MIRIAM DEFENSOR – SANTIAGO versus FIDEL RAMOS TECSON V COMELEC

(253 SCRA 559)

G.R. No. 161434 March 3, 2004
Facts: The protestant, Miriam Defensor-Santiago ran for presidency
and lost in the May 1992 election. In her Motion on the 16th day of MARIA JEANETTE C. TECSON and FELIX B. DESIDERIO, JR.
August in the year 1995, reiterated in her comment of the 29th of vs.COMELEC, FPJ and VICTORINO X. FORNIER,
August of the same year, protestant Defensor-Santiago prayed that the
revision in the remaining precincts of the pilot areas be dispensed with
and the revision process in the pilot areas be deemed computed. The G.R. No. 161634 March 3, 2004
Court deferred action on the motion and required, instead, the
protestant and protestee to submit their respective memoranda. ZOILO ANTONIO VELEZ vs.FPJ
Hence, this petition.

Issue: Whether or not the election protest filed by Defensor-Santiago G. R. No. 161824 March 3, 2004
is moot and academic by her election as a Senator in the May 1995
election and her assumption of office as such on the 30th of June in VICTORINO X. FORNIER, vs. HON. COMMISSION ON ELECTIONS
the year 1995. and FPJ

Held: YES. The Court held that the election protest filed by Santiago
has been abandoned or considered withdrawn as a consequence of her
Facts:
election and assumption of office as Senator and her discharge of the
duties and functions thereof. The protestant abandoned her Petitioners sought for respondent Poe’s disqualification in the
“determination to protest and pursue the public interest involved in presidential elections for having allegedly misrepresented material
the matter of who is the real choice of the electorate. Moreover, the facts in his (Poe’s) certificate of candidacy by claiming that he is a
dismissal of this protest would serve public interest as it would natural Filipino citizen despite his parents both being foreigners.
dissipate the aura of uncertainty as to the results of the 1992 Comelec dismissed the petition, holding that Poe was a Filipino
presidential elections, thereby enhancing the all too crucial political Citizen. Petitioners assail the jurisdiction of the Comelec, contending
stability of the nation during this period of national recovery. Also, the that only the Supreme Court may resolve the basic issue on the case
PET issued a resolution ordering the protestant to inform the PET under Article VII, Section 4, paragraph 7, of the 1987 Constitution.
within 10 days if after the completion of the revision of the ballots from
her pilot areas, she still wishes to present evidence. Since DS has not
informed the Tribunal of any such intention, such is a manifest
Issue:
indication that she no longer intends to do so.
Whether or not the Supreme Court has jurisdiction
regarding the “QUALIFICATION OF A PRESIDENTIAL
CANDIDATE?”

Whether or not Comelec committed grave abuse of discretion in

holding that Poe was a Filipino citizen.
 The 1935 Constitution on citizenship did not make a distinction on the
legitimacy or illegitimacy of the child, thus, the allegation of bigamous
Ruling: marriage and the allegation that respondent was born only before the
1.) The Supreme Court had no jurisdiction on questions assailed marriage had no bearing on respondent’s citizenship in view
regarding “qualification of a candidate” for the presidency of the established paternal filiation evidenced by the public documents
or vice-presidency before the elections are held. presented.

"Rules of the Presidential Electoral Tribunal" in connection But while the totality of the evidence may not establish conclusively
with Section 4, paragraph 7, of the 1987 Constitution, refers that respondent FPJ is a natural-born citizen of the Philippines, the
to “contests” relating to the election, returns and evidence on hand still would preponderate in his favor enough to hold
qualifications of the "President" or "Vice-President", of the that he cannot be held guilty of having made a material
Philippines which the Supreme Court may take cognizance, misrepresentation in his certificate of candidacy in violation of Section
and not of "candidates" for President or Vice-President 78, in relation to Section 74 of the Omnibus Election Code
before the elections. Poe vs. Macapagal-Arroyo, 454 SCRA 242, March 29, 2005
2.) Comelec committed no grave abuse of discretion in holding Poe Facts: On June 24, 2004, the Congress as the representatives of the
as a Filipino Citizen. sovereign people and acting as the National Board of Canvassers, in a
The 1935 Constitution on Citizenship, the prevailing fundamental law near-unanimous roll-call vote, proclaimed Mrs. Gloria Macapagal
on respondent’s birth, provided that among the citizens of the Arroyo (GMA) as the duly elected President of the Philippines. She
Philippines are "those whose fathers are citizens of the Philippines." obtained the highest votes, followed by the second-placer, Fernando
Poe, Jr. (FPJ). She then took her Oath of Office before the Chief Justice
Tracing respondent’s paternal lineage, his grandfather Lorenzo, as of the Supreme Court on June 30, 2004.
evidenced by the latter’s death certificate was identified as a Filipino
Citizen. His citizenship was also drawn from the presumption that Refusing to concede defeat, Mr. FPJ, filed an election protest before
having died in 1954 at the age of 84, Lorenzo would have been born in the Electoral Tribunal. Both parties exchanged motions to rush the
1870. In the absence of any other evidence, Lorenzo’s place of presentation of their respective positions on the controversy. Together
residence upon his death in 1954 was presumed to be the place of with the formal Notice of the Death of Protestant on December 14,
residence prior his death, such that Lorenzo Pou would have benefited 2004, his counsel has submitted to the Tribunal, dated January 10,
from the "en masse Filipinization" that the Philippine Bill had effected 2005, a "MANIFESTATION with URGENT PETITION/MOTION to
in 1902. Being so, Lorenzo’s citizenship would have extended to his INTERVENE AS A SUBSTITUTE FOR DECEASED PROTESTANT
son, Allan---respondent’s father. FPJ," by the widow, Mrs. Jesusa Sonora Poe. She claims that because
of the untimely demise of her husband and in representation not only
of her deceased husband but more so because of the paramount
interest of the Filipino people, there is an urgent need for her to
Respondent, having been acknowledged as Allan’s son to Bessie, continue and substitute for her late husband in the election protest
though an American citizen, was a Filipino citizen by virtue of
paternal filiation as evidenced by the respondent’s birth certificate.
initiated by him to ascertain the true and genuine will of the electorate Icasiano filed a TRO and preliminary mandatory injuction enjoining
in the 2004 elections. the implementation of his reassignment. The Court of Appeals granted
the petition holding that the indefinite reassignment is violative of
Plainly, the issue here is: May the widow Icasiano’s right to security of tenure.
substitute/intervene for the protestant who died during the
pendency of the latter’s protest case? The DECS Secretary argued that the filing of the case is improper
because the same attacks an act of the President, in violation of the
The fundamental rule applicable in a presidential election protest is doctrine of presidential immunity from suit.
Rule 14 of the PET Rules. It provides,
Issue: w/n present petition for prohibition is improper
Rule 14. Election Protest.–Only the registered candidate for President because the same attacks an act of the President, in violation
or for Vice-President of the Philippines who received the second or of the doctrine of presidential immunity from suit.
third highest number of votes may contest the election of the President
or the Vice-President, as the case may be, by filing a verified petition HELD: Petitioners contention is untenable for the simple reason that
with the Clerk of the Presidential Electoral Tribunal within thirty (30) the petition is directed against petitioners and not against the
days after the proclamation of the winner. President. The questioned acts are those of petitioners and not of the
President. Furthermore, presidential decisions may be questioned
Pursuant to this rule, only two persons, the 2nd and 3rd placers, may before the courts where there is grave abuse of discretion or that the
contest the election. By this express enumeration, the rule makers President acted without or in excess of jurisdiction.
have in effect determined the real parties in interest concerning an on-
going election contest. It envisioned a scenario where, if the declared Petitioners submission that the petition of private respondent with the
winner had not been truly voted upon by the electorate, the candidate Court of Appeals is improper for failing to show that petitioners
who received that 2nd or the 3rd highest number of votes would be the constituted themselves into a "court" conducting a "proceeding" and
legitimate beneficiary in a successful election contest. for failing to show that any of the petitioners acted beyond their
jurisdiction in the exercise of their judicial or ministerial functions, is
This Tribunal, however, does not have any rule on substitution nor barren of merit. Private respondent has clearly averred that the
intervention but it does allow for the analogous and suppletory petitioners acted with grave abuse of discretion amounting to lack of
application of the Rules of Court, decisions of the Supreme Court, and jurisdiction and/or excess of jurisdiction in reassigning the private
the decisions of the electoral tribunals. respondent in a way that infringed upon his security of tenure. And
GLORIA v. CA petitioners themselves admitted that their questioned act
constituted a ministerial duty, such that they could be
Private respondent Dr. Bienvenido Icasiano was appointed Schools subject to charges of insubordination if they did not comply
Division Superintendent of Quezon City in 1989. Upon with the presidential order. What is more, where an
recommendation of DECS Secretary Ricardo T. Gloria, Icasiano was administrative department acts with grave abuse of discretion, which
reassigned as Superintendent of the Marikina Institute of Science and is equivalent to a capricious and whimsical exercise of judgment, or
Technology (MIST) to fill up the vacuum created by the retirement of where the power is exercised in an arbitrary or despotic manner, there
its Superintendent in 1994. is a justification for the courts to set aside the administrative
determination thus reached.
WRIT OF AMPARO – Protection camp locations. Since Rodriguez cannot answer, he is repeatedly
beaten and tortured. Rodriguez was also coerced to sign several
WRIT OF HABEAS DATA –“YOU SHOULD HAVE THE documents to declare that he is a surenderree.
DATA/IDEA”
On September 17, 2009, Rodriguez’s mother and brother came to see
RODRIGUEZ vs ARROYO him (accompanied by members of the CHR – Pasicolan, Cruz and
Noriel H. Rodriguez vs Gloria Macapagal Arroyo, GEN. VICTOR S. Callagan). They insisted to take Rodriguez home with them to Manila.
IBRADO, PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, Rodriguez arrived in Manila on September 18. Callagan and 2 military
MAJ. GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO, members went inside their house and took pictures for around 30
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an minutes despite Rodriguez’s effort to stop them.
officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE
PALACPAC under the name HARRY, ANTONIO CRUZ, ALDWIN On November 3, Rodriguez and his girlfriend notices that several
BONG PASICOLAN and VINCENT CALLAGAN suspicious-looking men are following them on the streets, jeepney and
MRT.
G.R. No. 191805
On December 7, Rodriguez filed a Petition for the Writ of
November 15, 2011 Amparo and Petition for the Writ of Habeas Data with
FACTS: Noriel Rodriguez (petitioner) is a member of Alyansa Prayers for Protection Orders, Inspection of Place, and
Dagiti Mannalon Iti Cagayan, a peasant organization Production of Documents and Personal Properties dated 2
affiliated with Kilusang Magbubukid ng Pilipinas (KMP). December 2009.

Under the Oplan Bantay Laya, the military tagged KMP The petition was filed against former President Arroyo, Gen.
members as an enemy of the state, making its members an Ibrado, PDG. Versoza, Lt. Gen. Bangit, Major General (Maj.
easy target of extra-judicial killings and enforced Gen.) Nestor Z. Ochoa, P/CSupt. Tolentino, P/SSupt. Santos,
disappearances. Col. De Vera, 1st Lt. Matutina, Calog, George Palacpac, Cruz,
Pasicolan and Callagan.
On September 6, 2009, Rodriguez just alighted from a tricycle driven
by Hermie Antonio Carlos in Brgy. Tapel, Cagayan, when 4 men Respondents contend that Rodriguez is a double agent, and had been
forcibly took him and forced him to get inside a car where more men working as their informant/infiltrator in the fight against NPA rebels.
in civilian clothing were waiting (1 was holding a .45 caliber pistol). Then President Gloria Macapagal-Arroyo, through the
The men started punching Rodriguez inside the car, and forced him to solicitor-general, insisted on her immunity from suits (by
confess that he is a member of the New People’s Army (NPA). virtue of her position as president).
Rodriguez remained silent until they reached a military camp Supreme Court granted the writs after finding that the petition
belonging to the 17th Infantry Battalion of the Philippine Army. sufficiently alleged the abduction and torture of Rodriguez by
Rodriguez was then subjected to beatings and torture by members of members of the Philippine Army. SC directed the Court of Appeals to
the Philippine Army. Members of the army wanted him to admit that hear the petition.
he is an NPA member and then pinpoint other NPA members and
CA ruled in favor of Rodriguez and found Ibrado, Versoza, It is also clear from the above discussion that despite (a)
Bangit, Ochoa, Tolentino, Santos, De Vera and Matutina maintaining former President Arroyo in the list of
liable for his abduction and torture. As to Calog and respondents in G.R. No. 191805, and (b) allowing the
Palacpac, the case was dismissed for lack of merit. On application of the command responsibility doctrine to
President Arroyo, the case was dismissed on account of her amparo and habeas data proceedings, Rodriguez failed to
immunity from suits. prove through substantial evidence that former President
Arroyo was responsible or accountable for the violation of
ISSUE: WON President Arroyo should be dropped as a his rights to life, liberty and property. He likewise failed to
respondent by virtue of her presidential immunity from suit prove through substantial evidence the accountability or
HELD: responsibility of respondents Maj. Gen. Ochoa, Cruz,
Pasicolan and Callagan.
(1) CA’s rationale does not stand anymore since the presidential
immunity from suits only applies during her incumbency. “Incumbent WHEREFORE, we resolve to GRANT the Petition for Partial Review
Presidents are immune from suit or from being brought to court in G.R. No. 191805 and DENY the Petition for Review in G.R. No.
during the period of their incumbency and tenure but not beyond.” 193160. The Decision of the Court of Appeals is hereby AFFIRMED
WITH MODIFICATION.
“A non-sitting President does not enjoy immunity from suit, even for
acts committed during the latter’s tenure. We emphasize our ruling The case is dismissed with respect to respondents former President
therein that courts should look with disfavor upon the presidential Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino, and
privilege of immunity, especially when it impedes the search for truth P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio Cruz,
or impairs the vindication of a right.” Aldwin Pasicolan and Vicent Callagan for lack of merit.

Term vs Tenure: The term means the time during which the This Court directs the Office of the Ombudsman (Ombudsman) and
officer may claim to hold the office as of right, and fixes the the Department of Justice (DOJ) to take the appropriate action with
interval after which the several incumbents shall succeed respect to any possible liability or liabilities, within their respective
one another. legal competence, that may have been incurred by respondents Gen.
Victor Ibrado, PDG. Jesus Verzosa, Lt. Gen. Delfin Bangit, Maj. Gen.
The tenure represents the term during which the incumbent Nestor Ochoa, Brig. Gen. Remegio De Vera, 1st Lt. Ryan Matutina, and
actually holds office. The tenure may be shorter than the Lt. Col. Laurence Mina. The Ombudsman and the DOJ are ordered to
term for reasons within or beyond the power of the submit to this Court the results of their action within a period of six
incumbent. The intent of the framers of the 1987 months from receipt of this Decision.
Constitution is to limit the president’s immunity from suits
during their tenure (and not term). In the event that herein respondents no longer occupy their respective
posts, the directives mandated in this Decision and in the Court of
“It is clear that former President Arroyo cannot use the Appeals are enforceable against the incumbent officials holding the
presidential immunity from suit to shield herself from relevant positions. Failure to comply with the foregoing shall
judicial scrutiny that would assess whether, within the constitute contempt of court.
context of amparo proceedings, she was responsible or
accountable for the abduction of Rodriguez.” - OSG
LOZADA v. MACAPAGAL-ARROYO

Antecedent Facts In the Petition, Lozada claims that, upon disembarking from the
aircraft, several men held his arms and took his bag. Although he
The instant Petition stems from the alleged corruption allegedly insisted on meeting with his family, he later realized that it
scandal precipitated by a transaction between the Philippine was wiser to just follow them, especially when he overheard from their
government, represented by the National Broadband handheld radio: “[H]wag kayong dumaan diyan sir nandyan ang mga
Network (NBN), and ZTE Corporation (ZTE), a Chinese taga senado.”13
manufacturer of telecommunications equipment.3 Former
National Economic Development Authority (NEDA)
Secretary Romulo Neri (Sec. Neri) sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal.4 Lozada asked if he could go to the comfort room, an opportunity he
The latter avers that during the course of his engagement, he used to call up his brother, petitioner Arturo, and inform him of his
discovered several anomalies in the said transaction situation.14 The men thereafter led him through the departure area of
involving certain public officials.5 These events impelled the the airport and into a car waiting for them.15 They made him sit alone
Senate of the Philippines Blue Ribbon Committee (Blue at the back of the vehicle, while a man, whom he later discovered to be
Ribbon Committee) to conduct an investigation thereon,6 respondent Valeroso, took the passenger seat and was always in
for which it issued a subpoena directing Lozada to appear contact with other individuals.16 Lozada observed that other cars
and testify on 30 January 2008. tailed their vehicle.17

