Article VII (Executive Department), provides: Section 15. Two interpreted with reference to the context, i.e. that every part must be considered
months immediately before the next presidential elections and up to the end of together with the other parts, and kept subservient to the general intent of the
his term, a President or Acting President shall not make appointments, except whole enactment. It is absurd to assume that the framers deliberately situated
temporary appointments to executive positions when continued vacancies therein Section 15 between Section 14 and Section 16, if they intended Section 15 to
will prejudice public service or endanger public safety. cover all kinds of presidential appointments. If that was their intention in respect
of appointments to the Judiciary, the framers, if only to be clear, would have
The other, Section 4 (1), Article VIII (Judicial Department), states: Section 4. (1). easily and surely inserted a similar prohibition in Article VIII, most likely within
The Supreme Court shall be composed of a Chief Justice and fourteen Associate Section 4 (1) thereof.
Justices. It may sit en banc or in its discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.

Had the framers intended to extend the prohibition contained in Section 15,
Article VII to the appointment of Members of the Supreme Court, they could have
explicitly done so. They could not have ignored the meticulous ordering of the
provisions. They would have easily and surely written the prohibition made
explicit in Section 15, Article VII as being equally applicable to the appointment of
Members of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the prohibition
against the President or Acting President making appointments within two months
before the next presidential elections and up to the end of the President’s or
Acting President’s term does not refer to the Members of the Supreme Court.
ATTY. CHELOY E. VELICARIA- GARAFIL v. OFFICE OF PRESIDENT, GR No.
203372, 2015-06-16

Facts: Prior to the conduct of the May 2010 elections, then President Gloria
Macapagal-Arroyo (President Macapagal-Arroyo) issued more than 800
appointments to various positions in several government offices.

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

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

None of the petitioners claim that their appointments fall under this exception.

Issuance of EO 2

On 30 June 2010, President Benigno S. Aquino III (President Aquino) took his oath
of office as President of the Republic of the Philippines. On 30 July 2010, President
Aquino issued EO 2 recalling, withdrawing, and revoking appointments issued by
President Macapagal-Arroyo which... violated the constitutional ban on midnight
appointments.

The only known exceptions to this prohibition are (1)... temporary appointments
in the executive positions when continued vacancies will prejudice public service
or endanger public safety and in the light of the recent Supreme Court decision in
the case of De Castro, et al. vs. JBC and PGMA, G.R. No. 191002, 17 March 2010,
(2)... appointments to the Judiciary;

(a) Those made on or after March 11, 2010, including all appointments bearing
dates prior to March 11, 2010 where the appointee has accepted, or taken his
oath, or assumed public office on or after March 11, 2010, except temporary
appointments in the executive... positions when continued vacancies will
prejudice public service or endanger public safety as may be determined by the
appointing authority.

Effect of the Issuance of EO 2

Atty. Velicaria-Garafil reported for work on 9 August 2010 without any knowledge
of her termination. She was made to return the office-issued laptop and
cellphone, and was told that her salary ceased as of 7 August 2010. On 12 August
2010, Atty. Velicaria-Garafil was informed... that her former secretary at the OSG
Issues: We resolve the following issues in these petitions: (1) whether
received a copy of a memorandum on her behalf. The memorandum, dated 9
petitioners’ appointments violate Section 15, Article VII of the 1987 Constitution,
August 2010, bore the subject “Implementation of Executive Order No. 2 dated 30
and (2) whether EO 2 is constitutional.
July 2010” and was addressed to the OSG’s Director of Finance and Management
Service. Ruling: The petitions have no merit. All of petitioners’ appointments are midnight
appointments and are void for violation of Section 15, Article VII of the 1987
Atty. Venturanza received via facsimile transmission an undated copy of DOJ
Constitution. EO 2 is constitutional.
Order No. 556. DOJ Order No. 556, issued by DOJ Secretary Leila M. De Lima (Sec.
De Lima), designated Senior Deputy State Prosecutor Richard Anthony D. Fadullon Midnight Appointments
(Pros. Fadullon) as
Constitutionality of EO 2
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 Based on prevailing jurisprudence, appointment to a government post is a
his status, duties, and functions since DOJ Order No. 556 did not address the process that takes several steps to complete. Any valid appointment, including
same. one made under the exception provided in Section 15, Article VII of the 1987
Constitution, must consist of the President... signing an appointee’s appointment
G.R. No. 209138 paper to a vacant office, the official transmittal of the appointment paper
(preferably through the MRO), receipt of the appointment paper by the appointee,
The OP withheld the salaries of Villanueva and Rosquita on the basis of EO 2. On 3
and acceptance of the appointment by the appointee evidenced by his or her
August 2010, Villanueva and Rosquita sought to intervene in G.R. No. 192991.[
oath of... office or his or her assumption to office.
Atty. Tamondong was removed from the SBMA Board of Directors on 30 July 2010.
In its narrow sense, an appointment is not a process, but is only an “executive act
Rulings of the CA that the President unequivocally exercises pursuant to his discretion.”

Even though the same issues were raised in the different petitions, the CA In short, the dissent allows an appointment to take effect during the ban, as long
promulgated separate Decisions for the petitions. The CA consistently ruled that as the President signed and transmitted the appointment before the... ban, even
EO 2 is constitutional if the appointee never received the appointment paper before the ban and
accepted the appointment only during the ban.
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 The dissent’s view will lead to glaring absurdities. Allowing the dissent’s proposal
Villanueva, Rosquita, and Atty. Tamondong, the CA explicitly stated that the that an appointment is complete merely upon the signing of an appointment
revocation of their appointments... was proper because they were midnight paper and its transmittal, excluding the appointee’s acceptance from the
appointees. appointment process, will lead to the absurdity... that, in case of non-acceptance,
the position is considered occupied and nobody else may be appointed to it.
Moreover, an incumbent public official, appointed to another public office by the assumption of his new position; or where the President can simply remove an
President, will automatically be deemed to occupy the new public office and to incumbent from his current office by appointing him to another one. I stress that
have... automatically resigned from his first office upon transmittal of his acceptance through oath or any positive... act is still indispensable before any
appointment paper, even if he refuses to accept the new appointment. This will assumption of office may occur.[46]
result in chaos in public service
Appointing Authority

Appointment involves an exercise of discretion of whom to appoint; it is not a

Even worse, a President who is unhappy with an incumbent public official can ministerial act of issuing appointment papers to the appointee. In other words,
simply appoint him to another public office, effectively removing him from his first the choice of the appointee is a fundamental component... of the appointing
office without due process. The mere transmittal of his appointment paper will power.
remove the public official from office... without due process and even without
cause, in violation of the Constitution.

The dissent’s assertion that appointment should be viewed in its narrow sense Hence, when Congress clothes the President with the power to appoint an officer,
(and is not a process) only during the prohibited period is selective and time- it (Congress) cannot at the same time limit the choice of the President to only one
based, and ignores well-settled jurisprudence. For purposes of complying with the candidate. Once the power of appointment is conferred on the President, such
time limit imposed... by the appointment ban, the dissent’s position cuts short the conferment necessarily carries the... discretion of whom to appoint.
appointment process to the signing of the appointment paper and its transmittal,
MRO - Malacañang Records Office
excluding the receipt of the appointment paper and acceptance of the
appointment by the appointee. Transmittal

The concurrence of all steps in the appointment process is... admittedly required It is not enough that the President signs the appointment paper. There should be
for appointments outside the appointment ban. There is no justification evidence that the President intended the appointment paper to be issued. It could
whatsoever to remove acceptance as a requirement in the appointment process happen that an appointment paper may be dated and signed by the President
for appointments just before the start of the appointment ban, or during the months before the appointment ban, but... never left his locked drawer for the
appointment ban in appointments... falling within the exception. The existence of entirety of his term. Release of the appointment paper through the MRO is an
the appointment ban makes no difference in the power of the President to unequivocal act that signifies the President’s intent of its issuance.
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 The MRO’s exercise of its mandate does not prohibit the President or the
must be strictly applied on appointments made just before or during the Executive Secretary from giving the appointment paper directly to the appointee.
appointment ban. However, a problem may arise if an appointment paper is not coursed through the
MRO and the appointment paper is lost or the... appointment is questioned. T
Thus, an acceptance is still necessary in order for the appointee to validly assume
his post and discharge the functions of his new office, and thus make the The possession of the original appointment paper is not indispensable to
appointment effective. 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,
There can never be an instance where the appointment of an incumbent will... accident, fraud, fire or theft, corresponds to a... loss of the office.[56] However, in
automatically result in his resignation from his present post and his subsequent case of loss of the original appointment paper, the appointment must be
evidenced by a certified true copy issued by the proper office, in this case the Petitioners have failed to raise any valid ground for the Court to declare EO 2, or
MRO. any part of it, unconstitutional. Consequently, EO 2 remains valid and
constitutional.
Vacant Position
EO 2- PNOY revokes the midnight ban appointments of PGMA
An appointment can be made only to a vacant office. An appointment cannot be
made to an occupied office. The incumbent must first be legally removed, or his WHEREFORE, the petitions in G.R. Nos. 203372, 206290, and 212030 are
appointment validly terminated, before one could be validly installed to succeed DENIED, and the petition in G.R. No. 209138 is DISMISSED. The appointments of
him.[57] petitioners Atty. Cheloy E. Velicaria-Garafil (G.R. No. 203372), Atty. Dindo G.
Venturanza (G.R. No.
EO 2 remained faithful to the intent of Section 15, Article VII of... the 1987
Constitution: the outgoing President is prevented from continuing to rule the 206290), Irma A. Villanueva, and Francisca B. Rosquita (G.R. No. 209138), and
country indirectly after the end of his term. Atty. Eddie U. Tamondong (G.R. No. 212030) are declared VOID. We DECLARE that
Executive Order No. 2 dated 30 July 2010 is VALID and CONSTITUTIONAL.

