Article 7 (Until 13)

US v.
Nixon (1974) – general claim of executive privilege
FACTS:
• Motion, on behalf of then President Nixon, to quash a 3rd party subpoena duces tecum issued by the US DC in US v.
Mitchell. The subpoena directed Nixon to produce certain tape recordings and documents relating to his conversations with
aides and advisers. District Court rejected Nixon’s claims of absolute executive privilege.
• 1974 - a grand jury of the US District Court for the District of Columbia returned an indictment charging 7 named individuals
with various offenses, including conspiracy to defraud the US and to obstruct justice.
• Although he was not designated as such in the indictment, the grand jury named Nixon, among others, as an unindicted co-
conspirator.
• Upon motion of the Special Prosecutor, a subpoena duces tecum was issued to the President of the US.
o This subpoena required the production, in advance of trial, of certain dates, memoranda, papers,
transcripts, or other writings relating to certain precisely identified meetings between the President and
others.
• Nixon publicly released edited transcripts of 43 conversations, portions of 20 conversations subject to subpoena in the case
were included.
• The President’s counsel filed a “special appearance” and a motion to quash the subpoena under Rule 17(c).
o This motion was accompanied by a formal claim of privilege.
• At a subsequent hearing further motions to expunge the grand jury’s action naming Nixon as an unindicted co-conspirator
and for protective orders against the disclosure of that information were filed or raised orally by counsel for the President.
• The 7 individuals charged each occupied either a position of responsibility on the White House staff or a position with the
Committee for the Re-election of the President.
• The District Court denied the motion to quash and the motions to expunge and for protective orders.
o The court ordered the President or any person employee with custody/control of the documents or objects
subpoenaed to deliver to the court such.
o It also rejected the contention that the judiciary was without authority to review an assertion of executive privilege
by the President.
• Since the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case, it is
contended that a President’s decision is final in determining what evidence is to be used in a given criminal case.
o Although his counsel concedes that the President has delegated certain specific powers to the Special
Prosecutor, he has not “waived nor delegated to the Special Prosecutor the President’s duty to claim privilege as
to all materials...which fall within the President’s inherent authority to refuse to disclose to any executive officer.
• The subpoena duces tecum is challenged on the ground that the Special Prosecutor failed to satisfy the requirements of
Rule 17(c).
• 2 grounds the President’s counsel raise to support its claims:
o The valid need for protection of communications between high Govt officials and those who advise and assist
them in the performance of their manifold duties
o The independence of the Executive Branch within its own sphere insulates a President from a judicial subpoena
in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.
ISSUES/HELD:
Does the Special Prosecutor have the power to contest the invocation of executive privilege in the process of seeking
evidence? – YES
• Under authority of Art. 2, Sec. 2, Congress has vested in the Attorney General the power to conduct the criminal litigation
of the US Govt.
• It has also vested in him the power to appoint subordinate officers to assist him in the discharge of his duties.
• The Atty. Gen. has thus delegated the authority to represent the US in these particular matters to a Special Prosecutor with
unique authority and tenure.
o The regulation gives the Special Prosecutor explicit power to contest the invocation of executive privilege in the
process of seeking evidence deemed relevant to the performance of these specially delegated duties.
Were the requirements of Rule 17(c) for the issuance of a subpoena duces tecum met?
• Rule 17(c): A subpoena may also command the person to whom it is directed to produce the books, papers, documents or
other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance
would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the
subpoena be produced before the court at a time prior to the trial or to the time when they are to be offered in evidence and
may upon their production permit the books, papers, documents or objects or portion thereof to be inspected by the parties
and their attorneys.
• A subpoena for documents may be quashed if their production would be “unreasonable or oppressive,” but not otherwise.
o Bowman Dairy v. US: certain fundamental characteristics of the subpoena duces tecum in criminal cases:
1. It was not intended to provide a means of discovery for criminal cases
Jaigest – PoliRev - 20

2. Its chief innovation was to expedite the trial by providing a time and place before trial for the inspection
of subpoenaed materials.
o US v. Iozia: to require production to trial, moving party must show:
1. That the documents are evidentiary and relevant
2. They are not otherwise procurable reasonably in advance of trial by exercise of due diligence
3. That the party cannot properly prepare for trial without such production/inspection in advance of trial and
that the failure to obtain such inspection may tend unreasonably to delay the trial
4. That the application is made in good faith and is not intended as a general “fishing expedition.”
# Thus, the Special Prosecutor, to carry his burden, must clear 3 hurdles: relevancy, admissibility and specificity.
# The contents of the subpoenaed tapes could not at that stage be described fully by the Special Prosecutor, but there was
a sufficient likelihood that each of the tapes contains conversations relevant to the offenses charged in the indictment.
# With respect to many of the tapes, the Special Prosecutor offered the sword testimony or statements of one or more of the
participants in the conversations as to what was said at the time.
○ As for the remainder of the tapes, the identity of the participants and the time and place of the conversations,
taken in their total context, permit a rational inference that at least part of the conversations relate to the offenses
charged in the indictment.
# The subpoenaed materials are not available from any other sources, and their examination and processing should not await
trial.
Do the subpoenaed tapes contain admissible evidence? – YES
• There was a sufficient preliminary showing that each of the subpoenaed tapes contains evidence admissible with respect
to the offenses charged in the indictment.
• The most cogent objection to the admissibility of the taped conversations here at issue is that they are a collection of out of
court statements by declarants who will not be subject to cross-examination and that the statements are therefore
inadmissible evidence.
• BUT: most of the tapes apparently contain conversations to which one or more of the defendants named in the indictment
were party.
• The hearsay rule does not automatically bar all out of court statements by a defendant in a criminal case.
• Declarations by one defendant may also be admissible against other defendants upon a sufficient showing, by independent
evidence, of a conspiracy among one or more other defendants and the declarant and if the declarations at issue were in
furtherance of that conspiracy.
o The same is true of declarations of co-conspirators who are not defendants in the case.
• Recorded conversations may also be admissible for the limited purpose of impeaching the credibility of any defendant who
testifies or any other co-conspirator who testifies.
• Generally, the need for evidence to impeach witnesses is insufficient to require its production in advance of trial.
• HERE: there are other valid potential evidentiary uses for the same material, and the analysis and possible transcription of
the tapes may take a significant period of time.
• Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court
since the necessity for the subpoena most often turns upon a determination of factual issues.
• Where a subpoena is directed to a President of the US, appellate review, in deference to a coordinate branch of govt, should
be particularly meticulous to ensure that the standards of Rule 17(c) have been correctly applied.
(RELEVANT) Do the two grounds relied on by the President’s counsel justify the privilege raised? – NO
• Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more,
can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.
o When the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of
such conversations, a confrontation with other values arises.
• Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, it is difficult to accept
the argument that even the very important interest in confidentiality of Presidential communications is significantly
diminished by production of such material for in camera inspection with all the protection that a district court will be obliged
to provide.
• (IMPT) To read the powers of the President as providing an absolute privilege as against a subpoena essential to
enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of
non-military and non-diplomatic discussions would upset the constitutional balance of a “workable govt” and
gravely impair the roles of the courts.
• The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality
of judicial deliberations, for example has all the values to which we accord deference for the privacy of all citizens, and,
added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh
opinions in Presidential decision-making.
• A president and those who assist him must be free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except privately.
o These are the considerations justifying a presumptive privilege for Presidential communications.
• The privilege is fundamental to the operation of Govt and inextricably rooted in the separation of powers under the
Constitution.

o “The public...has a right to every man’s evidence, except for those persons protected by a constitutional, common-
law, or statutory privilege.”
• The privileges referred to by the Court are designed to protect weighty and legitimate competing interests.
• Whatever their origins, the exceptions to the demand for every man’s evidence are not lightly created nor expansively
construed, for they are in derogation of the search for truth.
• IN THIS CASE: Nixon does not place his claim of privilege on the ground that they are military or diplomatic secrets.
• US v. Reynolds: It may be possible to satisfy the court, from the circumstances of the case, that there is a reasonable
danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be
divulged.
o When this is the case, the occasion for the privilege is appropriate, and the court shall not jeopardize the security
which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone,
in chambers.
• No case has extended this high degree of deference to a President’s generalized interest in confidentiality.
• Nowhere in the Constitution is there any explicit reference to a privilege of confidentiality, yet to the extent this interest
relates to the effective discharge of a President’s powers, it is constitutionally based.
• The importance of the general privilege of confidentiality of Presidential communications in performance of the President’s
responsibilities against the inroads of such a privilege on the fair administration of criminal justice.
• The allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic functions of the courts.
o The President’s broad interest in confidentiality of communications will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing on the pending criminal cases
• (IMPT) When the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice.
o The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a
pending criminal trial.
Did the District Court err in authorizing the issuance of the subpoena? – NO
• If a President concludes that compliance with a subpoena would be injurious to the public interest, he may properly, as was
done here, invoke a claim of privilege on the return of the subpoena.
• Upon receiving a claim of privilege from the Chief Executive, it became the duty of the District Court to treat the subpoenaed
material as presumptively privileged and to require the Special Prosecutor to demonstrate that the Presidential material
was “essential to the justice of the case”
o HERE: that was what the US District Court did exactly.

Senate v. Ermita (2006)
(edited A2015 poli digest)
Article VI, Section 21. The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in said of legislation in accordance with its duly published rules of procedure. The rights of persons appearing
in or affected by such inquiries shall be respected.
FACTS:
• This case includes 6 consolidated petitions for certiorari and prohibition proffer that the President has abused
such power by issued EO 464 last September 28, 2005.
• They pray for its declaration as null and void for being unconstitutional.
• In the exercise of its legislative power, the Senate, through its various Senate Committees, conducts inquiries
or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the
executive department, bureaus, and offices including those employed in GOCCs, the AFP and the PNP.
• Sept. 21-23, the Committee of the Senate as a whole issued invitations to various officials of the Executive
Dept. for them to appear on Sept. 29 as resource speakers in a public hearing on the railway project of the
North Luzon Railways Corporation with the China National Machinery and Equipment Group (North Rail
Project).
• The public hearing was sparked by a privilege speech of Sen. Enrile urging the Senate to investigate the
alleged overpricing and other unlawful provisions of the contract covering the North Rail Project.
• The Senate Committee on National Defense and Security likewise issued invitations dated Sept. 22 to the
following officials of the AFP: the Commanding General of the Army, Lt. Esperon; Inspector General of the
AFP Vice Admiral Mayuga. Etc.
• Senate President Drilon received from Executive Sec. Ermita a letter requesting for the postponement of the
hearing to which various officials of the Executive Dept. had been invited to “afford said officials ample time
and opportunity to study and prepare for the various issues so that they may better enlighten the Senate
Committee on its investigation.
• Drilon however, denied the request.
• On Sept. 28, 2005, President GMA issued EO 464 (Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials
Appearing In Legislative Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes.)
• On the same date (which was also the scheduled date of the hearing on the alleged wiretapping, Gen. Senga
sent a letter to Senator Biazon, Chairman of the Committee on National Defense and Security, informing him
that per instruction of the President, no officer of the AFP was to appear in any Senate or Congressional
hearings without seeking a written approval from the President.
• For denying PGMA’s order barring military personnel from testifying before legislative inquiries without her
approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military posts and were made to face
court martial proceedings.
• 3 petitions were then filed before the SC challenging the constitutionality of EO 464.
ISSUES/HELD:
Does EO 464 contravene the power of inquiry vested in Congress? – YES
• The Congress’ power of inquiry is expressly recognized in Section 21 of Art. 6 of the Constitution.
• In Arnault v. Nazareno, the SC recognized that the power of inquiry is inherent in the power to legislate.
o The case involved a Senate investigation of the reportedly anomalous purchase of the Buenavista
and Tambobong Estates by the Rural Progress Administration.
o Arnault, a leading witness in the controversy, was called to testify thereon by the Senate.
o On account of his refusal to answer the questions of the senators on an important point, he was, by
resolution of the Senate, detained for contempt.
!
o Upholding the Senate’s power to punish Arnault for contempt, the SC found that the Senate
investigation of the government transaction involved in Arnault was a proper exercise of the power
of inquiry.
• Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous
to hold that the power of inquiry does not extend to executive officials who are the most familiar with and
informed on executive operations.
• Sec. 21 likewise establishes crucial safeguards that proscribe the legislative power of inquiry.
o The provision requires that the inquiry be done in accordance with the Senate or House’s duly
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure.
o It also mandates that the rights of persons appearing in or affected by such inquiries be respected,
an imposition that obligates Congress to adhere to the guarantees in the Bill of Rights.
• Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry,
which exemptions fall under the rubric of “executive privilege.:
• Schwartz defines executive privilege as “the power of the Govt to withhold information from the public, the
courts, and the Congress.”
• But that a type of information is recognized as privileged does not, however, necessarily mean that it would
be considered privileged in all instances.
• In determining the validity of a claim of privilege, the question that must be asked is not only whether the
requested info falls within one of the traditional privileges, but also whether that privilege should be honored
in a given procedural setting.
Is Section 1 of EO 464 valid? – NO
• Sections 1 and 3 of EO 464 both require the officials covered by them to secure the consent of the President
prior to appearing before Congress.
• But Section 1 specifically applies to department heads.
• It does not, unlike Section 3, require a prior determination by any official whether they are covered by EO 464.
• The president herself has, through the challenged order, made the determination that they are.
• Also, unlike Sec. 3, the coverage of department heads under Sec. 1 is not made to depend on the department
head’s possession of any information which might be covered by executive privilege.
• In fact, there is no reference to executive privilege at all.
• Rather, the required prior consent under Sec. 1 is grounded on Art. 6, Sec. 22 of the Constitution on what has
been referred to as the question hour.
• Sections 21 and 22, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress.
• One specifically relates to the power to conduct inquiries in aid of legislation, the aim of which is to elicit
information that may be used for legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain info in pursuit of Congress’ oversight function.
• When Congress merely seeks to be informed on how department heads are implementing the statutes which
it has issued, its right to such info is not as imperative as that of the President to whom, as Chief Executive,
such department heads must give a report of their performance as a matter of duty.
• When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is a by a valid claim of privilege.
o They are not exempt by the mere fact that they are department heads.
o Only one executive official may be exempted from this power—the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power of impeachment.
• The requirement to secure presidential consent under Section 1, limited as it is only to appearances in the
question hour, is valid on its face.
• For under Sec. 22, Art. 6, the appearance of department heads in the question hour is discretionary on their
part.
• Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation.
• Congress is not bound in such instances to respect the refusal of the department head to appear in such
inquiry, unless a valid claim of privilege is subsequently made, either by the President herself or by the
Executive Secretary.

Are Sections 2 and 3 of EO 464 valid? – Only Sec. 2(a). Sections 3 and 2(b) are invalid.
• Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of Congress.
• The enumeration covers all senior officials of executive departments, all officers of the AFP and the PNP, and
all senior national security officials who, in the judgment of the heads of offices designated in the same section
(i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the National Security Adviser), are
"covered by the executive privilege."
• The enumeration also includes such other officers as may be determined by the President.
• Given the title of Section 2 — "Nature, Scope and Coverage of Executive Privilege" —, it is evident that under
the rule of ejusdem generis, the determination by the President under this provision is intended to be based
on a similar finding of coverage under executive privilege.
• Section 2(b) of E.O. 464 virtually states that executive privilege actually covers persons.
o This is a misuse of the doctrine.
o Executive privilege is properly invoked in relation to specific categories of information and not to
categories of persons.
o Upon a determination by the designated head of office or by the President that an official is "covered
by the executive privilege," such official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress.
o This requirement effectively bars the appearance of the official concerned unless the same is
permitted by the President.
o The proviso allowing the President to give its consent means nothing more than that the President
may reverse a prohibition which already exists by virtue of E.O. 464.
o Thus, underlying this requirement of prior consent is the determination by a head of office, authorized
by the President under E.O. 464, or by the President herself, that such official is in possession of
information that is covered by executive privilege.
o This determination then becomes the basis for the official’s not showing up in the legislative
investigation.
• Whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed
as a declaration to Congress that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the President has not reversed such
determination.
• Such declaration, however, even without mentioning the term "executive privilege," amounts to an implied
claim that the information is being withheld by the executive branch, by authority of the President, on the basis
of executive privilege.
o There is an implied claim of privilege.
• The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464.
• The letter does not explicitly invoke executive privilege or that the matter on which these officials are being
requested to be resource persons falls under the recognized grounds of the privilege to justify their absence.
• Nor does it expressly state that in view of the lack of consent from the President under E.O. 464, they cannot
attend the hearing.
• The letter assumes that the invited officials are covered by E.O. 464. As explained earlier, however, to be
covered by the order means that a determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by executive privilege.
• Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the executive branch, either through
the President or the heads of offices authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement
from the President. In fine, an implied claim of privilege has been made by the executive.
• Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it
sanctions claims of executive privilege.
• SC must look further and assess the claim of privilege authorized by the Order to determine whether it is valid.

• While the validity of claims of privilege must be assessed on a case to case basis, examining the ground
invoked therefor and the particular circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se.
• By its very nature, and as demonstrated by the letter of respondent Executive Secretary, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic secrets, closed-‐door Cabinet meetings,
etc.).
• While Section 2(a) enumerates the types of information that are covered by the privilege under the challenged
order, Congress is left to speculate as to which among them is being referred to by the executive.
o The enumeration is not even intended to be comprehensive, but a mere statement of what is included
in the phrase "confidential or classified information between the President and the public officers
covered by this executive order."
• Congress has the right to know why the executive considers the requested information privileged.
• It does not suffice to merely declare that the President, or an authorized head of office, has determined that it
is so, and that the President has not overturned that determination.
• Such declaration leaves Congress in the dark on how the requested information could be classified as
privileged.
• That the message is couched in terms that, on first impression, do not seem like a claim of privilege only
makes it more pernicious.
o It threatens to make Congress doubly blind to the question of why the executive branch is not
providing it with the information that it has requested.
• A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be
clearly asserted.
• Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or whether, given the circumstances in which it is made,
it should be respected. Upon the other hand, Congress must not require the executive to state the reasons for
the claim with such particularity as to compel disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of particularity would be the privilege against
self-‐incrimination.
• The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se.
• It is not asserted. It is merely implied.
o Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent.
o It is insufficient for Congress to determine whether the withholding of information is justified under
the circumstances of each case.
o It severely frustrates the power of inquiry of Congress.
• In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
• No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on
the heads of office mentioned in Section 2(b), on what is covered by executive privilege.
• It does not purport to be conclusive on the other branches of government.
• It may thus be construed as a mere expression of opinion by the President regarding the nature and scope of
executive privilege.
• Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the effect
of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official.
o These provisions thus allow the President to authorize claims of privilege by mere silence.
• Such presumptive authorization, however, is contrary to the exceptional nature of the privilege.
• Executive privilege is recognized with respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive branch, or in those instances where
exemption from disclosure is necessary to the discharge of highly important executive responsibilities.
• The doctrine of executive privilege is thus premised on the fact that certain informations must, as a matter of
necessity, be kept confidential in pursuit of the public interest.