On that date, instead of appearing before the Blue Ribbon Sec. Atienza then phoned Lozada, assuring the latter that he was with
Committee, Lozada left the country for a purported official people from the government, and that the former was going to confer
trip to London, as announced by then DENR Secretary Lito with “ES and Ma’ [a]m.” Lozada surmised that these individuals
Atienza (Sec. Atienza).In the Petition, Lozada alleged that referred to ES Ermita and former President Arroyo, respectively.18
his failure to appear at the scheduled hearing was upon the Sec. Atienza also purportedly instructed Lozada to pacify his wife,
instructions of then Executive Assistant Undersecretary petitioner Violeta, who was making public statements asking for her
Manuel Gaite (Usec. Gaite). Consequently, the Senate issued husband’s return.19
an Order dated 30 January 2008: (a) citing Lozada for
contempt; (b) ordering his arrest and detention; and (c)
directing the Senate Sergeant-at-Arms to implement the The vehicle traversed the South Luzon Expressway and drove towards
Order and make a return thereon. the direction of Laguna.20 Along the way, the men asked Lozada to
draft an antedated letter requesting police protection.21
While overseas, Lozada asked Sec. Atienza whether the former could
be allowed to go back to the Philippines.11 Upon the approval of Sec.
Atienza, Lozada informed his family that he was returning from Hong
Kong on 5 February 2008 on board Cathay Pacific Flight No. 919, Lozada requested that he be brought home to Pasig, but the men were
bound to arrive in Manila at 4:40 p.m. on the same day.12 allegedly compelled to deny his request on account of unidentified
security risks.22 Eventually, however, the vehicle turned around and
drove to Libis, Quezon City. The group stopped at The Outback At around the same time that Arturo filed the Petition for a Writ of
restaurant to meet with certain individuals, who turned out to be Atty. Amparo, Col. Mascarinas drove Lozada back to La Salle Green Hills.30
Antonio Bautista (Atty. Bautista) and Colonel Paul Mascarinas (Col. Lozada was then made to sign a typewritten, antedated letter
Mascarinas) of the Police Special Protection Office (PSPO). At the requesting police protection.31 Thereafter, former Presidential
restaurant, Lozada claimed that he was made to fill in the blanks of a Spokesperson Michael Defensor (Sec. Defensor) supposedly came and
prepared affidavit.23 requested Lozada to refute reports that the latter was kidnapped and
to deny knowledge of alleged anomalies in the NBN-ZTE deal. Sec.
Defensor then purportedly gave Lozada P50,000 for the latter’s
After the meeting, the men informed Lozada that they were going to expenses.32
billet him in a hotel for a night, but he suggested that they take him to On 7 February 2008, Lozada decided to hold a press
La Salle Green Hills instead. The men acquiesced.24 conference and contact the Senate Sergeant-at-Arms, who
served the warrant of arrest on him.33 Lozada claimed that
after his press conference and testimony in the Senate, he
Upon arriving in La Salle Green Hills, Lozada was met by Violeta and and his family were since then harassed, stalked and
his sister, Carmen Lozada (Carmen).25 He observed that the threatened.
perimeter was guarded by policemen, purportedly restraining his
liberty and threatening not only his security, but also that of his family On the same day, this Court issued a Resolution (a) consolidating the
and the De La Salle brothers.26 Habeas Corpus case and the Amparo case; (b) requiring respondents
in the Habeas Corpus case to comment on the Petition; (c) issuing a
Writ of Amparo; (d) ordering respondents in the Amparo case to file
their verified Return; (e) referring the consolidated Petitions to the
On 6 February 2008, at around 10:00 a.m., Col. Mascarinas CA; and (f) directing the CA to set the cases for hearing on 14 February
supposedly brought Lozada to the office of Atty. Bautista to finalize 2008.35 Accordingly, the court a quo set both cases for hearing on 14
and sign an affidavit.27 February 2008.36

On 12 February 2008, respondents filed before the CA a Manifestation

At about 1:00 p.m., Violeta filed before this Court a Petition and Motion, praying for the dismissal of the Habeas Corpus case.37
for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas They asserted that Lozada was never illegally deprived of his
Corpus case).Arturo likewise filed before this Court a liberty and was, at that time, no longer in their custody. They
Petition for a Writ of Amparo, docketed as G.R. No. 181356 likewise averred that, beginning 8 February 2008, Lozada
(the Amparo case), and prayed for the issuance of (a) the had already been under the supervision of the Senate and,
writ of amparo; (b) a Temporary Protection Order (TPO); from then on, had been testifying before it.38
and (c) Inspection and Production Orders as regards
documents related to the authority ordering custody over
Lozada, as well as any other document that would show In their verified Return, respondents claimed that Sec. Atienza had
responsibility for his alleged abduction. arranged for the provision of a security team to be assigned to Lozada,
who was then fearful for his safety.39 In effect, respondents asserted
that Lozada had knowledge and control of the events that took place Reconsideration,51 which the CA denied in its Resolution dated 25
on 5 February 2008, voluntarily entrusted himself to their company, March 2008.52
and was never deprived of his liberty. Hence, respondents prayed for
the denial of the interim reliefs and the dismissal of the Petition.40
On 12 September 2008, the CA rendered its Decision denying
petitioners the privilege of the Writ of Amparo and dismissing the
During the initial hearing on 14 February 2008, Lozada and Violeta Petition.53 The CA found that petitioners were unable to prove
ratified the Petition in the Amparo case41 to comply with Section 2 of through substantial evidence that respondents violated, or threatened
the Rule on the Writ of Amparo,42 which imposes an order to be with violation, the right to life, liberty and security of Lozada.
followed by those who can sue for the writ.43 The CA also dismissed
the Habeas Corpus case in open court for being moot and academic,
as Lozada was physically present and was not confined or detained by Petitioners thus filed the instant Petition, praying for: (a) the reversal
any of the respondents.44 Considering that petitioners failed to of the assailed CA Decision; (b) the issuance of the TPO; and (c) the
question the dismissal of the Habeas Corpus case, the said dismissal accreditation of the Association of Major Religious Superiors of the
had lapsed into finality, leaving only the Amparo case open for Philippines and the De La Salle Brothers as the sanctuaries of Lozada
disposition. and his family.54 In the alternative, petitioners pray that this Court
remand the case to the CA for further hearings and reverse the latter’s
Orders: (a) denying the Motion to Issue a Subpoena Ad Testificandum
Thereafter, Lozada filed a Motion for Temporary Protection Order and and (b) dropping former President Arroyo as a respondent. Petitioners
Production of Documents,45 while Arturo filed a Motion for raise the following issues:
Production of Documents.46 Additionally, Arturo also filed a Motion
for the Issuance of Subpoena Ad Testificandum and Presentation of
Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin (1) Whether the Court a [q]uo erred in ruling to dismiss the petition
Abalos, [Sr.], Rodolfo Valeroso, “Jaime” the Driver and Other for a writ of amparo and deny Petitioners’ prayer for a Temporary
Respondents. Respondents opposed these motions.47 The CA denied Protection Order, inter alia, because there is no substantial evidence
the Motion for the Issuance of Subpoena on the ground that the to prove that the right to life, liberty or security of Jun Lozada was
alleged acts and statements attributed to Sec. Neri and Benjamin violated or threatened with violation. This rule is not in accord with
Abalos (Abalos) were irrelevant to the Amparo case, and that to the rule on the writ of amparo and Supreme Court jurisprudence on
require them to testify would only result in a fishing expedition.48 The substantial evidence[.]
CA likewise denied Arturo’s subsequent Motion for
Reconsideration.49
(2) Whether the Ponencia erred and gravely abused its discretion by
prematurely ruling that the testimony of witnesses which Petitioners
In its Resolution dated 5 March 2008, the CA dropped former sought to present and who are subject of the Motion for Issuance of
President Arroyo as a respondent on the ground that at the time the Subpoena ad testificandum were irrelevant to the Petition for a Writ
Petition in the Amparo case was filed, she was still the incumbent of Amparo in a way not in accord with the Rules of Court and Supreme
President enjoying immunity from suit.50 Arturo filed a Motion for Court decisions.
 presidential immunity from suit cannot be invoked in amparo
actions.61
(3) Whether the Court a quo erred in using and considering the
affidavits of respondents in coming up with the questioned decision ISSUE: Whether the CA committed an error in dropping
when these were not offered as evidence and were not subjected to former President Arroyo as a respondent in the Amparo
cross-examination. This ruling is not in accord with the Rules of Court case.
and jurisprudence.
HELD: It is settled in jurisprudence that the President enjoys
immunity from suit during his or her tenure of office or actual
incumbency.68 Conversely, this presidential privilege of immunity
(4) Whether the Court a [q]uo erred in dropping as cannot be invoked by a non-sitting president even for acts committed
respondent Pres. Gloria Arroyo despite her failure to submit during his or her tenure.69
a verified return and personally claim presidential
immunity in a way not in accord with the Rule on the Writ of In the case at bar, the events that gave rise to the present action, as
Amparo.55 well as the filing of the original Petition and the issuance of the CA
Decision, occurred during the incumbency of former President
The Office of the Solicitor General (OSG) asserts that petitioners failed Arroyo. In that respect, it was proper for the court a quo to have
to adduce substantial evidence, as the allegations they propounded in dropped her as a respondent on account of her presidential immunity
support of their Petition were largely hearsay.56 The OSG also from suit.
maintains that it was proper for the CA to have dropped former
President Arroyo as respondent on account of her presidential It must be underscored, however, that since her tenure of office has
immunity from suit.57 already ended, former President Arroyo can no longer invoke the
privilege of presidential immunity as a defense to evade judicial
Respondent Atutubo also alleges, among others, that: (a) Lozada determination of her responsibility or accountability for the alleged
voluntarily asked for security and protection; (b) Lozada willingly violation or threatened violation of the right to life, liberty and security
submitted himself to the company of the police escorts; (c) Atutubo of Lozada.
merely accompanied him to pass through the contingency route
customarily provided to VIP passengers, public figures, foreign Nonetheless, examining the merits of the case still results in the denial
dignitaries, and the like; and (d) Atutubo only performed his job to of the Petition on the issue of former President Arroyo’s alleged
ensure security and maintain order at the airport upon the arrival of responsibility or accountability. A thorough examination of the
Lozada.58 In the face of these assertions by respondents, petitioners allegations postulated and the evidence adduced by
nevertheless insist that while they have sufficiently established that petitioners reveals their failure to sufficiently establish any
Lozada was taken against his will and was put under restraint, unlawful act or omission on her part that violated, or
respondents have failed to discharge their own burden to prove that threatened with violation, the right to life, liberty and
they exercised extraordinary diligence as public officials.59 security of Lozada. Except for the bare claims that: (a) Sec.
Petitioners also maintain that it was erroneous for the CA to have Atienza mentioned a certain “Ma’ [a]m,”70 whom Lozada
denied their motion for subpoena ad testificandum for being speculated to have referred to her, and (b) Sec. Defensor
irrelevant, given that the relevancy of evidence must be examined after told Lozada that “the President was ‘hurting’ from all the
it is offered, and not before.60 Finally, petitioners contend that the media frenzy,”71 there is nothing in the records that would
sufficiently establish the link of former President Arroyo to Whether or not petitioners have legal standing
the events that transpired on 5-6 February 2010, as well as
to the subsequent threats that Lozada and his family Whether or not the Philippine and Japanese offers during the
purportedly received. negotiation process are privileged

WHEREFORE, the instant petition is DENIED for being moot and Whether or not the President can validly exclude Congress,
academic. The Court of Appeals’ denial of the privilege of the writ of exercising its power of inquiry and power to concur in treaties, from
amparo is hereby AFFIRMED. the negotiation process

G.R. No. 170516, July 16, 2008

AKBAYAN v. AQUINO

FACTS: RULING:

This is regarding the JPEPA, the bilateral free trade Standing

agreement ratified by the President with Japan, concerning
trade in goods, rules of origin, customs procedures,
paperless trading, trade in services, investment, etc. In a petition anchored upon the right of the people to information on
matters of public concern, which is a public right by its very nature,
petitioners need not show that they have any legal or special interest
Prior to President’s signing of JPEPA in Sept. 2006, in the result, it being sufficient to show that they are citizens and,
petitioners – non-government organizations, therefore, part of the general public which possesses the right. As the
Congresspersons, citizens and taxpayers – sought via present petition is anchored on the right to information and
petition for mandamus and prohibition to obtain from petitioners are all suing in their capacity as citizens and groups of
respondents the full text of the JPEPA, including the citizens including petitioners-members of the House of
Philippine and Japanese offers submitted during the Representatives who additionally are suing in their capacity as such,
negotiation process and all pertinent attachments and the standing of petitioners to file the present suit is grounded in
annexes thereto. Particularly, Congress through the House jurisprudence.
Committee are calling for an inquiry into the JPEPA, but at
the same time, the Executive is refusing to give them the said
copies until the negotiation is completed. JPEPA, A Matter of Public Concern

ISSUES: To be covered by the right to information, the information sought

must meet the threshold requirement that it be a matter of public
concern xxx
 from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a
From the nature of the JPEPA as an international trade agreement, it process of quid pro quo, and often times negotiators have to be willing
is evident that the Philippine and Japanese offers submitted during to grant concessions in an area of lesser importance in order to obtain
the negotiations towards its execution are matters of public concern. more favorable terms in an area of greater national interest.
This, respondents do not dispute. They only claim that diplomatic
negotiations are covered by the doctrine of executive privilege, thus Diplomatic negotiations, therefore, are recognized as
constituting an exception to the right to information and the policy of privileged in this jurisdiction, the JPEPA negotiations
full public disclosure. constituting no exception. It bears emphasis, however, that
such privilege is only presumptive. For as Senate v. Ermita
holds, recognizing a type of information as privileged does not mean
Privileged Character of Diplomatic Negotiations Recognized that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be
determined if there is a public interest that calls for the disclosure of
the desired information, strong enough to overcome its traditionally
The privileged character of diplomatic negotiations has privileged status.
been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez
v. PCGG held that “information on inter-government
exchanges prior to the conclusion of treaties and executive Does the exception apply even though JPEPA is primarily economic
agreements may be subject to reasonable safeguards for the and does not involve national security?
sake of national interest.”

While there are certainly privileges grounded on the necessity of

Applying the principles adopted in PMPF v. Manglapus, it is clear that safeguarding national security such as those involving military secrets,
while the final text of the JPEPA may not be kept perpetually not all are founded thereon. One example is the “informer’s privilege,”
confidential – since there should be “ample opportunity for discussion or the privilege of the Government not to disclose the identity of a
before [a treaty] is approved” – the offers exchanged by the parties person or persons who furnish information of violations of law to
during the negotiations continue to be privileged even after the JPEPA officers charged with the enforcement of that law. The suspect
is published. It is reasonable to conclude that the Japanese involved need not be so notorious as to be a threat to national security
representatives submitted their offers with the understanding that for this privilege to apply in any given instance. Otherwise, the
“historic confidentiality” would govern the same. Disclosing these privilege would be inapplicable in all but the most high-profile cases,
offers could impair the ability of the Philippines to deal not only with in which case not only would this be contrary to long-standing
Japan but with other foreign governments in future negotiations. A practice. It would also be highly prejudicial to law enforcement efforts
ruling that Philippine offers in treaty negotiations should not be open in general.
to public scrutiny would discourage future Philippine representatives
from frankly expressing their views during negotiations. While, on
first impression, it appears wise to deter Philippine representatives
Also illustrative is the privileged accorded to presidential potential item of discovery and front page news,” the objective of the
communications, which are presumed privileged without privilege being to enhance the quality of agency decisions.
distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege being
that a frank exchange of exploratory ideas and assessments, free from The diplomatic negotiations privilege bears a close resemblance to the
the glare of publicity and pressure by interested parties, is essential to deliberative process and presidential communications privilege. It
protect the independence of decision-making of those tasked to may be readily perceived that the rationale for the confidential
exercise Presidential, Legislative and Judicial power. character of diplomatic negotiations, deliberative process, and
presidential communications is similar, if not identical.

In the same way that the privilege for judicial deliberations does not
depend on the nature of the case deliberated upon, so presidential The earlier discussion on PMPF v. Manglapus shows that the
communications are privileged whether they involve matters of privilege for diplomatic negotiations is meant to encourage
national security. a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from
public view. Similar to the privilege for presidential
It bears emphasis, however, that the privilege accorded to presidential communications, the diplomatic negotiations privilege
communications is not absolute, one significant qualification being seeks, through the same means, to protect the independence
that “the Executive cannot, any more than the other branches of in decision-making of the President, particularly in its
government, invoke a general confidentiality privilege to shield its capacity as “the sole organ of the nation in its external
officials and employees from investigations by the proper relations, and its sole representative with foreign nations.”
governmental institutions into possible criminal wrongdoing.” This And, as with the deliberative process privilege, the privilege
qualification applies whether the privilege is being invoked in the accorded to diplomatic negotiations arises, not on account
context of a judicial trial or a congressional investigation conducted in of the content of the information per se, but because the
aid of legislation. information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed
confidential.
Closely related to the “presidential communications” privilege is the
deliberative process privilege recognized in the United States. As
discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, Clearly, the privilege accorded to diplomatic negotiations follows as a
deliberative process covers documents reflecting advisory opinions, logical consequence from the privileged character of the deliberative
recommendations and deliberations comprising part of a process by process.
which governmental decisions and policies are formulated. Notably,
the privileged status of such documents rests, not on the need to
protect national security but, on the “obvious realization that officials Does diplomatic privilege only apply to certain stages of the
will not communicate candidly among themselves if each remark is a negotiation process?
 with foreign nations provided under P.D. 1464 may be
interpreted as an acknowledgment of a power already
In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard inherent in its office. It may not be used as basis to hold the
to the duty to disclose “definite propositions of the government,” such President or its representatives accountable to Congress for
duty does not include recognized exceptions like privileged the conduct of treaty negotiations.
information, military and diplomatic secrets and similar matters
affecting national security and public order.

This is not to say, of course, that the President’s power to enter into
treaties is unlimited but for the requirement of Senate concurrence,
Treaty-making power of the President since the President must still ensure that all treaties will substantively
xxx they (petitioners) argue that the President cannot conform to all the relevant provisions of the Constitution.
exclude Congress from the JPEPA negotiations since
whatever power and authority the President has to negotiate
international trade agreements is derived only by delegation It follows from the above discussion that Congress, while possessing
of Congress, pursuant to Article VI, Section 28(2) of the vast legislative powers, may not interfere in the field of treaty
Constitution and Sections 401 and 402 of Presidential negotiations. While Article VII, Section 21 provides for Senate
Decree No. 1464. concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its
The subject of Article VI Section 28(2) of the Constitution is conclusion. Moreover, it is not even Congress as a while that has been
not the power to negotiate treaties and international given the authority to concur as a means of checking the treaty-making
agreements, but the power to fix tariff rates, import and power of the President, but only the Senate.
export quotas, and other taxes xxx.