Principles:
Acceptance by the Qualified Appointee
The President exercises only one kind of appointing power. There is no need to
Acceptance is indispensable to complete an appointment. Assuming office and differentiate the exercise of the President’s appointing power outside, just before,
taking the oath amount to acceptance of the appointment.[60] An oath of office is or during the appointment ban. The Constitution allows the President to exercise
a qualifying requirement for a public office, a prerequisite to the full investiture of the power of... appointment during the period not covered by the appointment
the... office.[61] ban, and disallows (subject to an exception) the President from exercising the
power of appointment during the period covered by the appointment ban.
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 The following elements should always concur in the making of a valid (which
act of acceptance will only provide more occasions to honor the Constitutional should be understood as both complete and effective) appointment: (1) authority
provision in the breach. The inclusion... of acceptance by the appointee as an to appoint and evidence of the exercise of the authority; (2) transmittal of the
integral part of the entire appointment process prevents the abuse of the appointment paper and... evidence of the transmittal; (3) a vacant position at the
Presidential power to appoint. It is relatively easy to antedate appointment papers time of appointment; and (4) receipt of the appointment paper and acceptance of
and make it appear that they were issued prior to the appointment ban, but it is... the appointment by the appointee who possesses all the qualifications and none
more difficult to simulate the entire appointment process up until acceptance by of the disqualifications. The concurrence of all... these elements should always
the appointee. apply, regardless of when the appointment is made, whether outside, just before,
or during the appointment ban.
Petitioners have failed to show compliance with all four elements of a valid
appointment. They cannot prove with certainty that their appointment papers
were transmitted before the appointment ban took effect. On the other hand,
petitioners admit that they took their oaths of... office during the appointment
ban.
ANA THERESIA “RISA” HONTIVEROS-BARAQUEL v. TOLL REGULATORY
BOARD, GR No. 181293, 2015-02-23

Facts: Toll Regulatory Board (TRB) was created on 31 March 1977 by Presidential
Decree No. (P.D.) 1112[1] in order to supervise and regulate, on behalf of the
government, the collection of toll fees and the operation of toll facilities by the
private... secto

.D. 1113[2] was issued granting to the Construction and Development

Corporation of the Philippines (now Philippine National Construction Corporation
or PNCC) the right, privilege, and authority to construct, operate, and maintain
toll... facilities in the North and South Luzon Toll Expressways for a period of 30
years starting 1 May 1977

TRB and PNCC later entered into a Toll Operation Agreement,[3] which prescribed
the operating conditions of the right granted to PNCC under P.D. 1113.

.D. 1113 was amended by P.D. 1894,[4] which granted PNCC the right, privilege,
and authority to construct, maintain, and operate the North Luzon, South Luzon
and Metro Manila Expressways, together with the toll facilities appurtenant ASTOA incorporated the amendments, revisions, and modifications necessary to...
thereto. cover the design and construction of Stage 2 of the South Metro Manila Skyway.
Also under the ASTOA, Skyway O & M Corporation (SOMCO) replaced PSC in
September 1993, PNCC entered into an agreement[5] with PT Citra Lamtoro Gung performing the operations and maintenance of Stage 1 of the South Metro Manila
Persada (CITRA), a limited liability company organized and established under the Skyway.
laws of the Republic of Indonesia, whereby the latter committed to provide PNCC
with a... pre-feasibility study on the proposed MME project. (E.O.) 497

In order to accelerate the actual implementation of both the MME and the MMS January 2006, Department of Transportation and Communications (DOTC)
projects, PNCC and CITRA entered into a second agreement.[7] Through that Secretary Leandro Mendoza approved the ASTOA through the challenged
agreement,... CITRA committed to finance and undertake the preparation, Memorandum dated 20 July
updating, and revalidation of previous studies on the construction, operation, and
maintenance of the projects. 21 December 2007, PNCC, PSC, and CMMTC entered into the assailed
Memorandum of Agreement (MOA)[16] providing for the successful and seamless
As a result of the feasibility and related studies, PNCC and CITRA submitted, assumption by SOMCO of the operations and maintenance of Stage 1 of the South
through the TRB, a Joint Investment Proposal (JIP) to the Republic of the Metro Manila Skyway. Under the MOA,... PSC received the amount of ?320 million
Philippines.[8] The JIP embodied the implementation schedule for the financing, which was used for the settlement of its liabilities arising from the consequent
design and construction... of the MMS in three stages: the South Metro Manila retrenchment or separation of its affected employees.
Skyway, the North Metro Manila Skyway, and the Central Metro Manila Skywa
TRB issued the challenged Toll Operation Certificate (TOC)[17] to SOMCO
August 1995, PNCC and CITRA entered into a Business and Joint Venture
Agreement[10] and created the Citra Metro Manila Tollways Corporation (CMMTC). 2007, authorizing the latter to operate and maintain Stage 1 of the South Metro
Manila Skyway effective 10:00 p.m. on 31 December 2007.

On 27 November 1995, the Republic of the Philippines through the TRB as

Grantor, CMMTC as Investor, and PNCC as Operator executed a Supplemental Toll January 2008, petitioners PTMSDWO and PNCC Skyway Corporation Employees
Operation Agreement (STOA)[11] covering Stage 1, Phases 1 and 2; and Stage 2, Union (PSCEU) filed before the Regional Trial Court of Parañaque City, Branch 258
Phase 1 of the South Metro (RTC), a complaint against respondents TRB, PNCC, PSC, CMMTC, and SOMCO. The
complaint was for injunction and... prohibition with a prayer for a writ of
Manila Skyway... operation and maintenance of the project roads became the preliminary injunction and/or a temporary restraining order, and sought to
primary and exclusive privilege and responsibility of the PNCC prohibit the implementation of the ASTOA and the MOA, as well as the assumption
of the toll operations by SOMCO.[21] Petitioners PSCEU and
Skyway Corporation (PSC), a wholly owned subsidiary of PNCC, which undertook
and performed the latter's obligations under the STOA. PTMSDWO also sought the subsequent nullification of the ASTOA and the MOA for
being contrary to law and for being grossly disadvantageous to the government.
18 July 2007, the Republic of the Philippines, through the TRB, CMMTC, and PNCC
executed the assailed Amendment to the Supplemental Toll Operation Agreement Petitioners argue that the franchise for toll operations was exclusively vested by
(ASTOA). P.D. 1113 in PNCC,... By agreeing to the arrangement whereby SOMCO would
replace PSC in the toll operations and... management, PNCC seriously breached
the terms and conditions of its undertaking under the franchise and effectively transfer or assignment of PNCC's franchise... no valid objection to the approval of
abdicated its rights and privileges in favor of SOMCO. the ASTOA by the DOTC Secretary, because he was authorized by the President to
do so by virtue of E.O. 497.
OMCO was highly irregular and contrary to law, because 1) it did not indicate the
conditions that shall be imposed on SOMCO as provided under P.D. 1112;[41] 2) no merit in the claim that the TOC granted to SOMCO was highly irregular and
none of the requirements on public bidding, negotiations, or... even publication contrary to law. First, the TOC clearly states that the toll operation and
was complied with before the issuance of the TOC to SOMCO; 3) applying the maintenance by SOMCO shall be regulated by the Republic of the Philippines in
stricter "grandfather rule," SOMCO does not qualify as a facility operator as accordance with
defined under R.A. 6957,[42] as amended by R.A. 7718;[43] and 4)... there were
no public notices and hearings conducted wherein all legitimate issues and P.D. 1112, the STOA, the toll operations and maintenance rules and regulations,
concerns about the transfer of the toll operations would have been properly and lawful orders, instructions, and conditions that may be imposed from time to
ventilated. time.[64] Second, there is no need to comply with the public bidding and
negotiation... requirements, because the South Metro Manila Skyway is an
approval by the DOTC Secretary of the ASTOA could not take the place of the ongoing project, not a new one.[65] Furthermore, the STOA, which was the basis
presidential approval required under P.D. 1113[44] and P.D. 1894[45] concerning for the ASTOA, was concluded way before the effectivity of R.A. 9184[66] in 2003.
the franchise granted to PNCC. [67]

ll respondents counter that petitioners do not have the requisite legal standing to SOMCO is a Filipino corporation with substantial 72% Filipino ownership.[68]
file the petition. Fourth, the law requires prior notice and hearing only in an administrative body's
exercise of quasi-judicial functions.[69] In this case, the transfer... of the toll
All... p... titioners violate the hierarchy of courts... espondents argue that nothing operations and maintenance to SOMCO was a contractual arrangement entered
in the ASTOA, the approval thereof by the DOTC Secretary, the MOA, or the TOC into in accordance with law.[70]
was violative of the Constitution.
Finally, the assumption of the toll operation and maintenance by SOMCO is not
disadvantageous to the government. Petitioners belittle the P2.5 million
capitalization of SOMCO, considering that PSC's capitalization at the time it was
authority to operate a public utility can be granted by administrative agencies
incorporated was merely P500,000.
when authorized by law.