• The privilege being, by definition, an exemption from the obligation to disclose information, in this
case to Congress, the necessity must be of such high degree as to outweigh the public interest in
enforcing that obligation in a particular case.
• In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the
power to invoke the privilege.
o She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which
case the Executive Secretary must state that the authority is "By order of the President," which means
that he personally consulted with her.
• The privilege being an extraordinary power, it must be wielded only by the highest official in the executive
hierarchy.
• In other words, the President may not authorize her subordinates to exercise such power.
• There is even less reason to uphold such authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is further invalid on this score.
• Therefore, when an official is being summoned by Congress on a matter which, in his own judgment,
might be covered by executive privilege, he must be afforded reasonable time to inform the President
or the Executive Secretary of the possible need for invoking the privilege.
• This is necessary in order to provide the President or the Executive Secretary with fair opportunity to consider
whether the matter indeed calls for a claim of executive privilege.
• If, after the lapse of that reasonable time, neither the President nor the Executive Secretary invokes the
privilege, Congress is no longer bound to respect the failure of the official to appear before Congress and may
then opt to avail of the necessary legal means to compel his appearance.
• Hence, Section 3 is essentially an authorization for implied claims of executive privilege, for which
reason it must be invalidated.
• That such authorization is partly motivated by the need to ensure respect for such officials does not change
the infirm nature of the authorization itself.

Neri v. Senate (2008)

(edited A2015 digest)
FACTS:
• September 26, 2007 – NEDA Sec. Neri appeared before Senate Committees and testified for 11 hours on matters
concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of Transportation
and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE").
• Neri disclosed that then COMELEC Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of
the NBN Project. He said that he informed President Arroyo of the bribery attempt and that she instructed him not to accept
the bribe.
• When probed further on President Arroyo and Neri’s discussions relating to the NBN Project, he refused to answer,
invoking "executive privilege."
o Neri refused to answer questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve it.
• The Committees required him to appear and testify once more. Later, Executive Secretary Eduardo R. Ermita wrote to the
Committees and requested them to dispense with Neri’s testimony on the ground of executive privilege.
• The letter of Executive Secretary Ermita (excerpt) stated that:
o Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and correspondence
between the President and public officials which are considered executive privilege (Almonte v. Vasquez; Chavez
v. PEA).
o Maintaining the confidentiality of conversations of the President is necessary in the exercise of her executive and
policy decision making process and for the protection of the public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making.
o Disclosure of conversations of the President will have a chilling effect on the President.
o The context in which executive privilege is being invoked is that the information sought to be disclosed might
impair our diplomatic as well as economic relations with the People’s Republic of China.
• November 20, 2007 - Neri did not appear before respondent Committees upon orders of the President invoking executive
privilege.
• November 22, 2007 - The Committees issued the show-cause letter requiring him to explain why he should not be cited in
contempt.
• November 29, 2007 - In Neri’s reply to Committees, he manifested that it was not his intention to ignore the Senate,
manifested his willingness to appear and requested that he be furnished "in advance as to what else" he "needs to clarify."
• The Committees found petitioner’s explanations unsatisfactory. Without responding to his request for advance notice
of the matters that he should still clarify, they issued the Order dated January 30, 2008; In Re: P.S. Res. Nos.
127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing Neri
in contempt of the Committees and ordering his arrest and detention at the Office of the Senate Sergeant-at-Arms until such
time that he would appear and give his testimony.
• On the same date, Neri moved for the reconsideration of the above Order.
• The Court granted his petition for certiorari on two grounds:
1. The communications elicited by the three (3) questions were covered by executive privilege – They fall under the
presidential communications privilege because
a. they related to a quintessential and non-delegable power of the President,
b. they were received by a close advisor of the President, and
c. the Committees failed to adequately show a compelling need that would justify the limitation of the privilege
and the unavailability of the information elsewhere by an appropriate investigating authority.
2. The Committees committed grave abuse of discretion in issuing the contempt order –
a. there was a valid claim of executive privilege,
b. their invitations to petitioner did not contain the questions relevant to the inquiry,
c. there was a cloud of doubt as to the regularity of the proceeding that led to their issuance of the contempt
order,
d. they violated Section 21, Article VI of the Constitution because their inquiry was not in accordance with the
"duly published rules of procedure," and
e. they issued the contempt order arbitrarily and precipitately.
• The Committees filed the present motion for reconsideration.
• Neri’s Comment:
o He charges the Committees with exaggerating and distorting the Decision of this Court.
o He Avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or
asking him additional questions.
o Court merely applied the rule on executive privilege to the facts of the case.

ISSUE/ HELD:
(THE NEXT 2 ISSUES ARE ART. VII ISSUES) Is there a recognized presumptive presidential communications privilege in our
legal system? YES/.
• The Committees argue that the Court’s declaration that presidential communications are presumptively privileged reverses
the "presumption" laid down in Senate v. Ermita that "inclines heavily against executive secrecy and in favor of disclosure."
Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon.
• SC The Committees argue as if this were the first time the presumption in favor of the presidential communications
privilege is mentioned and adopted in our legal system.
o The Court articulated in these cases that "there are certain types of information which the government may
withhold from the public, " that there is a "governmental privilege against public disclosure with respect to state
secrets regarding military, diplomatic and other national security matters"; and that "the right to information
does not extend to matters recognized as ‘privileged information’ under the separation of powers, by
which the Court meant Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings."
• The Committees’ observation that this Court’s Decision reversed the "presumption that inclines heavily against executive
secrecy and in favor of disclosure" arises from a piecemeal interpretation of the said Decision.
o The Court has repeatedly held that in order to arrive at the true intent and meaning of a decision, no specific
portion thereof should be isolated and resorted to, but the decision must be considered in its entirety.
• While executive privilege is a constitutional concept, a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made.
o Noticeably absent is any recognition that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials.
o Indeed, the extraordinary character of the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure. (Emphasis and underscoring supplied)
• Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption" being claimed by
the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in the Executive Branch.
o This means that when an executive official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464,
claims to be exempt from disclosure, there can be no presumption of authorization to invoke executive
privilege given by the President to said executive official, such that the presumption in this situation inclines
heavily against executive secrecy and in favor of disclosure.
• Senate v. Ermita expounds on the premise of the foregoing ruling in this wise:
o Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain
information is privileged, such determination is presumed to bear the President’s authority and has the
effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement
of the President that it is allowing the appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
o Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with respect to information the confidential nature of which is crucial
to the fulfillment of the unique role and responsibilities of the executive branch, or when it necessary to the
discharge of highly important executive responsibilities.
• As such, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific
matter involving an executive agreement between the Philippines and China, which was the subject of the three (3)
questions propounded to petitioner Neri in the course of the Senate Committees’ investigation. Thus, the factual setting
of this case markedly differs from that passed upon in Senate v. Ermita.
• Senate v. Ermita explained why there should be no implied authorization or presumptive authorization to invoke executive
privilege by the President’s subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom
is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power - the President on whom executive power is vested, hence, beyond the
reach of Congress except through the power of impeachment. It is based on he being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of governments which is sanctioned by a long-standing custom.
(Underscoring supplied)
• Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given
preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption.
Is there a factual or legal basis to hold that the communications elicited by the three (3) questions are covered by executive
privilege? YES.
• The power to enter into an executive agreement is a “quintessential non-delegable presidential power.”
o The power to enter into an executive agreement is in essence an executive power.
o The authority of the President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.

• The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential
communications privilege but, in any case, it is not conclusive.
o It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case precisely to
limit the scope of the presidential communications privilege:
§ Not every person who plays a role in the development of presidential advice, no matter how remote
and removed from the President, can qualify for the privilege. In particular, the privilege should
not extend to staff outside the White House in executive branch agencies. Only communications
at that level are close enough to the President to be revelatory of his deliberations or to pose a
risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the
President that matters in determining whether "[t]he President’s confidentiality interests" is
implicated). (Emphasis supplied)
o Organizational test: the main consideration is to limit the availability of executive privilege only to officials who
stand proximate to the President, not only by reason of their function, but also by reason of their positions in the
Executive’s organizational structure. Thus, respondent Committees’ fear that the scope of the privilege would be
unnecessarily expanded with the use of the operational proximity test is unfounded.
• The President’s claim of executive privilege is not merely based on a generalized interest; and in balancing
respondent Committees’ and the President’s clashing interests, the Court did not disregard the 1987 Constitutional
provisions on government transparency, accountability and disclosure of information.
o It must be stressed that the President’s claim of executive privilege is not merely founded on her generalized
interest in confidentiality.
§ The Letter dated November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic relations with another sovereign
nation as the bases for the claim. Thus, the Letter stated:
• The context in which executive privilege is being invoked is that the information sought to be disclosed might
impair our diplomatic as well as economic relations with the People’s Republic of China. Given the confidential nature
in which this information were conveyed to the President, he cannot provide the Committee any further details of these
conversations, without disclosing the very thing the privilege is designed to protect. (emphasis supplied)
o Even in Senate v. Ermita, it was held that Congress must not require the Executive to state the reasons for the
claim with such particularity as to compel disclosure of the information which the privilege is meant to protect.
o On disclosure: The NBN Project involves a foreign country as a party to the agreement. It was actually a product
of the meeting of minds between officials of the Philippines and China. Whatever the President says about the
agreement - particularly while official negotiations are ongoing - are matters which China will surely view with
particular interest. There is danger in such kind of exposure. It could adversely affect our diplomatic as well as
economic relations with the People’s Republic of China.
§ The nature of foreign negotiations requires caution, and their success must often depend on secrecy, and
even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual
concessions which may have been proposed or contemplated would be extremely impolitic, for this might
have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger
and mischief, in relation to other powers.
o This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation. There is
nothing in the assailed Decision that prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again. He himself has repeatedly expressed
his willingness to do so. Our Decision merely excludes from the scope of respondents’ investigation the
three (3) questions that elicit answers covered by executive privilege and rules that petitioner cannot be
compelled to appear before respondents to answer the said questions.
o Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information.
§ Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized.
Access to official records, and to documents, and papers pertaining to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may
be provided by law.
§ Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public interest. (Emphasis
supplied)
o In Chavez v. Presidential Commission on Good Government, it was stated that there are no specific laws
prescribing the exact limitations within which the right may be exercised or the correlative state duty may be
obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1) national security
matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and diplomatic matters, as well as information
on inter-government exchanges prior to the conclusion of treaties and executive agreements. It was further held
that even where there is no need to protect such state secrets, they must be "examined in strict
confidence and given scrupulous protection."
o Incidentally, the right primarily involved here is the right of respondent Committees to obtain information allegedly
in aid of legislation, not the people’s right to public information. This is the reason why we stressed in the assailed
Decision the distinction between these two rights. As pointed out, these rights belong to Congress, not to the
individual citizen.

o For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from
inquiring into the NBN Project. All that is expected from them is to respect matters that are covered by
executive privilege.
Was the respondent Committees able to show that the communications elicited by the three (3) questions are critical to the
exercise of their functions? NO.
• The jurisprudential test laid down on executive privilege is that the presumption of privilege can only be overturned by a
showing of compelling need for disclosure of the information covered by executive privilege.
• In the MR, the Committees argue that the information elicited by the three (3) questions are necessary in the discharge of
their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.
• In U.S. v. Nixon - The Court weighed between presidential privilege and the legitimate claims of the judicial process. In
giving more weight to the latter, the Court ruled that the President's generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal trial.
o We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
• In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a criminal case but rather
with the Senate’s need for information in relation to its legislative functions.
• Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or demonstratively critical and
specific need for facts which is so essential to the judicial power to adjudicate actual controversies.
• The presumption in favor of Presidential communications puts the burden on the respondent Senate Committees
to overturn the presumption by demonstrating their specific need for the information to be elicited by the answers
to the three (3) questions subject of this case, to enable them to craft legislation. Here, there is simply a generalized
assertion that the information is pertinent to the exercise of the power to legislate and a broad and non-specific reference
to pending Senate bills. It is not clear what matters relating to these bills could not be determined without the said information
sought by the three (3) questions. As correctly pointed out by the Honorable Justice Dante Tinga in his Separate Concurring
Opinion:
o ...If respondents are operating under the premise that the president and/or her executive officials have
committed wrongdoings that need to be corrected or prevented from recurring by remedial legislation,
the answer to those three questions will not necessarily bolster or inhibit respondents from proceeding
with such legislation. They could easily presume the worst of the president in enacting such legislation.
• Interestingly, during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted that
the Senate could still come up with legislations even without petitioner answering the three (3) questions. In other words,
the information being elicited is not so critical after all. Thus: (excerpt)
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the project after being told about
the alleged bribe. How critical is that to the lawmaking function of the Senate? And the question is may they craft a Bill
a remedial law without forcing petitioner Neri to answer this question?
ATTY.AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation require that a proposed Bill
should have some basis in fact.
• The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the
withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the above
oral exchanges.
o Due to the failure of the respondent Committees to successfully discharge this burden, the presumption in favor
of confidentiality of presidential communication stands.
• On the graft and corruption, it must be stressed that respondent Committees’ need for information in the exercise of this
function is not as compelling as in instances when the purpose of the inquiry is legislative in nature.
o This is because curbing graft and corruption is merely an oversight function of Congress.
o And if this is the primary objective of respondent Committees in asking the three (3) questions covered by
privilege, it may even contradict their claim that their purpose is legislative in nature and not oversight.
o Under our Constitution, it is the Ombudsman who has the duty "to investigate any act or omission of any
public official, employee, office or agency when such act or omission appears to be illegal, unjust,
improper, or inefficient."
(FOCUS HERE FOR ART. VI ISSUE) Did the respondent Committees committed grave abuse of discretion in issuing the
contempt order? YES.
• The Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1) there
is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita; (3) they
issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under Article VI,
Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt order is not
arbitrary or precipitate.

(1) Already answered.
(2) The Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring invitations or subpoenas to
contain the "possible needed statute which prompted the need for the inquiry" along with the "usual indication of the subject of inquiry
and the questions relative to and in furtherance thereof" is not provided for by the Constitution and is merely an obiter dictum. The
Court disagrees.
• Constant exposure to congressional subpoena takes its toll on the ability of the Executive to function effectively.
o The requirements set forth in Senate v. Ermita are modest mechanisms that would not unduly limit Congress’
power.
o The legislative inquiry must be confined to permissible areas and thus, prevent the "roving commissions" referred
to in the U.S. case, Kilbourn v. Thompson.
• Likewise, witnesses have their constitutional right to due process.
o They should be adequately informed what matters are to be covered by the inquiry.
o It will also allow - them to prepare the pertinent information and documents.
• To our mind, these requirements concede too little political costs or burdens on the
part of Congress when viewed vis-à-vis the immensity of its power of inquiry.
• Clearly, Neri’s request to be furnished an advance copy of questions is a reasonable demand that should have been granted.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending Senate
bill. It did • not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him to
"testify on what he knows relative to the subject matter under inquiry."
(3) Committees contend that their Rules of Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond the reach of
this Court. While it is true that this Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into Congress’ compliance therewith.
• United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The Constitution empowers each House to determine its
rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there
should be a reasonable relation between the mode or method of proceeding established by the rule and the result
which is sought to be attained."
• In the present case, the Court’s exercise of its power of judicial review is warranted because there appears to be a clear
abuse of the power of contempt on the part of respondent Committees.
o Section 18 of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who
disobey any order of the Committee or refuses to be sworn or to testify or to answer proper questions by the
Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because
during the deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This
number could hardly fulfill the majority requirement needed by respondent Committee on Accountability of Public
Officers and Investigations which has a membership of seventeen (17) Senators and respondent Committee on
National Defense and Security which has a membership of eighteen (18) Senators. With respect to respondent
Committee on Trade and Commerce which has a membership of nine (9) Senators, only three (3) members were
present.
• Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is flawed. Instead
of being submitted to a full debate by all the members of the respondent Committees, the contempt order was prepared and
thereafter presented to the other members for signing. As a result, the contempt order which was issued on January
30, 2008 was not a faithful representation of the proceedings that took place on said date. Records clearly show that
not all of those who signed the contempt order were present during the January 30, 2008 deliberation when the matter was
taken up.
o Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of person appearing in or
affected by such inquiries shall be respected. (Emphasis supplied)
• All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the limitations are not
observed, the witness’ settled expectation is shattered.
o Here, how could there be a majority vote when the members in attendance are not enough to arrive at such
majority?
o Petitioner has the right to expect that he can be cited in contempt only through a majority vote in a proceeding in
which the matter has been fully deliberated upon.
• There is a greater measure of protection for the witness when the concerns and objections of the members are fully
articulated in such proceeding.
o We do not believe that respondent Committees have the discretion to set aside their rules anytime they wish.
o This is especially true here where what is involved is the contempt power.
o It must be stressed that the Rules are not promulgated for their benefit. More than anybody else, it is the witness
who has the highest stake in the proper observance of the Rules.

(4) The Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006.
Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is repealed or
amended.
• There is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the conduct of its day-to-day business the Senate of
each Congress acts separately and independently of the Senate of the Congress before it.
• The Rules of the Senate itself confirms this when it states:
RULE XLIV: UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by
the succeeding Congress as if present for the first time. (emphasis supplied)
• Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even legislative investigations,
of the Senate of a particular Congress are considered terminated upon the expiration of that Congress and it is merely
optional on the Senate of the succeeding Congress to take up such unfinished matters, not in the same status, but as if
presented for the first time.
• This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct of its business is
reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of procedure) states: AMENDMENTS TO, OR
REVISIONS OF, THE RULES
o SEC. 136. At the start of each session in which the Senators elected in the preceding elections shall begin their
term of office, the President may endorse the Rules to the appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one day before its
consideration, and the vote of the majority of the Senators present in the session shall be required for its approval.
(emphasis supplied)
o DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force until they are
amended or repealed. (emphasis supplied)
• Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate after an election and
the possibility of the amendment or revision of the Rules at the start of each session in which the newly elected Senators
shall begin their term. However, it is evident that the Senate has determined that its main rules are intended to be valid from
the date of their adoption until they are amended or repealed.
• Such language is conspicuously absent from the Rules.
o The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two (2) newspapers of
general circulation."
o The latter does not explicitly provide for the continued effectivity of such rules until they are amended or repealed.
In view of the difference in the language of the two sets of Senate rules, it cannot be presumed that the Rules (on
legislative inquiries) would continue into the next Congress.
o The Senate of the next Congress may easily adopt different rules for its legislative inquiries which come within
the rule on unfinished business.
(5) The Committees’ last argument is that their issuance of the contempt order is not precipitate or arbitrary. The Court disagrees.
• As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees,
petitioner did not assume that they no longer had any other questions for him.
• He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters.
• His only request was that he be furnished a copy of the new questions in advance to enable him to adequately prepare as
a resource person.
• He did not attend the November 20, 2007 hearing because Executive Secretary Ermita requested respondent Committees
to dispense with his testimony on the ground of executive privilege. Note that petitioner is an executive official under the
direct control and supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by
his superior? Besides, save for the three (3) questions, he was very cooperative during the September 26, 2007 hearing
• They could have informed petitioner of their ruling and given him time to decide whether to accede or file a motion for
reconsideration.
• After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of government. He is an alter
ego of the President. The same haste and impatience marked the issuance of the contempt order, despite the absence of
the majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s motion for
reconsideration alleging the pendency of his petition for certiorari before this Court.
AZCUNA, .J: SEPARATE OPINION
• Grant MR and dismiss the petition for lack of merit.

• It was the intent of the Constitutional Commission to preserve the nature of the Senate as a continuing body to provide an
institutional memory in the legislature

QUISUMBING, . J: SEPARATE OPINION ON MR
• Deny MR
• Respondents had neglected to observe elements of due process on more than one occasion in their proceedings, and
thereby committed grave abuse of discretion which is proscribed by the present fundamental law.
• Senate is constitutionally required to publish its rules of procedure on the conduct of legislative inquiries in aid of legislation.
• In the absence of a published rule of procedure on a matter which is the subject of legislative inquiry, any action which
affects substantial rights of persons would be anathema, and risks unconstitutionality. Even if there is such a rule or statute
duly published, if it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning
and differ in its application, the rule or statute would be repugnant to the Constitution in two respects: it violates due process
for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves the law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
• Respondents did not consider petitioner’s request for an advance copy of the questions that would be asked of him, when
in fact it was not unreasonable and difficult to comply with.
• Neri was entitled to a ruling on his claim of executive privilege. For initially, both sides had agreed in open court to allow
more exhaustive inquiry in the Senate on this matter. But as respondents themselves admitted, they did not rule on the
claim of executive privilege, but instead sanctioned Neri for contempt.