As to the power to negotiate treaties, the constitutional basis

thereof is Section 21 of Article VII – the article on the Thus, as in the case of petitioners suing in their capacity as private
Executive Department. citizens, petitioners-members of the House of Representatives fail to
present a “sufficient showing of need” that the information sought is
critical to the performance of the functions of Congress, functions that
xxx do not include treaty-negotiation.

While the power then to fix tariff rates and other taxes
clearly belongs to Congress, and is exercised by the Did the respondent’s alleged failure to timely claim executive privilege
President only be delegation of that body, it has long been constitute waiver of such privilege?
recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the
concurrence of at least two-thirds of all the Members of the
Senate for the validity of the treaty. In this light, the That respondent invoked the privilege for the first time only in their
authority of the President to enter into trade agreements Comment to the present petition does not mean that the claim of
privilege should not be credited. Petitioner’s position presupposes that xxx However, when the Executive has – as in this case – invoked the
an assertion of the privilege should have been made during the House privilege, and it has been established that the subject information is
Committee investigations, failing which respondents are deemed to indeed covered by the privilege being claimed, can a party overcome
have waived it. the same by merely asserting that the information being demanded is
a matter of public concern, without any further showing required?
Certainly not, for that would render the doctrine of executive privilege
xxx (but) Respondent’s failure to claim the privilege during the House of no force and effect whatsoever as a limitation on the right to
Committee hearings may not, however, be construed as a waiver information, because then the sole test in such controversies would be
thereof by the Executive branch. xxx what respondents received from whether an information is a matter of public concern.
the House Committee and petitioner-Congressman Aguja were mere
requests for information. And as priorly stated, the House Committee
itself refrained from pursuing its earlier resolution to issue a subpoena Right to information vis-a-vis Executive Privilege
duces tecum on account of then Speaker Jose de Venecia’s alleged
request to Committee Chairperson Congressman Teves to hold the
same in abeyance. xxx the Court holds that, in determining whether an
information is covered by the right to information, a specific
“showing of need” for such information is not a relevant
The privilege is an exemption to Congress’ power of inquiry. So long consideration, but only whether the same is a matter of
as Congress itself finds no cause to enforce such power, there is no public concern. When, however, the government has
strict necessity to assert the privilege. In this light, respondent’s failure claimed executive privilege, and it has established that the
to invoke the privilege during the House Committee investigations did information is indeed covered by the same, then the party
not amount to waiver thereof. demanding it, if it is to overcome the privilege, must show
that that information is vital, not simply for the satisfaction
of its curiosity, but for its ability to effectively and
“Showing of Need” Test reasonably participate in social, political, and economic
decision-making.

In executive privilege controversies, the requirement that parties

present a “sufficient showing of need” only means, in substance, that
they should show a public interest in favor of disclosure sufficient in
degree to overcome the claim of privilege. Verily, the Court in such
cases engages in a balancing of interests. Such a balancing of interests
is certainly not new in constitutional adjudication involving
fundamental rights.
NERI VS. SENATE COMMITTEE ISSUE:

FACTS: On April 21, 2007, the Department of Transportation Are the communications elicited by the subject three (3) questions
and Communication (DOTC) entered into a contract with covered by executive privilege?
Zhong Xing Telecommunications Equipment (ZTE) for the
supply of equipment and services for the National HELD:
Broadband Network (NBN) Project in the amount of U.S. $
329,481,290 (approximately P16 Billion Pesos). The Project
was to be financed by the People’s Republic of China.
The communications are covered by executive privilege

The Senate passed various resolutions relative to the NBN The revocation of EO 464 (advised executive officials and
deal. In the September 18, 2007 hearing Jose de Venecia III employees to follow and abide by the Constitution, existing
testified that several high executive officials and power
laws and jurisprudence, including, among others, the case of
brokers were using their influence to push the approval of
the NBN Project by the NEDA.
Senate v. Ermita when they are invited to legislative inquiries
in aid of legislation.), does not in any way diminish the concept
Neri, the head of NEDA, was then invited to testify before the of executive privilege. This is because this concept has
Senate Blue Ribbon. He appeared in one hearing wherein he Constitutional underpinnings.
was interrogated for 11 hrs and during which he admitted
that Abalos of COMELEC tried to bribe him with P200M in
exchange for his approval of the NBN project. He further
The claim of executive privilege is highly recognized in cases
narrated that he informed President Arroyo about the where the subject of inquiry relates to a power textually
bribery attempt and that she instructed him not to accept the committed by the Constitution to the President, such as the area
bribe. of military and foreign relations. Under our Constitution, the
President is the repository of the commander-in-chief,
However, when probed further on what they discussed about the NBN
appointing, pardoning, and diplomatic powers. Consistent with
Project, petitioner refused to answer, invoking “executive privilege”.
In particular, he refused to answer the questions on: the doctrine of separation of powers, the information relating to
these powers may enjoy greater confidentiality than others.
(a) whether or not President Arroyo followed up the NBN Project, Several jurisprudence cited provide the elements of presidential
(b) whether or not she directed him to prioritize it, and communications privilege:
1) The protected communication must relate to a
(c) whether or not she directed him to approve. “quintessential and non-delegable presidential power.”
He later refused to attend the other hearings and Ermita sent a letter 2) The communication must be authored or “solicited and
to the senate averring that the communications between GMA and received” by a close advisor of the President or the President
Neri are privileged and that the jurisprudence laid down in Senate vs himself. The judicial test is that an advisor must be in
Ermita be applied. He was cited in contempt of respondent “operational proximity” with the President.
committees and an order for his arrest and detention until such time
that he would appear and give his testimony.
3) The presidential communications privilege remains a the unavailability of the information elsewhere by an
qualified privilege that may be overcome by a showing of appropriate investigating authority.
adequate need, such that the information sought “likely
contains important evidence” and by the unavailability of the Respondent Committees further contend that the grant of
information elsewhere by an appropriate investigating petitioner’s claim of executive privilege violates the
authority. constitutional provisions on the right of the people to
information on matters of public concern.50 We might have
In the case at bar, Executive Secretary Ermita premised his agreed with such contention if petitioner did not appear before
claim of executive privilege on the ground that the them at all. But petitioner made himself available to them
communications elicited by the three (3) questions “fall under during the September 26 hearing, where he was questioned for
conversation and correspondence between the President and eleven (11) hours. Not only that, he expressly manifested his
public officials” necessary in “her executive and policy willingness to answer more questions from the Senators, with
decision-making process” and, that “the information sought to the exception only of those covered by his claim of executive
be disclosed might impair our diplomatic as well as economic privilege.
relations with the People’s Republic of China.” Simply put, the
bases are presidential communications privilege and executive The right to public information, like any other right, is subject
privilege on matters relating to diplomacy or foreign relations. to limitation. Section 7 of Article III provides:
The right of the people to information on matters of public
Using the above elements, we are convinced that, indeed, concern shall be recognized. Access to official records, and to
the communications elicited by the three (3) questions are documents, and papers pertaining to official acts, transactions,
covered by the presidential communications privilege. or decisions, as well as to government research data used as
First, the communications relate to a “quintessential and basis for policy development, shall be afforded the citizen,
non-delegable power” of the President, i.e. the power to subject to such limitations as may be provided by law
enter into an executive agreement with other countries.
This authority of the President to enter into executive
agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.
Second, the communications are “received” by a close
advisor of the President. Under the “operational
proximity” test, petitioner can be considered a close
advisor, being a member of President Arroyo’s cabinet.
And third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of
 G.R. No. 88211, September 15, 1989 1. accumulated foreign debt
2. plunder of nation by Marcos & cronies
Marcos, petitioner
Marcos filed for a petition of mandamus and prohibition to
VS. order the respondents to issue them their travel documents and
prevent the implementation of President Aquino’s decision to
Manglapus, respondent (Part 1) bar Marcos from returning in the Philippines. Petitioner
questions Aquino’s power to bar his return in the country. He
Facts: also questioned the claim of the President that the decision was
made in the interest of national security, public safety and
Former President Ferdinand E. Marcos was deposed from the health. Petitioner also claimed that the President acted outside
presidency via the non-violent “people power” revolution and her jurisdiction.
was forced into exile. Marcos, in his deathbed, has signified his
wish to return to the Philippines to die. But President Corazon According to the Marcoses, such act deprives them of their
Aquino, considering the dire consequences to the nation of his right to life, liberty, property without due process and equal
return at a time when the stability of government is threatened protection of the laws. They also said that it deprives them of
from various directions and the economy is just beginning to their right to travel which according to Section 6, Article 3 of
rise and move forward, has stood firmly on the decision to bar the constitution, may only be impaired by a court order.
the return of Marcos and his family.
Issue:
Aquino barred Marcos from returning due to possible threats &
following supervening events: 1. Whether or not, in the exercise of the powers granted
by the Constitution, the President may prohibit the
1. failed Manila Hotel coup in 1986 led by Marcos leaders Marcoses from returning to the Philippines.
2. channel 7 taken over by rebels & loyalists 2. Whether or not the President acted arbitrarily or with
3. plan of Marcoses to return w/ mercenaries aboard a grave abuse of discretion amounting to lack or excess
chartered plane of a Lebanese arms dealer. This is to of jurisdiction when she determined that the return of
prove that they can stir trouble from afar the Marcoses to the Philippines poses a serious threat to
4. Honasan’s failed coup national interest and welfare and decided to bar their
5. Communist insurgency movements return.
6. secessionist movements in Mindanao
7. devastated economy because of Decision:
No to both issues. Petition dismissed. contemplated situations even remotely similar to the present
one. It must be treated as a matter that is appropriately
Ratio: addressed to those residual unstated powers of the President
which are implicit in and correlative to the paramount duty
Separation of power dictates that each department has residing in that office to safeguard and protect general welfare.
exclusive powers. According to Section 1, Article VII of the In that context, such request or demand should submit to the
1987 Philippine Constitution, “the executive power shall be exercise of a broader discretion on the part of the President to
vested in the President of the Philippines.” However, it does determine whether it must be granted or denied.
not define what is meant by “executive power” although in the
same article it touches on exercise of certain powers by the For issue number 2, the question for the court to determine is
President, i.e., the power of control over all executive whether or not there exist factual basis for the President to
departments, bureaus and offices, the power to execute the conclude that it was in the national interest to bar the return of
laws, the appointing power to grant reprieves, commutations the Marcoses in the Philippines. It is proven that there are
and pardons… (art VII secfs. 14-23). Although the constitution factual bases in her decision. The supervening events that
outlines tasks of the president, this list is not defined & happened before her decision are factual. The President must
exclusive. She has residual & discretionary powers not stated take preemptive measures for the self-preservation of the
in the Constitution which include the power to protect the country & protection of the people. She has to uphold the
general welfare of the people. She is obliged to protect the Constitution.
people, promote their welfare & advance national interest. (Art.
II, Sec. 4-5 of the Constitution). Residual powers, according to G.R. No. 88211, October 27, 1989
Theodore Roosevelt, dictate that the President can do anything
which is not forbidden in the Constitution (Corwin, supra at Marcos, petitioner
153), inevitable to vest discretionary powers on the President
(Hyman, American President) and that the president has to VS.
maintain peace during times of emergency but also on the day-
to-day operation of the State. Manglapus, respondent (Part 2)

The rights Marcoses are invoking are not absolute. They’re Facts:
flexible depending on the circumstances. The request of the
Marcoses to be allowed to return to the Philippines cannot be In its decision dated September 15, 1989, the Court by a vote
considered in the light solely of the constitutional provisions of eight to seven, dismissed the petition, after finding that the
guaranteeing liberty of abode and the right to travel, subject to President did not act arbitrarily or with grave abuse of
certain exceptions, or of case law which clearly never discretion in determining that the return of former President
Marcos and his family pose a threat to national interest and 1. Petitioners failed to show any compelling reason to
welfare and in prohibiting their return to the Philippines. On warrant reconsideration.
September 28, 1989, Marcos died in Honolulu, Hawaii. 2. Factual scenario during the time Court rendered its
decision has not changed. The threats to the
President Corazon Aquino issued a statement saying that in the government, to which the return of the Marcoses has
interest of the safety of those who will take the death of Marcos been viewed to provide a catalytic effect, have not been
in widely and passionately conflicting ways, and for the shown to have ceased. Imelda Marcos also called
tranquility and order of the state and society, she did not allow President Aquino “illegal” claiming that it is Ferdinand
the remains of Marcos to be brought back in the Philippines. Marcos who is the legal president.
3. President has unstated residual powers implied from
A motion for Reconsideration was filed by the petitioners grant of executive power. Enumerations are merely for
raising the following arguments: specifying principal articles implied in the definition;
leaving the rest to flow from general grant that power,
1. Barring their return would deny them their inherent interpreted in conformity with other parts of the
right as citizens to return to their country of birth and Constitution (Hamilton). Executive unlike Congress can
all other rights guaranteed by the Constitution to all exercise power from sources not enumerates so long as
Filipinos. not forbidden by constitutional text (Myers vs. US).
2. The President has no power to bar a Filipino from his This does not amount to dictatorship. Amendment No.
own country; if she has, she had exercised it arbitrarily. 6 expressly granted Marcos power of legislation
3. There is no basis for barring the return of the family of whereas 1987 Constitution granted Aquino with
former President Marcos. implied powers.
4. It is within Aquino’s power to protect & promote
Issue: interest & welfare of the people. She bound to comply
w/ that duty and there is no proof that she acted
Whether or not the motion for reconsideration that the arbitrarily
Marcoses be allowed to return in the Philippines be granted.

Decision:

No. The Marcoses were not allowed to return. Motion for

Reconsideration denied because of lack of merit.

Ratio:
OPLE V TORRES LEGISLATIVE POWERS OF THE CONGRESS OF THE
REPUBLIC OF THE PHILIPPINES.
Facts:
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
Petitioner Ople prays that we invalidate Administrative Order PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO.
No. 308 entitled "Adoption of a National Computerized 308 IS AN UNCONSTITUTIONAL USURPATION OF THE
Identification Reference System" on two important EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE
constitutional grounds, viz: one, it is a usurpation of the power PUBLIC FUNDS FOR EXPENDITURE.
of Congress to... legislate, and two, it impermissibly intrudes
on our citizenry's protected zone of privacy. We grant the C. THE IMPLEMENTATION OF A.O. NO. 308
petition for the rights sought to be vindicated by the petitioner INSIDIOUSLY LAYS THE GROUNDWORK FOR A
need stronger barriers against further erosion. SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."
A.O. No. 308 was issued by President Fidel V. Ramos on
December 12, 1996 Respondents counter-argue:

A.O. No. 308 was published in four newspapers of general A. THE INSTANT PETITION IS NOT A JUSTICIABLE
circulation on January 22, 1997 and January 23, 1997. On CASE AS WOULD WARRANT A JUDICIAL REVIEW;
January 24, 1997, petitioner filed the instant petition against
respondents, then Executive Secretary Ruben Torres and the B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
heads of the government agencies, who as... members of the EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
Inter-Agency Coordinating Committee, are charged with the PRESIDENT WITHOUT ENCROACHING ON THE
implementation of A.O. No. 308. On April 8, 1997, we issued a LEGISLATIVE POWERS OF CONGRESS;
temporary restraining order enjoining its implementation.
C. THE FUNDS NECESSARY FOR THE
Petitioner contends: IMPLEMENTATION OF THE IDENTIFICATION
REFERENCE SYSTEM MAY BE SOURCED FROM THE
"A. THE ESTABLISHMENT OF A NATIONAL BUDGETS OF THE CONCERNED AGENCIES;
COMPUTERIZED IDENTIFICATION REFERENCE
SYSTEM REQUIRES A LEGISLATIVE ACT. THE D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF INTEREST IN PRIVACY.[3]
THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE,
AN UNCONSTITUTIONAL USURPATION OF THE Issues:
Petitioner's sedulous concern for the Executive not to trespass Sec. 2. The right of the people to be secure in their persons,
on the lawmaking domain of Congress is understandable houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
Petitioner claims that A.O. No. 308 is not a mere inviolable, and no search warrant or warrant of arrest shall
administrative order but a law and hence, beyond the power of issue except upon probable cause to... be determined personally
the President to issue. He alleges that A.O. No. 308 establishes by the judge after examination under oath or affirmation of the
a system of identification that is all-encompassing in... scope, complainant and the witnesses he may produce, and
affects the life and liberty of every Filipino citizen and foreign particularly describing the place to be searched and the persons
resident, and more particularly, violates their right to privacy. or things to be seized.

Assuming, arguendo, that A.O. No. 308 need not be the subject x ... x x.
of a law, still it cannot pass constitutional muster as an
administrative legislation because facially it violates the right Sec. 6. The liberty of abode and of changing the same within
to privacy. The essence of privacy is the "right to be let alone. the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be
Indeed, if we extend our judicial gaze we will find that the impaired except in the interest of national security, public
right of privacy is recognized and enshrined in several safety, or public health, as... may be provided by law.
provisions of our Constitution.[33] It is expressly recognized in
Section 3(1) of the Bill of Rights: x ... x x.