P.D. 1112, the TRB is empowered to grant authority and enter into contracts for
the construction, operation, and... maintenance of a toll facility,[57] such as the ASTOA, PNCC shall get a direct share in the toll revenues without any corollary
ASTOA in this case. Also, the ASTOA was an amendment, not to the legislative obligation, unlike the arrangement in the STOA whereby PNCC's 10% share in the
franchise of PNCC, but to the STOA previously executed between the Republic of toll revenues was intended primarily for the toll operation and maintenance by
the Philippines through the TRB, PNCC, and
PSC.[72]... no reason to fear that the assumption by SOMCO would result in poor
CMMTC delivery of toll services. CITRA and the other shareholders of SOMCO are entities
with experience and proven track record in toll operations.[73]
PNCC's franchise was never sold, transferred, or otherwise assigned to
SOMCO[59] in the same way that PSC's previous assumption of the operation and
maintenance of the South Metro Manila Skyway did not amount to a... sale,
Also, SOMCO hired or absorbed more than 300 PSC employees,[74] who brought (e) To grant authority to operate a toll facility and to issue therefore the necessary
with them their work expertise and experience. "Toll Operation Certificate" subject to such conditions as shall be imposed by the
Board including inter alia the following:
S
(1)
Issues:
That the Operator shall desist from collecting toll upon the expiration of the Toll
Substantive: Operation Certificate.

Whether the TRB has the power to grant authority to operate a toll facility; (2)

Whether the TOC issued to SOMCO was valid; That the entire facility operated as a toll system including all operation and
maintenance equipment directly related thereto shall be turned over to the
Whether the approval of the ASTOA by the DOTC Secretary was valid; and
government immediately upon the expiration of the Toll Operation Certificate.
Whether the assumption of toll operations by SOMCO is disadvantageous to the
(3)
governmenT
That the toll operator shall not lease, transfer, grant the usufruct of, sell or assign
Ruling:
the rights or privileges acquired under the Toll Operation Certificate to any
III person, firm, company, corporation or other commercial or legal entity, nor merge
with any... other company or corporation organized for the same purpose, without
TRB has the power to grant... authority to operate a toll facility. the prior approval of the President of the Philippines. In the event of any valid
transfer of the Toll Operation Certificate, the Transferee shall be subject to all the
clear that Sections 3 (a) and (e) of P.D. 1112 in relation to Section 4 of P.D. 1894 conditions, terms, restrictions and... limitations of this Decree as fully and
have invested the TRB with sufficient power to grant a qualified person or entity completely and to the same extent as if the Toll Operation Certificate has been
with authority to construct, maintain, and operate a toll facility and to issue the... granted to the same person, firm, company, corporation or other commercial or
corresponding toll operating permit or TOC. legal entity.

Section 3. Powers and Duties of the Board. The Board shall have in addition to its (4)
general powers of administration the following powers and duties:
That in time of war, rebellion, public peril, emergency, calamity, disaster or
disturbance of peace and order, the President of the Philippines may cause the
total or partial closing of the toll facility or order to take over thereof by the
(a) Subject to the approval of the President of the Philippines, to enter into
Government... without prejudice to the payment of just compensation.
contracts in behalf of the Republic of the Philippines with persons, natural or
juridical, for the construction, operation and maintenance of toll facilities such as (5)
but not limited to national... highways, roads, bridges, and public thoroughfares.
Said contract shall be open to citizens of the Philippines and/or to corporations or
associations qualified under the Constitution and authorized by law to engage in
toll operations;... x x x x
That no guarantee, Certificate of Indebtedness, collateral, securities, or bonds hand, the design and construction of the project roads were the primary and
shall be issued by any government agency or government-owned or controlled exclusive privilege and responsibility of CMMTC.
corporation on any financing program of the toll operator in connection with his
undertaking under the However, with the execution of the ASTOA, the parties agreed that SOMCO shall
replace PSC in undertaking the operations and... maintenance of the project
Toll Operation Certificate. roads. Thus, the "exclusivity clause" was a matter of agreement between the
parties, which amended it in a later contract; it was not a matter provided under
(6) the law.

The Toll Operation Certificate may be amended, modified or revoked whenever TRB is also empowered to modify, amend, and impose additional conditions on
the public interest so requires. the franchise of PNCC in an appropriate contract, particularly when public interest
calls... for it.
(a)
SECTION 3. This franchise is granted subject to such conditions as may be
The Board shall promulgate rules and regulations governing the procedures for
imposed by the [Toll Regulatory] Board in an appropriate contract to be executed
the grant of Toll Certificates. The rights and privileges of a grantee under a Toll
for this purpose, and with the understanding and upon the condition that it shall
Operation Certificate shall be defined by the Board.
be subject to amendment,... alteration or repeal when public interest so requires.
(b)
xxx
To issue rules and regulations to carry out the purposes of this Decree.
SECTION 6. This franchise is granted subject to such conditions, consistent with
SECTION 4. The Toll Regulatory Board is hereby given jurisdiction and supervision the provisions of this Decree, as may be imposed by the Toll Regulatory Board in
over the GRANTEE with respect to the Expressways, the toll facilities necessarily the Toll Operation Agreement and such other modifications or amendments that
appurtenant thereto and, subject to the provisions of Section 8 and 9 hereof, the may be made thereto, and with the... understanding and upon the condition that
toll that the GRANTEE will charge... the users thereof. it shall be subject to amendment or alteration when public interest so dictates.

nothing in P.D. 1113 or P.D. 1894 that states that... the franchise granted to PNCC STOA, which further modified the franchise. PNCC cannot be said to have
is to the exclusion of all others. breached its franchise when it transferred the... toll operations to SOMCO. PNCC
remained the franchise holder for the construction, operation, and maintenance of
if we were to go by the theory of petitioners, it is only the operation and the project roads; it only opted to partner with investors in the exercise of its
maintenance of the toll facilities that is vested with PNCC. This interpretation is franchise leading to the organization of companies such as PSC and SOMCO.
contrary to the wording of P.D. 1113 and P.D. 1894 granting PNCC the right,
privilege and authority to... construct, operate and maintain the North Luzon, considering that PNCC was granted the right, privilege, and authority to construct,
South Luzon and Metro Manila Expressways and their toll facilities. operate, and maintain the North Luzon, South Luzon, and Metro Manila
Expressways and their toll facilities, we have not heard petitioners decrying the
"breach" by PNCC of its franchise... when it agreed to make CMMTC responsible
for the design and construction of the project roads under the STOA.
operation and maintenance of the project roads were the primary and exclusive
privilege and responsibility of PNCC through PSC... under the STOA. On the other he TOC issued to SOMCO was not irregular.
The TOC issued to SOMCO was not irregular. petitioners have not shown how SOMCO... fails to meet the nationality
requirement for a public utility operator. Petitioners only aver in their petition that
TOC, as a grant of authority from the government, is subject to the latter's control 40% of SOMCO is owned by CMMTC, a foreign company, while the rest is owned
insofar as the grant affects or concerns the public. by the following: a) Toll Road Operation and Maintenance Venture Corporation
(TROMVC),... almost 40% of which is owned by a Singaporean company; b)
authorization is issued upon the clear understanding that the operation and
Assetvalues Holding Company, Inc. (AHCI), of which almost 40% is Dutch-owned;
maintenance of Stage 1 of the South Metro Manila Skyway as a toll facility and the
and c) Metro Strategic Infrastructure Holdings, Inc. (MSIHI), 40% of which is
collection of toll fees shall be closely supervised and regulated by the Grantor, by
owned by Metro Pacific Corporation, whose ownership or... nationality was not
and through the Board of
specified.[108]... rebut petitioners' allegations, respondents readily present
Directors, in accordance with the terms and conditions set forth in the STOA, as matrices showing the itemization of percentage ownerships of the subscribed
amended, the rules and regulations duly promulgated by the Grantor for toll road capital stock of SOMCO, as well as that of TROMVC, AHCI, and MSIHI. Respondents
operations and maintenance, as well as the lawful orders, instructions and attempt to show that all these corporations are of
conditions which the Grantor, through the
Philippine nationality, with 60% of their capital stock owned by Filipino citizens.
TRB, may impose from time to time in view of the public nature of the facility.
no public notices and hearings were necessary prior to the issuance of the TOC to
allegation that none of the requirements for public bidding was observed before SOMCO. For the same reason that a public bidding is not necessary, PNCC cannot
the TOC was issued to SOMCO, this matter was also squarely answered by the be required to call for public hearings concerning matters within its prerogative.
Court in Francisco, Jr. v. TRB,[106] to wit:
Approval of the ASTOA by the
Where, in the instant case, a franchisee undertakes the tollway projects of
DOTC Secretary was approval by... the President.
construction, rehabilitation and expansion of the tollways under its franchise,
there is no need for a public bidding. In pursuing the projects with the vast The doctrine of qualified political agency declares that, save in matters on which
resource requirements, the... franchisee can partner with other investors, which it the Constitution or the circumstances require the President to act personally,
may choose in the exercise of its management prerogatives. executive and administrative functions are exercised through executive
departments headed by cabinet secretaries,... whose acts are presumptively the
Under the STOA in this case, PNCC partnered with CMMTC in Stages 1 and 2 of the
acts of the President unless disapproved by the latter... ower to grant franchises
South Metro Manila Skyway. The STOA gave birth to PSC, which was put in charge
or issue authorizations for the operation of a public utility is not exclusively
of the operation and maintenance of the project roads. The ASTOA had to be
exercised by Congress. Second, except where the situation falls within that
executed for Stage 2 to accommodate changes... and modifications in the original
special class that demands the exclusive and personal exercise by the
design.
President of constitutionally vested power,[117] the President acts through alter
The ASTOA then brought forth the incorporation of SOMCO to replace PSC in the
egos whose acts are as if the Chief Executive's own.
operations and maintenance of Stage 1 of the South Metro Manila Skyway.
Clearly, no public bidding was necessary because PNCC, the franchisee, merely Third, no lease, transfer, grant of usufruct, sale, or assignment of franchise by
exercised... its management prerogative when it decided to undertake the PNCC or its merger with another company ever took place... creation of the TRB
construction, operation, and maintenance of the project roads through companies and the grant of franchise to PNCC were made in the light of the recognition on
which are products of joint ventures with chosen partners. the part of the government that the private sector had to be involved as an
alternative source of financing for the pursuance of national infrastructure
projects. As the... franchise holder for the construction, maintenance and
operation of infrastructure toll facilities, PNCC was equipped with the right and understandable that SOMCO does not yet have a proven track record in toll
privilege, but not necessarily the means, to undertake the project. This is where operations, considering that it was only the ASTOA and the MOA that gave birth to
joint ventures with private investors become... necessary. it

In joint ventures with investor companies, PNCC contributes the franchise it

possesses, while the partner contributes the financing both necessary for the
construction, maintenance, and operation of the toll facilities. PNCC did not
thereby lease, transfer, grant the usufruct... of, sell, or assign its franchise or
other rights or privileges. This remains true even though the partnership acquires
a distinct and separate personality from that of the joint venturers or leads to the
formation of a new company that is the product of such joint venture, such... as
PSC and SOMCO in this case.