Senate v. Ermita (SUPRA)
Neri v. Senate (SUPRA)
AKBAYAN v. AQUINO (2008) - JPEPA
FACTS:
5
• JPEPA case. Diplomatic negotiations are privileged. Secrecy of on-going negotiations not violative of Constitutional right
to information (the President is the sole organ of foreign relations).
• Petitioners (non-government organizations, Congresspersons, citizens and taxpayers) filed a petition for mandamus and
prohibition to obtain from respondents Department of Trade and Industry (DTI) Undersecretary Thomas Aquino, et al. the
6
full text of the Japan-Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers
submitted during the negotiation process and all pertinent attachments and annexes thereto.  
• Background:
o On  January 2005, Cong. Tañada and Aguja filed House Resolution No. 551 calling for an inquiry into the JPEPA,
then being negotiated by the PH government.
§ In the course of its inquiry, the House Special Committee on Globalization requested herein respondent
Usec. Aquino to furnish the Committee with a copy of the latest draft of the JPEPA.
§ However, Usec. Aquino did not heed the request.
o The same request was again made by Congressman Aguja, but Usec. Aquino replied  that a copy will be provided
only after negotiations have been completed.  
o In a separate move, the House Committee requested Executive Secretary Eduardo Ermita to furnish it with “all
documents on the subject including the latest  draft of the proposed agreement, the requests and offers etc.  
o Secretary Ermita replied that it has been a work in progress for three years and a  copy will be goven once the
negotiations are complete.  
o Congressman Aguja also requested NEDA Director-General Neri and Tariff  Commission Chairman Abon for
copies of the JPEPA.  
o Chairman Abon replied, however, that the Tariff Commission does not have a copy of  the documents being
requested.  
o In its third hearing, the House Committee was supposed to issue a subpoena for the  most recent draft of the
JPEPA, but the same was not pursued because by Committee Chairman Congressman Teves’ information, then
House Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the subpoena until the
President gives her consent to the disclosure of the documents.  
o Then the present petition was filed on December 9, 2005.  
• JPEPA was signed on September 9, 2006 by President Gloria Macapagal-Arroyo  and Japanese Prime Minister Junichiro
Koizumi in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant to Article
VII, Section 21 of the Constitution.  
• The final text of JPEPA was made accessible to the public on September 11, 2006.  
• To date (July 16, 2008), the JPEPA is still being deliberated upon by the Senate.  
• This Petition is brought with the following contentions:
o The refusal of the government to disclose the said agreement violates their right to information on matters of
public concern and of public interest. 
o The non-disclosure of the same documents undermines their right to effective and reasonable participation in all
levels of social, political and economic decision-making. 
o Divulging the contents of the JPEPA only after the agreement has been concluded will effectively make the Senate
into a mere rubber stamp of the Executive, in violation of the principle of separation of powers. 
ISSUES/HELD:
Is the petition moot and academic? Not entirely.
• SC ruled that the principal relief is the disclosure of the contents of the JPEPA prior to its finalization between two State
parties. Although it has been largely moot because the JPEPA has already been made accessible to the public, it is still not
moot as to the Philippine and Japanese offers in the course of the negotiations.
Do petitioners have standing? Yes, because it is based on the right of the people on matters of public concern.

5
Interesting fact: Atty. Tanya Lat is one of the counsels for petitioners.
6
The JPEPA will be the first bilateral free trade agreement to be entered into by the Philippines with another country in the event the
Senate grants its consent to it. It covers a broad range of topics such as: trade in goods, rules of origin, customs procedures, paperless
trading, trade in services, investment, intellectual property rights, government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute avoidance and settlement, improvement of the business environment,
and general and final provisions.

• It is sufficient to show that they are citizens and, therefore, part of the general public which possesses the right
• Legaspi vs Civil Service Comission - it is for the courts to determine on a case by case basis whether the matter at issue is
of interest or importance, as it relates to or affects the public.
• From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers
submitted during the negotiations towards its execution are matters of public concern.
• Respondents only claim that diplomatic negotiations are covered by executive privilege, thus constituting an exception to
the right to information and the policy of full public disclosure.
Are the documents and information being requested in relation to the JPEPA covered by the doctrine of executive privilege?
-YES  [this is long, but trust me, it’s worth reading]
• The privileged character of diplomatic negotiations has been recognized in this jurisdiction:
o Chavez v. PCGG: “information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest.”
o PMPF v. Manglapus – petitioners therein were  President’s representatives on the state of the then on-going
negotiations of the RP- US Military Bases Agreement.  
§ The Court denied the petition, stressing that “secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of
access to information.” The Resolution went on to state, thus:  
• The nature of diplomacy requires centralization of authority and expedition of decision which
are inherent in executive action. Another essential characteristic of diplomacy is its
confidential nature.
• Delegates from other countries come and tell you in confidence of their troubles at home and
of their differences with other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other circumstances … If
these reports … should become public … who would ever trust American Delegations in
another conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284.)
§ Court adopted the doctrine in U.S. v. Curtiss- Wright Export Corp. that the President is the sole organ
of the nation in its negotiations with foreign countries, viz:
• The President alone has the power to speak or listen as a representative of the nation.
• He makes treaties with the advice and consent of the Senate; but he alone negotiates.
• Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to
invade it.
• As Marshall said, “The President is the sole organ of the nation in its external relations, and
its sole representative with foreign nations.”
• Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept
perpetually confidential – since there should be “ample opportunity for discussion before [a treaty] is approved” – the
offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published.  
o It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that
“historic confidentiality” would govern the same.  
§ Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with
other foreign governments in future negotiations.
o A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future
Philippine representatives from frankly expressing their views during negotiations.  
o While it appears wise to deter PH representatives from entering into compromises, it bears noting that treaty
negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of  lesser importance in order to obtain more
favorable terms in an area of greater national interest.
• Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher national goals for
the sake of securing less critical ones. 
o Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. 
o 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 that it will be considered privileged in all instances. 
o 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
privileged status.
• Communications can be privileged even if they don’t involve national security
o Examples: “Informer’s privilege” – privilege of the Gov not to disclose identity of a person or persons who furnish
info of law violations to law enforcers. The suspect involved need not be so notorious as to be a threat to national
security for privilege to apply.
o “presidential communications” which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not. Privileged because “frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.”

• Closely related to pres. comms privilege is the “deliberative process privilege,” which covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated.
o The privileged status of such documents rests, not on the need to protect national security but, on the obvious
realization that officials will not communicate candidly among themselves if each remark is a potential item of
discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions.
o The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential
communications privilege.
§ The privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged
character of the deliberative process.
§ Fullbright case: “Exposure of the pre-agreement positions of the French negotiators might well offend
foreign governments and would lead to less candor by the U.S. in recording the events of the
negotiations process.
§ xxx Finally, releasing these snapshot views of the negotiations would be comparable to
releasing drafts of the treaty, particularly when the notes state the tentative provisions and language
agreed on. As drafts of regulations typically are protected by the deliberative process privilege, drafts
of treaties should be accorded the same protection.”
o Since, in this jurisdiction, there is no counterpart of the U.S. Freedom of Information Act, nor is there any statutory
7
requirement similar to Freedom of Information Act (FOIA) Exemption 5 in particular , Philippine courts, when
assessing a claim of privilege for diplomatic negotiations, are more free to focus directly on the issue of whether
the privilege being claimed is indeed supported by public policy, without having to consider if these negotiations
fulfill a formal requirement of being “inter-agency.”
• The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect simply because
the same privilege is now being claimed under different circumstances –
o The privilege for diplomatic negotiations may be invoked not only against citizens’ demands for information,
but also in the context of legislative investigations;
o It is the President alone who negotiates treaties, and not even the Senate or the House of Representatives, unless
asked, may intrude upon that process.
Does the privilege apply only at certain stages of the negotiation process? – No.
• The duty to disclose “definite propositions of the government” does not apply to diplomatic negotiations such as JPEPA.
• In Chavez v. PEA and Chavez v. PCGG, the SC held that: the constitutional right to information includes official
information on on-going negotiations before a final contract.
• The information, however, must constitute definite propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and
public order.
• It follows from this ruling that even definite propositions of the government may not be disclosed if they fall under “recognized
exceptions.” The privilege for diplomatic negotiations is clearly among the recognized exceptions.
Is there sufficient public interest to overcome the claim of privilege? –No.
• The standard to be employed in determining whether there is a sufficient public interest in favor of disclosure is the strong
and “sufficient showing of need.”
• Arguments of the petitioners fail to establish their entitlement to the subject documents.

7
In order to qualify for protection under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or
intra-agency in nature, and (2) it must be both pre-decisional and part of the agency’s deliberative or decision-making
process. (from US cases of Fulbright and CIEL)

Soliven v. Makasiar (1988) – who has the right to invoke immunity from suit
FACTS:
• NOTE: this case does not have facts in the originals. This is a resolution.
• Found in the other sources: Luis Beltran was a columnist of the Philippine Star. In 1987, a lot of coup attempts occurred
against the President Cory Aquino. Beltran wrote an article saying that former President Aquino hid under her bed in
Malacanang during one of the coup attempts. Aquino sued Luis Beltran for Libel. These are petitions for certiorari and
prohibition.
ISSUE/HELD:
Can the President, under the Constitution, initiate criminal proceedings through the filing of a complaint-affidavit?—YES,
the President can file a suit!
• Beltran argues that since the president is immune from being sued, it correlatively means that she cannot file a suit as well.
o He contends that in lieu of the criminal proceedings, the President have to be a witness for the prosecution,
bringing her under the jurisdiction of the courts.
o This would indirectly defeat her privilege of immunity from suit by testifying on the witness stand, she would be
exposing herself to possible contempt of court or perjury.
• SC held that the rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of
Presidential duties and functions free from any hindrance or distraction.
o Being the Chief Executive of the Government is a job that requires all of the person’s time and undivided attention.
• SC held that this privilege of immunity from suit pertains to the President by virtue of the office and may be invoked only by
the holder of the office and not by any other person in the President's behalf.
o An accused in a criminal case, where the President is complainant thereof, cannot raise the presidential privilege
as a defense to prevent the case from proceeding.
• SC held that there is nothing in our laws that would prevent the President from waiving the privilege.
o If the President decides to waive such protection under the privilege and submit to the court's jurisdiction, it can
be done.
o The choice of whether to exercise the privilege or to waive it is solely the President's prerogative.
o It is a decision that cannot be assumed and imposed by any other person.
Next issues not really related to the syllabus topic…
Were Beltran et al. denied due process when information for libel were filed against them although the finding of the
existence of a prima facie case was still under review by the Secretary of Justice?—NO, this issue is moot and academic.
• Beltran was able to avail all the administrative remedies. 

o The City Fiscal of Manila found a prima facie case against him. 
o The Secretary of Justice denied the Beltran’s MR and upheld the resolution of the Undersecretary of Justice which
nd
sustained the City Fiscal.  His 2 MR was likewise denied. 
o On appeal, the President, thru the Executive Secretary, affirmed the Resolution.
• Beltran waived his right to file a counter-affidavit.
o Instead of filing a counter-affidavit, he filed a Motion to Declare Proceedings Closed, thereby waiving his right to
file a counter-affidavit. 
o All that is required for due process is the opportunity to be heard which in this case is the opportunity to file a
counter-affidavit.
Was the Constitutional rights of Beltran violated when respondent RTC judge issued a warrant for his arrest without
personally examining the complainant and the witnesses, if any, to determine probable cause?—NO.
• SC held that the judge is not require dto personally examine the complainant and his witnesses in determining probably
cause for purposes of issuing a warrant of arrest.
• The judge shall only personally evaluate the report and the supporting documents submitted by the fiscal.  
• If on that basis, he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting
affidavits of witnesses.  
• If the judges are required to examine the witnesses personally, then he would be conducting preliminary investigations
rather than focusing on hearing and deciding cases.  
• Such procedure was unanimously adopted by the Supreme Court in Circular No. 12 on June 30, 1987.  
Other discussions:
• Beltran further contended he could not be held liable for libel because of the privileged character or the publication.
o SC held that it is not a trier of facts and that such a defense is best left to the trial court.
• SC found no basis for “chilling effect” on the freedom of press freedom.

Separate Opinion!
Gutierrez, Jr. J., concurring 
• The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest.
• Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At
the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns
him or her. 
• The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our
fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their
careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the
possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom of expression. However,
since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of
Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said:
o If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent
with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom
of expression.
• In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully
applied.

David v. Arroyo (SUPRA)
Poe-Llamanzares v. COMELEC G.R. No. 221697 & 221698 – 700 (2016) – citizenship of foundling
SECTION 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a registered voter, able to read
and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately
preceding such election.
FACTS:
• Dear Ate Charo,

o Poe was found as a newborn infant in the Parish Church of Jaro, Iloilo by one Edgar Militar
o She was reported as a foundling with the Civil Registrar of Iloilo and was given a Foundling Certificate and a
Certificate of Live Birth
o When Poe was 5 years old, FPJ and Susan Roces filed a petition to adopt her with the MTC of San Juan City
o It was later found out that the lawyer who handled Poe’s adoption filed to secure from the OCR-Iloilo a new
Certificate of Live Birth indicating Poe’s new name and the name of her adoptive parents
§ This was fixed in 2006
o At 18, Poe registered to vote in San Juan City
o A few years later she was also issued a passport
o Initially, she pursued a degree in Developmental Studies in UP but continued her studies in Boston College as a
Political Studies major
o In 1991, she married Daniel Llamanzares, a dual-citizen of the PH and US
o They returned to the US two days after their wedding
§ Poe has 3 children (eldest was born in the US, two youngest borin in the PH)
o In 2001, Poe became a naturalized American Citizen and obtained a US passport
o In 2004, Poe returned to the Philippines with her second child to support FPJ’s Presidential bid
§ It was during this time that she gave birth to her youngest child
§ She returned to the US with her two daughters shortly after the elections
o In a few months after returning to the US, Poe rushed back to the PH upon learning of her father’s deteriorating
medical condition
§ After her father died, she stayed for a few months to take care of the funeral arrangements and the
settlement of her father’s estate
o According to Poe, because of her father’s death, she and her husband decided to move and reside permanently
in the PH sometime in the first quarter of 2005
§ Poe already quit her US job in early 2004
o Finally, Poe came home to the Philippines on 24 May 2005
§ without delay, secured a Tax Identification Number from the Bureau of Internal Revenue.
§ Children immediately followed
§ Husband stayed in the US a bit to complete pending projects and sell their home
o Poe and her children initially stayed with her mother until Poe and Daniel purchased a condo unit with a parking
slot at One Wilson Place in San Juan during the second half of 2005
§ Poe’s children began attending school in the PH
o On 14 February 2006, the Poe made a quick trip to the U.S. to supervise the disposal of some of the family’s
remaining household belongings
§ She travelled back to the Philippines on 11 March 2006.
o In late March 2006, Daniel officially informed the U.S. Postal Service of the family’s change and abandonment of
their address in the U.S.
§ House was sold
§ Daniel quit his job and came to the PH to work
o In early 2006, Poe and Daniel acquired a 509squaremeter lot in Corinthian Hills, Quezon City where they built
their family home
§ Still where the couple and their children are residing.
o On 7 July 2006, Poe took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.)
No. 9225 or the Citizenship Retention and Reacquisition Act of 2003
§ Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire
Philippine citizenship together with petitions for derivative citizenship on behalf of her three minor
children on 10 July 2006
o Again, Poe registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.
§ She also secured from the DFA a new Philippine Passport
o On 6 October 2010, President Benigno S. Aquino III appointed Poe as Chairperson of the MTRCB.
§ Before assuming her post, Poe executed an “Affidavit of Renunciation of Allegiance to the United States
of America and Renunciation of American Citizenship” before a notary public in Pasig City on 20
October 2010 in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.
§ Following day, Poe submitted the affidavit to the BI and took her oath as the MTRCB Chair.
§ From this point on, Poe stopped using her US passport

o On 12 July 2011, Poe executed before the Vice Consul of the U.S. Embassy in Manila an “Oath/Affirmation of
Renunciation of Nationality of the United States.”
§ she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had
taken her oath as MTRCB Chairperson with the intent, among others, of relinquishing her US citizenship
§ In the same questionnaire, the Poe stated that she had resided outside of the U.S., specifically in the
PH, from 3 September 1968 to 29 July 1991 and from May 2005 to present
o On October 2, 2012, Poe filed with the COMELEC her COC for Senator for the 2013 Elections
§ she answered “6 years and 6 months” to the question “Period of residence in the Philippines before
May 13, 2013.”
§ She obtained the highest number of votes and was proclaimed a senator
o Poe obtained a Philippine Diplomatic passport
o On October 15, 2015, Poe filed her COC for the Presidency for the May 2016 Elections
§ In her CoC, she declared that she is a naturalborn citizen and that her residence in the PH up to the
day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005.
§ Attached an Affidavit Affirming Renunciation of USA Citizenship subscribed and sworn to before a
notary public in Quezon City on 14 October 2015
• This case is triggered by filing of several COMELEC cases against her
o She lost all of those cases before the COMELEC, both Division and MR before the En Banc
ISSUES/HELD:
(MAIN ISSUE) What is the law’s treatment of foundlings? – Natural-born citizens
• As a matter of law, foundlings are as a class, natural born citizens.