"Sec. 3. (1) The privacy of communication and correspondence Sec. 8. The right of the people, including those employed in the
shall be inviolable except upon lawful order of the court, or public and private sectors, to form unions, associations, or
when public safety or order requires otherwise as prescribed by societies for purposes not contrary to law shall not be abridged.
law."
Sec. 17. No person shall be compelled to be a witness against
Other facets of the right to privacy are protected in various himself."
provisions of the Bill of Rights, viz:[34]
Ruling:
"Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the The right to privacy is one of the most threatened rights of man
equal protection of the laws. living in a mass society. The threats emanate from various
sources-- governments, journalists, employers, social scientists,
etc.[88] In the case at bar, the threat comes from the
executive... branch of government which by issuing A.O. No. Constitution, either expressly or impliedly, legislative power
308 pressures the people to surrender their privacy by giving embraces all subjects and extends to matters of general concern
information about themselves on the pretext that it will or common interest.[13]
facilitate delivery of basic services. Given the record-keeping
power of the computer, only the indifferent will... fail to While Congress is vested with the power to enact laws, the
perceive the danger that A.O. No. 308 gives the government President executes the laws.[14] The executive power is vested
the power to compile a devastating dossier against in the President.[15] It is generally defined as the power to
unsuspecting citizens enforce and administer the... laws.[16] It is the power of
carrying the laws into practical operation and enforcing their
IN VIEW WHEREOF, the petition is granted and due observance.[17]
Administrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null As head of the Executive Department, the President is the
and void for being unconstitutional. Chief Executive. He represents the government as a whole and
sees to it that all laws are enforced by the officials and
Principles: employees of his department.[18] He has control over the
executive department,... bureaus and offices. This means that
right to privacy, which the revered Mr. Justice Brandeis he has the authority to assume directly the functions of the
considered as "the most comprehensive of rights and the right executive department, bureau and office, or interfere with the
most valued by civilized... men discretion of its officials.[19] Corollary to the power of control,
the President also has the... duty of supervising the
The line that delineates Legislative and Executive power is not enforcement of laws for the maintenance of general peace and
indistinct. Legislative power is "the authority, under the public order. Thus, he is granted administrative power over
Constitution, to make laws, and to alter and repeal them."[8] bureaus and offices under his control to enable him to
The Constitution, as the will of the people in their... original, discharge his duties effectively.[20]
sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines.[9] The grant of legislative power Administrative power is concerned with the work of applying
to Congress is broad, general and comprehensive.[10] The policies and enforcing orders as determined by proper
legislative body possesses plenary power... for all purposes of governmental organs.[21] It enables the President to fix a
civil government.[11] Any power, deemed to be legislative by uniform standard of administrative efficiency and check the
usage and tradition, is necessarily possessed by Congress, official conduct of his... agents.[22] To this end, he can issue
unless the Constitution has lodged it elsewhere.[12] In fine, administrative orders, rules and regulations.
except as limited by the
Prescinding from these precepts, we hold that A.O. No. 308 their functions. The data they collected and recordedwere,
involves a subject that is not appropriate to be covered by an however, disparate; and the IDs they issued, dissimilar.
administrative order. An administrative order is:
EO 420 directed all government entities “issuing ID
"Sec. 3. Administrative Orders.-- Acts of the President which cards to their members orconstituents” to “adopt a unified
relate to particular aspects of governmental operation in multi-purpose ID system.” It enumerated thepurposes of
pursuance of his duties as administrative head shall be the uniform data collection and format; namely, to reduce
promulgated in administrative orders. costs, achieveefficiency and reliability, ensure compatibility,
and provide convenience to the peopleserved by these
KMU v Director General entities. Under the uniform ID system, the data to be
collected and recorded would belimited to only 14 specific
The Facts: President Gloria Macapagal-Arroyo issued items: (1) name, (2) home address, (3) sex, (4) picture,
Executive Order (EO) No. 420 on April 13, 2005, (5)signature, (6) date of birth, (7) place of birth, (8) marital
directing all government agencies and government-owned status, (9) names of parents,(10) height, (11) weight, (12)
and -controlled corporations to adopt uniform data collection two index fingers and two thumbmarks, (13) anyprominent
and format for their existingidentification (ID) systems. distinguishing features like moles or others, and (14) Tax
IdentificationNumber. Unifying the data
The issues were as follows: collection and recording, as well as standardizing the
IDformats, would admittedly achieve substantial benefits;
1.Whether EO 420 was a usurpation of legislative power by specifically, savings in terms ofprocurement of equipment and
the President supplies, compatibility in systems as to hardware andsoftware,
ease of verification and thus increased reliability of data,
2.Whether EO 420 infringed on the citizen’s right to privacy and user-friendliness of a single ID format for all government
entities. The Supreme Court found that the achievement
The Court’s Ruling of a unified ID system for allthe entities concerned was purely
an administrative matter that would not involve theexercise of
First Issue:Alleged Usurpation of Legislative Power legislative power. It pointed to Section 17 of Article VII
of the 1987Constitution, according to which the
Alleged Usurpation of Legislative Power Prior to the “President shall have control of all executivedepartments,
issuance of EO 420, various government entities -- like the bureaus and offices.” The same section also mandated
GSIS,SSS, Philhealth, Mayor’s Office, LTO and PRC -- had the ChiefExecutive to “ensure that the laws be faithfully
already been recording data andissuing ID cards as part of executed.” Certainly, under thatconstitutional power of
control, the President could direct all government entities, inthe
exercise of their functions under existing laws, to adopt a recording of personal identification data. In fact,
uniform ID datacollection and format to achieve savings, petitioners in the present cases did not claim that the ID
efficiency, reliability, compatibility, and systems of

convenience to the public. Of course, the President’s government entities prior to EO 420 violated their right to
power of control is limited to the executive branchof privacy. Thus, they hadeven less basis for complaining
government and does not extend to the judiciary or against a unified ID system under the executive orderin
to the independentconstitutional commissions. Thus, EO question. The data collected and stored under EO 420 were to
420 does not apply to the judiciary; or to theComelec which, be limited to only14 specific data, and the ID card itself would
under existing laws, is also authorized to issue voter’s ID cards. show only 8 of these. The right to privacy does not bar
Thisfact only shows that EO 420 does not establish a the adoption of reasonable ID systems bygovernment entities.
national ID system, becauselegislation is needed to With the exception of the eight specific data to be shown on
establish a single ID system that will be compulsory for anID card, the personal data to be collected and recorded under
allbranches of government. What will require legislation EO 420 shall be treatedas “strictly confidential” under Section
are three aspects of a government-maintained IDcard system: 6(d) of the executive order. These data are tobe considered
first, when the implementation of that system requires a not only strictly confidential, but also personal matters.
specialappropriation, because there is none existing for the As such, theyshall be exempt or outside the coverage of
purpose; second, when the systemis compulsory for all the people’s right to information, underSection 7 of
branches of government, including the Article III of the Constitution on matters of public
independentconstitutional commissions, as well as for all concern. Beingmatters that are private and not of
citizens whether or not they have any usefor the ID card; public concern, the data treated as “strictlyconfidential”
third, when the system requires the collection and under EO 420 cannot be released to the public or the press.
recording ofpersonal data beyond those routinely or usually Compared with the personal medical data required for
required for the purpose, such that thecitizen’s right to privacy disclosure to the NewYork State in Whalen (cited in the
would be infringed. Dissent), the 14 specific data required for disclosureto the
Philippine government under EO 420 are far less sensitive
Second Issue:The Right to PrivacyThe Right to Privacy and far lesspersonal. They are, in fact, routine for ID systems,
All these years, the GSIS, SSS, LTO, Philhealth and other unlike the sensitive and potentiallyembarrassing medical
government entitieshave been issuing ID cards in the records of patients taking prescription drugs. Whalen,
performance of their governmental functions. There have therefore,carries persuasive force for upholding the
been no complaints from citizens that these ID cards violate constitutionality of EO 420 as non-violativeof the right to
their right toprivacy. Neither have there been complaints privacy. Indeed, compared with the disclosures of
of abuse by government entities in thecollection and personal data that the U.S. SupremeCourt upheld in Whalen,
those required under EO 420 are far more benign. On 18 August 2006, the Court of Appeals restrained the PRC
Hence,they cannot constitute any violation of the right to from proceeding with the oath-taking of the successful
privacy or be used to embarrass orhumiliate anyone.Ople v. examinees set on 22 August 2006.
Torres was not the proper authority on which to base the
argument that Consequently, President Gloria Macapagal-Arroyo (President
Arroyo) replaced all the members of the PRC's Board of
EO 420 would violate the right to privacy. In that case the Nursing. President Arroyo also ordered the examinees to re-
assailed executive issuance,broadly drawn and devoid of take the Nursing Board Examinations.
safeguards, was annulled solely on the ground that
thesubject matter required legislation. EO 420 On 8 September 2006, President Arroyo issued EO 566 which
applies only to government entities that, pursuant to their authorized the CHED to supervise the establishment and
regularfunctions under existing laws, already maintain ID operation of all review centers and similar entities in the
systems and issue ID cards. It doesnot grant these entities Philippines.
any power that they do not already possess under existing
laws. the Review Center Association of the Philippines (petitioner),
an organization of independent review centers, asked the
REVIEW CENTER ASSOCIATION OF PHILIPPINES v. CHED to "amend, if not withdraw" the IRR arguing, among
EXECUTIVE SECRETARY EDUARDO ERMITA, GR No. other things, that giving permits to... operate a review center to
180046, 2009-04-02 Higher Education Institutions (HEIs) or consortia of HEIs and
professional organizations will effectively abolish independent
Facts: review centers.

On 11 and 12 June 2006, the Professional Regulation EO 566- authorized ched to supervise the
Commission (PRC) conducted the Nursing Board establishment and operation of all review centers
Examinations nationwide. In June 2006, licensure applicants
wrote the PRC to report that handwritten copies of two sets of In a letter dated 3 January 2007,[6] Chairman Puno wrote
examinations were circulated during the examination period... petitioner, through its President Jose Antonio Fudolig
among the examinees reviewing at the R.A. Gapuz Review (Fudolig), that to suspend the implementation of the IRR would
Center and Inress Review Center. be inconsistent with the mandate of EO 566.

George Cordero, Inress Review Center's President, was then On 7 May 2007, the CHED approved the RIRR. On 22 August
the incumbent President of the Philippine Nurses Association. 2007, petitioner filed before the CHED a Petition to
Clarify/Amend Revised Implementing Rules and
Regulations[8] praying for a ruling:
Amending the RIRR by excluding independent review centers necessary permits or authorizations to conduct review classes.
from the coverage of the CHED; x x x"

Clarifying the meaning of the requirement for existing review pertinent provision of the IRR
centers to tie-up or be integrated with HEIs, consortium or
HEIs and PRC-recognized professional associations with Section 1. Authority to Establish and Operate - Only CHED
recognized programs, or in the alternative, to convert into recognized, accredited and reputable HEIs may be authorized
schools; and to establish and operate review center/course by the CHED
upon full compliance with the conditions and requirements
Revising the rules to make it conform with Republic Act No. provided herein and in other pertinent laws,... rules and
7722 (RA 7722)[9] limiting the CHED's coverage to public and regulations. In addition, a consortium or consortia of qualified
private institutions of higher education as well as degree- schools and/or entities may establish and operate review
granting programs in post-secondary educational institutions. centers or conduct review classes upon compliance with the
provisions of these Rules.
CHED was given the authority to regulate and
establish review centers uner EO 566 Issues:

While it may be true that regulation of review centers is not The issues raised in this case are the following:
one of the mandates of CHED under Republic Act 7722,
however, on September 8, 2006, Her Excellency, President Whether EO 566 is an unconstitutional exercise by the
Gloria Macapagal-Arroyo, issued Executive Order No. 566 Executive of legislative power as it expands the CHED's
directing the Commission on Higher jurisdiction; and

Education to regulate the establishment and operation of Whether the RIRR is an invalid exercise of the Executive's
review centers and similar entities in the entire country. rule-making power.

With the issuance of the aforesaid Executive Order, the CHED Ruling:
now is the agency that is mandated to regulate the
establishment and operation of all review centers as provided The petition has merit.
for under Section 4 of the Executive Order which provides that
"No review center or similar... entities shall be established The propensity of litigants and lawyers to disregard the
and/or operate review classes without the favorable expressed hierarchy of courts in our judicial system by seeking relief
indorsement of the CHED and without the issuance of the directly from this Court must be put to a halt for two reasons:
(1) it would be an imposition upon the precious time of this Sec. 3. Creation of Commission on Higher Education. - In
Court; and (2) it would... cause an inevitable and resultant pursuance of the abovementioned policies, the Commission on
delay, intended or otherwise, in the adjudication of cases, Higher Education is hereby created, hereinafter referred to as
which in some instances had to be remanded or referred to the the Commission.
lower court as the proper forum under the rules of procedure,
or as better equipped to resolve the issues because this The Commission shall be independent and separate from the
Department of Education, Culture and Sports (DECS), and
Court is not a trier of facts. attached to the Office of the President for administrative
purposes only. Its coverage shall be both public and private
The rule, however, is not absolute, as when exceptional and institutions of higher education as well... as degree-granting
compelling circumstances justify the exercise of this Court of programs in all post-secondary educational institutions, public
its primary jurisdiction and private. (Emphasis supplied)

The alleged violation of the Constitution by the Executive Neither RA 7722 nor CHED Order No. 3, series of 1994
Department when it issued EO 566 justifies the exercise by the (Implementing Rules of RA 7722)[24] defines an institution of
Court of its primary jurisdiction over the case. The Court is not higher learning or a program of higher learning.
precluded from brushing aside technicalities and taking
cognizance of an... action due to its importance to the public Further, Articles 6 and 7 of the Implementing Rules provide:
and in keeping with its duty to determine whether the other
branches of the Government have kept themselves within the Article 6. Scope of Application. - The coverage of the
limits of the Constitution. Commission shall be both public and private institutions of
higher education as well as degree granting programs in all
EO 566 Expands the Coverage of RA 7722 post-secondary educational institutions, public and private.

The OSG justifies its stand by claiming that the term These Rules shall apply to all public and private educational
"programs x x x of higher learning" is broad enough to include institutions offering tertiary degree programs.
programs offered by review centers.
The establishment, conversion, or elevation of degree-granting
We do not agree. institutions shall be within the responsibility of the
Commission.
Section 3 of RA 7722 provides:
Clearly, HEIs refer to degree-granting institutions, or those
offering tertiary degree or post-secondary programs. In fact,
Republic Act No. 8292 or the Higher Education Modernization Main issue relating to Art. VII
Act of 1997 covers chartered state universities and colleges.
State universities and colleges... primarily offer degree courses As head of the Executive Department, the President is the
and programs. Chief Executive. He represents the government as a whole and
sees to it that all laws are enforced by the officials and
The scopes of EO 566 and the RIRR clearly expand the employees of his department. He has control over the executive
CHED's coverage under RA 7722. The CHED's coverage department, bureaus and offices. This... means that he has the
under RA 7722 is limited to public and private institutions of authority to assume directly the functions of the executive
higher education and degree-granting programs in all public department, bureau and office, or interfere with the discretion
and private post-secondary educational... institutions. EO 566 of its officials. Corollary to the power of control, the President
directed the CHED to formulate a framework for the regulation also has the duty of supervising the enforcement of laws for
of review centers and similar entities the... maintenance of general peace and public order. Thus, he
is granted administrative power over bureaus and offices under
Usurpation of Legislative Power his control to enable him to discharge his duties effectively.

The President has no inherent or delegated legislative power to Administrative power is concerned with the work of applying
amend the functions of the CHED under RA 7722. Legislative policies and enforcing orders as determined by proper
power is the authority to make laws and to alter or repeal governmental organs. It enables the President to fix a uniform
them,[32] and this power is vested with the Congress under standard of administrative efficiency and check the official
Section 1,... Article VI of the 1987 Constitution which states: conduct of his agents. To this end, he... can issue
administrative orders, rules and regulations.
Section 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and "Sec. 3. Administrative Orders. - Acts of the President which
a House of Representatives, except to the extent reserved to the relate to particular aspects of governmental operation in
people by the provision on initiative and referendum. pursuance of his duties as administrative head shall be
promulgated in administrative orders."
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the An administrative order is an ordinance issued by the President
Constitution, to make laws, and to alter and repeal them." which relates to specific aspects in the administrative operation
of government. It must be in harmony with the law and should
The Constitution, as the will of the people in their original, be for the sole purpose of implementing the law and carrying
sovereign and... unlimited capacity, has vested this power in out the legislative... policy. x x x.
the Congress of the Philippines.
Since EO 566 is an invalid exercise of legislative power, the However, this power has nothing to do with the regulation of
RIRR is also an invalid exercise of the CHED's quasi- review centers. The PRC has the power to bar PRB members
legislative power. from conducting review classes in review centers. However,
to... interpret this power to extend to the power to regulate
Administrative agencies exercise their quasi-legislative or rule- review centers is clearly an unwarranted interpretation of RA
making power through the promulgation of rules and 8981.
regulations.[36] The CHED may only exercise its rule-making
power within the confines of its jurisdiction under RA 7722. Section 7(y) of RA 8981 giving the PRC the power to perform
The RIRR covers... review centers and similar entities which "such other functions and duties as may be necessary to carry
are neither institutions of higher education nor institutions out the provisions" of RA 8981 does not extend to the
offering degree-granting programs. regulation of review centers. There is absolutely nothing in RA
8981 that mentions regulation by the
Exercise of Police Power
PRC of review centers.
Police power primarily rests with the legislature although it
may be exercised by the President and administrative boards by Similarly, the PRC has no mandate to regulate similar entities
virtue of a valid delegation whose reviewees will not even... take any licensure
examination given by the PRC.
Here, no delegation of police power exists under RA 7722
authorizing the President... to regulate the operations of non- WHEREFORE, we GRANT the petition and the petition-in-
degree granting review centers. intervention. We DECLARE Executive Order No. 566 and
Commission on Higher Education Memorandum Order No. 30,
Republic Act No. 8981 is Not the Appropriate Law series of 2007 VOID for being unconstitutional.