Petitioners have not shown that the... transfer of toll operations to SOMCO was...
grossly disadvantageous to the government.

Gross" means glaring, reprehensible, culpable, flagrant, and shocking.[120] It

requires that the mere... allegation shows that the disadvantage on the part of
the government is unmistakable, obvious, and certain.

llegations of petitioners are nothing more than speculations, apprehensions, and

supposition... ns.

The aim in the establishment of toll facilities is to draw from private resources the
financing of government infrastructure projects. Naturally, these private investors
would want to receive reasonable return on their investments. Thus, the collection
of toll fees for the use... of public improvements has been authorized, subject to
supervision and regulation by the national government

As regards the P320... million settlement given to PSC, the amount was to be
used principally for the payment of its liabilities of PSC arising... from the
retrenchment of its employees. We note that under the MOA, the residual assets
of PSC shall still be offered for sale to CMMTC, subject to valuation.[122] Thus, it
would be inaccurate to say that PSC would receive only P320 million for the
entire... arrangement.
 2. Whether or not President Arroyo invalidly exercised emergency powers when
she called out the AFP and the PNP to prevent and suppress all incidents of
lawless violence in Maguindanao, Sultan Kudarat, and Cotabato City

Ampatuan vs Puno Case Digest 3. Whether or not the President had factual bases for her actions

Calling Out Power, Emergency Powers, Local Autonomy

Facts: On 24 November 2009, the day after the Maguindanao Massacre, then Held:
Pres. Arroyo issued Proclamation 1946, placing “the Provinces of Maguindanao
and Sultan Kudarat and the City of Cotabato under a state of emergency.” She 1. The principle of local autonomy was not violated. DILG Secretary did not take
directed the AFP and the PNP “to undertake such measures as may be allowed by over control of the powers of the ARMM. After law enforcement agents took the
the Constitution and by law to prevent and suppress all incidents of lawless respondent Governor of ARMM into custody for alleged complicity in the
violence” in the named places. Three days later, she also issued AO 273 Maguindanao Massacre, the ARMM Vice‐Governor, petitioner Adiong, assumed the
“transferring” supervision of the ARMM from the Office of the President to the vacated post on 10 Dec. 2009 pursuant to the rule on succession found in Sec. 12
DILG. She subsequently issued AO 273-A, which amended the former AO (the Art.VII of RA 9054. In turn, Acting Governor Adiong named the then Speaker of the
term “transfer” used in AO 273 was amended to “delegate”, referring to the ARMM Regional Assembly, petitioner Sahali‐Generale, Acting ARMM Vice-
supervision of the ARMM by the DILG). Governor. The DILG Secretary therefore did not take over the administration or
the operations of the ARMM.
Claiming that the President’s issuances encroached on the ARMM’s autonomy,
petitioners Datu Zaldy Uy Ampatuan, Ansaruddin Adiong, and Regie Sahali- 2. The deployment is not by itself an exercise of emergency powers as understood
Generale, all ARMM officials, filed this petition for prohibition under Rule 65. They under Section 23 (2), Article VI of the Constitution, which provides:
alleged that the President’s proclamation and orders encroached on the ARMM’s
autonomy as these issuances empowered the DILG Secretary to take over SECTION 23. x x x (2) In times of war or other national emergency, the Congress
ARMM’s operations and to seize the regional government’s powers. They also may, by law, authorize the President, for a limited period and subject to such
claimed that the President had no factual basis for declaring a state of restrictions as it may prescribe, to exercise powers necessary and proper to carry
emergency, especially in the Province of Sultan Kudarat and the City of Cotabato, out a declared national policy. Unless sooner withdrawn by resolution of the
where no critical violent incidents occurred and that the deployment of troops and Congress, such powers shall cease upon the next adjournment thereof.
the taking over of the ARMM constitutes an invalid exercise of the President’s
The President did not proclaim a national emergency, only a state of emergency
emergency powers. Petitioners asked that Proclamation 1946 as well as AOs 273
in the three places mentioned. And she did not act pursuant to any law enacted
and 273-A be declared unconstitutional.
by Congress that authorized her to exercise extraordinary powers. The calling out
Issues: of the armed forces to prevent or suppress lawless violence in such places is a
power that the Constitution directly vests in the President. She did not need a
1. Whether Proclamation 1946 and AOs 273 and 273-A violate the principle of congressional authority to exercise the same.
local autonomy under the Constitution and The Expanded ARMM Act
3. The President’s call on the armed forces to prevent or suppress lawless
violence springs from the power vested in her under Section 18, Article VII of the
Constitution, which provides:
Section 18. The President shall be the Commander-in-Chief of all armed forces of alleged that, since not all areas under the ARMM were placed under a state of
the Philippines and whenever it becomes necessary, he may call out such armed emergency, it follows that the takeover of the entire ARMM by the DILG Secretary
forces to prevent or suppress lawless violence, invasion or rebellion. x x x had no basis too.

While it is true that the Court may inquire into the factual bases for the The imminence of violence and anarchy at the time the President issued
President’s exercise of the above power, it would generally defer to her judgment Proclamation 1946 was too grave to ignore and she had to act to prevent further
on the matter. As the Court acknowledged in Integrated Bar of the Philippines v. bloodshed and hostilities in the places mentioned. Progress reports also indicated
Hon. Zamora, it is clearly to the President that the Constitution entrusts the that there was movement in these places of both high-powered firearms and
determination of the need for calling out the armed forces to prevent and armed men sympathetic to the two clans. Thus, to pacify the people’s fears and
suppress lawless violence. Unless it is shown that such determination was stabilize the situation, the President had to take preventive action. She called out
attended by grave abuse of discretion, the Court will accord respect to the the armed forces to control the proliferation of loose firearms and dismantle the
President’s judgment. Thus, the Court said: armed groups that continuously threatened the peace and security in the affected
places.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the armed
forces is not easily quantifiable and cannot be objectively established since Since petitioners are not able to demonstrate that the proclamation of state of
matters considered for satisfying the same is a combination of several factors emergency in the subject places and the calling out of the armed forces to
which are not always accessible to the courts. Besides the absence of textual prevent or suppress lawless violence there have clearly no factual bases, the
standards that the court may use to judge necessity, information necessary to Court must respect the President’s actions. (Ampatuan vs Puno, G.R. No. 190259,
arrive at such judgment might also prove unmanageable for the courts. Certain June 7, 2011)
pertinent information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President might decide
that there is a need to call out the armed forces may be of a nature not
constituting technical proof.

On the other hand, the President, as Commander-in-Chief has a vast intelligence

network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any effect at all. x
x x.

Here, petitioners failed to show that the declaration of a state of emergency in the
Provinces of Maguindanao, Sultan Kudarat and Cotabato City, as well as the
President’s exercise of the “calling out” power had no factual basis. They simply
 Did the issuance of PP 1963, lifting martial law and restoring the [privilege
of the] writ in Maguindanao, render the issues moot and academic?

III. THE RULING

[The Court DISMISSED the consolidated petitions on the ground that they
have become MOOT and ACADEMIC.]

YES, the issuance of PP 1963, lifting martial law and restoring the
[privilege of the] writ in Maguindanao, rendered the issues moot and
academic

Prudence and respect for the co-equal departments of the government

dictate that the Court should be cautious in entertaining actions that assail the
constitutionality of the acts of the Executive or the Legislative department. The
issue of constitutionality, said the Court in Biraogo v. Philippine Truth Commission
Philip Sigfrid Fortun v. Gloria Macapagal-Arroyo, et al., G.R. No. 190293, of 2010, must be the very issue of the case, that the resolution of such issue is
March 20, 2012 (and other consolidated cases) unavoidable.

DECISION The issue of the constitutionality of Proclamation 1959 is not unavoidable

(En Banc) for two reasons:

ABAD, J.: One. President Arroyo withdrew her proclamation of martial law and
suspension of the privilege of the writ of habeas corpus before the joint houses of
I. THE FACTS Congress could fulfill their automatic duty to review and validate or invalidate the
same. xxx.
On November 23, 2009, heavily armed men believed led by the ruling
Ampatuan family of Maguindanao gunned down and buried under shoveled dirt xxx xxx xxx
57 innocent civilians. In response to this carnage, President Arroyo issued on
November 24, 2009 PP 1946 declaring a state of emergency in Maguindanao, [U]nder the 1987 Constitution the President and the Congress act in
Sultan Kudarat, and Cotabato City. tandem in exercising the power to proclaim martial law or suspend the privilege
of the writ of habeas corpus. They exercise the power, not only sequentially, but
On December 4, 2009, President Arroyo issued PP 1959 declaring martial in a sense jointly since, after the President has initiated the proclamation or the
law and suspending the privilege of the writ of habeas corpus in Maguindanao suspension, only the Congress can maintain the same based on its own
except for identified areas of the Moro Islamic Liberation Front. On December 6, evaluation of the situation on the ground, a power that the President does not
2009, President Arroyo submitted her report to Congress. On December 9, 2009, have.
Congress convened in joint session to review the validity of the President’s
action. But two days later, or on December 12, 2009, before Congress could act, Consequently, although the Constitution reserves to the Supreme Court
the President issued PP 1963, lifting martial law and restoring the privilege of the the power to review the sufficiency of the factual basis of the proclamation or
writ of habeas corpus. suspension in a proper suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather than initiated. Only
II. THE ISSUES when Congress defaults in its express duty to defend the Constitution through
such review should the Supreme Court step in as its final rampart. The
constitutional validity of the President’s proclamation of martial law or suspension
of the writ of habeas corpus is first a political question in the hands of Congress
before it becomes a justiciable one in the hands of the Court.

xxx xxx xxx

Here, President Arroyo withdrew Proclamation 1959 before the joint houses
of Congress, which had in fact convened, could act on the same. Consequently,
the petitions in these cases have become moot and the Court has nothing to
review. The lifting of martial law and restoration of the privilege of the writ
of habeas corpus in Maguindanao was a supervening event that obliterated any
justiciable controversy.