• While the 1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive language which would definitely
exclude foundlings either.
• There is need to examine the intent of the framers of the Constitution
o the deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be covered
by the enumeration.
• The 1935 Constitution is silent as to foundlings only because their number was not enough to merit specific mention
• Moreover, it was believed that the rules of international law were already clear to the effect that illegitimate children followed
the citizenship of the mother, and that foundlings followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.
• Domestic laws on adoption also support the principle that foundlings are Filipinos.
o These laws do not provide that adoption confers citizenship upon the adoptee. Rather, the adoptee must be a
Filipino in the first place to be adopted.
o Inter-Country Adoption Act, Domestic Adoption Act, and SC’s Rules on Adoption all expressly refer to “Filipino
children” and include foundlings as among Filipino children who may be adopted.
• Respondents argue that: the process to determine that the child is a foundling leading to the issuance of a foundling
certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which
make the foundling a naturalized Filipino at best.
o SC: erroneous argument
o Naturalborn citizens are those who are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship.
§ “Having to perform an act” means that the act must be personally done by the citizen.
• In this case, the determination of foundling status is done by the authorities, not the child
§ the object of the process is the determination of the whereabouts of the parents, not the citizenship of
the child.
§ the process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship,
or the election of such citizenship by one born of an alien father and a Filipino mother under the 1935
Constitution, which is an act to perfect it.
• Foundlings are likewise citizens under international law.
o International law becomes part of domestic law through transformation or incorporation
§ Transformation – requires domestic law
§ Incorporation – generally accepted principles of international law, by virtue of the incorporation clause
of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
§ “Generally accepted principles of international law” include international custom as evidence of a
general practice accepted as law and general principles of law recognized by civilized nations
§ International customary rules are accepted as binding as a result from the combination of two elements:
• the established, widespread, and consistent practice on the part of States; and
• a psychological element known as the opinion juris sive necessitates (opinion as to law or
necessity).
o Implicit is belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it
§ “General principles of law recognized by civilized nations” are principles “established by a process of
reasoning” or judicial logic, based on principles which are “basic to legal systems generally,” such as
“general principles of equity” and “general principles against discrimination” (embodied in UDHR,

ICCESCR, and International Convention on the Elimination of All Forms of Racial Discrimination,
Convention against Discrimination in Education, Convention Concerning Discrimination in Respect of
Employment and Occupation”)
o SC has interpreted the UDHR as part of the generally accepted principles of international law and binding on the
State
o PH has also ratified the UN Convention on the Rights of the Child and the ICCPR
o Common thread of UDHR, UNCRC, and ICCPR is that they
§ oblige the PH to grant nationality from birth and
§ ensure that no child is stateless
• 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws and the 1961 UN Convention on
Reduction of Statelessness, while unratified by the PH, contain certain principles that are generally accepted principles of
international law
o Art. 14 of 1930 Hague Convention… – principle that a foundling is presumed to have the nationality of the country
of birth.
o Art. 2 of UN Convention on Reduction of Statelessness – principle that a foundling is presumed born of citizens
of the country where he is found
• PH is a signatory to the UDHR which affirm Art. 14 of the 1930 Hague Convention through Art. 15(1)
o Art. 2 of UN Convention on Reduction… merely gives effect to Art. 15(1) of the UDHR
§ In Razon, Jr. v. Tagitis, this Court noted that the Philippines had not signed or ratified the “International
Convention for the Protection of All Persons from Enforced Disappearance.” Yet, we ruled that the
proscription against enforced disappearances in the said convention was nonetheless binding as a
“generally accepted principle of international law.”
• Despite the fact that only 16 of the 20 states required for the Convention to come into force
had ratified the instrument
• Essentially, “generally accepted principles of international law” are based not only on international custom, but also on
“general principles of law recognized by civilized nations,” as the phrase is understood in Article 38.1 paragraph (c) of the
ICJ Statute.
o Poe’s evidence shows that at least 60 countries in Asia, North and South America, and Europe have passed
legislation recognizing foundlings as its citizen.
§ 42 of those follow the jus sanguinis regime
§ only 36 are parties to the Convention on Statelessness (26 are not signatories to the Convention)
§ During the oral arguments, the Chief Justice pointed out that in 166 out of 189 countries surveyed
(87.83%) foundlings are recognized as citizens
§ These circumstances, including the practice of jus sanguinis countries, show that it is a generally
accepted principle of international law to presume foundlings as having been born of nationals of the
country in which the foundling is found.
• Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and
reasonable and consistent with the jus sanguinis regime in our Constitution.
Did Poe’s repatriation under RA 9225 result in the reacquisition of natural-born citizenship? – YES.
• COMELEC ruled that it did not in disregard of consistent jurisprudence

o Bengson III v. HRET: repatriation results in the recovery of the original nationality. A natural-born citizen will be
restored in his prior status as a natural-born Filipino citizen
o Also all the other cases that talk about repatriation under RA 9225
§ Sobejana Condon v. COMELEC where we described it as an “abbreviated repatriation process that
restores one’s Filipino citizenship.”
§ Parreño v. Commission on Audit, which cited Tabasa v. Court of Appeals, where we said that “[t]he
repatriation of the former Filipino will allow him to recover his naturalborn citizenship.
• The COMELEC construed the phrase “from birth” in the definition of natural citizens as implying “that naturalborn citizenship
must begin at birth and remain uninterrupted and continuous from birth.”
o R.A. No. 9225 was obviously passed in line with Congress’ sole prerogative to determine how citizenship may be
lost or reacquired.
§ Congress saw it fit to decree that naturalborn citizenship may be reacquired even if it had been once
lost.
o The requirement that natural-born status must be uninterrupted was already rejected in Bengson III v. HRET
Did COMELEC commit grave abuse of discretion amounting to lack of jurisdiction when they ruled for the cancellation of
Poe’s COC? – YES.
• Issue before the COMELEC was whether or not COC of Poe should be denied due course or cancelled “on the exclusive
ground” that she made in the certificate a false material representation.
o The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the
issue of the qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority.

o The COMELEC cannot itself, in the same cancellation case, decide the qualification or lack thereof of the
candidate.
o The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice President,
Senators and the Members of the House of Representatives was made clear by the Constitution. (HRET, SET,
and PET)
§ There is no such provision for candidates for these positions.
• Can COMELEC be the judge of the qualification of candidates for President? – NO.
o the lack of legal provisions for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule
o Three reasons to explain the absence of an authorized proceeding for determining the qualifications of a
candidate before the election:
§ First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for
determining his eligibility for the office.
§ Second is the fact that the determination of a candidates’ eligibility, e.g., his citizenship or, as in this
case, his domicile, may take a long time to make, extending beyond the beginning of the term of the
office.
• Contrary to the summary character of proceedings relating to certificates of candidacy
§ Third is the policy underlying the prohibition against pre proclamation cases in elections for President,
Vice President, Senators and members of the House of Representatives.
o Presently, the COMELEC rules require a declaration by final judgment of a competent court that the candidate
sought to be disqualified is “guilty of or found by the Commission to be suffering from any disqualification provided
by law or the Constitution” before a candidate can be disqualified
o GR: a COC cannot be cancelled or denied due course on the ground of false representations regarding his or her
qualifications without a prior authoritative finding that he or she is not qualified.
§ XPN: selfevident facts of unquestioned or unquestionable veracity and judicial confessions
o In this case, the COMELEC essentially ruled that since foundlings are not mentioned in the enumeration of the
1935 Constitution, they cannot be citizens.
§ This borders on bigotry
o Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that Poe possesses blood
relationship with a Filipino citizen when “it is certain that such relationship is indemonstrable,” proceeded to say
that “she now has the burden to present evidence to prove her natural filiation with a Filipino parent.”
o However, Poe’s blood relationship with a Filipino citizen is Demonstrable
§ presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law
• Family Code has chapter on Paternity and Filiation
§ there is more than sufficient evidence that petitioner has Filipino parents and is therefore a naturalborn
Filipino.
§ Burden of proof to show that Poe was not a Filipino citizen was on respondents
§ Poe’s admission that she is a foundling did not shift the burden to her because such status did not
exclude the possibility that her parents were Filipinos, especially as in this case where there is a high
probability, if not certainty, that her parents are Filipinos.
• Factual issue is whether or not Poe’s parents are Filipinos (not who her parents are)
o Under Rules of Evidence, collateral evidence is allowed when it tends in any reasonable degree to establish the
probability or improbability of the fact in issue
o To this end, OSG offered official statistics from the years 1965 – 1975 the total number of foreigners born in the
Philippines was 15,986 while the total number of Filipinos born in the country was 10,558,278.
§ The statistical probability that any child born in the Philippines in that decade is natural born Filipino
was 99.83%.
o Other circumstantial evidence:
§ Poe’s parents are the fact that she was abandoned as an infant in a Roman Catholic Church in Iloilo
City
§ She has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and
an oval face.
o There is a disputable presumption that things have happened according to the ordinary course of nature and the
ordinary habits of life.
§ All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic
Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that
there would be more than a 99% chance that a child born in the province would be a Filipino, would
indicate more than ample probability if not statistical certainty, that petitioner’s parents are Filipinos.
That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the
Revised Rules on Evidence.
§ To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm

Pimentel v. Joint Committee (2004) – non-leg.
(A2015)
SECTION 4. The President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall
begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date six years
thereafter. The President shall not be eligible for any reelection. No person who has succeeded as President and has served as such
for more than four years shall be qualified for election to the same office at any time.
No Vice-President shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of the service for the full term for which he was elected.
Unless otherwise provided by law, the regular election for President and Vice-President shall be held on the second Monday of May.
The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or city, shall
be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, the President of
the Senate shall, not later than thirty days after the day of the election, open all certificates in the presence of the Senate and the
House of Representatives in joint public session, and the Congress, upon determination of the authenticity and due execution thereof
in the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal and highest
number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses of the Congress,
voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the
President or Vice- President, and may promulgate its rules for the purpose.
FACTS:
• Sen. Pimentel Jr. filed petition for prohibition to declare null and void and to cease and desist the continued existence of the
Joint Committee of Congress (JCC) to determine the authenticity and due execution of the certificates of canvass and
preliminarily canvass the votes cast for Presidential and Vice-Presidential candidates in the May 10, 2004 elections following
the adjournment of Congress sine die on June 11, 2004.
• Pimentel posits that with "the adjournment sine die on June 11, 2004 by the Twelfth Congress of its last regular session,
the 12th congress passed out of legal existence."
o Hence, "all pending matters and proceedings terminate upon the expiration of ... Congress."
o To advance this view, he relies on "legislative procedure, precedent or practice [as] borne [out] by the rules of
both Houses of Congress."
ISSUE/HELD:
Is the existence of the JCC valid? – YES
• Pimentel’s claim that his arguments are supported by "legislative procedure, precedent or practice [as] borne [out] by the
rules of both Houses of Congress" is directly contradicted by Section 42 of Rule XIV of the Rules
o The section clearly provides that the Senate shall convene in joint session during any voluntary or compulsory
recess to canvass the votes for President and Vice-President not later than thirty days after the day of the elections
in accordance with Section 4, Article VII of the Constitution.
o In fact precedents of 1992 and 1998 presidential election do not support Pimentel’s claim
§ 1992- both houses adjourned May25,’92,on June 16 ’92 JCC finished tallying the votes for Pres and
VP, thereafter on June 22’92, 8th Congress convened in joint public session as the National Board of
Canvassers and on even date proclaimed Ramos and Estrada as Pres and VP respectively.
§ 1998- both houses adjourned May 25,98, JCC completed the counting May 27,98. 10th congress then
convened on May 29, 1998 as the National Board of Canvassers and proclaimed Estrada and
Macapagal as Pres and VP respectively.
• As for petitioner's argument that “the existence of the JCC are invalid, illegal and unconstitutional following the
adjournment of both houses of their regular session on June 11, 2004, he cites in support Section 15, Article VI of the
Constitution which reads:
o Sec. 15. The Congress shall convene once every year on the fourth Monday of July for its regular session, unless
a different date is fixed by law, and shall continue to be in session for such number of days as it may determine
until thirty days before the opening of its next regular session, exclusive of Saturdays, Sundays, and legal
holidays. The President may call a special session at any time.
• Contrary to petitioner's argument, however, the term of the present Twelfth Congress did not terminate and expire
upon the adjournment sine die of the regular session of both Houses on June 11, 2004.

o Section 15, Article VI of the Constitution cited by petitioner does not pertain to the term of Congress, but to its
regular annual legislative sessions and the mandatory 30-day recess before the opening of its next regular
session (subject to the power of the President to call a special session at any time).
o Section 4 of Article VIII also of the Constitution clearly provides that "the term of office of the Senators shall be
six years and shall commence, unless otherwise provided by law, at noon on the thirtieth day of June next
following their election." Similarly, Section 7 of the same Article provides that "the Members of the House of
Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law,
at noon on the thirtieth day of June next following their election."
• Consequently, there being no law to the contrary, until June 30, 2004, the present Twelfth Congress to which the present
legislators belong cannot be said to have "passed out of legal existence."
o The legislative functions of the Twelfth Congress may have come to a close upon the final adjournment
of its regular sessions on June 11, 2004, but this does not affect its non- legislative functions, such as
that of being the National Board of Canvassers.
o In fact, the joint public session of both Houses of Congress convened by express directive of Section 4,
Article VII of the Constitution to canvass the votes for and to proclaim the newly elected President and
Vice-President has not, and cannot, adjourn sine die until it has accomplished its constitutionally
mandated tasks.
§ For only when a board of canvassers has completed its functions is it rendered functus officio. Its
membership may change, but it retains its authority as a board until it has accomplished its purposes.
§ Since the Twelfth Congress has not yet completed its non-legislative duty to canvass the votes and
proclaim the duly elected President and Vice-President, its existence as the National Board of
Canvassers, as well as that of the Joint Committee to which it referred the preliminary tasks of
authenticating and canvassing the certificates of canvass, has not become functus officio.
• In sum, despite the adjournment sine die of Congress, there is no legal impediment to the Joint Committee completing the
tasks assigned to it and transmitting its report for the approval of the joint public session of both Houses of Congress, which
may reconvene without need of call by the President to a special session.

LOPEZ v. SENATE OF THE PHILIPPINES (2004) – rules for canvassing
FACTS:
rd
• This is a resolution of the SC En Banc of the petition of Cong. Ruy Elias Lopez (3 Dist., Davao) seeking to nullify Sec.13,
Rule VIII of the Rules of the Joint Public Session of Congress (Canvassing Rules), which created a Joint Committee that
will conduct a preliminary canvass the votes of the candidates for President and Vice-President during the 2004 elections
• [super short Resolution, facts are from CJ Davide’s Separate Opinion]
• Lopez claims the Canvassing Rules was adopted by both Houses with grave abuse of discretion. He requests that a TRO
directing Respondents to cease and desist from implementing, executing, and/or enforcing the Canvassing Rules.
• Lopez contends that the Rules are unconstitutional because:
o It constitutes a delegation of legislative power to a Joint Committee of Congress;
o It constitutes an amendment of Section 4, Article VII of the Constitution;
o It deprives him of his rights and prerogatives as a Member of Congress; and
o By the passage of the Canvassing Rules, Congress has neglected to perform an act which the Constitution
specifically enjoins as a duty resulting from office.
• OSG, Senate and House of Reps’ argue that the adoption of the Canvassing Rules are internal matters of Congress which
is beyond this Court's scope of judicial inquiry.
o They are likewise unanimous in their argument that there has been no invalid delegation to the Joint Committee
of the Constitutional duties of Congress.
ISSUES/HELD:
Did Congress commit GADALEJ in providing for the Canvassing Rules? – No.
• SECTION 4, ARTICLE VII expressly provides that Congress has the power to promulgate its rules for canvassing the
certificates. (Congressional prerogative)
• JURISPRUDENCE:
o  Arroyo v. De Venecia – The Court ruled it has no power to review the internal proceedings of Congress, unless
there is a clear violation of the Constitution.
o Santiago v. Guingona – Doctrine of separation of powers: no authority to interfere when there is no showing of
abuse of discretion; co-equal branches
• The decisions and final report of the Joint Committee shall be subject to the approval of the joint session of both Houses of
Congress, voting separately.
o Thus, there is no GADALEJ and Congress cannot be deprived of their congressional prerogatives.
• Resolution approved unanimously, 14-0. Every other f****** justice had something to say about it. Read the separate
opinions!

Tecson v. Lim (2004) – need for post election issue
(there are consolidated cases to disqualify FPJ and to deny due course/cancel his CoC)
FACTS:
• December 2003, Ronald Allan Kelly Poe (aka Fernando  Poe, Jr. or "FPJ") filed his certificate of candidacy for the position
of President under the Koalisyon ng Nagkakaisang Pilipino (KNP) Party.
o In his CoC, FPJ stated that (1) he was a natural-born citizen of the Philippines, (2) his name was either "Fernando
Jr.," or "Ronald Allan" Poe, (3) date of birth was 20 August 1939, and (4) his place of birth to be Manila.  
• Fornier’s Petition
o Victorino X. Fornier, a petitioner in of the consolidated cases, filed a petition to disqualify FPJ and to deny due
course or to cancel his CoC upon the ground that FPJ made a material misrepresentation:
§ (1) That he was a natural-born Filipino citizen when in fact his parents were foreigners;
• Mother, Bessie Kelley Poe, was an American, and his father, Allan Poe, was a Spanish
national, being the son of Lorenzo Pou, a Spanish subject.
§ (2) Even considering that that Allan Poe was a Filipino citizen, he could not have transmitted his Filipino
citizenship to FPJ, since he was an illegitimate child of an alien mother.
• (1) Allan Poe had a prior marriage to a certain Paulita Gomez before his marriage to Bessie
Kelley, and (2) even if no prior marriage existed, Allan Poe married Bessie Kelly a year after
the birth of FPJ.
o January 2004, COMELEC dismissed the case of Fornier for lack of merit.  Hence, this petition for certiorari.
• Tecson and Velez’ Petition
o Other petitions were made by Maria Tecson et al. against FPJ challenging the jurisdiction of the COMELEC and
asserting that under Sec. 4(7) Art. 7 of the 1987 Constitution, only the SC has original and exclusive jurisdiction
to resolve the issues of the case.
CITIZENSHIP (Discussed the long background and history of “citizenship”; will discuss only pertinent parts)
• According to the Treaty of Paris between Spain and the United State in 1898:
o Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty
relinquishes or cedes her sovereignty may remain in such territory or may remove therefrom, retaining in either
event all their rights of property... In case they remain in the territory they may preserve their allegiance to the
Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications
of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration
they shall be held to have renounced it and to have adopted the nationality of the territory in which they
reside.
• Under the Philippine Bill of 1902 or the Philippine Organic Act of 1902:
o The term "citizens of the Philippine Islands" appeared for the first time.
o “All inhabitants of the Philippine Islands continuing to reside therein, who were Spanish subjects on the
11th day of April, 1891, and then resided in said Islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands [EN MASSE FILIPINZATION] and as such
entitled to the protection of the United States, except such as shall have elected to preserve their allegiance to
the Crown of Spain xxx”
o “Citizen of the Philippines” was one who was an inhabitant of the Philippines, and a Spanish subject on the 11
April 1899  
§ The term “inhabitant” was taken to include 1) a native-born inhabitant, 2) an inhabitant who was a native
of Peninsular Spain, and 3) an inhabitant who obtained Spanish papers on or before 11 April 1899. 
o An amendment to the Philippine Organic Act of 1902 in 1912:
o "Provided, That the Philippine Legislature is hereby authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, (e.g.
children born in the Philippines from 11 April 1899 to 01 July 1902, during which period no citizenship law was
extant in the Philippines) the natives of other insular possession of the United States, and such other persons
residing in the Philippine Islands who would become citizens of the United States, under the laws of the United
States, if residing therein."
• Under the Jones Law, a native-born inhabitant of the Philippines was deemed to be a citizen of the Philippines as of 11 April
1899 if he was 1) a subject of Spain on 11 April 1899, 2) residing in the Philippines on said date, and, 3) since that date,
not a citizen of some other country.
Citizenship based on 1935 Constitution (applicable Constitution)

• There were divergent views on whether or not jus soli (place) or jus sanguinis (blood) to be the mode of acquiring PH
citizenship. The 1935 Constitution adopted jus sanguinis.
Section 1, Article III, 1935 Constitution; The following are citizens of the Philippines:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution
(2) Those born in the Philippines Islands of foreign parents who, before the adoption of this Constitution, had
been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines o

(4) Those whose mothers are citizens of the Philippines and upon reaching the age of majority, elect Philippine
citizenship.
(5) Those who are naturalized in accordance with law.
• Under the 1935 Constitution, women would automatically lose their Filipino citizenship and acquire that of their foreign
husbands, this resulted in discriminatory situations that effectively incapacitated the women from transmitting their Filipino
citizenship to their legitimate children and required illegitimate children of Filipino mothers to still elect Filipino citizenship
upon reaching the age of majority.
ISSUE/HELD:
Is FPJ a natural-born citizen of the Philippines, hence, qualified to run for President?—YES!
SYLLABUS TOPIC: “need for post election issue”  