There is no doubt that a principal mandate of the PRC is to SO ORDERED.

preserve the integrity of licensure examinations. The PRC has
the power to adopt measures to preserve the integrity and
inviolability of licensure examinations. However, this power
should properly be interpreted to... refer to the conduct of the
examinations

These powers of the PRC have nothing to do at all with the

regulation of review centers.
Facts: had been part of... the DAP, a program designed by the DBM
to ramp up spending to accelerate economic expansion.
For resolution are the consolidated petitions assailing the
constitutionality of the Disbursement Acceleration Program He clarified that the funds had been released to the Senators
(DAP), National Budget Circular (NBC) No. 541, and related based on their letters of request for funding
issuances of the Department of Budget and Management
(DBM) implementing the DAP. He explained that the funds under the DAP were usually taken
from (1) unreleased appropriations under
At the core of the controversy is Section 29(1) of Article VI of
the 1987 Constitution, a provision of the fundamental law that Personnel Services;[2] (2) unprogrammed funds; (3) carry-over
firmly ordains that "[n]o money shall be paid out of the appropriations unreleased from the previous year; and (4)
Treasury except in pursuance of an appropriation made by budgets for slow-moving items or projects that had been
law." realigned to support faster-disbursing projects.

Used constitutional powers under Sec. 25(5) as a The DBM soon came out to claim in its website[3] that the
guise to use money out of the treasury without an
DAP releases had been sourced from savings generated by the
appropriation made by law... indicate that the DAP Government, and from unprogrammed funds; and that the
contravened this provision by allowing the Executive to savings had been derived from (1) the pooling of unreleased
allocate public money pooled from programmed and appropriations, like... unreleased Personnel Services[4]
unprogrammed funds of its various agencies in the guise of the appropriations that would lapse at the end of the year,
President exercising his... constitutional authority under unreleased appropriations of slow-moving projects and
Section 25(5) of the 1987 Constitution to transfer funds out of discontinued projects per zero-based budgeting findings;[5]
savings to augment the appropriations of offices within the and (2) the withdrawal of... unobligated allotments also for
Executive Branch of the Government. slow-moving programs and projects that had been earlier
released to the agencies of the National Government.
Sen. Jinggoy Ejercito Estrada... had been allotted an additional
P50 Million each as "incentive" for voting in favor of the The DBM listed the following as the legal bases for the DAP's
impeachment of Chief use of savings,[
Justice Renato C. Corona. Why DAP is legal according to DBM

Abad: Releases to Senators Part of Spending Acceleration (1) Section 25(5), Article VI of the 1987 Constitution, which
Program,[1] explaining that the funds released to the Senators granted to the President the authority to augment an item for
his office in the general appropriations... law; (2) Section 49 (b) They authorize the disbursement of funds for projects or
(Authority to Use Savings for Certain Purposes) and Section 38 programs not provided in the GAAs for the Executive
(Suspension of Expenditure Appropriations), Chapter 5, Book Department; and
VI of Executive Order (EO) No. 292 (Administrative Code of
1987); and (3) the General Appropriations Acts (GAAs) of (c) They "augment" discretionary lump sum appropriations in
the GAAs
2011, 2012 and 2013, particularly their provisions on the (a)
use of savings; (b) meanings of savings and augmentation; and D. Whether or not the DAP violates: (1) the Equal Protection
(c) priority in the use of savings. Clause, (2) the system of checks and balances, and (3) the
principle of public accountability enshrined in the 1987
Issues: Constitution considering that it authorizes the release of funds
upon the request of... legislators.
Procedural Issue:... whether there is a controversy ripe for
judicial determination, and the standing of petitioners. E. Whether or not factual and legal justification exists to issue
a temporary restraining order to restrain the implementation of
Substantive Issues: the DAP, NBC No. 541, and all other executive issuances
allegedly implementing the DAP.
B. Whether or not the DAP violates Sec. 29, Art. VI of the
1987 Constitution, which provides: "No money shall be paid F. Whether or not the release of unprogrammed funds under
out of the Treasury except in pursuance of an appropriation the DAP was in accord with the GAAs.
made by law."
Ruling:
Issue pertinent to Sec. 25
Procedural Issue:... a) The petitions under Rule 65 are... proper
C. Whether or not the DAP, NBC No. 541, and all other remedies
executive issuances allegedly implementing the DAP violate
Sec. 25(5), Art. VI of the 1987 Constitution insofar as: Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
(a) They treat the unreleased appropriations and unobligated demandable and enforceable, and to determine whether or not
allotments withdrawn from government agencies as "savings" there has been a grave abuse of discretion amounting to lack or
as the term is used in Sec. 25(5), in relation to the provisions of excess of jurisdiction on the... part of any branch or
the GAAs of 2011, 2012 and 2013; instrumentality of the Government.
b) Requisites for the exercise of the power... of judicial review 3.
were complied with
Unreleased appropriations and withdrawn... unobligated
(1) there must be an actual case or justiciable controversy allotments under the DAP... were not savings, and the use of
before the Court; (2) the question before the Court must be ripe such... appropriations contravened Section 25(5),... Article VI
for adjudication; (3) the person challenging the act must be a... of the 1987 Constitution.
proper party; and (4) the issue of constitutionality must be
raised at the earliest opportunity and must be the very litis mota The management... and utilization of the public wealth
of the case inevitably demands a most careful scrutiny of whether the
Executive's implementation of the DAP was consistent with the
Under their respective circumstances, each of the petitioners Constitution, the relevant GAAs and other existing laws.
has established sufficient interest in the outcome of the
controversy as to confer locus standi on each of them. a. Although executive discretion... and flexibility are necessary
in... the execution of the budget, any... transfer of appropriated
II. funds... should conform to Section 25(5),... Article VI of the
Constitution
Substantive Issues
The heads of offices, particularly the President, require
1. flexibility in their operations under performance budgeting to
enable them to make whatever adjustments are needed to meet
Overview of the Budget System established work goals under changing conditions.

PAP... c. DAP was not an appropriation... measure; hence, no the power to transfer funds can give the President the flexibility
appropriation... law was required to adopt or to... implement to meet unforeseen events that may otherwise impede the
it... that no law was necessary for the adoption and efficient implementation of the PAPs set by Congress in the
implementation of the DAP because of its being neither a fund GAA.
nor an appropriation, but a program or an administrative
system of prioritizing spending; and that the adoption of the Congress has traditionally allowed much flexibility to the
DAP was by virtue of the... authority of the President as the President in allocating funds pursuant to the GAAs,[129]
Chief Executive to ensure that laws were faithfully executed. particularly when the funds are grouped to form lump sum
accounts.
Main ratio under Sec. 25(5)
The DAP as a strategy to improve the country's economic... Commissions to transfer funds for the purpose of augmenting
position was one policy that the President decided to carry out any item from savings in another item in the GAA of their
in order to fulfill his mandate under the GAAs. respective offices.

Denying to the Executive flexibility in the expenditure process was further constricted by the condition that the funds to be
would be counterproductive transferred should come from... savings from another item in
the appropriation of the office
Were Congress to control expenditures by confining
administrators to narrow statutory details, it would perhaps PD No. 1177, providing in its Section 44
protect its power of... the purse but it would not protect the
purse itself. The realities and complexities of public policy Section 44. Authority to Approve Fund Transfers. The
require executive discretion for the sound management of President shall have the authority to transfer any fund
public funds. appropriated for the different departments, bureaus, offices and
agencies of the Executive Department which are included in
In contrast, by allowing to the heads of offices some power to the General
transfer funds within their respective offices, the Constitution
itself ensures the fiscal autonomy of their offices, and at the Appropriations Act, to any program, project, or activity of any
same time maintains the separation of powers among the three department, bureau or office included in the General
main branches of the Appropriations Act or approved after its enactment.

Government. The President shall, likewise, have the authority to augment

any appropriation of the Executive Department in the General
In the case of the President, the power to transfer funds from Appropriations Act, from savings in the appropriations of
one item to another within the Executive has not been the mere another department, bureau, office or agency within the
offshoot of established usage, but has emanated from law itself. Executive Branch, pursuant to the... provisions of Article VIII,
Section 16 (5) of the Constitution.
The 1973 Constitution explicitly and categorically prohibited
the transfer of funds from one item to another, unless Congress In Demetria v. Alba, however, the Court struck down the first
enacted a law authorizing the President, the Prime Minister, the paragraph of Section 44 for contravening Section 16(5) of the
Speaker, the Chief Justice of the Supreme Court, and the heads 1973 Constitution
of the Constitutional
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-
extends the privilege granted under said Section 16. It
empowers the President to indiscriminately transfer funds from room for the petitioner's posture, which we should now...
one department, bureau, office or agency of the Executive dispose of as untenable.
Department to any program, project... or activity of any
department, bureau or office included in the General It bears emphasizing that the exception in favor of the high
Appropriations Act or approved after its enactment, without officials named in Section 25(5), Article VI of the Constitution
regard as to whether or not the funds to be transferred are limiting the authority to transfer savings only to augment
actually savings in the item from which the same are to be another item in the GAA is strictly but reasonably construed as
taken, or whether or not... the transfer is for the purpose of exclusive.
augmenting the item to which said transfer is to be made. It
does not only completely disregard the standards set in the Accordingly, we should interpret Section 25(5), supra, in the
fundamental law, thereby amounting to an undue delegation of context of a limitation on the President's discretion over the
legislative powers, but likewise goes beyond the tenor... appropriations during the Budget Execution Phase.
thereof. Indeed, such constitutional infirmities render the
provision in question null and void b. Requisites for the valid transfer... of appropriated funds
under Section
It is significant that Demetria was promulgated 25 days after
the ratification by the people of the 1987 Constitution, whose 25(5), Article VI of the 1987
Section 25(5) of Article VI is identical to Section 16(5), Article
VIII of the 1973 Constitution,... The foregoing history makes it Constitution... b.1. First Requisite GAAs of 2011... and 2012
evident that the Constitutional Commission included Section lacked valid provisions to... authorize transfers of funds
25(5), supra, to keep a tight rein on the exercise of the power to under... the DAP; hence, transfers under the
transfer funds appropriated by Congress by the President and
the other high officials of the Government named therein. DAP were unconstitutional

The only exception is found in Section 25 (5), Article VI of the Section 25(5), supra, not being a self-executing provision of
Constitution, by which the President, the President of the the Constitution, must have an implementing law for it to be
Senate, the Speaker of the House of Representatives, the Chief operative.
Justice of the Supreme Court, and the heads of Constitutional
Commissions are authorized to... transfer appropriations to the GAAs should expressly authorize the... transfer of funds.
augment any item in the GAA for their respective offices from
the savings in other items of their respective appropriations. Did the GAAs expressly authorize the transfer of funds?
The plain language of the constitutional restriction leaves no
2011 GAA... hereby... authorized to augment any item in this not actually been abandoned or discontinued yet.[147] They
Act from savings in other items of their respective stress that NBC No. 541, by allowing the withdrawn funds to
appropriations. be reissued to the "original program or project from which it
was withdrawn," conceded that the PAPs from which the...
2012 GAA... hereby... authorized to augment any item in this supposed savings were taken had not been completed,
Act from savings in other items of their respective abandoned or discontinu
appropriations
We partially find for the petitioners.
Even had a valid law authorizing the transfer of funds pursuant
to Section 25(5), supra, existed, there still remained two other The first principle is that Congress wields the power of the
requisites to be met, namely: that the source of funds to be purse. Congress decides how the budget will be spent; what
transferred were savings from appropriations within the PAPs to fund; and the amounts of money to be spent for each
respective offices; and... that the transfer must be for the PAP
purpose of augmenting an item of appropriation within the
respective offices. The... second principle is that the Executive, as the department
of the Government tasked to enforce the laws, is expected to
b.2. Second Requisite There were... no savings from which faithfully execute the GAA and to spend the budget in
funds could... be sourced for the DAP accordance with the provisions of the GAA

The petitioners claim that the funds used in the DAP the The third principle is that in... making the President's power to
unreleased appropriations and withdrawn unobligated augment operative under the GAA, Congress recognizes the
allotments were not actual savings within the context of need for flexibility in budget execution. In so doing, Congress
Section 25(5), supra, and the relevant provisions of the GAAs. diminishes its own power of the purse, for it delegates a
Belgica argues that "savings" should be... understood to refer to fraction of its power to the Executive.
the excess money after the items that needed to be funded have
been funded, or those that needed to be paid have been paid But Congress does not... thereby allow the Executive to
pursuant to the budget.[146] The petitioners posit that there override its authority over the purse as to let the Executive
could be savings only when the PAPs for which the... funds exceed its delegated authority... fourth principle is that savings
had been appropriated were actually implemented and should be actual. "Actual" denotes something that is real or
completed, or finally discontinued or abandoned. They insist substantial, or something that exists... presently in fact, as
that savings could not be realized with certainty in the middle opposed to something that is merely theoretical, possible,
of the fiscal year; and that the funds for "slow-moving" PAPs potential or hypothetical.[150]
could not be considered as savings... because such PAPs had
The foregoing principles caution us to construe savings strictly appropriations refer to... appropriations with allotments but
against expanding the scope of the power to augment. without disbursement authority.

The three instances listed in the GAAs' aforequoted definition For us to consider unreleased appropriations as savings, unless
were a sure indication that savings could be generated only these met the statutory definition of savings, would seriously
upon the purpose of the appropriation being fulfilled, or upon undercut the congressional power of the purse, because such
the need for the appropriation being no longer existent. appropriations had not even reached and been used by the
agency concerned vis-à-vis the PAPs... for which Congress had
The DBM declares that part of the savings brought under the allocated them.
DAP came from "pooling of unreleased appropriations such as
unreleased Personnel Services appropriations which will lapse Justice Carpio has validly observed in his Separate Concurring
at the end of the year, unreleased appropriations of slow Opinion that MOOE appropriations are deemed divided into
moving projects and discontinued... projects per Zero-Based twelve monthly allocations within the fiscal year; hence,
Budgeting findings." savings could be generated monthly from the excess or unused
MOOE appropriations other than the
The declaration of the DBM by itself does not state the clear
legal basis for the treatment of unreleased or unalloted Mandatory Expenditures and Expenditures for Business-type
appropriations as savings. Activities because of the physical impossibility to obligate and
spend such funds as MOOE for a period that already lapsed.
The fact alone that the appropriations are unreleased or Following this observation, MOOE for future months are not
unalloted is a mere description of the status of the items as savings and cannot be... transferred.
unalloted or... unreleased. They have not yet ripened into
categories of items from which savings can be generated. The petitioners accuse the respondents of forcing the
generation of savings in order to have a larger fund available
Appropriations remain unreleased, for instance, because of for discretionary spending. They aver that the respondents, by
noncompliance with documentary requirements (like the withdrawing unobligated allotments in the middle of the fiscal
Special year, in effect deprived funding for

Budget Request), or simply because of the unavailability of PAPs with existing appropriations under the GAAs
funds. But the appropriations do not actually reach the agencies
to which they were allocated under the GAAs, and have We agree with the petitioners.
remained with the DBM technically speaking. Ergo, unreleased
Contrary to the respondents' insistence, the withdrawals were He was still required to remain faithful to the provisions of the
upon the initiative of the DBM itself. T GAAs, given that his power to spend pursuant to the GAAs
was but a delegation to him from Congress. Verily, the power
The petitioners assert that no law had authorized the to spend the public wealth resided in Congress, not in the
withdrawal and transfer of unobligated allotments and the
pooling of unreleased appropriations; and that the unbridled Executive.[174] Moreover, leaving the spending power of the
withdrawal of unobligated allotments and the retention of Executive unrestricted would threaten to undo the principle of
appropriated funds were akin to the impoundment... of separation of powers. [175]... b.4 Third Requisite Cross-
appropriations that could be allowed only in case of border... augmentations from savings were... prohibited by the
"unmanageable national government budget deficit" under the Constitution
GAAs,[157] thus violating the provisions of the GAAs of
2011, 2012 and 2013 prohibiting the retention or deduction of By providing that the President, the President of the Senate, the
allotments. Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and the Heads of the Constitutional
The assertions of the petitioners are upheld Commissions may be authorized to augment any item in the
GAA "for their respective offices,"
The Executive could not circumvent this provision by declaring
unreleased appropriations and unobligated allotments as Section 25(5), supra, has delineated borders between their
savings prior to the end of the fiscal year. offices, such that funds appropriated for one office are
prohibited from crossing over to another office even in the
b.3. Third Requisite No funds from... savings could be guise of augmentation of a deficient item or items. Thus, we
transferred under... the DAP to augment deficient items... not call such transfers of funds... cross-border transfers or cross-
provided in the GAA... an appropriation for any PAP must first border augmentations.
be determined to be deficient before it could be augmented
from savings. Note is taken of the fact that the 2013 GAA To be sure, the phrase "respective offices" used in Section
already made this quite clear, thus:... lthough the OSG rightly 25(5), supra, refers to the entire Executive, with respect to the
contends that the Executive was authorized to spend in line President; the Senate, with respect to the Senate President; the
with its mandate to faithfully execute the laws (which included House of Representatives, with respect to the Speaker; the
the GAAs), such authority did not translate to unfettered Judiciary, with... respect to the Chief Justice; the Constitutional
discretion that allowed the President to substitute his own will Commissions, with respect to their respective Chairpersons.
for... that of Congress.
The respondents justified all the cross-border transfers thusly:
 99. The Constitution does not prevent the President from with the pertinent provisions of the GAAs. In particular, the
transferring savings of his department to another DBM avers that the unprogrammed funds could be availed of
department upon the latter's request, provided it is the when any of the following three instances... occur, to wit: (1)
recipient department that uses such funds to augment its the revenue collections exceeded the original revenue targets
own appropriation. In such a case, the proposed in the BESFs submitted by the President to Congress;
(2) new revenues were collected or realized from sources not
President merely gives the other department access to public originally considered in the BESFs; or (3) newly-approved
funds but he cannot dictate how they shall be applied by that loans for... foreign-assisted projects were secured, or when
department whose fiscal autonomy is guaranteed by the conditions were triggered for other sources of funds, such as
Constitution. perfected loan agreements for foreign-assisted projects.[192]
This view of the DBM was adopted by all the respondents in
Regardless of the variant characterizations of the cross-border their Consolidated
transfers of funds, the plain text of Section 25(5), supra,
disallowing cross-border transfers was disobeyed. Cross-border Comment
transfers, whether as augmentation, or as aid, were prohibited
under Section We cannot, therefore, subscribe to the respondents' view.