Two. Since President Arroyo withdrew her proclamation of martial law and
suspension of the privilege of the writ of habeas corpus in just eight days, they
have not been meaningfully implemented. The military did not take over the
operation and control of local government units in Maguindanao. The President
did not issue any law or decree affecting Maguindanao that should ordinarily be
enacted by Congress. No indiscriminate mass arrest had been reported. Those
who were arrested during the period were either released or promptly charged in
court. Indeed, no petition for habeas corpus had been filed with the Court
respecting arrests made in those eight days. The point is that the President
intended by her action to address an uprising in a relatively small and sparsely
populated province. In her judgment, the rebellion was localized and swiftly
disintegrated in the face of a determined and amply armed government
presence.

xxx xxx xxx

xxx. In a real sense, the proclamation and the suspension never took
off. The Congress itself adjourned without touching the matter, it having become
moot and academic.
 On May 23, 2017, as the President stated in his Report, the Maute terrorist group
took over a hospital in Marawi City; established several checkpoints within the
city; burned down certain government and private facilities and inflicted
casualties on the part of Government forces; and started flying the flag of the
Islamic State of Iraq and Syria (ISIS) in several areas, thereby indicating a removal
of allegiance from the Philippine Government and their capability to deprive the
duly constituted authorities – the President, foremost – of their powers and
prerogatives.

The Report also highlighted the strategic location of Marawi City; the role it plays
in Mindanao, and the Philippines as a whole; and the possible tragic repercussions
once it falls under the control of the lawless groups.

After the submission of the Report and the briefings, the Senate declared that it
found “no compelling reason to revoke Proclamation 216.

The Lagman Group, the Cullamat Group and the Mohamad Group petitioned the
Supreme Court, questioning the factual basis of President Duterte’s Proclamation
of martial law.

EDCEL LAGMAN, ET AL VS. SALVADOR MEDIALDEA, ET AL ISSUES:

(The Declaration of Martial Law and the Suspension of the Privilege of the Writ of [1] W/N the petitions are the “appropriate proceeding” covered by paragraph 3,
Habeas Corpus in the whole of Mindanao) Section 18, Article VII of the Constitution sufficient to invoke the mode of review
required by the Court;
FACTS:
[2] A. Is the President required to be factually correct or only not arbitrary in his
Effective May 23, 2017, and for a period not exceeding 60 days, President Rodrigo appreciation of facts? B. Is the President required to obtain the favorable
Roa Duterte issued Proclamation No. 216 declaring a state of martial law and recommendation thereon bf the Secretary of National Defense? C. Is the President
suspending the privilege of the writ of habeas corpus in the whole of Mindanao. is required to take into account only the situation at the time of the proclamation,
even if subsequent events prove the situation to have not been accurately
In accordance with Section 18, Article VII of the Constitution, the President, on reported?
May 25, 2017, submitted to Congress a written Report on the factual basis of
Proclamation No. 216. [3] Is the power of this Court to review the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ of
The Report pointed out that for decades, Mindanao has been plagued with habeas corpus is independent of the actual actions that have been taken by
rebellion and lawless violence which only escalated and worsened with the Congress jointly or separately;
passing of time.
[4] W/N there were sufficient factual [basis] for the proclamation of martial law or questioning the sufficiency of the factual basis of the exercise of the Chief
the suspension of the privilege of the writ of habeas corpus; A. What are the Executive’s emergency powers, as in these cases. It could be denominated as a
parameters for review? B. Who has the burden of proof? C. What is the threshold complaint, a petition, or a matter to be resolved by the Court.
of evidence?
2. a.) In determining the sufficiency of the factual basis of the declaration and/or
the suspension, the Court should look into the full complement or totality of the
factual basis, and not piecemeal or individually. Neither should the Court expect
[5] Whether the exercise of the power of judicial review by this Court involves the absolute correctness of the facts stated in the proclamation and in the written
calibration of graduated powers granted the President as Commander-in-Chief? Report as the President could not be expected to verify the accuracy and veracity
of all facts reported to him due to the urgency of the situation. To require him
[6] W/N Proclamation No. 216 of 23 May 2017 may be considered, vague and thus
otherwise would impede the process of his decision-making.
null and void: a. with its inclusion of “other rebel groups;” or b. since it has no
guidelines specifying its actual operational parameters within the entire Mindanao b.) The recommendation of the Defense Secretary is not a condition for the
region; declaration of martial law or suspension of the privilege of the writ of habeas
corpus. A plain reading of Section 18, Article VII of the Constitution shows that the
[7] W/N the armed hostilities mentioned in Proclamation No. 216 and in the
President’s power to declare martial law is not subject to any condition except for
Report of the President to Congress are sufficient bases: a. for the existence of
the requirements of actual invasion or rebellion and that public safety requires it.
actual rebellion; or b. for a declaration of martial law or the suspension of the
Besides, it would be contrary to common sense if the decision of the President is
privilege of the writ of habeas corpus in the entire Mindanao region;
made dependent on the recommendation of his mere alter ego. Only on the
[8] W/N terrorism or acts attributable to terrorism are equivalent to actual President can exercise of the powers of the Commander-in-Chief.
rebellion and the requirements of public safety sufficient to declare martial law or
c.) As Commander-in-Chief, the President has the sole discretion to declare
suspend the privilege of the writ of habeas corpus; and
martial law and/or to suspend the privilege of the writ of habeas corpus, subject
[9] W/N nullifying Proclamation No. 216 of23 May 2017 will: A. have the effect of to the revocation of Congress and the review of this Court. Since the exercise of
recalling Proclamation No. 55 s. 2016; or B. also nullify the acts of the President in these powers is a judgment call of the President, the determination of this Court
calling out the armed forces to quell lawless violence in Marawi and other parts of as to whether there is sufficient factual basis for the exercise of such, must be
the Mindanao region. based only on facts or information known by or available to the President at the
time he made the declaration or suspension which facts or information are found
in the proclamation as well as the written Report submitted by him to Congress.
These may be based on the situation existing at the time the declaration was
made or past events. As to how far the past events should be from the present
depends on the President.
RULING:
3. The power of the Court to review the sufficiency of the factual basis of the
1. The Court agrees that the jurisdiction of this Court under the third paragraph of proclamation of martial law or the suspension of the privilege of the writ of
Section 18, Article VII is sui generis. It is a special and specific jurisdiction of the habeas corpus under Section 18, Article VII of the 1987 Constitution is
Supreme Court different from those enumerated in Sections 1 and 5 of Article VIII. independent of the actions taken by Congress.
The phrase “in an appropriate proceeding” appearing on the third paragraph of
Section 18, Article VII refers to any action initiated by a citizen for the purpose of
The Court may strike down the presidential proclamation in an appropriate There is no need for the Court to determine the constitutionality of the
proceeding filed by any citizen on the ground of lack sufficient factual basis. On implementing and/or operational guidelines, general orders, arrest orders and
the other hand, Congress may revoke the proclamation or suspension, which other orders issued after the proclamation for being irrelevant to its review. Any
revocation shall not be set aside by the President. The power to review by the act committed under the said orders in violation of the Constitution and the laws
Court and the power to revoke by Congress are not only totally different but should be resolved in a separate proceeding. Finally, there is a risk that if the
likewise independent from each other although concededly, they have the same Court wades into these areas, it would be deemed as trespassing into the sphere
trajectory, which is, the nullification of the presidential proclamation. that is reserved exclusively for Congress in the exercise of its power to revoke.

4. The parameters for determining the sufficiency of factual basis are as follows: l) 7. There is sufficient factual basis for the declaration of martial law and the
actual rebellion or invasion; 2) public safety requires it; the first two requirements suspension of the writ of habeas corpus. By a review of the facts available to him
must concur; and 3) there is probable cause for the President to believe that there that there was an armed public uprising, the culpable purpose of which was to
is actual rebellion or invasion. remove from the allegiance to the Philippine Government a portion of its territory
and to deprive the Chief Executive of any of his power and prerogatives, leading
The President needs only to satisfy probable cause as the standard of proof in the President to believe that there was probable cause that the crime of rebellion
determining the existence of either invasion or rebellion for purposes of declaring was and is being committed and that public safety requires the imposition of
martial law, and that probable cause is the most reasonable, most practical and martial law and suspension of the privilege of the writ of habeas corpus.
most expedient standard by which the President can fully ascertain the existence
or non-existence of rebellion necessary for a declaration of martial law or After all, what the President needs to satisfy is only the standard of probable
suspension of the writ. To require him to satisfy a higher standard of proof would cause for a valid declaration of martial law and suspension of the privilege of the
restrict the exercise of his emergency powers. writ of habeas corpus.