• SC held that it has no jurisdiction over the first 2 cases (Tecson and Velez).
nd rd
o Only the registered candidate for Pres. or for VP who received the 2 or 3 highest number of votes may contest
the election with the SC acting as the PET
o Said contests may only be done after the election has been conducted.
• Tecson and Velez invoked the provisions of Sec. 4(7), Art. 7 of the 1987 Constitution in assailing the jurisdiction of the
COMELEC when it took cognizance of the case and in urging the SC to instead take on the petitions they directly instituted
before it. (See provision)
o “Contest” would refer to a post-election scenario.
o Hence, election contests consist of either an election protest or a quo warranto (aim of dislodging the winning
candidate from office).
o Rules on the PET provide that:
“Rule 12. Jurisdiction. - The Tribunal shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President of the Philippines.
“Rule 14. Election Protest. - Only the registered candidate for President or for Vice- President of the Philippines
who received the second or 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 with the Clerk of the Presidential Electoral Tribunal
within thirty (30) days after the proclamation of the winner.”
• The rules speak of the jurisdiction of the tribunal over contests relating to the election, returns, and qualifications of the
"President" or "Vice-President" and not of "candidates" for President or Vice-President.
o A quo warranto proceeding is generally defined as being an action against a person who usurps, intrudes into, or
unlawfully holds or exercises a public office.
o In such context, the election contest can only contemplate a post-election scenario.
o In Rule 14, only a registered candidate who would have received either the second or third highest number of
votes could file an election protest.
o This rule again presupposes a post-election scenario.
• SC held that its jurisdiction, defined by Sec. 4(7), Art. 7, would not include cases directly brought before it that questions
the qualifications of a candidate for the Pres. or VP before the elections are held.
BALIK TAYO KAY FPJ:

• Sec. 2, Art. 7 of the Constitution: “No person may be elected President unless he is a natural-born citizen of the Philippines,
a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the
Philippines for at least ten years immediately preceding such election.”
• SC held that “natural-born citizens" includes "those who are citizens of the Philippines from birth without having to perform
any act to acquire or perfect their Philippine citizenship.”
o Even since, there are 4 modes of acquiring citizenship—(1) naturalization, (2) jus soli, (3) res judicata, and (4) jus
sanguinis. Jus sanguinis was adopted by up the Constitution to qualify a person to being a “natural-born” citizen
of the Philippines.
FPJ’s Lineage to determine his citizenship (Documents that were presented to show lineage and citizenship)
• FPJ’s birth appeared to be 20 August 1939 (under the 1935 Constitution regime)
a. 1935 Consti: Those whose fathers are citizens of the Philippines are Filipino Citizen.
• Allen Poe’s citizenship is contested, so the SC looked at FPJ’s lineage.
• Documentary evidence show that the earliest established direct ascendant of FPJ was his paternal grandfather Lorenzo
Pou the father of Allan Poe.
• Lorenzo Pou’s birth had not been presented in evidence . However, His death certificate identified him to be a Filipino, a
resident of Pangasinan, and 84 years old at the time of his death on 11 Sept. 1954 .
(1) Birth Certificate of Allan F. Poe.
a. 17 May 1915 to an Español father, Lorenzo Pou, and a mestiza Español mother, Marta Reyes
(2) Marriage certificate of FPJ’s Parents  on 16 Sept. 1940.
a. Allan Poe was stated to be 25 years old, unmarried, and a Filipino citizen 
b. Bessie Kelley to be 22 years old, unmarried, and an American citizen
(3) Marriage certificate of Allan Poe & Paulita Gomez *but it  was uncertified.
(4) Birth certificate of FPJ,  

o Born on 20 August 1939 to Allan F. Poe, a Filipino, 24 years old, married to Bessie Kelly, an American citizen, 21
years old.
Lorenzo Pou, grandfather of FPJ is a Filipino since he was in the Philippines during the en masse Filipinization of the
Inhabitants of the Philippines (see the Organic Act and the Treaty of Paris).
• The death certificate of Lorenzo Pou would show that he died on 11 September 1954.
• It could be assumed that Lorenzo Pou was born in the year 1870 when the PH was still a colony of Spain.
• Petitioner would argue that Lorenzo Pou was not in the PH during the crucial period of from 1898-1902 considering that
there was no existing record about such fact in the Records Management and Archives Office. However, petitioner failed to
show that Lorenzo Pou was at any other place during the same period.
• In absence of the contrary, it should be sound to conclude or presume that the place of residence of a person at the time of
his death was also his residence before death
• SC held that it can only infer that their conclusion that since Lorenzo Pou is a Filipino, his son, Allan Poe was also Filipino,
and the latter’s son, FPJ, was also a Filipino by virtue of the 1935 Constitution which states a Filipino is one whose father
is a Filipino.
Illegitimacy: FPJ was a recognized illegitimate child following rules on Evidence. (NOT Really Important)
• SC also held out Civil law provisions point to an obvious bias against illegitimacy.  
• SC held that the growing trend to liberalize the acknowledgment or recognition of illegitimate children is an attempt to break
away from the traditional idea of keeping well apart legitimate and non-legitimate relationships within the family in favor of
the greater interest and welfare of the child.
o The provisions are intended to govern the private and personal affairs of the family. There is little evidence to
show that the legitimate or illegitimate civil status of the individual would also affect his political rights or, in general,
his relationship to the State.
o While the provisions on  "citizenship" could be found in the Civil Code, such provisions must be taken in the context
of private relations, the domain of civil law 
o The proof of filiation or paternity for purposes of determining his citizenship status should be deemed independent
from and not inextricably tied up with that prescribed for civil law purposes.
o The Civil Code/Family Code provisions on proof of filiation or paternity do not have preclusive effects on matters
alien to personal and family relations.
o The ordinary rules on evidence could well and should govern.
• Basically the SC held that the proof of filiation by the Civil Code and Family Code should not strictly govern this case since
what is involved is not family or personal relations.
o What is involved here are matters as to the exercise of political rights or a person’s relationship to the state.
o This is important because FPJ’s evidence of illegitimate filiation is an affidavit made by his maternal aunt, not his
father’s and under the Civil Code/Family code it is not allowed to prove filiation – but it is allowed under evidence
“pedigree”.
• Act or Declaration about pedigree.—The act or declaration of a person deceased, or unable to testify, in respect to the
pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the
controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The
word `pedigree’ includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these
facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree.
(Section 39, Rule 130)
• Thus, the duly notarized declaration made by Ruby Kelley Mangahas, sister of Bessie Kelley Poe submitted might be
accepted to prove the acts of Allan Poe, recognizing his own paternal relationship with FPJ:
o “Fernando and Bessie Poe had a son by the name of Ronald Allan Poe, known in the Philippines as `Fernando
Poe, Jr.,’ or `FPJ’
o Fernando Poe, Sr., my sister Bessie and their first three children, Elizabeth, Ronald, Allan and Fernando II, and
myself lived together with our mother at our family's house...
o I am executing this Declaration to attest to the fact that my nephew, Ronald Allan Poe is a natural born Filipino,
and that he is the legitimate child of Fernando Poe, Sr.”
• NOTE: Mangahas was in Stockton, California, USA 
• SC also said that in case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to
obtain, DNA testing could be resorted to. A positive match would clear up filiation or paternity.
SC held that it does not matter whether or not you are an illegitimate child of your father, you still get his citizenship as the
Constitution does not distinguish.
• Petitioners argue that if Allan F. Poe were a Filipino citizen, he could not have transmitted his citizenship to FPJ, the latter
being an illegitimate child. According to petitioner, prior to his marriage to Bessie Kelley, Allan F. Poe, contracted marriage
with a certain Paulita Gomez, making his subsequent marriage to Bessie Kelley bigamous and respondent FPJ an
illegitimate child.
o But documentary evidence introduced by FPJ, consisting of a birth certificate and a marriage certificate of his
parents showed that FPJ was born on 20 August 1939 to a Filipino father and an American mother who were
married to each other a year later, or on 16 September 1940.
o Birth to unmarried parents would make FPJ an illegitimate child. 
• Petitioners contended that as an illegitimate child, FPJ followed the citizenship of his mother, Bessie Kelley, an American
citizen.

• However, in the case of Paa vs. Cha o:
o Quintin Chan claimed that his father, Leoncio, was the illegitimate son of a Chinese father and a Filipino mother. 
o Quintin therefore argued that he got his citizenship from his father, Leoncio.
o SC held that there was no valid proof that Leoncio was in fact the son of a Filipina mother 
o SC concluded that Leoncio was not Filipino. If Leoncio was not Filipino, neither was his son Quintin. Quintin
therefore was not only not a natural-born Filipino but was not even a Filipino .
o SC said in an obiter that even if Leoncio were Filipino, Quintin would not be Filipino because Quintin was
illegitimate. This statement about Quintin, based on a contrary to fact assumption, was absolutely unnecessary
for the case.
• What is the relevance of legitimacy or illegitimacy to elective public service? What possible state interest can there be for
disqualifying an illegitimate child from becoming a public officer?
o It was not the fault of the child that his parents had illicit liaison.
• Why deprive the child of the fullness of political rights for no fault of his own?
o To disqualify an illegitimate child from holding an important public office is to punish him for the indiscretion of his
parents
• Petitioner’s argument should necessarily fail.
o Jurisprudence provides that an illegitimate child as taking after the citizenship of its mother, it did so for the benefit
the child. It was to ensure a Filipino nationality for the illegitimate child of an alien father in line with the assumption
that the mother had custody, would exercise parental authority and had the duty to support her illegitimate child.
o It was to help the child, not to prejudice or discriminate against him.  
• The 1935 Constitution, which is the governing law at the time of birth of FPJ, can never be more explicit than it is.
o Providing neither conditions nor distinctions, the Constitution states that among the citizens of the Philippines are
“those whose fathers are citizens of the Philippines.” It does not distinguish between legitimate or illegitimate
children.
SC SUMMARY (VERBATIM FROM THE CASE)
(1) SC, in the exercise of its power of judicial review, possesses jurisdiction over the petitions. G.R. No. 161824 assails the resolution
of the COMELEC for alleged GADALEJ in dismissing the petition in SPA No. 04-003 which has prayed for the disqualification of
respondent FPJ from running for the position of President in the 10th May 2004 national elections on the contention that FPJ has
committed material representation in his certificate of candidacy by representing himself to be a natural-born citizen of the Philippines.
(2) The Court must dismiss, for lack of jurisdiction and prematurity, the petitions in G. R. No. 161434 and No. 161634 both
having been directly elevated to this Court in the latter’s capacity as the only tribunal to resolve a presidential and vice-
presidential election contest under the Constitution. Evidently, the primary jurisdiction of the Court can directly be invoked
only after, not before, the elections are held.
(3) In ascertaining, in G.R. No. 161824, whether grave abuse of discretion has been committed by the COMELEC, it is necessary to
take on the matter of whether or not respondent FPJ is a natural-born citizen, which, in turn, depended on whether or not the father
of respondent, Allan F. Poe, would have himself been a Filipino citizen and, in the affirmative, whether or not the alleged illegitimacy
of respondent prevents him from taking after the Filipino citizenship of his putative father. Any conclusion on the Filipino citizenship of
Lorenzo Pou could only be drawn from the presumption that having died in 1954 at 84 years old, Lorenzo would have been born
sometime in the year 1870, when the Philippines was under Spanish rule, and that San Carlos, Pangasinan, his place of residence
upon his death in 1954, in the absence of any other evidence, could have well been his place of residence before death, such that
Lorenzo Pou would have benefited from the “en masse Filipinization” that the Philippine Bill had effected in 1902. That citizenship (of
Lorenzo Pou), if acquired, would thereby extend to his son, Allan F. Poe, father of respondent FPJ. The 1935 Constitution, during
which regime respondent FPJ has seen first light, confers citizenship to all persons whose fathers are Filipino citizens regardless of
whether such children are legitimate or illegitimate.
(4) But while the totality of the evidence may not establish conclusively that respondent FPJ is a natural-born citizen of the Philippines,
the evidence on hand still would preponderate in his favor enough to hold that he cannot be held guilty of having made a material
misrepresentation in his certificate of candidacy in violation of Section 78, in relation to Section 74, of the Omnibus Election Code.
Petitioner has utterly failed to substantiate his case before the Court, notwithstanding the ample opportunity given to the parties to
present their position and evidence, and to prove whether or not there has been material misrepresentation, which, as so ruled in
Romualdez-Marcos vs. COMELEC,[48]must not only be material, but also deliberate and willful.

Estrada v. Desierto (2001) – impeachment
FACTS:
• This case involves the impeachment of former President Joseph Estrada (Erap).
• Erap and Glora Macapagal-Arroyo were elected Pres and VP, respectively, in the May 1998 elections.
• Erap’s “sharp descent from power” started in Oct 2000.
o Ilocos Sur Gov Chavit Singson, a longtime friend of Erap, went on air and accused him, his family and friends of
receiving millions of jueteng money.
o Then Sen. Guingona, Jr. took the floor and delivered a fiery speech entitled “I Accuse,” accusing Erap of receiving
some P220M jueteng money from Chavit from Nov 1998-Aug 2000; receiving P70M on excise tax on cigarettes
intended for Ilocos Sur.
o Speech was referred by Sen. President Drilon to the Sen. Blue Ribbon Committee and Committee on Justice
o The HoR also decided to investigate through its Committee on Public Order and Security.
o Congressmen Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach
Erap.
• Calls for resignation of Erap filled the air – Archbishop Jaime Cardinal Sin’s pastoral statement, the CBCP, former Pres.
Cory Aquino asking Erap to take the “supreme self-sacrifice” of resignation, and former Pres. Fidel Ramos
• Erap’s cabinet members started to resign, like Gloria Arroyo as Sec of DSWD. She also asked for Erap’s resignation but
Erap can’t let go.
o Many resignations followed, like 4 members of Erap’s Council of Senior Economic Advisers (Jaime de Zobel de
Ayala, former PM Cesar Virata, Vicente Paterno and Washington Sycip)
o Sen. President Drilon, House Speaker Manny Villar and some 47 reps also defected from the ruling coalition.
• By Nov 13: House Speaker Villar transmitted the Articles of impeachment signed by 115 reps, or more than 1/3 of the HoR
to the Senate.
• Nov 20: Senate formally opened the impeachment trial of Erap. 21 senators took their oath as judges with SC CJ Davide
presiding.
o Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte, and Reps Joker Arroyo,
Raul Gonzales, Antonio Nachura, former SoJ Perez, among others.
o In Erap’s defense are former CJ Narvasa, former SolGen Estelito Mendoza, Siegfried and Raymund Fortun,
among others.
o Day to day trial was covered by live TV, and enjoyed the highest viewing rating.
o Dramatic point of the December hearings was testimony of Clarissa Ocampo, senior VP of EPCI Bank, who saw
Erap when he affixed the signature “Jose Velarde” on docs involving a P500M investment
o Trial resumed after Christmas and the prosecution presented more witnesses, like Erap’s former Sec of Finance
Espiritu, alleging that Erap jointly owned BW Resources Corp.
• Jan 16, 2001: a vote of 11-10, senator judges ruled against opening of second envelope which allegedly contained
evidence showing that petitioner held P3.3B in a secret bank account under “Jose Velarde.”
o The prosecutors walked out and then Sen Pimentel resigned as Sen Pres.
• Ruling was made at 10pm and was met by a spontaneous outburst of anger that hit the streets of the metro.
• Prosecutors resigned from the impeachment case.
• Jan 18: 10km line of people holding lit candles formed a human chain from Ninoy Aquino Monument on Ayala to the EDSA
Shrine. EDSA II!
• Jan 19: AFP Chief of Staff Angelo Reyes, Secretary of Defense Mercado, PNP Chief Lacson, some cabinet secretaries,
usecs, and bureau chiefs defected and withdrew their support from the administration.
• JAN 20: DAY OF SURRENDER:
o 12:20 midnight: negotiations for peaceful and orderly transfer of power started in Malacanang
o 12:00 noon: CJ Davide administered the oath to Arroyo as President of the PH.
o 2:30pm: Erap and his family left Malacanang and he issued the statement (IMPT!)
At twelve o’clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of our country, I have strong and serious doubts about
the legality and constitutionality of her proclamation as President, I do not wish to be a factor that will prevent the
restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the sake of
peace and in order to begin the healing process of our nation. I leave the Palace of our people with gratitude for
the opportunities given to me for service to our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
o On the same day, Erap signed another letter:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this declaration that
I am unable to exercise the powers and duties of my office. By operation of law and the Constitution, the Vice-
President shall be the Acting President.

o This letter was sent to former House Speaker Fuentabella at 8:30 of the same day, but another copy was received
by Sen Pres. Pimentel only at 9:00pm.
• Jan 22: Arroyo immediately discharged her powers and duties of Presidency.
• Different bodies, like the SC, the House, and even then US President Bill Clinton expressed their recognition and support
of the new administration.
• The Senate declared the impeachment court as terminated, but then Sen. Defensor-Santiago stated for the record that
Senate has failed to decide on the impeachment case and that the resolution left open the question whether Erap was still
qualified to run for another elective post.
• Several cases then were filed against Erap with the Ombudsman for bribery, graft and corruption, plunder, forfeiture, perjury,
malversation, among others – a total of 6 cases with the OMB
• Consequently, Erap filed for prohibition against these cases, enjoining the Omb from proceeding against him criminally until
his term as president is over.
• Erap also filed for a Quo Warranto case to confirm whether he is the lawful and incumbent President of the Republic
temporarily unable to discharge; that Arroyo is only holding the Presidency position ONLY in an acting capacity.
ISSUES/HELD:
Do the cases assail the “legitimacy of the Arroyo administration,” and therefore involve a political question? – NO
• Political questions are those which are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure (Tanada v. Cuenco)
• The 1987 Consti has narrowed reach of the political question doctrine when it expanded power of the judicial review to
determine whether there has been GADALEJ on any branch of gov’t.
• While Arroyo relies on cases to support her thesis that bar the court from reviewing cases that involve legitimacy of her
administration because they involve a political question, the SC concluded that these cases are inapplicable.
o The cases involve the “revolutionary government” of former Pres Cory Aquino, as a result of a successful
revolution, which was in defiance of the1973 Constitution operating then.
o Such revolutionary government is “extra constitutional” and its legitimacy cannot be subject of judicial review
o In this case, Arroyo’s admin is not revolutionary in character, and is well within the current 1987 Constitution; it is
intraconstitutional and was caused by the resignation of Erap as elected President.
o The succession of GMA as VP to Pres is subject to judicial review, and it involves legal questions which
can be tested and interpreted under the 1987 Consti.
Did Erap resign as President or considered resigned when GMA took her oath? – YES
• Erap denies that he resigned or that he suffers from permanent disability; he submits that the Office of the President was
not vacant when Arroyo took her oath.
• Note: under Sec. 8 of Art. VII:
o “Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the Vice
President shall become the President to serve the unexpired term. In case of death, permanent disability, removal
from office, or resignation of both the President and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act as President until the President or Vice
President shall have been elected and qualified.
o x x x.”
• Two elements of resignation:
o Intent to resign
o Intent must be coupled by acts of relinquishment
• No formal requirement as to form – so may be oral or written; express or implied, as long as resignation is clear.
• In this case, while Erap did not write any formal letter of resignation, the totality of prior, contemporaneous and posterior
facts and circumstantial evidence (totality test) show that ERAP RESIGNED.
o There is an authoritative window on the state of mind of Erap, through “Final Days of Joseph Ejercito
Estrada,” which is the diary of Exec Sec. Angara serialized in the PH Daily Inquirer.
o Diary reveals that in the morning of Jan 19, Erap’s loyal advisers created an ad hoc committee to handle the
swelling EDSA crowd.
o At 1:20pm of that day, Erap told Angara: “Ed, seryoso na ito. Kumalas na si Angelo Reyes.”
o Erap later decided to call for a snap presidential election and stressed he would not be a candidate. This is
an indicum that Erap had intended to give up the presidency at that time.
o Erap likewise listened intently to Sen. Pimentel to consider the option of a dignified exit/resignation.
o He did not object to the suggestion, and at 10pm, he told Angara: “Ed, guaranteed that I would have 5 days to a
week in this palace.” This is proof that Erap had reconciled himself to the reality that he had to resigned.
His mind was already concerned with the 5-day grace period he could stay in the palace.
o Neither did he object to the initiation of negotiation for a peaceful and orderly transfer of power. The first
negotiation led to agreement on the transition period of 5 days, agreement to secure safety of Erap and his family,
nd
and agreement to open the 2 envelope
o Yet again, the resignation of Erap was not disputed.
o The diary further reveals what Erap disclosed to Angara:

“Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don’t want any more of this—it’s too painful. I’m tired of the red tape, the bureaucracy, the intrigue.) I
just want to clear my name, then I will go
o Second round of negotiation cements that Erap will resign “today, January 20, 2001.” Resignation in this
round was treated as a given fact. Only unsettled points were the measures to be undertaken by the
parties during and after the transition period.
o When informed of the 12noon oath-taking of Arroyo, Erap even asked “bakit hindi naman kayo makahintay?; Eh
di yung transition period, moot and academic na?”
• IN SUM: IT was curtain time for Erap. His resignation cannot be doubted.
o He acknowledged Arroyo’s oath taking, emphasized that he was leaving the palace, the seat of presidency for
peace and order, and did not say he was leaving due to any kind of inability and that he was going to re-
assume office.
o Neither can he rely on his second letter stating that the VP is just an “Acting President.” Court notes this letter as
one “wrapped in mystery.” This letter was never referred to by Erap during the week-long crisis.
o Nor can he rely on the argument that he could not resign as a matter of law, pending an investigation (crim/admin)
(under RA 3019). The intent of his law was to prevent the act of resignation/retirement from being used as a
protective shield to stop investigation/prosecution.
o A public official has the right to not serve if he really wants to retire, but if at the time he resigns/retires, he is
facing investigation, such resignation will not cause the dismissal of the proceedings.
Is Erap only temporarily unable to act as President? – cannot be answered; a political question only to be determined by
Congress.
• Sec. 11, Art. VII of the Consti: Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until
he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President
as Acting President.
• Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to the Speaker of the
House of Representatives their written declaration that the President is unable to discharge
• Note that both houses of Congress have recognized Arroyo as the President through its Resolutions expressing their
support (Resolution Expressing the Support of the HoR to the assumption into Office by VP GMA as President of the RP,
Expressing its Congratulations and Expressing its Support for Her Administration…, House Reso No. 176; Resolution
Confirming Pres. Gloria Macapagal-Arroyo’s Nomination of Senator Teofisto Guingona, Jr. as Vice President of the RP,
House Resolution No. 178 and terminating the impeachment court (Resolution Recognizing that Impeachment Court is
Functus Officio, Sen. Resolution No. 83).
• Clear in such recognition that the inability of Erap is no longer temporary, and Congress has clearly rejected Erap’s claim
of inability.
Is Erap immune from suit? – NO
• Termination of the impeachment trial and its non-resolution does not bar Erap’s prosecution.
• “incumbents Presidents are immune from suit, but NOT beyond.” (In Re: Saturnino Bermudez)
• Besides, immunity from suit is not a blanket guarantee for public officers who do wrong. After all, “public office is a public
trust.”
Should prosecution of Erap be enjoined due to prejudicial publicity? – NO.
• Two principal legal and philosophical schools of thought on how to deal with rain of unrestrained publicity during investigation
and trial of high profile cases:
o British approach – presumption that publicity will prejudice a jury, so stop trials when trial of accused suffers
threat;
o American approach – skeptical approach about the potential effect of pervasive publicity; there are different
strains of tests like “substantial probability of irreparable harm, strong likelihood, clear and present danger, etc.
• Pervasive publicity is not per se prejudicial to the right of an accused to fair trial because the democratic settings, media
coverage of trials of sensational cases cannot be avoided.
• Freedoms of speech, press, and assembly, share a common core purposes of assuring freedom of communication on
matters relating to the functioning of government.
• To be prejudicial, however, there must be allegation and proof that judges have been unduly influenced, and not simply that
they might be, by barrage of publicity.
• Applying such, the SC ruled here that there is not enough evidence to enjoin preliminary investigation by the OMB.

Estrada v. Desierto (MR; Apr. 2001; evid case)
FACTS:
• This MR was denied, btw.

• For this MR, Erap brings the following issues before the Court: (focus on Consti issues; not evid)
Can Congress decide Erap’s inability to govern considering Sec. 11, Art. VII of the Consti? – YES
• Erap argues that Congress can only decide on his inability when there is a variance of opinion between a majority of the
Cabinet and the President.
• This is untenable.
• Erap himself made the submission in the original case that “Congress has the ultimate authority to determine whether the
President is incapable of performing his functions in the manner provided for in Sec. 11 of Article VII.”
• SC has sustained this claim and authority in that Congress has already determined and dismissed the claim of alleged
temporary inability to govern by Erap.
o Refer to House Reso No. 176 which cited as bases of its judgment (on Erap’s inability to govern) factors such as
“people’s loss of confidence of Erap to effectively govern,” and it has a constitutional duty of “fealty to the supreme
will of the people.”
o This is a political judgment which may be right or wrong, but Congress is answerable only to the people for its
judgment.
o Court cannot look into this.
o If Erap feels aggrieved, SC said he should seek redress from Congress itself.
• Erap’s insistence on whether one is a “de jure or de facto President” is a judicial question fails to impress the court.
o The case doesn’t present the general issue of whether PGMA is the de jure or de facto President.
o Specific issues were raised to the SC for resolution and SC rules on an issue by issue basis.
• Erap also faults Congress for its resolutions which brushed off his temporary inability to govern and President-on-leave
argument
o He argues that these Acts of Congress were post facto and
o A declaration of presidential incapacity cannot be implied.
• Wroooooong. There is nothing in sec. 11 of Art. VII which states that the declaration by Congress of the President’s inability
must always be a priori or before the VP assumes the presidency.
o Special consideration should be given in this case as well due to the events that transpired and culminated on a
Saturday – Congress was not in session and had no reasonable opportunity to act a priori on Erap’s letter claiming
inability to govern.
o These post facto acts, however, were still supported by a priori recognition by the President of the Senate and
House Speaker of Arroyo as the “constitutional successor to the presidency”
o SC provides that the acts of Congress, a prior and post facto, cannot be dismissed as implied recognitions of
Arroyo as President. It did not discuss this extensively kasi it said that Erap’s claim here is a guesswork far
divorced from reality to “deserve further discussion.”
• Erap maintains that while Consti has made the Congress the national board of canvassers for presidential and vp elections,
the SC remains the sole judge in presidential and VP contests.
o He infers that such provision is indicative of the desire of the people to keep out of the hands of Congress
questions as to the legality of a person’s claim to the presidential office.
• Inference is ILLOGICAL. No room for inference.
o Consti clearly sets out structure on how vacancies and election contest in the office of the Pres shall be decided.
Coverage of Section 7, Art. VII Section 8, Art. VII Section 11
• President elect fails to qualify • Death • President transmits to the
• If President shall not have been • Permanent disability President of the Senate and
chosen, and • Removal from office or resignation Speaker of the House his
• If at the beginning of the term of the written declaration that he is
president, the President-elect shall unable to discharge
have died or shall have become
permanently disabled
• In each case above, the Constitution specifies the body that will resolve the issues that may arise from the contingency
• In case of inability to govern, Sec. 11 gives Congress the power to adjudge.
Was Erap resigned/considered resigned as of January 20, 2001? – YES.
• On whether resignation is voluntarily tendered, voluntariness is vitiated only when resignation is submitted under
government action. 3-part test for such duress:
o Whether one side involuntarily accepted the other’s terms;
o Whether circumstances permitted no other alternative; and
o Whether such circumstances were the result of coercive acts fo the opposite side.
• Resignation may be found involuntary if on the totality of the circumstances it appears that the employer’s conduct in
requesting resignation effective deprived the employer of free choice in the matter. Factors:

o Whether the employee was given some alternative to resignation
o Whether employee understood nature of the choice he/she is given
o Whether employee was given a reasonable time to choose
o Whether he/she permitted to select the effective date of resignation
• In this case, Erap had several options to him other than resignation.
o He proposed snap elections
o He transmitted to Congress a written declaration of temporary inability
o Hence, he could not claim that he was forced to resign.
o He was even fully protected by the Presidential Security Guard armed with tanks, when he left the palace. No
force/harm/injury was inflicted whatsoever.
Did prejudicial publicity affect Erap’s right to fair trial? – NO
• SC upheld its earlier ruling that it is not enough for Erap to conjure possibility of prejudice. Erap must prove ACTUAL
prejudice on the part of his investigators.
Was the Angara Diary inadmissible for violating rules on Evidence?
• FIRST, the diary is not an out of court statement. It is part of the pleadings in the case at bar.
o Estrada cannot complain that he was not furnished with a copy. Aside from it being (1) frequently referred to by
both parties, (2) it was also attached as Annexes in the memorandum and comments filed between the parties,
(3) it was also extensively used by the Secretary of Justice Perez in his oral arguments.
o Estrada had all the opportunity to contest the use of the diary but he failed to do so.
• SECOND, even assuming that the diary was an out of court statement, its use is not covered by the hearsay rule.
o Evidence is hearsay when its probative force depends, in whole or in part, on the competency and credibility of
some persons other than the witness by whom it is sought to produce it.
o It is excluded because of three reasons: (1) absence of cross-examination, (2) absence of demeanor evidence,
and (3) absence of oath.
o However, not all hearsay evidence are automatically inadmissible. There are several exceptions to the rule.
o In this case, the diary is considered as an admission of the party which is an exception to the hearsay rule.
• Under the rules, the act, declaration or omission of a party as to a relevant fact may be given in evidence against him.
• WHY are admissions not covered? - A man’s acts, conduct and declaration, if voluntary, are admissible against him. It is
his own declaration and ‘he does not need to cross-examine himself’.
• The diary contains direct statements of Estrada which can be categorized as his admission
• (see facts for admissions)
• THIRD, even if the diary is not Estrada’s, it is still binding upon him under the doctrine of adoptive admission.
o An adoptive admission is a party’s reaction to a statement or action made by another person when it is reasonable
to treat the party’s reaction as an admission of something stated or implied by the other person.
o The basis for admissions made vicariously is that arising from the ratification or adoption by the party of the
statements which the other person had made.
o In this case, this scenario is seen when Angara asked Pimentel to advise Estrada to consider the option of a
“dignified exit or resignation” and Estrada did not object but simply said that he could never leave the country. His
silence therein can be taken as an admission by him.
• FOURTH, the use of the diary is not a violation of the rule on res inter alios acta (Rights of a party cannot be prejudiced by
an act, declaration, or omission of another).
o The rule has several exceptions and one of them is with respect to admissions by a co-partner or agent.
o In this case, Executive Secretary Angara was an alter ego of Estrada. He was the Little President.
• This can be seen by the ff. events:
o Angara was authorized by Estrada to act for him during the days leading to his leaving Malacanang.
o In the diary, Estrada told Angara that “Mula umpisa pa lang ng kampanya Ed, ikaw na lang pinakikinggan ko. At
hangang huli, ikaw parin” - this shows the degree of full trust given by Estrada to Angara.
o Also in the diary, Estrada asked Angara during their final lunch in Malacang: “Ed, kailangan ko na bang umalis?”
to which Angara told him to go and he did.
o Angara headed the team of negotiators that met with the team of Arroyo to discuss the peaceful transfer of power.
o All these show that Angara acted for and in behalf of the petitioner. Hence, Estrada is bound by the acts and
declarations of Angara.
• FIFTH, the hearsay rule does not cover independently relevant statements. These are statements which are relevant
independently, whether they are true or not.
o These can be divided into two classes: (1) those statements which relate to the very facts in issue, and (2) those
which are circumstantial evidence of the facts in issue.
o In this case, the statement covers the second class, pertaining to statements of persons from which an inference
may be made as to the state of mind of another.
o While it does not relate to the main issue, the diary contains statements of Estrada which reflect his state of mind
at that time and are circumstantial evidence of his intent to resign. These are admissible and not covered by
hearsay.

Was the best evidence rule and the rule on authentication violated by the admission of the
newspaper reproduction of the diary? – NO
• BEST EVIDENCE: It is true that the court relied on the newspaper reproduction in PDI and not on the original diary. However,
the court did not violate the best evidence rule.
o According to Wigmore, the production of an original may be dispensed with if the opponent does not bona fide
dispute the contents of the document, and no other useful purpose will be served b requiring production.
o So secondary evidence may be received in evidence if (1) the opponent has been given an opportunity to inspect
it, and (2) no objection was made to its reception.
o In this case, Estrada was given an opportunity to object to the admissibility of the diary several times during the
proceeding through his memorandum, reply memo, supplemental memo, and second supplemental memo, but
he failed to do so.
• Their reliance on the case of State Prosecutors v. Muro was misplaced.
o In Muro, the judge was dismissed for relying on a newspaper account in dismissing 11 cases against Imelda
Marcos.
o However, that case is different from this one because in Muro, the court used as basis the newspapers without
affording the prosecution the basic opportunity to be heard, which is a blatant denial of due process.
o In this case, Estrada was given every opportunity to inspect the document and object to its admissibility, but he
failed to do.
• AUTHENTICATION: the rule requires that before a private document is offered as evidence, its due execution and
authenticity must be proved by either (1) anyone who saw the document executed or written, or (2) by evidence of the
genuineness of the signature or handwriting of the maker.
o However, this requirement provides for an exception: If a party does not deny the genuineness of the instrument,
he cannot now object to it not being properly authenticated or identified.
o Using the same ruling in the best evidence argument, Estrada was given every opportunity to question the
authentication of the document but he failed to do so.
• It is already too late to raise his objections since the diary has already been used as evidence and a
decision has been rendered partly on the basis thereof.

Estrada v. Desierto (SUPRA) – CHECK SUPPLEMENT READINGS
RAFAEL v. EMBROIDERY BOARD (1967) – designation and ex-officio capacity
SECTION 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or
indirectly, practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise,
or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
The spouse and relatives by consanguinity or affinity within the fourth civil degree of the President shall not during his tenure be
appointed as members of the Constitutional Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries,
chairmen or heads of bureaus or offices, including government-owned or controlled corporations and their subsidiaries.
FACTS:
• Cecilio Rafael was engaged in the manufacture of embroidery and apparel products for export and doing business under
“El Barato Alce Company”
o January 1961 – he was authorized by the Collector of Customs to operate a manufacturing bonded warehouse
in Santolan, Tenejeros, Malabon, Rizal (Manufacturing Bonded Warehouse No. 88)
• June 1961 – R.A. 3137 was enacted, creating an Embroidery and Apparel Control and Inspection Board and providing for
a special assessment to be levied upon all entities engaged in an amount to be fixed by the Board
o Sec. 1. No textile, leather gloves raw materials and/or supplies, of any kind relative thereto, may be imported into
the Philippines as consigned goods to duly registered and organized Philippine embroidery and apparel firms
without the necessary license issued in accordance with the provisions of this Act.  
o Sec. 2. This license required hereof under Section One of this Act shall be duly issued by an Embroidery and
Apparel Control and Inspection Board which is hereby created and hereinafter referred to as the Board,
composed of: (1) A representative from the Bureau of Customs to act as Chairman, to be designated by the
Secretary of Finance; (2) A representative from the Central Bank to be designated by its Governor; (3) A
representative from the Department of Commerce and Industry to be designated by the Secretary of
Commerce and Industry; (4) A representative from the National Economic Council to be designated by its
Chairman; (5) A representative from the private sector coming from the Association of Embroidery and
Apparel Exporters of the Philippines. The Board shall have the over-all control and shall administer the checks
and counter-checks of consigned textile, leather gloves raw materials and/or supplies to embroidery and apparel
manufacturers and corresponding counter-checks for liquidations of said goods prior to re-exportations. No other
government instrumentality or agency shall be authorized to qualify or question the validity of license so issued
by the Board. Questions of legality and interpretation of any license so issued shall be decided exclusively by the
Board subject to appeal to courts, of competent jurisdiction.  
• In compliance with the above, the Board was subsequently constituted with the representative from the Bureau of Customs
as Chairman and representatives from Central Bank, Dept. of Commerce and Industry, and National Economic Council as
members (each of them designated by their respective dept. heads).
• Quintin Santiago – was named as the representative from the private sector. He is the president of the Philippine Association
of Embroidery and Apparel Exporters, Inc. (PAEAE)
o This was questioned by the Philippine Chamber of Embroidery and Apparel Producers, Inc. (to which Rafael is
affiliated).
• Rafael brought this petition to restrain the enforcement of the provisions of RA 3137
o He argues that while Congress may create an office, it cannot specify who shall be appointed therein; that the
members of the Board can only be appointed by the President in accordance with Article VII, Sec. 10, subsection
3 of the 1935 Constitution;
o that since RA 3137 prescribes that the chairman and members of the Board should come from specified
offices, it is equivalent to a declaration by Congress as to who should be appointed, thereby infringing the
constitutional power of the President to make appointments.
ISSUES/HELD:
In providing that the chairman and members of the Board should come from specified offices, is RA 3137 unconstitutional
for bypassing the President’s power to appoint? – No.
• Sec.2 of RA 3137 reveals that for the chairman and members of the Board to qualify, they need only be designated by their
respective dept heads (with the exception of the representative from the private sector, they sit ex officio)
o To be designated, they must already be holding positions in the offices mentioned
o Thus, for example, one who does not hold a previous appointment in the Bureau of Customs cannot be designated
as the representative from that office.
o No new appointments are necessary! The representatives so designated merely perform duties in the Board in
addition to those they perform under their original appointments.

• Nothing in the Act suggests also that the designated representatives to the Board will lose or forfeit their original
appointments. Thus, for purposes of their tenure on the Board they can be considered as merely on detail, subject to recall
by their respective chiefs.
• Sec. 2 is not incompatible with the established doctrine that “the appointing power is the exclusive prerogative of the
President, upon which no limitations maybe imposed by Congress, except those resulting from the need of securing the
concurrence of the Commission on Appointments and from the exercise of the limited power to prescribe the qualifications
to a given appointive office.”
• Congress took care to specify the offices from which the representatives will come from because these departments/bureaus
perform functions which have a direct relation to the importation of raw materials, the manufacture thereof into embroidery
and apparel products and their subsequent exportation abroad.
Does RA 3137 constitute class legislation and deprive the petitioner of equal protection when Congress vested the
appointment of the representative of the private sector in respondent Board, a private nongovernmental entity? – No.
• Petitioner asserts that the particular provision is designed to favor one private organization to the exclusion of others.
• SC: PAEAE was not singled out by the law in order to favor it over and above others, but rather because it is the dominant
organization in the field. No privileges are accorded PAEAE members which are not similarly given to non-members. Both
are within its coverage. Non-membership in the PAEAE does not mean that the benefits granted and the restrictions
imposed by the Act shall not apply to those who choose to venture into the business independently.
• Legislation which affects with equal force all persons of the same class and not those of another is not class legislation and
does not infringe the constitutional guarantee of equal protection of the laws.
[minor issue] Is there undue delegation under Article XVI §4(2)? –No.
• The provision sets a reasonable basis under which the special assessment may be imposed.
• The true distinction between delegation of power to legislate and conferring of authority as to the execution of the law is that
the former involves a discretion as to what the law shall be, while in the latter, the authority as to its execution has to be
exercised under and in pursuance of the law.