25(5), supra. 5.

4. Equal protection, checks and balances,... and public

accountability challenges
Sourcing the DAP from unprogrammed... funds despite the
original revenue targets... not having been exceeded was The denial of equal protection of any law should be an issue to
invalid be raised only by parties who supposedly suffer it, and, in these
cases, such parties would be the few legislators claimed to have
The petitioners point out that a condition for the release of the been discriminated against in the... releases of funds under the
unprogrammed funds was that the revenue collections must DAP. The reason for the requirement is that only such affected
exceed revenue targets; and that the release of the legislators could properly and fully bring to the fore when and
unprogrammed funds was illegal because such condition was how the denial of equal protection occurred, and explain why
not met.[191] there was a denial in their situation. The requirement was not...
met here.
The respondents disagree, holding that the release and use of
the unprogrammed funds under the DAP were in accordance
we have already held that the DAP and its implementing Acceleration Program, National Budget Circular No. 541 and
issuances were policies and... acts that the Executive could related executive issuances
properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or UNCONSTITUTIONAL for being in violation of Section
accelerate the economy of the country. 25(5), Article VI of the 1987 Constitution and the doctrine of
separation of powers, namely:
6.
(a) The withdrawal of unobligated allotments from the
Doctrine of operative fact was applicable implementing agencies, and the declaration of the withdrawn
unobligated allotments and unreleased appropriations as
The doctrine of operative fact recognizes the existence of the savings prior to the end of the fiscal year and without
law or executive act prior to the determination of its complying with the statutory definition of savings... contained
unconstitutionality as an operative fact that produced in the General Appropriations Acts;
consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or... executive act (b) The cross-border transfers of the savings of the Executive
but sustains its effects. It provides an exception to the general to augment the appropriations of other offices outside the
rule that a void or unconstitutional law produces no effect. Executive; and

In that context, as Justice Brion has clarified, the doctrine of (c) The funding of projects, activities and programs that were
operative fact can apply only to the PAPs that can no longer be not covered by any appropriation in the General Appropriations
undone, and whose beneficiaries relied in good faith on the Act.
validity of the DAP, but cannot apply to the authors,
proponents and implementors of the The Court further DECLARES VOID the use of
unprogrammed funds despite the absence of a certification by
DAP, unless there are concrete findings of good faith in their the National Treasurer that the revenue collections exceeded
favor by the proper tribunals determining their criminal, civil, the revenue targets for non-compliance with the conditions
administrative and other liabilities. provided in the relevant General Appropriations

Dispositive Acts.

WHEREFORE, the Court PARTIALLY GRANTS the Principles:

petitions for certiorari and prohibition; and DECLARES the
following acts and practices under the Disbursement 1.
Overview of the Budget System NEP provides the details of spending for each department and
agency by program, activity... or project (PAP), and is
The Philippine Budget Cycle submitted in the form of a proposed GAA

(1) Budget Preparation; (2) Budget Legislation; (3) Budget Once the NEP and the BESF are approved by the President and
Execution; and (4) Accountability... c.1. Budget Preparation the Cabinet, the DBM prepares the budget documents for...
submission to Congress.
The budget preparation phase is commenced through the
issuance of a Budget Call by the DBM The budget documents consist of: (1) the President's Budget
Message, through which the President explains the policy
The Budget Call is of two kinds, namely: (1) a National Budget framework and budget priorities; (2) the BESF, mandated by
Call, which is addressed to all agencies, including state Section 22, Article VII of the Constitution,[68] which contains
universities and colleges; and (2) a Corporate Budget Call, the macroeconomic assumptions, public sector context,
which... is addressed to all government-owned and -controlled breakdown of the expenditures and funding sources for the
corporations (GOCCs) and government financial institutions fiscal year and the two previous years; and (3) the NEP.
(GFIs)... the various departments and agencies submit their
respective Agency Budget Proposals to the DBM. Public or government expenditures are generally classified into
two categories,... (1) capital expenditures or outlays; and (2)
DBM bureaus thereafter review the Agency Budget Proposals current operating expenditures.
and come up with recommendations for the Executive Review
Board, comprised by the DBM Secretary and the DBM's senior Capital expenditures are the expenses whose usefulness lasts
officials. The discussions of the Executive Review for more than one year,... and which add to the assets of the
Government,... Current operating expenditures are the
Board cover the prioritization of programs and their purchases of goods and services in current... consumption the
corresponding support vis-à-vis the priority agenda of the benefit of which does not extend beyond the fiscal yea
National Government, and their implementation.
The two components of current expenditures are those for
The DBM next consolidates the recommended agency budgets personal services (PS), and those for maintenance and other
into the National Expenditure Program (NEP) and a Budget of operating expense
Expenditures and Sources of Financing (BESF).
Public expenditures
(1) economic development expenditures (i.e., expenditures on (i.e., repayment of loans and advances made by government
agriculture and natural resources, transportation and corporations and local governments and the receipts and shares
communications, commerce and industry, and other... in income of the Banko Sentral ng Pilipinas, and other
economic development efforts);[71] (2) social services or receipts);[83] and (5) public borrowings (i.e., proceeds of...
social development expenditures (i.e., government outlay on repayable obligations generally with interest from domestic
education, public health and medicare, labor and welfare and and foreign creditors of the Government in general, including
others);[72] (3) general government or... general public the National Government and its political subdivisions).[84]...
services expenditures (i.e., expenditures for the general c.2. Budget Legislation
government, legislative services, the administration of justice,
and for pensions and gratuities); [73] (4) national defense The Budget Legislation Phase covers the period commencing
expenditures (i.e., sub-divided... into national security from the time Congress receives the President's Budget, which
expenditures and expenditures for the maintenance of peace is inclusive of the NEP and the BESF, up to the President's
and order);[74] and (5) public debt. approval of the GAA

Public expenditures may further be classified according to the Budget

nature of funds, i.e., general fund, special fund or bond fund...
public revenues complement public expenditures and cover all Authorization Phase, and involves the significant participation
income or receipts of the government treasury used to support of the Legislative through its deliberations.
government expenditures
Initially, the President's Budget is assigned to the House of
In the Philippines, public revenues are generally derived from Representatives' Appropriations Committee on First Reading
the following sources, to wit: (1) tax revenues (i.e., compulsory
contributions to finance government activities);[80] (2) capital Appropriations Committee and its various Sub-Committees
revenues (i.e., proceeds... from sales of fixed capital assets or schedule and conduct budget hearings to examine the PAPs of
scrap thereof and public domain, and gains on such sales like the... departments and agencies.
sale of public lands, buildings and other structures, equipment,
and other properties recorded as fixed assets);[81] (3) grants House of Representatives drafts the General Appropriations
(i.e.,... voluntary contributions and aids given to the Bill (GA
Government for its operation on specific purposes in the form
of money and/or materials, and do not require any monetary The GAB is sponsored, presented and defended by the House
commitment on the part of the recipient);[82] (4) extra- of Representatives' Appropriations Committee and Sub-
ordinary income Committees in plenary session. As with other laws, the GAB is
approved on Third Reading before the House of accomplished through the Modified Disbursement Scheme
Representatives' version is transmitted... to the Senate under wehich disbursements chargeable against the National
Treasury are coursed through the government... servicing
The Senate's Finance Committee and its banks.

Sub-Committees may submit the proposed amendments to the c.4. Accountability

GAB to the plenary of the Senate only after the House of
Representatives has formally transmitted its version to the An agency's accountability may be examined and evaluated
Senate. The Senate version of the GAB is likewise approved on through (1) performance targets and outcomes; (2) budget
Third Readi accountability reports; (3) review of agency performance; and
(4) audit conducted by the Commission on Audit (COA).
The House of Representatives and the Senate then constitute a
panel each to sit in the Bicameral Conference Committee for 2.
the purpose of discussing and harmonizing the conflicting
provisions of their versions of the GAB. The "harmonized" Nature of the DAP as a fiscal plan... a. DAP was a program
version of the GAB is next... presented to the President for designed to... promote economic growth
approv... c.3. Budget Execution
Administration's "blueprint for public policy" and reflects the
The Budget Execution Phase is primarily the function of the Government's goals and... strategies
DBM, which is tasked to perform the following procedures,
namely: (1) to issue the programs and guidelines for the... The Administration would thereby accelerate government
release of funds; (2) to prepare an Allotment and Cash Release spending by: (1) streamlining the implementation process
Program; (3) to release allotments; and (4) to issue through the clustering of infrastructure projects... of the
disbursement authorities. Department of Public Works and Highways (DPWH) and the
Department of Education (DepEd), and (2) frontloading PPP-
Thereafter, the DBM prepares an Allotment Release Program related projects[107] due for implementation in the following
(ARP) and a Cash Release Program (CRP). The ARP sets a year.[108]
limit for allotments issued in general and to a specific agency.
The CRP fixes the monthly, quarterly and annual The DAP was a government policy or strategy designed to
disbursement... levels. stimulate the economy through accelerated spending.

Actual disbursement or spending of government funds In the context of the DAP's adoption and implementation being
terminates the Budget Execution Phase and is usually a function pertaining to the Executive as the main actor during
the Budget Execution Stage under its... constitutional mandate It is significant that Demetria was promulgated 25 days after
to faithfully execute the laws, including the GAAs, Congress the ratification by the people of the 1987 Constitution, whose
did not need to legislate to adopt or to implement the DAP. Section 25(5) of Article VI is identical to Section 16(5), Article
VIII of the 1973 Constitution, to wit:
Congress could appropriate but would have nothing more to do
during the Budget Execution Stage. Indeed, appropriation was Section 25. x x x... x x x x
the... act by which Congress "designates a particular fund, or
sets apart a specified portion of the public revenue or of the 5. No law shall be passed authorizing any transfer of
money in the public treasury, to be applied to some general appropriations; however, the President, the President of
object of governmental expenditure, or to some individual the Senate, the Speaker of the House of
purchase or expense." Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions
'"In a strict sense, appropriation has been defined 'as nothing may, by law, be authorized... to augment any item in
more than the legislative authorization prescribed by the the general appropriations law for their respective
Constitution that money may be paid out of the Treasury,' offices from savings in other items of their respective
while... appropriation made by law refers to 'the act of the appropriations.
legislature setting apart or assigning to a particular use a certain
sum to be used in the payment of debt or dues from the State to Requisites for the valid transfer... of appropriated funds under
its creditors.'" Section

On the other hand, the President, in keeping with his duty to 25(5), Article VI of the 1987
faithfully execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to changes in the Constitution
country's economic situation.
The transfer of appropriated funds, to be valid under Section
He could adopt a plan like the 25(5), supra, must be made upon a concurrence of the
following requisites, namely:
DAP for the purpose. He could pool the savings and identify
the PAPs to be funded under the DAP. (1) There is a law authorizing the President, the President of
the Senate, the Speaker of the House of Representatives, the
In such actions, the Executive did not usurp the power vested Chief Justice of the Supreme Court, and the heads of the
in Congress under Section 29(1), Article VI of the Constitutional Commissions to transfer funds within their
Constitution. respective offices;
(2) The funds to be transferred are savings generated from the government are public funds;" and (2) "a Principle of
appropriations for their respective offices; and Appropriations Control, prohibiting expenditure of any public
money without legislative authorization.
(3) The purpose of the transfer is to augment an item in the
general appropriations law for their respective offices.

Appropriations have been considered "released" if there has

already been an allotment or authorization to incur obligations
and disbursement authority.

According to Philippine Constitution Association v.

Enriquez:[159] "Impoundment refers to a refusal by the
President, for whatever reason, to spend funds made available
by Congress. It is the failure to spend or obligate budget
authority of any... type." Impoundment under the GAA is
understood to mean the retention or deduction of
appropriations. The 2011 GAA authorized impoundment only
in case of unmanageable National Government budget deficit,
to wit:

Augmentation implies the existence in this Act of a program,

activity, or project with an appropriation, which upon
implementation, or subsequent evaluation of needed resources,
is determined to be deficient. In no case shall a non-existent
program,... activity, or project, be funded by augmentation
from savings or by the use of appropriations otherwise
authorized in this Act.

It is the President who proposes the budget but it is Congress

that has the final say on matters of appropriations.[180] For
this purpose, appropriation involves two governing principles,
namely: (1) "a Principle of the Public Fisc, asserting that all...
monies received from whatever source by any part of the
 conceiving and formulating "additional flaws" or "newly
discovered errors'" therein, or thinking up some injury or
VELASCO JR., J.: prejudice to the rights of the movant for reconsideration.
"Piece-meal1" impugnation of a judgment by successive
Once again, respondent-movants Bases Conversion motions for reconsideration is anathema, being precluded by
Development Authority (BCDA) and Arnel Paciano D. the salutary axiom that a party seeking the setting aside of a
Casanova, Esq. (Casanova) urge this Court to reconsider its judgment, act or proceeding must set out in his motion all the
August 13, 2014 Decision[1] in the case at bar. In their Motion grounds therefor, and those not so included are deemed waived
for Leave to file Second Motion for Reconsideration and to and cease to be available for subsequent motions.
Admit the Attached Second Motion for Reconsideration (With
Motion for the Court en banc to Take Cognizance of this Case For all litigation must come to an end at some point, in
and/to Set the Case for Oral Argument Before the Court en accordance with established rules of procedure and
banc),[2] respondent-movants remain adamant in claiming that jurisprudence. As a matter of practice and policy, courts must
the assailed rulings of the Court would cause unwarranted and dispose of every case as promptly as possible; and in
irremediable injury to the government, specifically to its major fulfillment of their role in the administration of justice, they
beneficiaries, the Department of National Defense (DND) and should brook no delay in the termination of cases by stratagems
the Armed Forces of the Philippines (AFP).[3] or maneuverings of parties or their lawyers...[5]

The motion fails to persuade. Indeed, all cases are to eventually reach a binding conclusion
and must not remain indefinitely afloat in limbo. Otherwise,
The instant recourse partakes the nature of a second motion for the exercise of judicial power would be for naught if court
reconsideration, a prohibited pleading under Section 2, Rule decisions can effectively be thwarted at every turn by dilatory
56,[4] in relation to Sec. 2, Rule 52 of the Rules of Court. The tactics that prevent the said rulings from attaining finality.
rule categorically states: "no second motion for reconsideration Hence, the Court has taken a conservative stance when
of a judgment or final resolution by the same party shall be entertaining second motions for reconsideration, allowing only
entertained." The rationale behind the rule is explained in those grounded on extraordinarily persuasive reasons and, even
Manila Electric Company v. Barlis, thusly: then, only upon express leave first obtained.[6] As proscribed
under Sec. 3, Rule 15 of the Internal Rules of the Supreme
The propriety or acceptability of such a second motion for
Court:
reconsideration is not contingent upon the averment of "new"
grounds to assail the judgment, i.e.. grounds other than those SEC. 3. Second motion for reconsideration. - The Court shall
theretofore presented and rejected. Otherwise, attainment of not entertain a second motion for reconsideration, and any
finality of a judgment might be staved off indefinitely, exception to this rule can only be granted in the higher
depending on the party's ingeniousness or cleverness in
interest of justice by the Court en banc upon a vote of at least
two-thirds of its actual membership. There is reconsideration Unfortunately for respondent-movants, the foregoing
"in the higher interest of justice" when the assailed decision is requirements do not obtain in the case at bench. To begin with,
not only legally erroneous, but is likewise patently unjust and there are no extraordinarily persuasive reasons "in the higher
potentially capable of causing unwarranted and irremediable interest of justice" on which the instant second motion for
injury or damage to the parties. A second motion for reconsideration is anchored on. The enumerated grounds for
reconsideration can only be entertained before the ruling the second motion for reconsideration say as much:
sought to be considered becomes final by operation of law or
by the Court's declaration. GROUNDS[8]