5. The judicial power to review the sufficiency of factual basis of the declaration of 8. Terrorism neither negates nor absorbs rebellion. Rebellion may be subsumed
martial law or the suspension of the privilege of the writ of habeas corpus does under the crime of terrorism, which has a broader scope covering a wide range of
not extend to the calibration of the President’s decision of which among his predicate crimes. In fact, rebellion is only one of the various means by which
graduated powers he will avail of in a given situation. To do so would be terrorism can be committed.
tantamount to an incursion into the exclusive domain of the Executive and an
infringement on the prerogative that solely, at least initially, lies with the Meanwhile, public safety requires the declaration of martial law and the
President. suspension of the privilege of the writ of habeas corpus in the whole of Mindanao.
For a declaration of martial law or suspension of the privilege of the writ of
6. a.) Inclusion of “other rebel groups ” does not make Proclamation No. 216 habeas corpus to be valid, there must be concurrence of 1.) actual rebellion or
vague. The term “other rebel groups” in Proclamation No. 216 is not at all vague invasion and 2.) the public safety requirement.
when viewed in the context of the words that accompany it. Verily, the text of
Proclamation No. 216 refers to “other rebel groups” found in Proclamation No. 55, In his report, the President noted that the acts of violence perpetrated by the ASG
which it cited by way of reference in its Whereas clauses. and the Maute Group were directed not only against government forces or
establishment but likewise against civilians and their properties. There were bomb
b.) Lack of guidelines/operational parameters does not make Proclamation No. threats, road blockades, burning of schools and churches, hostages and killings of
216 vague. Operational guidelines will serve only as mere tools for the civilians, forced entry of young male Muslims to the group, there were hampering
implementation of the proclamation. of medical services and delivery of basic services, reinforcement of government
troops, among others. These particular scenarios convinced the President that the
atrocities had already escalated to a level that risked public safety and thus Facts: The Sandiganbayan convicted petitioner Salvacion A. Monsanto (then
impelled him to declare martial law and suspend the privilege of the writ of assistant treasurer of Calbayog City) of the crime of estafa through falsification of
habeas corpus. public documents. She was sentenced to jail and to indemnify the government in
the sum of P4,892.50.The SC affirmed the decision. She then filed a motion for
9. a.) The calling out power is in a different category from the power to declare reconsideration but while said motion was pending, she was extended by then
martial law and the power to suspend the privilege of the writ of habeas corpus; President Marcos absolute pardon which she accepted (at that time, the rule was
nullification of Proclamation No. 216 will not affect Proclamation No. 55. that clemency could be given even before conviction). By reason of said pardon,
petitioner wrote the Calbayog City treasurer requesting that she be restored to
The President may exercise the power to call out the Armed Forces independently
her former post as assistant city treasurer since the same was still vacant. Her
of the power to suspend the privilege of the writ of habeas corpus and to declare
letter was referred to the Minister of Finance who ruled that she may be
martial law. Even so, the Court’s review of the President’s declaration of martial
reinstated to her position without the necessity of a new appointment not earlier
law and his calling out the Armed Forces necessarily entails separate proceedings
than the date she was extended the absolute pardon.
instituted for that particular purpose.
Petitioner wrote the Ministry stressing that the full pardon bestowed on her has
b.) Neither would the nullification of Proclamation No. 216 result in the
wiped out the crime which implies that her service in the government has never
nullification of the acts of the President done pursuant thereto. Under the
been interrupted and therefore the date of her reinstatement should correspond
operative fact doctrine,” the unconstitutional statute is recognized as an
to the date of her preventive suspension; that she is entitled to backpay for the
“operative fact” before it is declared unconstitutional.
entire period of her suspension; and that she should not be required to pay the
*** proportionate share of the amount of P4,892.50

Verily, the Court upholds the validity of the declaration of martial law and The Ministry referred the issue to the Office of the President. Deputy Executive
suspension of the privilege of the writ of habeas corpus in the entire Mindanao Secretary Factoran denied Monsanto’s request averring that Monsanto must first
region. The Court FINDS sufficient factual bases for the issuance of Proclamation seek appointment and that the pardon does not reinstate her former position.
No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly, the consolidated
Petitions are hereby DISMISSED.
Issues:

1. Is Monsanto entitled to backpay?

2. Is a public officer, who has been granted an absolute pardon by the Chief
Executive, entitled to reinstatement to her former position without need of a new
appointment?

3. May petitioner be exempt from the payment of the civil indemnity imposed
upon her by the sentence?

Monsanto vs. Factoran

Held:

1. Pardon is defined as "an act of grace, proceeding from the power entrusted Risos-Vidal vs. Comelec
with the execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has committed. It is Facts:
the private, though official act of the executive magistrate, delivered to the
In September 12, 2007, the Sandiganbayan convicted former President Estrada
individual for whose benefit it is intended, and not communicated officially to the
for the crime of plunder and was sentenced to suffer the penalty of Reclusion
Court.
Perpetua and the accessory penalties of civil interdiction during the period of
While a pardon has generally been regarded as blotting out the existence of guilt sentence and perpetual absolute disqualification. On October 25, 2007, however,
so that in the eye of the law the offender is as innocent as though he never former President Gloria Macapagal Arroyo extended executive clemency, by way
committed the offense, it does not operate for all purposes. The very essence of a of pardon, to former President Estrada, explicitly stating that he is restored to his
pardon is forgiveness or remission of guilt. Pardon implies guilt. It does not erase civil and political rights.
the fact of the commission of the crime and the conviction thereof. It does not
In 2009, Estrada filed a Certificate of Candidacy for the position of President.
wash out the moral stain. It involves forgiveness and not forgetfulness.
None of the disqualification cases against him prospered but he only placed
A pardon looks to the future. It is not retrospective. It makes no amends for the second in the results.
past. It affords no relief for what has been suffered by the offender. It does not
In 2012, Estrada once more ventured into the political arena, and filed a
impose upon the government any obligation to make reparation for what has
Certificate of Candidacy, this time vying for a local elective post, that of the
been suffered. “Since the offense has been established by judicial proceedings,
Mayor of the City of Manila.
that which has been done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no satisfaction for it can be Petitioner Risos-Vidal filed a Petition for Disqualification against Estrada before the
required.” This would explain why petitioner, though pardoned, cannot be entitled Comelec stating that Estrada is disqualified to run for public office because of his
to receive backpay for lost earnings and benefits. conviction for plunder sentencing him to suffer the penalty of reclusion perpetua
with perpetual absolute disqualification. Petitioner relied on Section 40 of the
2. The pardon granted to petitioner has resulted in removing her disqualification
Local Government Code (LGC), in relation to Section 12 of the Omnibus Election
from holding public employment but it cannot go beyond that. To regain her
Code (OEC).
former post as assistant city treasurer, she must re-apply and undergo the usual
procedure required for a new appointment. The Comelec dismissed the petition for disqualification holding that President
Estrada’s right to seek public office has been effectively restored by the pardon
3. Civil liability arising from crime is governed by the Revised Penal Code. It
vested upon him by former President Gloria M. Arroyo.
subsists notwithstanding service of sentence, or for any reason the sentence is
not served by pardon, amnesty or commutation of sentence. Petitioner's civil Estrada won the mayoralty race in May 13, 2013 elections. Alfredo Lim, who
liability may only be extinguished by the same causes recognized in the Civil garnered the second highest votes, intervened and sought to disqualify Estrada
Code, namely: payment, loss of the thing due, remission of the debt, merger of for the same ground as the contention of Risos-Vidal and praying that he be
the rights of creditor and debtor, compensation and novation. (Monsanto vs. proclaimed as Mayor of Manila.
Factoran, G.R. No. 78239, February 9, 1989)
Issue:
May former President Joseph Estrada run for public office despite having been Section 5. No pardon, amnesty, parole, or suspension of sentence for violation of
convicted of the crime of plunder which carried an accessory penalty of perpetual election laws, rules, and regulations shall be granted by the President without the
disqualification to hold public office? favorable recommendation of the Commission.

It is apparent from the foregoing constitutional provisions that the only instances
in which the President may not extend pardon remain to be in: (1) impeachment
cases; (2) cases that have not yet resulted in a final conviction; and (3) cases
involving violations of election laws, rules and regulations in which there was no
Held:
favorable recommendation coming from the COMELEC. Therefore, it can be
Yes. Estrada was granted an absolute pardon that fully restored all his civil and argued that any act of Congress by way of statute cannot operate to delimit the
political rights, which naturally includes the right to seek public elective office, the pardoning power of the President.
focal point of this controversy. The wording of the pardon extended to former
The proper interpretation of Articles 36 and 41 of the Revised Penal Code.
President Estrada is complete, unambiguous, and unqualified. It is likewise
unfettered by Articles 36 and 41 of the Revised Penal Code. The only reasonable, A close scrutiny of the text of the pardon extended to former President Estrada
objective, and constitutional interpretation of the language of the pardon is that shows that both the principal penalty of reclusion perpetua and its accessory
the same in fact conforms to Articles 36 and 41 of the Revised Penal Code. penalties are included in the pardon. The sentence which states that “(h)e is
hereby restored to his civil and political rights,” expressly remitted the accessory
It is insisted that, since a textual examination of the pardon given to and
penalties that attached to the principal penalty of reclusion perpetua. Hence,
accepted by former President Estrada does not actually specify which political
even if we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable
right is restored, it could be inferred that former President Arroyo did not
from the text of the pardon that the accessory penalties of civil interdiction and
deliberately intend to restore former President Estrada’s rights of suffrage and to
perpetual absolute disqualification were expressly remitted together with the
hold public office, orto otherwise remit the penalty of perpetual absolute
principal penalty of reclusion perpetua.
disqualification. Even if her intention was the contrary, the same cannot be
upheld based on the pardon’s text. The disqualification of former President Estrada under Section 40 of the LGC in
relation to Section 12 of the OEC was removed by his acceptance of the absolute
The pardoning power of the President cannot be limited by legislative action.
pardon granted to him
The 1987 Constitution, specifically Section 19 of Article VII and Section 5 of Article
While it may be apparent that the proscription in Section 40(a) of the LGC is
IX-C, provides that the President of the Philippines possesses the power to grant
worded in absolute terms, Section 12 of the OEC provides a legal escape from the
pardons, along with other acts of executive clemency, to wit:
prohibition – a plenary pardon or amnesty. In other words, the latter provision
Section 19. Except in cases of impeachment, or as otherwise provided in this allows any person who has been granted plenary pardon or amnesty after
Constitution, the President may grant reprieves, commutations, and pardons, and conviction by final judgment of an offense involving moral turpitude, inter alia, to
remit fines and forfeitures, after conviction by final judgment. run for and hold any public office, whether local or national position.