Civil Liberties v. Exec. Secretary (2010) – stricter prohibition on the President’s official family against multiple offenses
FACTS:
• This case involves 2 consolidated petitions (CLU and the Anti-Graft League of the PH [AGLP]) seeking to declare
8
unconstitutional EO No. 284 issued by President Corazon C. Aquino.
• CLU and AGLP argue that the EO, in effect, allows members of the Cabinet, their undersecretaries, and assistant secretaries
to hold other gov’t offices/positions, despite limitation under Art. VII, Sec. 13.
o Article VII, Sec 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants
shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure.
They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business,
or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government
or any subdivision, agency, or instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
• Petitioners allege that the above constitutional provision prohibit the respondents, in this case all Cabinet secretaries, along
with other public officials from holding any other public office/employment during their tenure.
• In addition, AGLP seeks issuance of prohibition, mandamus and TRO to
o direct the cabinet secretaries to cease and desist from holding dual/multiple positions other than those
constitutionally authorized;
o from receiving any salaries/allowances/per diems/other forms of privileges connected to their questioned
positions; and
o compel the cabinet secretaries to return/reimburse/refund any/all amounts/benefits received.
• IMPT! AGLP specifically alleges that:
o Despite being “absolute and self-executing” provision (Art. VII, S13), Sec. of Justice Sedfrey Ordonez, in
9
construing AVII, S13 in relation to S7, par2, AIX-B of the Constitution, issued 1987 Opinion No. 73.
o The Opinion declares that Cabinet members, their undersecretaries and assistant secretaries may hold other
public office, including membership in the boards of gov’t corp and enumerates the instances when this
10
is allowed.
• AGLP alleged that the Opinion and EO 284 “lumped together” the 2 constitutional provisions, each addressed to a distinct
and separate group of public officers:
o First group: President and her official family;
o Second group: public servants in general
• This “lumping together” is argued to have abolished the clearly separate, higher, exclusive, and mandatory constitutional
rank assigned to the prohibition against multiple jobs for the Pres, VP, Cabinet, and their deputies and subalterns.
ISSUES/HELD:
Does the prohibition under Section 13, Article VII insofar as Cabinet members, their deputies and assistants are concerned
admit of the broad exceptions made for appointive officials under Sec. 7, par 2, Art. IXB? – NO. Strict prohibition dapat.
• SC used statcon here, and looked into the intent of the framers.

8
Pertinent provisions state:
SECTION 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more
than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided,
that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the
Chairman.
SECTION 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary
position.
SECTION 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-
third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary."
9
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries
10
(a) when directly provided for in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of
the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or
(b) if allowed by law; or
(c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of the
Philippines, on July 25, 1987, or two (2) days before Congress convened on July 27, 1987, promulgated Executive Order No. 284.

• Historically, practice of holding multiple offices/positions in the government soon led to abuses by unscrupulous public
officials who took advantage of this scheme for purposes of self-enrichment.
o Particularly revolting in gov’t service were the data contained that Roberto V. Ongpin was a a member of 29
governmental agencies; Imelda Marcos of 23, Cesar Virata of 22, Arturo Tanco at 15, among others.
o Betrayal of public trust evolved during the Marcos regime.
o So the 1986 ConCom proposed provisions envisioned to remedy the evils that flow from holding of multiple gov’t
offices.
• Although Art IX-B already contains a blanket prohibition against holding of multiple offices subsuming both elective and
appointive, the ConCom intended to impose a stricter prohibition on the President and his official family, thus the
other provision Sec. 13, Art. VII.
Prohibition under Art IX-B Prohibition under Art VII (for President, VP etc)
Prohibition pertains to an office/employment in the gov’t or Prohibition pertains to “any other office/employment” à
GOCC/other subsidiaries ABSOLUTE disqualification; regardless if employment is “in the
government” (unlike in Art. IX-B) or not
Not imposed here Contains sweeping, all-embracing prohibitions: “They shall not,
during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision, agency
or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.”
General rule Exception as applied only to the President, VP, Cabinet, their
deputies and assistants
• The stricter prohibition is based on the fact that the President and members of his Cabinet exercise more powers, so more
checks and restraints on them are called for. (ConCom Vicente Foz)
• Given the difference above, the qualifying phrase in Sec 13: “unless otherwise provided in this Constitution,” cannot
possibly refer to the broad exceptions under Art. IX-B.
• Such qualifying phrase must be given a literal interpretation to refer only to those particular instances in the Constitution
itself:
o VP being appointed as a member of the Cabinet
o Or acting as President
o Secretary of Justice being an ex-officio member of the Judicial and Bar Council.
• Prohibition under Art. VII must not, however, be construed as applying to posts occupied by Exec. Officials specified therein
without additional compensation in an ex-officio capacity as provided by law and required by the primary functions of their
office.
o These posts do not comprise “any other office” within the contemplation of the constitutional prohibition.
• Given the strict prohibition against the President et al, the EO relaxing the prohibition is declared unconstitutional.

De la Cruz v. COA G.R. No. 138489 (2001) – alternates of cabinet member are also not entitled to additional compensation
FACTS:
• 20 petitioners were members of the Board of Directors of the National Housing Authority from 1991 – 1996
• On September 19, 1997, the COA issued Memorandum No. 970382
o Directing all unit heads/auditors/team leaders of the national government agencies and government owned and
controlled corporations which have effected payment of any form of additional compensation or remuneration to
cabinet secretaries, their deputies and assistants, or their representatives, in violation of the rule on multiple
positions, to
§ (a) immediately cause the disallowance of such additional compensation or remuneration given to and
received by the concerned officials, and
§ (b) effect the refund of the same from the time of the finality of the Supreme Court En Banc Decision in
the consolidated cases of Civil Liberties Union vs. Executive Secretary and AntiGraft League of the
Philippines, Inc., et al. vs. Secretary of Agrarian Reform, et al., promulgated on February 22, 1991.
o Memorandum also stated that the SC declared EO No. 284 unconstitutional
§ EO No. 284 – allowing Cabinet members, their deputies and assistants to hold other offices, in addition
to their primary offices, and to receive compensation therefor.
• Following the Memorandum, NHA Resident Auditor Vasquez issued Notice of Disallowance No. 97 0110615
o disallowing in audit the payment of representation allowances and per diems of “Cabinet members who were the
exofficio members of the NHA Board of Directors and/or their respective alternates who actually received the
payments.”
• Petitioners appealed the COA’s Notice of Disallowance on the following grounds:
o Decision of the Supreme Court in Civil Liberties Union and AntiGraft League of the Philippines, Inc. was clarified
in the Resolution of the Court En Banc
§ Resolution: constitutional ban against dual or multiple positions applies only to the members of the
Cabinet, their deputies or assistants.
• It does not cover other appointive officials with equivalent rank or those lower than the
position of Assistant Secretary;
o The NHA Directors are not Secretaries, Undersecretaries or Assistant Secretaries and that they occupy positions
lower than the position of Assistant Secretary.
• COA denied appeal on the ground that:
o the Directors concerned were not sitting in the NHA Board in their own right but as representatives of cabinet
members and who are constitutionally prohibited from holding any other office or employment and receive
compensation therefor, during their tenure
o While the decision in Civil Liberties Union covered those positions of Assistant Secretary and above, and the
directorship positions petitioners occupied were below that of Assistant Secretary, these positions are derivative
§ they derive their authority as agents of the authority they are representing and their power and authority
is sourced from the power and authority of the cabinet members they are sitting for.
§ Therefore, if the principal (cabinet member) is absolutely barred from holding any position in and
absolutely prohibited from receiving any remuneration from the NHA or any government agency, for
that matter, so must the agent be.
ISSUES/HELD:
Are petitioners allowed to hold directorship positions in the NHA? – NO.
• Sec. 7 of PD 757 (Creating the NHA) mandates the following individuals to sit on the NHA Board:
o (1) the Secretary of Public Works, Transportation and Communications,
o (2) the Director General of the National Economic and Development Authority,
o (3) the Secretary of Finance,
o (4) the Secretary of Labor,
o (5) the Secretary of Industry,
o (6) the Executive Secretary, and
o (7) the General Manager of the NHA.
• Petitioners are alternates of the above officers. They are not the officers themselves.
• Civil Liberties and Anti-Graft League case interpreted Sec 13, Art. VII of the Constitution in the following manner:
o This prohibition against holding dual or multiple offices or employment does not apply to posts occupied by the
Executive officials specified therein without additional compensation in an exofficio capacity as provided by law
and as required by the primary functions of said officials’ office.
§ These posts do not comprise ‘any other office’ within the contemplation of the constitutional prohibition
§ They are properly an imposition of additional duties and functions on said officials
o The term exofficio means ‘from office; by virtue of office.’ It refers to an ‘authority derived from official character
merely, not expressly conferred upon the individual character, but rather annexed to the official position.
o The exofficio position being actually and in legal contemplation part of the principal office, it follows that
the official concerned has no right to receive additional compensation for his services in the said
position.

§ These services are already paid for and covered by the compensation attached to the principal
office
• Since the Executive Department Secretaries, as exoficio members of the NHA Board, are prohibited from receiving “extra
(additional) compensation, whether it be in the form of a per diem or an honorarium or an allowance, or some other such
euphemism,” it follows that petitioners who sit as their alternates cannot likewise be entitled to receive such compensation.
• A contrary rule would give petitioners a better right than their principals.

Funa v. Ermita (2010) – in relation to Art. 9-B sec. 7
FACTS:
• PGMA appointed Maria Elena H. Bautista as Undersecretary of the Department of Transportation and Communications
(DOTC).
• Bautista was designated as Undersecretary for Maritime Transport of the department.
• Following the resignation of then MARINA administrator Vicente Suazo Jr., Bautista was designated as Officer in Charge,
Office of the Administrator, MARINA, in concurrent capacity as DOTC Undersecretary.
• Dennis Funa filed the petition challenging the constitutionality of Bautista’s appointment/designation, which is proscribed by
the prohibition on the President, Vice President, the Members of the Cabinet, and their deputies and assistants to hold any
other office or employment.
o He claims that Bautista’s concurrent positions as DOTC Usec. and MARINA OIC is in violation of Sec. 13, Art. 7
of the Constitution.
ISSUES/HELD:
Was Bautista’s designation as MARINA OIC unconstitutional? – YES
• In Civil Liberties Union v. Executive Secretary, a constitutional challenge was brought before the Court to nullify EO 284
issued by then Pres. Cory, which included Members of the Cabinet, undersecretaries and assistant secretaries in its
provisions limiting to 2 the positions that appointive officials of the Executive Department may hold in government and
government corporations.
o The EO was struck down as unconstitutional saying that it actually allows them to hold multiply offices or
employment in direct contravention of the express mandate of Sec. 13, Art. 7 of the Constitution prohibiting them
from doing so, unless otherwise provided in the Constitution itself.
o Noting that the prohibition imposed on the President and his official family is all-embracing, the disqualification
was held to be absolute, as the holding of any other office is not qualified by the phrase in the Government unlike
in Section 13 prohibiting Senators and Members of the House of Representatives from holding any other office
or employment in the Government.
o While all other appointive officials in the civil service are allowed to hold other office or employment in the
government during their tenure when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only when expressly authorized by the
Constitution itself.
o Sec. 7, Art. 9-B is meant to lay down the general rule applicable to all elective and appointive public officials and
employees, while Sec. 13, Art. 7 is meant to be the exception applicable only to the President, the VP, Members
of the Cabinet, their deputies and assistants.
• Bautista being then the appointed Usec. of DOTC, she was thus covered by the stricter prohibition under Sec. 13, Art. 7
and consequently she cannot invoke the exception provided in Sec. 7(2) of Art. 9-B where holding another office is allowed
by law or the primary functions of the position.
• Neither was she designated OIC of MARINA in an ex officio capacity, which is the exception recognized in Civil Liberties
Union.
• The prohibition against holding dual or multiple offices or employment under Sec. 13, Art. 7 was held inapplicable to posts
occupied by the Executive officials specified therein, without additional compensation in an ex officio capacity as provided
by law and as required by the primary functions of said office.
o This is because these posts do not comprise any other office within the contemplation of the constitutional
prohibition but are properly an imposition of additional duties and functions on said officials.
• Bautista failed to demonstrate that her designation as OIC was in an ex officio capacity as required by the primary functions
of her office as DOTC Undersecretary for Maritime Transport.
• MARINA was created by virtue of PD 474.
o Its management is vested in the Maritime Administrator, who shall be directly assisted by the Deputy Administrator
for Planning and a Deputy Administrator for Operations, who shall be appointed by the President for a term of 6
years.
o The Administrator shall be directly responsible to the Maritime Industry Board, MARINA’s governing body, and
shall have powers, functions and duties as provided in PD 474.
• With the creation of the DOTC, MARINA was attached to the DOTC for policy and program coordination in 1979.
• Given the vast responsibilities and scope of administration of the Authority, it cannot be said that Bautista’s designation as
OIC of MARINA was merely an imposition of additional duties related to her primary position as DOTC Undersecretary for
Maritime Transport.
• The DOTC Undersecretary for Maritime Transport is not even a member of the Maritime Industry Board.
• Being just a designation, and temporary at that, Bautista was never really appointed as OIC Administrator of MARINA.
• While the designation was in the nature of an acting and temporary capacity, the words hold the office were employed.
• Such holding of office pertains to both appointment and designation because the appointee or designate performs the duties
and functions of the office.

• The Constitution, in prohibiting dual and multiple offices, as well as incompatible officers, refers to the holding of the office,
and not to the nature of the appointment or designation, words which were not even found in Sec. 13, Art. 7 nor in Sec.
7(2), Art. 9-B.
• To hold an office means to possess or occupy the same, or to be in possession and administration, which implies nothing
less than the actual discharge or the functions and duties of the office.
• The disqualification laid down in Sec. 13, Art. 7 is aimed at preventing the concentration of powers in the Executive
Department officials, specifically the President, VP, Members of the Cabinet and their deputies and assistants.
• Such practice during the Marcos regime led to abuses by unscrupulous public officials, who took advantage of this scheme
for purposes of self-enrichment.

Funa v. Executive Secretary (2013) – exception to the general rule of prohibition to hold other govt. offices)
Article 7, Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and be elected with,
and in the same manner, as the President. He may be removed from office in the same manner as the President.
The Vice-President may be appointed as a Member of the Cabinet. Such appointment requires no confirmation.
FACTS:
• Facts according to petitioner Funa:

o March 1, 2010 - PGMA appointed Alberto Agra as the Acting Secretary of Justice following the resignation of Sec.
Agnes Devanadera in order to vie for a congressional seat in Quezon Province.
o 4 days later, PGMA appointed Agra as Acting Solicitor General in a concurrent capacity.
o Funa challenges that constitutionality of Agra’s concurrent appointments/designations, claiming that such is
prohibited under Sec. 13, Art. 7.
o This case follows after Funa v. Ermita wherein Funa assailed the constitutionality of the designation of then USec.
of DOTC Maria Elena Bautista as concurrently the OIC of the MARINA.
• Facts according to respondent Agra:
o Agra argues that on January 10, 2010, he was then the Government Corporate Counsel when PGMA designated
him as the ASG in place of Solicitor General Devanadera who had been appointed as the Secretary of Justice.
o On March 5, Pres. Arroyo designated him as the Acting Sec. of Justice.
o He then relinquished his position as the GCC and that pending the appointment of his successor, he continued
to perform his duties as the ASG.
• Contentions of the parties:
o Funa: the position of SOJ, being a member of the Cabinet, is not exempt from the constitutional ban under Sec.
13, Art. 7, which does not distinguish between an appointment or designation.
§ The position of the Solicitor General is not an ex officio position in relation to the position of the SOJ,
considering that the OSG is an independent and autonomous office attached to the DOJ.
§ Fact that Agra was extended an appointment as the ASG shows that he did not occupy that office in
an ex officio capacity because an ex officio position does not require any further warrant or appointment.
§ There was no “prevailing special circumstance” that justified the non-application to Agra of Sec. 13, Art.
7.
o Agra: His concurrent designation as the ASOJ and ASG were only in a temporary capacity, the only effect of
which was to confer additional duties to him.
§ Thus, as the ASG and the ASOJ, he was not “holding” both offices in the strict constitutional sense.
§ An appointment, to be covered by the constitutional prohibition, must be regular and permanent, instead
of a mere designation.
§ Even assuming that Agra’s concurrent designation constituted “holding of multiple offices,” his
continued service as ASG was akin to a hold-over;
ISSUES/HELD:
Was the designation of Agra as the ASOJ, concurrently with his position of ASG, unconstitutional? – YES
• Art. 7, Section 13. The President, VP, the Members of the Cabinet, and their deputies/assistants shall not, unless otherwise
provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality
thereof, including GOCCs or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
• Art. 9-B, Section 7(2). Unless otherwise allowed by law or the primary functions of his position, no appointive official shall
hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including
GOCCs or their subsidiaries.
• Sec. 7, Art. 9-B is meant to lay down the general rule applicable to all elective and appointive officials and employees, while
Sec. 13, Art. 7 is meant to be the exception applicable only to the President, the Vice-President, Members of the Congress,
their deputies and assistants.
• Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, VP,
members of the Cabinet, their deputies and assistants with respect to holding multiply offices or employment in the
government during their tenure, the exception to his prohibition must be read with equal severity.
• On its face, the language of Sec. 13, Art. 7 is prohibitory so that it must be understood as intended to be a positive and
unequivocal negation of the privilege of holding multiple government offices or employment.
• Wherever the language used in the constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation.
• The phrase “unless otherwise provided in this Constitution” must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit:
o Art. 7, Sec. 3(2) – the Vice President being appointed as member of the Cabinet
o Art. 7, Sec. 7(2) and (3) – VP as acting President in those instances provided
o Art. 8, Sec. 8(1) – SOJ being ex officio member of the JBC.