In the Division, a vote of three Members shall be required I

to elevate a second motion for reconsideration to the Court
En Banc.[7] THE AGREEMENT BETWEEN SMLI AND BCDA WAS
(emphasis added) NEVER PERFECTED TO COMPEL BCDA TO COMPLETE
THE COMPETITIVE CHALLENGE AS THERE WAS NO
MEETING OF THE MINDS.
Succinctly put, the concurrence of the following elements are
required for a second motion for reconsideration to be II
entertained:
THE GOVERNMENT RESERVATION TO CANCEL THE
1. The motion should satisfactorily explain why COMPETITIVE CHALLENGE IS A POLICY DECISION
granting the same would be in the higher AND REMAINS ELECTIVE IN THE ENTIRE
interest of justice; PROCEEDINGS AND BINDING TO ALL PRIVATE
2. The motion must be made before the ruling SECTOR ENTITIES INCLUDING SMLI.
sought to be reconsidered attains finality;
3. If the ruling sought to be reconsidered was III
rendered by the Court through one of its
Divisions, at least three (3) members of the said THE DECISION TO TERMINATE THE COMPETITIVE
Division should vote to elevate the case to the CHALLENGE IS A POLICY AND ECONOMIC DECISION.
Court En Banc; and MANDAMUS WILL THEREFORE NOT LIE.
4. The favorable vote of at least two-thirds of the
Court En Banc's actual membership must be IV
mustered for the second motion for
reconsideration to be granted.
 BCDA and SMLI have agreed to subject SMLI's Original
ESTOPPEL CANNOT OPERATE TO PREJUDICE THE Proposal to Competitive Challenge pursuant to Annex C -
GOVERNMENT. Detailed Guidelines for Competitive Challenge Procedure for
Public-Private Joint Ventures of the NEDA .TV guidelines,
V which competitive challenge process shall be immediately
implemented following the Terms of Reference (TOR)
THE PERCEIVED GOVERNMENT LOSSES IS NOT Volumes 1 and 2.[12] (emphasis added)
IMAGINED BUT REAL.
Under the agreement and the National Economic Development
Based on the records, the second motion for reconsideration is Authority Joint Venture Guidelines (NEDA JV Guidelines), the
a mere rehash, if not a reiteration, of respondent-movants' BCDA is duty-bound to proceed with and complete the
previous arguments and submissions, which have amply been competitive challenge after the detailed negotiations proved
addressed by the Court in its August 13, 2014 Decision, and successful. Thus, the Court found that BCDA gravely abused
effectively affirmed at length in its March 18, 2015 its discretion for having acted arbitrarily and contrary to its
Resolution.[9] contractual commitment to SMLI, to the damage and prejudice
of the latter, when it cancelled the competitive challenge prior
To recapitulate, there exists between SMLI and BCDA a to its completion.[13]
perfected agreement, embodied in the Certification of
Successful Negotiations, upon which certain rights and Respondent-movants' reliance on the Terms of Reference
obligations spring forth, including the commencement of (TOR) provision on Qualifications and Waivers[14] to cancel
activities for the solicitation for comparative proposals.[10] As the Swiss Challenge is misplaced for the provision, as couched,
evinced in the Certification of Successful Negotiation: focuses only on the eligibility requirements for Private Sector
Entities (PSEs) who wish to challenge SMLI's proposal, and
NOW, THEREFORE, for and in consideration of the not to the Swiss Challenge in its entirety.[15] To rule otherwise -
foregoing, BCDA and SMLI have, after successful that the TOR allows the BCDA to cancel the competitive
negotiations pursuant to Stage II of Annex C x x x. reached an challenge at any time - would contravene the NEDA JV
agreement on the purpose, terms and conditions on the JV Guidelines, which has the force and effect of law.[16]
development of the subject property, which shall become the
terms for the Competitive Challenge pursuant to Annex C of Respondent-movants cannot also find solace in the dictum that
the Guidelines, x x x.[11] the State is never be barred by estoppel by the perceived
mistakes or errors of its officials or agents.[17] As jurisprudence
xxxx elucidates, the doctrine is subject to exceptions, viz:
Estoppels against the public are little favored. They should not However, this alleged adverse economic impact on the
be invoked except in a rare and unusual circumstances, and government, in finding for SMLI, remains speculative. To
may not be invoked where they would operate to defeat the clarify, Our ruling did not award the project in petitioner's
effective operation of a policy adopted to protect the public. favor but merely ordered that SMLI's proposal be subjected to
They must be applied with circumspection and should be a competitive challenge. And lest it be misunderstood, the
applied only in those special cases where the interests of justice perceived low floor price for the project, based on SMLI's
clearly require it. Nevertheless, the government must not be proposal, remains just that - a floor price. Without first
allowed to deal dishonorably or capriciously with its citizens, subjecting SMLI's proposal to a competitive challenge, no bid
and must not play an ignoble part or do a shabby thing; and can yet be obtained from private sector entities and, corollarily,
subject to limitations x x x, the doctrine of equitable estoppel no determination can be made at present as to whether or not
may be invoked against public authorities as well as against the final bid price for the project is indeed below the property's
private individuals.[18] fair market value.[23]

Here, despite BCDA's repeated assurances that it would respect Overall, the foregoing goes to show that the BCDA failed to
SMLFs rights as an original proponent, and after putting the establish a justifiable reason for its refusal to proceed with the
latter to considerable trouble and expense, BCDA went back on competitive challenge.[24] We are left to believe that the
its word and instead ultimately cancelled its agreement with cancellation of the competitive challenge, in violation not only
SMLI.[19] BCDA's capriciousness became all the more evident of the agreement between the parties but also of the NEDA JV
in its conflicting statements as regards whether or not SMLI's Guidelines, was only due to BCDA's whims and caprices, and
proposal would be advantageous to the government.[20] The is correctible by the extraordinary writ of certiorari.
alleged dubiousness of the proceeding that led to the perfection
of the agreement cannot also be invoked as a ground to cancel With the foregoing disquisitions, respondent-movants' second
the contract for to rule that irregularities marred the actions of motion for reconsideration, as its first, is totally bereft of merit.
BCDA's former board and officers, as respondent-movant There exists no argument "in the higher interest of justice" that
would have us to believe, would be tantamount to prematurely would convincingly compel this Court to even admit the
exposing them, who are non-parties to this case, to potential prohibited pleading. It also then goes without saying that this
administrative liability without due process of law.[21] Division does not find cogent reason to elevate the matter to
the Court en banc.
Respondent-movants would then asseverate that to proceed
with the competitive challenge starting at the floor price of Furthermore, it is well to note that the Court's ruling in this
P38,500.00 per square meter is patently unjust and grossly case has already attained finality and an Entry of Judgment[25]
disadvantageous to the government since the property in issue has correspondingly been issued. The Court, therefore, no
is allegedly appraised at P78,000.00 per square meter.[22] longer has jurisdiction to modify the Decision granting SMLI's
petition for its finality and executoriness consequently rendered SECTION 4. x x x x
it immutable and unalterable.[26] As elucidated in Mocorro, Jr.
v. Ramirez: (2) All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall be
This quality of immutability precludes the modification of a heard by the Supreme Court en banc, and all other cases which
final judgment, even if the modification is meant to correct under the Rules of Court are required to be heard en banc,
erroneous conclusions of fact and law. And this postulate holds including those involving the constitutionality, application, or
true whether the modification is made by the court that operation of presidential decrees, proclamations, orders,
rendered it or by the highest court in the land. The orderly instructions, ordinances, and other regulations, shall be
administration of justice requires that, at the risk of occasional decided with the concurrence of a majority of the Members
errors, the judgments/resolutions of a court must reach a point who actually took part in the deliberations on the issues in the
of finality set by the law. The noble purpose is to write finis to case and voted thereon, (emphasis added)
dispute once and for all. This is a fundamental principle in our
justice system, without which there would be no end to
In support of their contention, respondent-movants cite the
litigations. Utmost respect and adherence to this principle must
1953 case of Ykalina v. Oricio, which held that a presidential
always be maintained by those who exercise the power of
order may either be in a written memorandum or merely
adjudication. Any act, which violates such principle, must
verbal.[29] They then argue that the issuance of Supplemental
immediately be struck down. Indeed, the principle of
Notice No. 5, effectively cancelling the Swiss Challenge of
conclusiveness of prior adjudications is not confined in its
petitioner's duly accepted suo moto proposal, was pursuant to a
operation to the judgments of what are ordinarily known as
verbal presidential order or instruction. And pursuant to the
courts, but extends to all bodies upon which judicial powers
constitutional provision, the challenge against this presidential
had been conferred.[27]
directive, so respondent-movants insist, is within the
jurisdiction of Court en banc, not with its divisions.[30]
The only exceptions to the rule on the immutability of final
judgments are (1) the correction of clerical errors, (2) the so- We disagree.
called nunc pro tunc entries which cause no prejudice to any
party, and (3) void judgments.[28] Respondent-movants, Respondent-movants' interpretation of the antiquated 1953
therefore, question the validity of the Court's Third Division's doctrine in Ykalina is highly distorted. In the said case, the
rulings and postulate that a deliberation of the case by the Court, finding for respondent Ananias Oricio (Oricio),
Court en banc is warranted under Sec. 4(2), Article VIII, of the sustained his appointment in spite of having been merely
1987 Constitution, which reads: verbally made. As held:
While the appointment of an officer is usually evidenced by a executive order or presidential issuance in intimating to the
Commission, as a general rule it is not essential to the validity BCDA that he wishes for the competitive challenge to be
of an appointment that a commission issue, and an cancelled. There was no document offered that was signed by
appointment may be made by an oral announcement of his either the Chief Executive or the Executive Secretary, for the
determination by the appointing power.[31] (emphasis added, President, to that effect. The situation, therefore, does not
citation omitted) involve a presidential order or instruction within the
contemplation of Sec. 4(2), Article VIII of the Constitution,
Based on the Court's reasoning, the presidential order that and, consequently, does not fall within the jurisdiction of the
"may either be in a written memorandum or merely verbal " Court en banc. Given the glaring differences in context, the
adverted to in Ykalina should therefore be understood as doctrine in Ykalina cannot find application herein, and cannot
limited specifically to those pertaining to appointments. operate to divest the Court's division of its jurisdiction over the
Current jurisprudence, however, no longer recognizes the instant case.
validity of oral appointments and, in fact, requires the
transmission and receipt of the necessary appointment papers Anent the joint motion for intervention[36] filed by the DND
for their completion.[32] and AFP, both agencies claimed therein that they are the
statutory beneficiaries of the proceeds from the conversion,
To further distinguish Ykalina with the extant case, it was development, and disposal of the camps transferred to BCDA,
observed in the former that Oricio's verbal appointment was which include the subject property. These expected proceeds
established in evidence by a communication duly signed by the that would redound to their benefit are to be applied in funding
then Acting Executive Secretary "by order of the President."[33] the AFP Modernization Program as per Republic Act No. (RA)
Applied in modern day scenarios, the limited application of the 7227,[37] as amended by RA 10349.[38] As such, so the
Ykalina doctrine should only govern those that were similarly applicants claim, they have legal and financial interests and
verbally given by the president but were, nevertheless, attested stakes in the outcome of the subject matter, and should,
to by the Executive Secretary. This is in hew with Section 27 therefore, be allowed to intervene.
(10) of Book III, Title III, Chapter 9-B of Executive Order No.
292 (EO 292),[34] otherwise known as the Administrative Code The argument does not hold merit.
of 1987, which empowers the Executive Secretary to attest
executive orders and other presidential issuances "by authority Intervention is not a matter of absolute right but may be
of the President." These "executive orders and presidential permitted by the Court when the applicant shows facts which
issuances," in turn, relate to the enumeration under Book III, satisfy the requirements of the statute authorizing
Title I, Chapter 2 of EO 292.[35] intervention."[39] Under the Rules of Court,[40] what qualifies a
person to intervene is his possession of a legal interest in the
Here, it is well to recall that the President did not issue any said case - be it in the subject matter of litigation itself, in the
success of the parties, or in the resultant distribution of the DND and AFP, in this case, to intervene. And in any event,
property in custodia legis. The Court has further expounded on regardless of the presence or absence of sufficient legal
this concept of legal interest and set the parameters for granting interest, the Comment in Intervention[43] filed does not contain
intervention as follows:[41] any new issue that has not yet been resolved by the Court in its
Decision and Resolution. Hence, there is no cogent reason to
xxx As regards the legal interest as qualifying factor, this Court grant the motion for intervention and to admit DND and AFP's
has ruled that such interest must be of a direct and immediate comment.
character so that the intervenor will either gain or lose by the
direct legal operation of the judgment. The interest must be As a final note, the Rule of Law allows the citizenry to
actual and material, a concern which is more than mere reasonably assume that future conduct will be in observance of
curiosity, or academic or sentimental desire; it must not be government regulations, and to conceivably expect that any
indirect and contingent, indirect and remote, conjectural, deviation therefrom will not be countenanced.[44] The
consequential or collateral. However, notwithstanding the Judiciary, therefore, undertakes to strengthen the Rule of Law
presence of a legal interest, permission to intervene is subject by embedding a sense of predictability in the jurisprudence it
to the sound discretion of the court, the exercise of which is builds.
limited by considering "whether or not the intervention will
unduly delay or prejudice the adjudication of the rights of the To allow the government to trample on the very rules it itself
original parties and whether or not the intervenor's rights may issued and to renege on its contractual and legal obligations by
be fully protected in a separate proceeding, (emphasis added) invoking the all too familiar mantra of public interest, at any
time it pleases, will only result in uncertainty in the application
In the case at bar, the DND and AFP moved for intervention on of laws, a trait inimical to the Rule of Law. The Court,
the ground that they are the beneficiaries of the proceeds from therefore, steps in to send a strong signal that the government
the project to be undertaken by the BCDA. Obviously, this will be honorable in its dealings and that it can be trusted in the
"right to the proceeds" is far from actual as it veritably rests on partnerships it forges with the private sector. In holding
the success of the bidding process, such that there will be no respondent-movants accountable for the representations they
proceeds that will accrue to their benefit to speak of if the made during the long drawn-out negotiation process and during
project does not push through. All the applicants have then, at the times the competitive challenge repeatedly encountered
best, is an inchoate right to the proceeds of the development of roadblocks in the form of constant delays and postponements,
the property in litigation. Said inchoate right, the Court endeavors to concretize into a norm the government's
contradistinguished with vested rights that have become fixed strict adherence to its statutory enactments, and its fulfilment in
and established, are still expectant and contingent and, thus, good faith of the commitments it made and of the covenants it
open to doubt or controversy.[42] Consequently, the said right entered into. By granting SMLI's petition, We ruled that this is
does not constitute sufficient legal interest that would qualify the conduct the public should reasonably expect of the
government. This is what strengthening the Rule of Law shall be entertained in this case.
exacts.
SO ORDERED.
Nevertheless, We underscore Our finding that "the government
is not without protection for it is not precluded from availing
of safeguards and remedies it is entitled to after soliciting
comparative proposals, as provided under the TOR and the
NEDA JV Guidelines".[45] Indeed, there are sufficient
safeguards installed in the guidelines to ensure that the
government will not be in the losing end of the agreement;
enough, in fact, to avoid the dreaded "unwarranted, irreparable
injury" that it will allegedly sustain. If only respondent-
movants devoted sufficient time in perusing and reviewing the
NEDA JV guidelines, they would have identified the remedies
BCDA, and ultimately the Philippine government, is entitled to
that would have dispelled any apprehension towards
conducting the competitive challenge, and any fear of the
government ending up with a low price for the lot.

WHEREFORE, in view of the foregoing, the instant Motion

for Leave to file Second Motion for Reconsideration and to
Admit the Attached Second Motion for Reconsideration (With
Motion for the Court en banc to Take Cognizance of this Case
and/to Set the Case for Oral Argument Before the Court en
banc), filed by the respondent-movants Bases Conversion
Development Authority and Arnel Paciano D. Casanova, is
hereby DENIED for lack of merit. Likewise, the Motion for
Leave to File Comment-in-Intervention and to Admit Attached
Comment-in-Intervention, jointly filed by the Department of
National Defense and the Armed Forces of the Philippines, is
hereby DENIED.

No further pleadings, motions, letters, or other communications

 Petitioners argue that EDCA’s provisions fall outside the
aguisag v. Exec Secretary allegedly limited scope of the VFA and MDT because it

Ochoa July 26, 2016 G.R. No. provides a wider arrangement than the VFA for military bases,
troops, and facilities, and it allows the establishment of U.S.

212426 EDCA, Treaty, military bases.

Executive Agreement, ISSUE:

International Agreement Whether or not EDCA is a treaty.

RULING:
August 22, 2018
Petitioners detail their objections to EDCA in a similar way to
FACTS: their original petition, claiming that the VFA and MDT did not
allow EDCA to contain the following provisions:
This is a Resolution on the Motion for Reconsideration seeking
to reverse the Decision of this Court in Saguisag et. al., v. 1. Agreed Locations
Executive Secretary dated 12 January 2016.
2. Rotational presence of personnel
Petitioners claim this Court erred when it ruled that the
Enhanced Defense Cooperation Agreement (EDCA) between 3. U.S. contractors
the Philippines and the US was not a treaty. In connection to
this, petitioners move that EDCA must be in the form of a 4. Activities of U.S. contractors
treaty in order to comply with the constitutional restriction
under Section 25, Article· XVIII of the 1987 Constitution on We ruled in Saguisag, et. al. that the EDCA is not a treaty
foreign military bases, troops, and facilities. Additionally, they despite the presence of these provisions. The very nature of
reiterate their arguments on the issues of telecommunications, EDCA, its provisions and subject matter, indubitably
taxation, and nuclear weapons. categorize it as an executive agreement – a class of agreement
that is not covered by the Article XVIII Section 25 restriction –
The principal reason for the Motion for Reconsideration is in painstaking detail. To partially quote the Decision:
evidently petitioners’ disagreement with the Decision that
EDCA implements the VFA and Mutual Defense Treaty
(MDT).
Executive agreements may dispense with the requirement of An international agreement may take different forms: treaty,
Senate concurrence because of the legal mandate with which act, protocol, agreement, concordat, compromis d’arbitrage,
they are concluded. convention, covenant, declaration, exchange of notes, statute,
pact, charter, agreed minute, memorandum of agreement,
As culled from the deliberations of the Constitutional modus vivendi, or some other form.
Commission, past Supreme Court Decisions, and works of
noted scholars, executive agreements merely involve Consequently, under international law, the distinction between
arrangements on the implementation of existing policies, rules, a treaty and an international agreement or even an executive
laws, or agreements. agreement is irrelevant for purposes of determining
international rights and obligations.
They are concluded
However, this principle does not mean that the domestic law
(1) to adjust the details of a treaty; distinguishing treaties, international agreements, and executive
agreements is relegated to a mere variation in form, or that the
(2) pursuant to or upon confirmation by an act of the constitutional requirement of Senate concurrence is demoted to
Legislature; or an optional constitutional directive. There remain two very
important features that distinguish treaties from executive
(3) in the exercise of the President’s independent powers under agreements and translate them into terms of art in the domestic
the Constitution. setting.