He shall also have the power to grant amnesty with the concurrence of a majority The third preambular clause of the pardon did not operate to make the pardon
of all the Members of the Congress. conditional.

xxxx
Contrary to Risos-Vidal’s declaration, the third preambular clause of the pardon,
i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed to no longer seek
any elective position or office," neither makes the pardon conditional, nor militate
against the conclusion that former President Estrada’s rights to suffrage and to
seek public elective office have been restored.

This is especially true as the pardon itself does not explicitly impose a condition or
limitation, considering the unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble is not an essential part of
an act as it is an introductory or preparatory clause that explains the reasons for
the enactment, usually introduced by the word "whereas." Whereas clauses do
not form part of a statute because, strictly speaking, they are not part of the Saguisag v. Exec Secretary Ochoa July 26, 2016 G.R. No. 212426 EDCA,
operative language of the statute. In this case, the whereas clause at issue is not Treaty, Executive Agreement, International Agreement
an integral part of the decree of the pardon, and therefore, does not by itself
AUGUST 22, 2018
alone operate to make the pardon conditional or to make its effectivity contingent
upon the fulfilment of the aforementioned commitment nor to limit the scope of FACTS:This is a Resolution on the Motion for Reconsideration seeking to reverse
the pardon. the Decision of this Court in Saguisag et. al., v. Executive Secretary dated 12
January 2016.
Besides, a preamble is really not an integral part of a law. It is merely an
introduction to show its intent or purposes. It cannot be the origin of rights and Petitioners claim this Court erred when it ruled that the Enhanced Defense
obligations. Where the meaning of a statute is clear and unambiguous, the Cooperation Agreement (EDCA) between the Philippines and the US was not a
preamble can neither expand nor restrict its operation much less prevail over its treaty. In connection to this, petitioners move that EDCA must be in the form of a
text. treaty in order to comply with the constitutional restriction under Section 25,
Article· XVIII of the 1987 Constitution on foreign military bases, troops, and
If former President Arroyo intended for the pardon to be conditional on
facilities. Additionally, they reiterate their arguments on the issues of
Respondent’s promise never to seek a public office again, the former ought to
telecommunications, taxation, and nuclear weapons.
have explicitly stated the same in the text of the pardon itself. Since former
President Arroyo did not make this an integral part of the decree of pardon, the The principal reason for the Motion for Reconsideration is evidently petitioners’
Commission is constrained to rule that the 3rd preambular clause cannot be disagreement with the Decision that EDCA implements the VFA and Mutual
interpreted as a condition to the pardon extended to former President Estrada. Defense Treaty (MDT).
(Risos-Vidal vs. Comelec, G.R. No. 206666, January 21, 2015)
Petitioners argue that EDCA’s provisions fall outside the allegedly limited scope of
the VFA and MDT because it provides a wider arrangement than the VFA for
military bases, troops, and facilities, and it allows the establishment of U.S.
military bases.

ISSUE: Whether or not EDCA is a treaty.

RULING:
Petitioners detail their objections to EDCA in a similar way to their original International practice has accepted the use of various forms and designations of
petition, claiming that the VFA and MDT did not allow EDCA to contain the international agreements, ranging from the traditional notion of a treaty – which
following provisions: connotes a formal, solemn instrument – to engagements concluded in modern,
simplified forms that no longer necessitate ratification.
1. Agreed Locations
An international agreement may take different forms: treaty, act, protocol,
2. Rotational presence of personnel agreement, concordat, compromis d’arbitrage, convention, covenant, declaration,
exchange of notes, statute, pact, charter, agreed minute, memorandum of
3. U.S. contractors
agreement, modus vivendi, or some other form.
4. Activities of U.S. contractors

Consequently, under international law, the distinction between a treaty and an

We ruled in Saguisag, et. al. that the EDCA is not a treaty despite the presence of international agreement or even an executive agreement is irrelevant for
these provisions. The very nature of EDCA, its provisions and subject matter, purposes of determining international rights and obligations.
indubitably categorize it as an executive agreement – a class of agreement that is
However, this principle does not mean that the domestic law distinguishing
not covered by the Article XVIII Section 25 restriction – in painstaking detail. To
treaties, international agreements, and executive agreements is relegated to a
partially quote the Decision:
mere variation in form, or that the constitutional requirement of Senate
Executive agreements may dispense with the requirement of Senate concurrence concurrence is demoted to an optional constitutional directive. There remain two
because of the legal mandate with which they are concluded. very important features that distinguish treaties from executive agreements and
translate them into terms of art in the domestic setting.
As culled from the deliberations of the Constitutional Commission, past Supreme
Court Decisions, and works of noted scholars, executive agreements merely First, executive agreements must remain traceable to an express or implied
involve arrangements on the implementation of existing policies, rules, laws, or authorization under the Constitution, statutes, or treaties. The absence of these
agreements. precedents puts the validity and effectivity of executive agreements under
serious question for the main function of the Executive is to enforce the
They are concluded Constitution and the laws enacted by the Legislature, not to defeat or interfere in
the performance of these rules. In turn, executive agreements cannot create new
(1) to adjust the details of a treaty; international obligations that are not expressly allowed or reasonably implied in
the law they purport to implement.
(2) pursuant to or upon confirmation by an act of the Legislature; or
Second, treaties are, by their very nature, considered superior to executive
(3) in the exercise of the President’s independent powers under the Constitution.
agreements. Treaties are products of the acts of the Executive and the Senate
The raison d’etre of executive agreements hinges on prior constitutional or unlike executive agreements, which are solely executive actions. Because of
legislative authorizations. legislative participation through the Senate, a treaty is regarded as being on the
same level as a statute. If there is an irreconcilable conflict, a later law or treaty
The special nature of an executive agreement is not just a domestic variation in takes precedence over one that is prior. An executive agreement is treated
international agreements. differently. Executive agreements that are inconsistent with either a law or a
treaty are considered ineffective. Both types of international agreement are
nevertheless subject to the supremacy of the Constitution.

Subsequently, the Decision goes to great lengths to illustrate the source of

EDCA’s validity, in that as an executive agreement it fell within the parameters of
the VFA and MDT, and seamlessly merged with the whole web of Philippine law.
We need not restate the arguments here. It suffices to state that this Court
remains unconvinced that EDCA deserves treaty status under the law.

We find no reason for EDCA to be declared unconstitutional. It fully conforms to

the Philippines’ legal regime through the MDT and VFA. It also fully conforms to
the government’s continued policy to enhance our military capability in the face
of various military and humanitarian issues that may arise.
Bayan v. Zamora, G.R. No. 138570, October 10, 2000

BUENA, J.:

I. THE FACTS

The Republic of the Philippines and the United States of America entered into an
agreement called the Visiting Forces Agreement (VFA). The agreement was
treated as a treaty by the Philippine government and was ratified by then-
President Joseph Estrada with the concurrence of 2/3 of the total membership of
the Philippine Senate.

The VFA defines the treatment of U.S. troops and personnel visiting the
Philippines. It provides for the guidelines to govern such visits, and further defines
the rights of the U.S. and the Philippine governments in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of
equipment, materials and supplies.

Petitioners argued, inter alia, that the VFA violates §25, Article XVIII of the 1987
Constitution, which provides that “foreign military bases, troops, or facilities shall
not be allowed in the Philippines except under a treaty duly concurred in by the
Senate . . . and recognized as a treaty by the other contracting State.”

II. THE ISSUE

Was the VFA unconstitutional?

III. THE RULING xxx xxx xxx

[The Court DISMISSED the consolidated petitions, held that the petitioners did not The records reveal that the United States Government, through Ambassador
commit grave abuse of discretion, and sustained the constitutionality of the VFA.] Thomas C. Hubbard, has stated that the United States government has fully
committed to living up to the terms of the VFA. For as long as the United States of
NO, the VFA is not unconstitutional. America accepts or acknowledges the VFA as a treaty, and binds itself further to
comply with its obligations under the treaty, there is indeed marked compliance
Section 25, Article XVIII disallows foreign military bases, troops, or facilities in the
with the mandate of the Constitution.
country, unless the following conditions are sufficiently met, viz: (a) it must be
under a treaty; (b) the treaty must be duly concurred in by the Senate and, when
so required by congress, ratified by a majority of the votes cast by the people in a
national referendum; and (c) recognized as a treaty by the other contracting
state.

There is no dispute as to the presence of the first two requisites in the case of the
VFA. The concurrence handed by the Senate through Resolution No. 18 is in
accordance with the provisions of the Constitution . . . the provision in [in §25, MARIA CAROLINA P. ARAULLO v. BENIGNO SIMEON C. AQUINO III, GR No.
209287, 2014-07-01
Article XVIII] requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it. Facts:

xxx xxx xxx Issues:

Ruling:
This Court is of the firm view that the phrase “recognized as a treaty” means that
the other contracting party accepts or acknowledges the agreement as a treaty. Principles:
To require the other contracting state, the United States of America in this case, by allowing to the heads of offices some power to transfer funds within their
to submit the VFA to the United States Senate for concurrence pursuant to its respective offices, the Constitution itself ensures the fiscal autonomy of their
Constitution, is to accord strict meaning to the phrase. offices, and at the same time maintains the separation of powers among the
three main branches of the
Well-entrenched is the principle that the words used in the Constitution are to be
given their ordinary meaning except where technical terms are employed, in Government.
which case the significance thus attached to them prevails. Its language should The Judiciary, the Constitutional Commissions, and the Ombudsman must have
be understood in the sense they have in common use. the independence and flexibility needed in the discharge of their constitutional
duties. The imposition of restrictions and constraints on the manner the
Moreover, it is inconsequential whether the United States treats the VFA only as independent constitutional offices... allocate and utilize the funds appropriated for
an executive agreement because, under international law, an executive their operations is anathema to fiscal autonomy and violative not only of the
agreement is as binding as a treaty. To be sure, as long as the VFA possesses the express mandate of the Constitution but especially as regards the Supreme Court,
elements of an agreement under international law, the said agreement is to be of the independence and separation of powers upon which the entire... fabric of
our constitutional system is based.
taken equally as a treaty.
In the funding of current activities, projects, and programs, the general rule short, it nullifies the void law or... executive act but sustains its effects. It provides
should still be that the budgetary amount contained in the appropriations bill is an exception to the general rule that a void or unconstitutional law produces no
the extent Congress will determine as sufficient for the budgetary allocation for effect.
the proponent agency.
But its use must be subjected to great scrutiny and circumspection, and it cannot
The only exception is found in Section 25 (5), Article VI of the Constitution, by be invoked to validate an... unconstitutional law or executive act, but is resorted
which the President, the President of the Senate, the Speaker of the House of to only as a matter of equity and fair play.
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions are authorized to... transfer appropriations to It applies only to cases where extraordinary circumstances exist, and only when
augment any item in the GAA for their respective offices from the savings in other the extraordinary circumstances have met the stringent conditions that... will
items of their respective appropriations. permit its application.

Section 25(5), supra, not being a self-executing provision of the Constitution, must To be clear, the doctrine of operative fact extends to a void or unconstitutional
have an implementing law for it to be operative. executive act. The term executive act is broad enough to include any and all acts
of the Executive, including those that are quasi-legislative and quasi-judicial in
In ascertaining the meaning of savings, certain principles should be borne in nature.
mind. The first principle is that Congress wields the power of the purse. Congress
decides how the budget will be spent; what PAPs to fund; and the amounts of Contrarily, the term 'executive act' is broad enough to encompass decisions of
money to be spent for each PAP. The... second principle is that the Executive, as administrative bodies and agencies under the executive department which are
the department of the Government tasked to enforce the laws, is expected to subsequently revoked by the agency in question or nullified by the Court.
faithfully execute the GAA and to spend the budget in accordance with the
provisions of the GAA.[149] The Executive is expected to... faithfully implement
the PAPs for which Congress allocated funds, and to limit the expenditures within
the allocations, unless exigencies result to deficiencies for which augmentation is
authorized, subject to the conditions provided by law. The third principle is that
in... making the President's power to augment operative under the GAA, Congress Neri vs. Senate Committee on Accountability of Public Officers G.R. No.
recognizes the need for flexibility in budget execution. In so doing, Congress 180643, March 25, 2008
diminishes its own power of the purse, for it delegates a fraction of its power to
the Executive. But Congress does not... thereby allow the Executive to override its (Topic: Executive Privilege – Constitutional Law 1)
authority over the purse as to let the Executive exceed its delegated authority.
And the fourth principle is that savings should be actual. "Actual" denotes Facts:
something that is real or substantial, or something that exists... presently in fact,
as opposed to something that is merely theoretical, possible, potential or Petitioner Romulo Neri, then Director General of the National Economic and
hypothetical. Development Authority (NEDA), was invited by the respondent Senate
Committees to attend their joint investigation on the alleged anomalies in the
he power to augment was to be used only when the purpose for which the funds
had been allocated were already satisfied, or the need... for such funds had National Broadband Network (NBN) Project. This project was contracted by the
ceased to exist, for only then could savings be properly realized. This Philippine Government with the Chinese firm Zhong Xing Telecommunications
interpretation prevents the Executive from unduly transgressing Congress' power Equipment (ZTE), which involved the amount of US$329,481,290. When he
of the purse. testified before the Senate Committees, he disclosed that then Commission on
Elections Chairman Benjamin Abalos, brokering for ZTE, offered him P200 million
The doctrine of operative fact recognizes the existence of the law or executive act
prior to the determination of its unconstitutionality as an operative fact that in exchange for his approval of the NBN Project. He further narrated that he
produced consequences that cannot always be erased, ignored or disregarded. In informed President Gloria Macapagal-Arroyo about the bribery attempt and that
she instructed him not to accept the bribe. However, when probed further on 169777, 20 April 2006). For its part, the Senate Committees argued that they did
what they discussed about the NBN Project, petitioner refused to answer, invoking not exceed their authority in issuing the assailed orders because there is no valid
“executive privilege.” In particular, he refused to answer the questions on 1.) justification for Neri’s claim to executive privilege. In addition, they claimed that
whether or not the President followed up the NBN Project, 2.) whether or not she the refusal of petitioner to answer the three questions violates the people’s right
directed him to prioritize it, and 3.) whether or not she directed him to approve it. to public information, and that the executive is using the concept of executive
privilege as a means to conceal the criminal act of bribery in the highest levels of
Later on, respondent Committees issued a Subpoena Ad Testificandum to government.
petitioner, requiring him to appear and testify on 20 November 2007. However,
Executive Secretary Eduardo Ermita sent a letter dated 15 November to the Issue:
Committees requesting them to dispense with Neri’s testimony on the ground of
executive privilege. Ermita invoked the privilege on the ground that “the Whether or not the three questions that petitioner Neri refused to answer were
information sought to be disclosed might impair our diplomatic as well as covered by executive privilege, making the arrest order issued by the respondent
economic relations with the People’s Republic of China,” and given the Senate Committees void.
confidential nature in which these information were conveyed to the President,
Discussion:
Neri “cannot provide the Committee any further details of these conversations,
without disclosing the very thing the privilege is designed to protect.” Thus, on 20 Citing the case of United States vs. Nixon (418 U.S. 683), the Court laid out the
November, Neri did not appear before the respondent Committees. three elements needed to be complied with in order for the claim to executive
privilege to be valid. These are: 1.) the protected communication must relate to a
On 22 November, respondents issued a Show Cause Letter to Neri requiring him
quintessential and non-delegable presidential power; 2.) it must be authored,
to show cause why he should not be cited for contempt for his failure to attend
solicited, and received by a close advisor of the President or the President himself.
the scheduled hearing on 20 November. On 29 November, Neri replied to the
The judicial test is that an advisor must be in “operational proximity” with the
Show Cause Letter and explained that he did not intend to snub the Senate
President; and, 3.) it may be overcome by a showing of adequate need, such that
hearing, and requested that if there be new matters that were not yet taken up
the information sought “likely contains important evidence,” and by the
during his first appearance, he be informed in advance so he can prepare himself.
unavailability of the information elsewhere by an appropriate investigating
He added that his non-appearance was upon the order of the President, and that
authority.
his conversation with her dealt with delicate and sensitive national security and
diplomatic matters relating to the impact of the bribery scandal involving high In the present case, Executive Secretary Ermita claimed executive privilege on
government officials and the possible loss of confidence of foreign investors and the argument that the communications elicited by the three questions “fall under
lenders in the Philippines. Respondents found the explanation unsatisfactory, and conversation and correspondence between the President and public officials”
later on issued an Order citing Neri in contempt and consequently ordering his necessary in “her executive and policy decision-making process,” and that “the
arrest and detention at the Office of the Senate Sergeant-At-Arms until he information sought to be disclosed might impair our diplomatic as well as
appears and gives his testimony. economic relations with the People’s Republic of China.” It is clear then that the
basis of the claim is a matter related to the quintessential and non-delegable
Neri filed the petition asking the Court to nullify both the Show Cause Letter and
presidential power of diplomacy or foreign relations.
the Contempt Order for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction, and stressed that his refusal to answer As to the second element, the communications were received by a close advisor
the three questions was anchored on a valid claim to executive privilege in of the President. Under the “operational proximity” test, petitioner Neri can be
accordance with the ruling in the landmark case of Senate vs. Ermita (G.R. No. considered a close advisor, being a member of the President’s Cabinet.
And as to the third element, there is no adequate showing of a compelling need
that would justify the limitation of the privilege and of the unavailability of the
information elsewhere by an appropriate investigating authority. Presidential
communications are presumptive privilege and that the presumption can be
overcome only by mere showing of public need by the branch seeking access to
such conversations. In the present case, respondent Committees failed to show a
compelling or critical need for the answers to the three questions in the
enactment of any law under Sec. 21, Art. VI. Instead, the questions veer more
towards the exercise of the legislative oversight function under Sec. 22, Art. VI. As
ruled in Senate vs. Ermita, “the oversight function of Congress may be facilitated
by compulsory process only to the extent that it is performed in pursuit of
legislation.”

Neri’s refusal to answer based on the claim of executive privilege does not violate
the people’s right to information on matters of public concern simply because
Sec. 7, Art. III of the Constitution itself provides that this right is “subject to such
limitations as may be provided by law.”

Held:

The divided Supreme Court (voting 9-6) was convinced that the three questions
are covered by presidential communications privilege, and that this privilege has
been validly claimed by the executive department, enough to shield petitioner
Neri from any arrest order the Senate may issue against him for not answering
such questions.

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