The raison d’etre of executive agreements hinges on prior First, executive agreements must remain traceable to an
constitutional or legislative authorizations. express or implied authorization under the Constitution,
statutes, or treaties. The absence of these precedents puts the
The special nature of an executive agreement is not just a validity and effectivity of executive agreements under serious
domestic variation in international agreements. question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not to
International practice has accepted the use of various forms and defeat or interfere in the performance of these rules. In turn,
designations of international agreements, ranging from the executive agreements cannot create new international
traditional notion of a treaty – which connotes a formal, solemn obligations that are not expressly allowed or reasonably
instrument – to engagements concluded in modern, simplified implied in the law they purport to implement.
forms that no longer necessitate ratification.
Second, treaties are, by their very nature, considered superior to
executive agreements. Treaties are products of the acts of the
Executive and the Senate unlike executive agreements, which A.M. No. 98-5-01-SC November 9, 1998
are solely executive actions. Because of legislative In Re Appointments dated March 30, 1998 of Hon. Mateo A.
participation through the Senate, a treaty is regarded as being Valenzuela and Hon. Placido B. Vallarta as Judges of the
on the same level as a statute. If there is an irreconcilable Regional Trial Court of Branch 62, Bago City and of Branch
conflict, a later law or treaty takes precedence over one that is 24, Cabananatuan City, respectively.
prior. An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty
are considered ineffective. Both types of international NARVASA, C.J.:
agreement are nevertheless subject to the supremacy of the The question presented for resolution in the administrative matter at
Constitution. bar is whether, during the period of the ban on appointments imposed
by Section 15, Article VII of the, Constitution, the President is
Subsequently, the Decision goes to great lengths to illustrate nonetheless required to fill vacancies in the judiciary, in view of
the source of EDCA’s validity, in that as an executive Sections 4(1) and 9 of Article VIII. A corollary question is whether he
agreement it fell within the parameters of the VFA and MDT, can make appointments to the judiciary during the period of the ban
and seamlessly merged with the whole web of Philippine law. in the interest of public service.
We need not restate the arguments here. It suffices to state that Resolution of the issues is needful; it will preclude a recurrence of any
this Court remains unconvinced that EDCA deserves treaty conflict in the matter of nominations and appointments to the
status under the law. Judiciary — as that here involved — between the Chief Executive, on
the one hand, and on the other, the Supreme Court and the Juducial
We find no reason for EDCA to be declared unconstitutional. It and Bar Council over which the Court exercises general supervision
and wields specific powers including the assignment to it of other
fully conforms to the Philippines’ legal regime through the
functions and duties in addition to its principal one of recommending
MDT and VFA. It also fully conforms to the government’s appointees to the Judiciary, and the determination of its Members
continued policy to enhance our military capability in the face emoluments.1
of various military and humanitarian issues that may arise.
I. The Relevant Facts

The Resolution of the Court En Banc, handed down on May 14, 1998,
sets out the relevant facts and is for that reason hereunder reproduced
in full.

Referred to the Court En Banc by the Chief Justice are the

appointments signed by His Excellency the President under date of
March 30, 1998 of Hon. Mateo A. Valenzuela and Hon. Placido B.
Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City
and of Branch 24, Cabanatuan City, respectively. The appointments
were received at the Chief Justice's chambers on May 12, 1998. The
referral was made in view of the serious constitutional issue submitted to the President for consideration, together with the
concerning said appointments arising from the pertinent antecedents. Council's nominations for eight (8) vacancies in the Court of Appeals.

The issue was first ventilated at the meeting of the Judicial and Bar On April 6, 1998 the Chief Justice received an official communication
Council on March 9, 1998. The meeting had been called, according to from the Executive Secretary transmitting the appointments of eight
the Chief Justice as Ex Officio Chairman, to discuss the question raised (8) Associate Justices of the Court of Appeals all of which had been
by some sectors about the "constitutionality of ** appointments" to the duly signed on March 11, 1998 by His Excellency the President. In view
Court of Appeals, specifically, in light of the forthcoming presidential of the fact that all the appointments had been sign on March 11, 1998
elections. Attention was drawn to Section 15, Article VII of the — the day immediately before the commencement of the ban on
Constitution reading as follows: appointments imposed by Section 15, Article VII of the Constitution —
who impliedly but no less clearly indicated that the President's Office
Sec. 15. Two months immediately before the next presidential did not agree with the hypothesis that appointments to the Judiciary
elections and up to the end of his, term, a President or Acting were not covered by said ban, the Chief Justice resolved to defer
President shall not make appointments, except temporary consideration of nominations for the vacancy in the Supreme Court
appointments to executive positions when continued vacancies created by the retirement of Associate Justice Ricardo J. Francisco,
therein will prejudice public service or endanger public safety. specially considering that the Court had scheduled sessions in Baquio
On the other hand, appointments to fill vacancies in the Supreme City in April, 1998, that the legislature's representatives to the JBC
Court during the period mentioned in the provision just quoted could were occupied with the forthcoming elections, and that a member of
seemingly be justified by another provision of the same Constitution the Council was going on a trip out of the country.
Section 4 (1) of Article VIII which states: On May 4, 1998, the Chief Justice received a letter from the President,
Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and addressed to the JBC, requesting transmission of the "list of final
fourteen Associate Justices. ** **. Any vacancy shall be filled within nominees" for the vacancy "no later than Wednesday, May 6, 1998" in
ninety days from the occurrence thereof. view of the duty imposed on him by the Constitution "to fill up the
vacancy ** within ninety (90) days from February 13, 1998, the date
Also pertinent although not specifically discussed is Section 9 of the the present vacancy occurred.
same Article VIII which provides that for the lower courts, the
President shall issue the appointments — from a list of at least three On May 5, 1998, Secretary of Justice Silvestre Bello III requested the
nominees prepared by the Council for every vacancy — within ninety Chief Justice for "guidance" respecting the expressed desire of the
days from the submission of the list. "regular members" of the JBC to hold a meeting immediately to fill up
the vacancy in the Court in line with the President's letter of May 4.
The view was then expressed by Senior Associate Justice Florenz D. The Chief Justice advised Secretary Bello to await the reply that he was
Regalado, Consultant of the Council, who had been a member of the drafting to the President's communication, a copy of which he would
Committee of the Executive Department and of the Committee on the give the Secreatary the following day.
Judicial Department of the 1986 Constitutional Commission, that on
the basis of the commission's records, the election ban had no On May 6, 1998 the Chief Justice sent his reply to the President. He
application to appointments to the Court of Appeals. Without any began by stating that no sessions had been scheduled for the Council
extended discussion or any prior research and study on the part of the until after the May elections for the reason that apparently the
other Members of the JBC, this hypothesis was accepted, and was then President's Office did not share the view posited by the JBC that
Section 15, Article VII of the Constitution had no application to JBC- constrained to convene the Council for the purpose of complying with
recommendend appointments — the appointments to the Court of its Constitutional mandate:
Appeals having been all uniformly dated March 11, 1998, before the
commencement of the prohibition in said provision — thus giving rise It seems evident, as just intimated, that the resolution and the
to the "need to undertake further study of the matter," prescinding covering letter were deliberated on, prepared and signed hours before
from "the-desire to avoid any constitutional isssue regarding the delivery of the Chief Justice's letter to the President and the Justice
appointment to the mentioned vacancy" and the further fact that Secretary.
"certain senior members of the Court of Appeals ** (had) asked the Since the Members of the Council appeared determined to hold a
Council to reopen the question of their exclusion on account of age meeting regardless of the Chief Justice's wishes, the latter convoked
from such (final) list." He closed with the assurance that the JBC the Council to a meeting at 3 o'clock in the afternoon of May 7, 1998.
expected to deliberate on the nominations "forthwith upon the Present at the meeting were the Chief Justice, Secretary Bello, ex
completion of the coming elections." The letter was delivered to officio member and the regular members of the Council: Justice
Malacañang at about 5 o'clock in the afternoon of May 6, 1998 and a Regino Hermosisima. Atty. Teresita Cruz Sison, Judge Cesar C.
copy given to the Office of Justice Secretary Bello shortly before that Peralejo. Also present, on invitation of the Chief Justice, were Justices
hour. Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo,
It would appear, however, that the Justice Secretary and the regular Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V.
members of the Council had already taken action without awaiting the Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel
Chief Justice's promised response to the President's letter of May 4, P. Purisima. The Chief Justice reviewed the events leading to the
1998. On that day, May 6, 1998, they met at some undisclosed place, session, and after discussion, the body agreed to give the President
deliberated, and came to an agreement on a resolution which they time to answer the Chief Justice's letter of May 6, 1998.
caused to be reduced to writing and thereafter signed. In that two-page On May 7, 1998, the Chief Justice received a letter from his Excellency
Resolution they drew attention to Section 4 (1), Article VIII of the the President in reply to his letter of May 6 (which the President said
Constitution (omitting any mention of Section 15, Article VII) as well had been "received early this morning"). The President expressed the
as to the President's letter of May 4 in which he "emphatically view that "the election-ban provision (Article VII, Sec. 15) ** applies
requested that the required list of final nominees be submitted to only to executive appointments or appointments in the executive
him;" and pointing out that the "Council would be remiss in its duties" branch of government," the whole article being "entitled 'EXECUTIVE
should it fail to submit said nominations, closed with an appeal that DEPARTMENT."' He also observed that further proof of his theory "is
the Chief Justice convene the Council for the purpose "on May 7, 1998, the fact that appointments to the judiciary have special, specific
at 2:00 o'clock in the afternoon." This Resolution they transmitted to provisions applicable to them" (citing Article VIII, Sec, 4 (1) and
the Chief Justice together with their letter, also dated May 6, in which Article VIII, Section 9. In view thereof, he "firmly and respectfully
they emphasized that "we are pressed for time" again drawing reiterate(d) ** (his) request for the Judicial and Bar Council to
attention to Section 4 (1). Article VIII of the Constitution (and again transmit ** the final list of nominees for the lone Supreme Court
omitting any reference to Section 15, Article VII). They ended their vacancy."
letter with the following intriguing paragraph:
The Chief Justice replied to the letter the following day, May 8, 1998.
Should the Chief Justice be not disposed to call for the meeting Since the Chief Justice's letter explains the issue quite, plainly, it is
aforesaid, the undersigned members constituting the majority will be here quoted in full.
Thank you for your letter of May 7, 1998, responding to my own On the other hand, Section 4 (1) of Article VIII, requires that any
communication of May 6, 1998 which, I would like to say reflects the vacancy in the Supreme Court "shall be filled within ninety days from
collective sentiments of my colleagues in the Supreme Court. Knowing the occurrence thereof." Unlike Section 15 Article VII, the duty of
how busy you are, I will deal straightaway with the points set out in filling the vacancy is not specifically imposed on the President; hence,
your letter. it may be inferred that it is a duty shared by the Judicial and Bar
Council and the President.
The dating of the latest appointments to the Court of Appeals was
adverted to merely to explain how we in the Court and the JBC came Now, in view of the general prohibition in the first-quoted provision,
to have the impression that you did not share the view expressed in how is the requirement of filling in the Court within ninety days to be
the JBC minutes of March 9, 1998 that there is no election ban with construed? One interpretation that immediately suggests itself is that
regard to the JBC appointments. Be this as it may, the Court feels that Section 4 (1), Article VIII is a general provision while Section 15,
there is a serious question concerning the matter in light of the Article VII is a particular one; that is to say, normally, when there are
seemingly inconsistent provision of the Constitution. The first of these no presidential elections — which after all, occur only every six years
is Section 15, Article VII, which reads: — Section 4 (1), Article VIII shall apply: vacancies in the Supreme
Court shall be filled within 90 days; but when (as now) there are
Sec. 15. Two months immediately before the next presidential presidential elections, the prohibition in Section 15, Article VII comes
elections and up to the end of his term, a President or Acting President into play: the President shall not make any appointments. The reason
shall not make appointments, except temporary appointments to for said prohibition, according to Fr. J. Bernas, S.J., an authority on
executive positions when continued vacancies therein will prejudice Constitutional Law and himself a member of the Constitutional
public service or endanger public safety. Commission, is "(i)n order not to tie the hands of the incoming
The second is Section 4 (1) of Article VIII which states: President through midnight appointments." Another interpretation is
that put forth in the Minutes of the JBC meeting of March 9, 1998.
Sec. 4 (1) The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices. ** ** Any vacancy shall be filled within I must emphasize that the validity of any appointment to the Supreme
ninety days from the occurrence thereof. Court at this time hinges on the correct interpretation of the foregoing
sections of the Constitution. On account of the importance of the
As you can see, Your Excellency, Section 15 of Article VII imposes a question, I consulted the Court about it but, as I stated in my letter of
direct prohibition on the President: he "shall not make appointments" May 6, 1998, "it declined to take any position, since obviously there
within the period mentioned, and since there is no specification of had not been enough time to delivarate on the same ** (although it)
which appointments are proscribed, the same may be considered as did agree that further study wass necessary **.
applying to all appointments of any kind and nature. This is the
general rule then, the only exception being only as regards "executive Since the question has actually come up, and its importance cannot be
positions" as to which "temporary appointments may be made within gainsaid, and it is the Court that is empowered under the Constitution
the interdicted period "when continued vacancies therein will to make an authoritative interpretation of its (provisions) or of those
prejudice public service or endanger public safety." As the exception of any other law. I believe that the Court may now perhaps consider
makes reference only to "executive" positions, it would seem that the issue ripe for determination and come to grips with it, to avoid any
"judicial" positions are covered by the general rule. possible polemics concerning the matter. However the Court resolves
the issue, no serious prejudice will be done. Should the Court rule that
the President is indeed prohibited to make appointments in a
presidential election year, then any appointment Attempted within trouble is that in doing so, the Chief Justice runs the risk of acting in a
the proscribed period would be void anyway. If the Court should manner inconsistent with the Constitution, for these appointments
adjudge that the ban has no application to appointments to the appear prima facie, at least, to be expressly prohibited by Section 15,
Supreme Court, the JBC may submit nominations and the President Article VII of the Charter. This circumstance, and the referral of the
may make the appointment forthwith upon such adjudgment. constitutional question to the Court in virtue of the Resolution of May
8, 1998, supra operate to raise a justiciable issue before the Court, an
The matter is a delicate one, quite obviously, and must thus be dealt issue of sufficient importance to warrant consideration and
with with utmost circumspection, to avoid any question regarding the adjudication on the merits.
validity of an appointment to the Court at this time, or any accusation
of "midnight" appointments or rash hasty action on the part of the JBC Accordingly, the Court Resolved to (1) CONSIDER the case at bar an
or the President administrative matter and cause it to be appropriately docketed: (2) to
DIRECT the Clerk of Court to immediately serve copies of this
In view thereof, and upon the advice and consent of the Members of Resolution on (a) the Office of the President, (b) the Office of the
the Court, I am requesting the regular Members of the Judicial Bar Solicitor General. (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido
Council to defer action on the matter until further device by the Court. B. Vallarta (at their addresses recorded in the Judicial and Bar
I earnestly make the same request of you, Your Excellency. I assure Council); and (3) to REQUIRE the Office of the President, the Office
you, however that as befits a matter in which the Chief Executive has of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido
evinced much interest, my colleagues and I will give it preferential and B. Vallarta to file their comments on this Resolution within fifteen (15)
expeditious attention and consideration. To this end, I intend to days from notice thereof.
convene the Court by next week, at the latest.
The Court further Resolved that (1) pending the foregoing proceedings
On May 8, 1998, again on the insistence of the regular Members of the and the deliberation by the Court on the matter, and until further
JBC, another meeting was held at which were present the Chief orders, no action be taken on the appointments of Hon. Valenzuela
Justice, the Secretary of Justice and the three regular, Members above and Hon. Vallarta which in the meantime shall be held in abeyance
mentioned, as well as Justices Hilario G. Davide, Jr., Flerida Ruth P. and not given any effect and said appointees shall refrain from taking
Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago their oath of office; and that (2) exercising its power of supervision
M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. over the Judicial and Bar Council, said Council and its ex officio and
Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The regular Members herein mentioned be INSTRUCTED, as they are
meeting closed with a resolution that "the constitutional provisions ** herby INSTRUCTED, to defer all action on the matter of nominations
(in question) be referred to the Supreme Court En Banc for to fill up the lone vacancy in the Supreme Court or any other vacancy
appropriate action, together with the request that the Supreme Court until further orders.
consider that the ninety-day period stated in Section 4 (1), Article VIII
be suspended or interrupted in view of the peculiar circumstances. **. SO ORDERED.

On May 12, 1998, the Chief Justice received from Malacañang the
appointments of two (2) Judges of the Regional Trial Court mentioned
above. This places on the Chief Justice the obligation of acting
thereon: i.e., transmitting the appointments to the appointees so that
they might take their oaths and assume the duties of their office. The