• Being designated as the ASOJ concurrently with his position as ASG, Agra was undoubtedly covered by Sec. 13, Art. 7,
whose text and spirit were too clear to be differently read.
• Hence, Agra could not validly hold any other office or employment during his tenure as the ASG, because the Constitution
has not otherwise so provided.
Did the fact that the designation was in an acting/temporary capacity make it valid? – NO
• The text of Section 13, Art. 7 plainly indicates that the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his Cabinet in so far as holding other offices or employments in the
Government or in GOCCs was concerned.
• To hold an office means to possess or to occupy the office, or to be in possession and administration of the office, which
implies nothing less than the actual discharge of the functions and duties of the office.
• Section 13 makes no reference to the nature of the appointment or designation.
o The prohibition against dual or multiple offices being held by one official must be construed as to apply to all
appointments or designations, whether permanent or temporary, for it is without question that the avowed
objection of Sec. 13 is to prevent the concentration of powers in the Executive Department officials, specifically
the President, the VP, the Members of the Cabinet and their deputies and assistants.
o To construe differently is to “open the veritable floodgates of circumvention of an important constitutional
disqualification of officials in the Executive Departments and of limitations on the President’s power of
appointment in the guise of temporary designations of Cabinet Members, Usecs and ASecs as officers in charge
of government agencies, instrumentalities, or GOCCs,
• According to Civil Liberties Union v. Exec. Sec: the phrase “Members of the Cabinet, and their deputies or assistants” found
in Sec. 13 referred only to the heads of the various executive departments, their undersecretaries and assistant secretaries,
and did not extend to other public officials given the rank of Secretary, Undersecretary and Assistant Secretary.
• Being included in the prohibition embodied in Sec. 13, Agra cannot liberally apply in his favor the broad exceptions provided
in Sec. 7(2), Art. 9-B to justify his designation as ASOJ concurrently with his designation as ASG, or vice versa.
• It is not sufficient for Agra to show that his holding of the other office was “allowed by law or the primary function of his
position.”
o To claim the exemption of his concurrent designations from the coverage of the stricter prohibition under Sec. 13,
he needed to establish that his concurrent designation was expressly allowed by the Constitution.
o But he did not do so.
• His concurrent designations as ASOJ and ASG did not come within the definition of an ex officio capacity.
• One position was not derived from the other.
o The powers and functions of the OSG are neither required by the primary functions nor included by the powers
of the DOJ, and vice versa.
• The OSG, while attached to the DOJ, is not a constituent unit of the latter, as in fact, the Revised Administrative Code
decrees that the OSG is independent and autonomous.
• Moreover, the magnitude of the scope of work of the Solicitor General, if added to the equally demanding tasks of the SOJ,
is obviously too much for any one official to bear.
• Assuming that Agra, as ASG, was not covered by the stricter prohibition under Sec. 13 due to such position being merely
vested with a cabinet rank under Sec. 3, RA 9417, he nonetheless remained covered by the general prohibition under Sec.
7.
• His concurrent designations were still subject to the conditions under the latter constitutional provision.
Was he a de facto or de jure officer? – De Facto
• Since Agra did not hold validly the position of ASOJ concurrently with his holding of the position of ASG, he was not to be
considered as a de jure officer for the entire period of his tenure as the ASOJ.
• A de jure officer is one who is deemed, in all respects, legally appointed and qualified and whose term of office has not
expired.
• But notwithstanding, Agra was a de facto officer during tenure as Acting Secretary of Justice.
• As such, he was entitled to emoluments for actual services rendered and all official actions of Agra as a de facto ASOJ,
assuming that was his later designation, were presumed valid, binding and effective as if he was the officer legally appointed
and qualified for the office.

Espiritu v. Lutgarda (2014)
FACTS:
• This is primarily a case concerning the Comprehensive Agrarian Reform Law. Side issue lang yung main topic natin under
Consti which is the prohibition against holding another office/employment.
• In 1978, the City Council of Angeles City, Pampanga enacted Zoning Ordinance No. 13, classifying areas in Barangay
Margot and Sapang Bato as agricultural land.
o Pursuant to this, del Rosario requested the City Zoning Administrator that his lot be exempt from the zoning
classification.
o The request was approved and the lots were reclassified as nonagricultural or industrial lots.
• On June 10, 1988, the Comprehensive Agrarian Reform Law was enacted.
• Del Rosario filed an application for exemption with the Department of Agrarian Reform, seeking to exempt his lots from the
CARP coverage.
o The Secretary of Agrarian Reform (Pagdanganan) granted the application. He held that the lands classified as
nonagricultural before the enactment of CARP are beyond its coverage.
• The farmers in del Rosario’s land, led by Espiritu, filed an MR of the order.
o They argue that under several zoning ordinances and city council resolutions of Angeles, the landholdings were
classified as agricultural and not industrial.
o That under the HLURB certification, the landholdings were within the agricultural zone and there was no zoning
ordinance reclassifying the same.
• The new Secretary of Agrarian Reform (Pangandaman) gave due course to the MR and revoked the earlier order.
• Del Rosario filed an MR alleging that:
o The order was sent to her house in Angelese City and not to the address on record which was in Cubao, QC.
o Note that the order of the secretary was on June 15, 2006 and del Rosario allegedly only received it on January
26, 2007, when the Provincial Agrarian Reform Officer handed her a copy of the order.
• Pangandaman denied the motion.
• Del Rosario filed a notice of appeal before the Office of the President.
• OP, through the Deputy Executive Secretary for Legal Affairs, Manuel Gaite, dismissed the appeal for lack of merit.
• Del Rosario appealed to the CA on two grounds:
o She was denied due process when the order was sent to another address
o The decision of Gaite was void since he had been appointed to the Securities and Exchange Commission two
months prior to the rendering of the decision.
• CA ruled in favor of del Rosario.
• Espiritu et.al (The farmers of the landholdings) filed a petition for review to set aside the CA decision on the ff. grounds:
o Del Rosario was not denied due process as she was able to actively participate in the proceedings before the
DAR and the OP.
o She was also not able to present proof that Deputy Executive Secretary Gaite was not authorized to sign the
decision and, hence, his action is presumed to have been done in the regular performance of duty.
ISSUES/HELD:
Was del Rosario deprived of due process? – NO
• While it is true that she was prevented from filing a timely MR, the secretary still gave due course to the motion despite it
being filed late. It would be erroneous to conclude that she had been completely denied her opportunity to be heard.
• Where there is an opportunity to be heard, either through oral arguments or pleadings, there is no denial of procedural due
process.
o In administrative proceedings, procedure due process has been recognized to include the ff:
§ (1) the right to actual or constructive notice of the institution of proceedings which may affect a
respondent’s legal rights;
§ (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses
and evidence in one’s favor, and to defend one’s rights;
§ (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged
administratively a reasonable guarantee of honesty as well as impartiality; and
§ (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration
during the hearing or contained in the records or made known to the parties affected
• When del Rosario filed her MR assailing the order, she was able to completely and exhaustively present her arguments.
Hence, she was given a fair and reasonable opportunity to present her side.
Is the decision of Executive Secretary Gaite valid, effective, and binding? – YES
• Under Article VII, Section 13: Section 13:

o The President, Vice President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall
not, during said tenure, directly or indirectly, practice any other profession, participate in any business, or be

financially interested in any contract with, or in any franchise, or special privilege granted by the Government or
any subdivision, agency, or instrumentality thereof, including government-owned or -controlled corporations or
their subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.
• In this case, it is alleged that Gaite was appointed Commissioner to the SEC on March 16, 2009. So when he rendered the
decision on May 7, 2009, he already lost his authority as Deputy Executive Secretary since he is constitutionally prohibited
from holding two offices during his tenure.
o However, this is not conclusive since no evidence was presented as to (1) when he accepted the appointment,
(2) took his oath of office, or (3) assumed the position.
• Even assuming that Gaite’s appointment became effective on March 16, 2009, he can still be considered a de facto
officer at the time he rendered the decision.
o Using as basis the decision in Funa v. Agra, the SC held that assuming that Gaite was a de facto officer
of the OP after his appointment to the SEC, any decision he renders during this time is presumed to be
valid, binding, and effective.
§ In Funa v. Agra, a petition was filed against Alberto Agra for holding concurrent positions as acting
Secretary of Justice and as SolGen.
§ The SC, while ruling that the appointment violated Article VII, Section 13 of the Constitution, held that
Agra was a de facto officer during his tenure in the DOJ.
§ A de facto officer is:
• One who derives his appointment from one having colorable authority to appoint, if the office
is an appointive office, and whose appointment is valid on its face.
• He may also be one who is in possession of an office, and is discharging its duties under
color of authority, by which is meant authority derived from an appointment, however irregular
or informal, so that the incumbent is a mere volunteer.
• Consequently, the acts of the de facto officer are just as valid for all purposes insofar as the
public or third persons who are interested are concerned.
§ In Funa, all the official actions of Agra as a de facto acting secretary of justice, were presumed valid,
binding and effective.
• Furthermore, with Gaite being a public officer, his acts enjoy the presumption of regularity which can only be rebutted by
affirmative evidence of irregularity or failure to perform a duty which the respondent was not able to do.
NOTE: Will not go into the details of the landholding case. But the SC ruled that the landholdings were agricultural and not industrial.
It upheld the factual findings of the administrative agencies based on the certifications of the HLURB and their own ocular inspections,
finding that the area remained agricultural.

DOROMAL v. SANDIGANBAYAN (1989) – prohibited participation in a contract with the government; indirect interest)
FACTS:
• Quintin S. Doromal, a former Commissioner of the PCGG was being investigated by for violation of the Anti-Graft and
Corrupt Practices Act (RA 3019), Sec. 3(h), in connection with his shareholdings and position as president and director of
the Doromal International Trading Corporation (DITC) which submitted bids to supply P61 million worth of electronic,
electrical, automotive, mechanical and airconditioning equipment to the Department of Education, Culture and Sports
(DECS) and the National Manpower and Youth Council (NMYC).
• The Special Prosecution Officer Dionisio Caoili filed in the Sandiganbayan an information against the petitioner charging
that the DITC entered into a business transaction or contract with the Department of Education, Culture and Sports and the
National Manpower and Youth Council, which business, contracts or transactions [petitioner] is prohibited by law and the
constitution from having any interest.
• The petitioner filed a petition for certiorari and prohibition questioning the jurisdiction of the "Tanodbayan" to file the
information without the approval of the Ombudsman after the effectivity of the 1987 Constitution
• In a Memorandum, the Ombudsman granted clearance but advised that "some changes be made in the information
previously filed."
• Complying with that Memorandum, a new information, approved by the Ombudsman, was filed in the Sandiganbayan
alleging that Doromal, a public officer, being then a Commissioner of the PCGG, did then and there wilfully and unlawfully,
participate in a business through the Doromal International Trading Corporation, a family corporation of which he is the
President, and which company participated in the biddings conducted by the DECS and the NMYC, which act or participation
is prohibited by law and the constitution.
• Petitioner filed a "Motion to Quash" the information for being:
o invalid because there had been no preliminary investigation which violates his right to due process
o defective because the facts alleged do not constitute the offense charged
• The Sandiganbayan denied the motion to quash. Public respondent argues that another preliminary investigation is
unnecessary because both old and new informations involve the same subject matter a violation of Section 3 (H) of R.A.
No. 3019 (the Anti-Graft and Corrupt Practices Act) in relation to Section 13, Article VII of the 1987 Constitution.
ISSUES/HELD:
Is a new preliminary investigation needed? YES.
• A new preliminary investigation of the charge against the petitioner is in order not only because the first was a nullity but
also because the accused demands it as his right.
• Moreover, the charge against him had been changed, as directed by the Ombudsman.
Does the prohibition under Article VII, Sec. 13 on  participation in a contract with the government include being a member of
a family corporation which has dealings with the government? –YES!
Should Doromal be charged for violating Art. VII, sec. 13? – YES!
• Petitioner insists that the information should be quashed  because the Special Prosecutor admitted in the Sandiganbayan
that he does not possess any document signed and/or submitted to the DECS by the petitioner after he became a PCGG
Commissioner.
o That admission allegedly belies the averment in the information that the petitioner "participated' in the business
of the DITC in which he is prohibited by the Constitution or by law from having any interest. (Sec. 3-h, RA No.
3019).  
• SC: Sandiganbayan correctly observed that "the presence of a signed document bearing the signature of accused Doromal
as part of the application to bid ... is not a sine qua non" (for, the Ombudsman indicated in his Memorandum/Clearance to
the Special Prosecutor, that the petitioner "can rightfully be charged ...with having participated in a business which act is
absolutely prohibited by Section 13 of Article VII of the Constitution" because "the DITC remained a family corporation in
which Doromal has at least an indirect interest."  
o Section 13, Article VII of the 1987 Constitution provides that "the President, Vice- President, the members of the
Cabinet and their deputies or assistants shall not... during (their) tenure, ...directly or indirectly... participate in any
business."  
o The constitutional ban is similar to the prohibition in the Civil Service Law (PD No. 807, Sec. 36, subpar. 24) that
"Pursuit of private business ... without the permission required by Civil Service Rules and Regulations" shall be a
ground for disciplinary action against any officer or employee in the civil service.  
Was Doromal validly suspended from office despite the President’s having previously approved his indefinite LOA “until
final decision” in this case? – He may be suspended but suspension cannot be indefinite.
• Since the petitioner is an incumbent public official charged in a valid information with an offense punishable under the
Constitution and the laws (RA 3019 and PD 807), the law’s command that he “shall be suspended from office” pendente lite
must be obeyed. His approved leave of absence is not a bar to his preventive suspension for, as indicated by the Solicitor

General, an approved leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the
incumbent.
• However, Doromal’s preventive suspension has exceeded the reasonable maximum period of 90 days provided in Sec.42
of the Civil Service Decree of the Phils.
WHEREFORE, the petition for certiorari and prohibition is granted. The Sandiganbayan shall immediately remand Criminal Case No.
12893 to the Office of the Ombudsman for preliminary investigation and shall hold in abeyance the proceedings before it pending the
result of such investigation. The preventive suspension of the petitioner is hereby lifted.

De Castro v. JBC (2010) – reversal of Valenzuela ruling
SECTION 14. Appointments extended by an Acting President shall remain effective, unless revoked by the elected President within
ninety days from his assumption or reassumption of office.
SECTION 15. Two months immediately before the next presidential elections and up to the end of his term, a President or Acting
President shall not make appointments, except temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
FACTS:
• This is a consolidation of 6 cases, having the same set of legal issues. This involves the appointment of the successor of
Puno for the position of Chief Justice of the Supreme Court.
• Chief Justice Reynato Puno was set for compulsory retirement on 17 May 2010.
th
o This was just days after the 2010 presidential elections on the 10 of May.
• Even before this event happened, it gave rise to many legal dilemmas, such as:
o Considering that Sec. 15, Art. 7 of the Constitution prohibits the President/Acting President from making
appointments w/in 2 months immediately before the next presidential elections and up to the end of his term, with
the exception of temporary appointments to executive positions when continued vacancies therein will prejudice
public service or endanger public safety, may the incumbent President appoint the CJ successor?
o What is the relevance of Sec. 4(1), Art. 8 of the Constitution, which provides that any vacancy in the SC shall be
filled w/in 90 days from the occurrence, to the matter of the appointment?
o May JBC resume the process of screening the candidates nominated or being considered to succeed CJ Puno,
and submit the list of nominees to the incumbent President even during the period of the prohibition under Sec.
15, Art. 7?
o Does mandamus lie to compel the submission of the shortlist of nominees by the JBC?
• Petitioners
o De Castro and Peralta prays that JBC be compelled to submit to PGMA the list of at least 3 nominees for the
position of the next CJ.
o Soriano proposes to prevent the JBC from conducting its search and nomination proceedings.
o PHILCONSA wants the JBC to submit its list of nominees because the prohibition in Art. 7 of the Constitution only
applies to appointments in the Executive Department.
o Former SolGen Estelito Mendoza seeks a ruling from the SC for the guidance of the JBC on whether or not Sec.
15, Art. 7 applies to appointments in the Judiciary.
o Tolentino and Inting wants to enjoin JBC from submitting a list of nominees due to the prohibition under Sec. 15,
Art. 7.
• The main thrust of the petitions was an interpretation of the following provision:
o Under Sec. 4(1), Art. 8 of the Constitution, in relation to Sec. 9: “Vacancy shall be filled within 90 days from the
occurrence thereof” from a “list of at least 3 nominees prepared by the Judicial and Bar Council for every vacancy.”
• December 2009, Cong. Matias Defensor, an ex-officio member of the JBC, addressed a letter to the JBC, requesting that
the process for nominations for CJ be commenced immediately.
• January 2010, the JBC issued the following resolution: 
o The JBC en banc unanimously agreed to start the process of filling up the position of CJ to be vacated on 17 May
2010 upon the retirement of the CJ Puno.
o As to the time to submit the shortlist to the proper appointing authority, in the light of the Constitution, existing
laws and jurisprudence, the JBC welcomes and will consider all views on the matter. (In short, hindi rin alam ni
JBC kung kailan ibibigay yung shortlist)
• As a result, the JBC opened the position of JBC for application or recommendation, and published in the Philippine Daily
Inquirer and Philippine Star.
o JBC “automatically considered” for the position of Chief Justice the 5 most senior of the Associate Justices of the
Court: Carpio, Corona, Carpio-Morales, Velasco (declined), and Nachura (declined).
o JBC also considered other persons for the position.
o A series of nominations, declinations, and withdrawals by the nominees happened.
• JBC resolved to proceed to the next step of announcing the names of the candidates to invite the public to file their sworn
complaint, written report, or opposition to the candidates.  
• After all this, JBC is still not sure when to submit the shortlist to the President and the May 2010 elections was nearing.
ISSUE/HELD:
Does the prohibition under Sec. 15, Art. 7 not apply to appointments to fill a vacancy in the SC or to other Judiciary
appointments?–YES, the prohibition does not apply to SC or other judiciary appointments. (MAIN ISSUE)
First Point: Intent of the Framers of the Constitution

• Sec. 15, Art. 7 and Sec. 4(1), Art. 8 seem to conflict each other.
o Sec. 15, Art 7 - Two months immediately before the next presidential elections and up to the end of his
term, a President or Acting President shall not make appointments, except temporary appointments to
executive positions when continued vacancies therein will prejudice public service or endanger public safety.

o Sec. 4(1), Art 8 - The Supreme Court shall be composed of a Chief Justice and fourteen Associate Justices. It
may sit en banc or in its discretion, in division of three, five, or seven Members. Any vacancy shall be filled
within ninety days from the occurrence thereof.
o SC tried to weigh both provisions and concluded that Sec. 4(1), Art. 8 is more important.
• SC held that the incumbent President CAN appoint the successor of CJ Puno upon his retirement on 17 May 2010 on the
ground that the prohibition against presidential appointments under Sec. 15, Art. 7 does not extend to Judiciary
appointments.
• Constitutional Commission deliberations reveal that the framers devoted time to meticulously drafting, styling, and arranging
the Constitution.
o The arrangement was a recognition of the principle of separation of powers that underlies the political structure.
o As Adolfo Azcuna explained that:  “We have in the political part of this Constitution opted for the separation of
powers in government because we believe that the only way to protect freedom and liberty is to separate and
divide the awesome powers of government. Hence, we return to the separation of powers doctrine and the
legislative, executive and judicial departments.”
o Article 7 is devoted to the Executive Department. It lists the powers vested to the President. The presidential
power of appointment is dealt with in Sec. 14-16.
o Article 8 is dedicated to the Judicial Department and defines the duties and qualifications of Members of the
Supreme Court, among others.
§ Sec. 4(1) mandates the President to fill the vacancy w/in 90 days from the occurrence of the vacancy.
§ Sec. 9 states that the appointment of SC Justices can only be made by the President upon the
submission of a list of at least 3 nominees by the JBC.
o Had the framers intended to extend the prohibition contained in Sec. 15, Art. 7 to the appointment of Members of
the SC, they could have explicitly done so. They would have explicitly made the prohibition equally applicable to
the Judiciary appointments.
o SC held that the prohibition against the President/Acting President making appointments within 2 months before
the next presidential elections and up to the end of the President’s or Acting President’s term DOES NOT refer
to the Members of the Supreme Court.
• De Castro et al. cited the case of In Re: Valenzuela.
o In that case, SC held that the appointments made by the President on 2 RTC judges during the prohibition period
is VOID.
o Although Valenzuela case seem to hold that the prohibition covered judicial appointments, SC held that the
Valenzuela dictum did not firmly rest on the deliberations of the Constitutional Commission.
o SC held that while Valenzuela referred to the intent of the Constitutional Commission, its reference to the records
did not support the final result.
o The records discloses the express intent of the framers “a command [to the President] to fill up any vacancy
therein w/in 90 days from its occurrence.” Valenzeula does not deny this.
• The exchanges during deliberations of the Constitutional Commission on further show that the filling of a vacancy in the SC
11
within the 90-day period was a true mandate for the President.
• SC held that the use of the word “shall” in Sec. 4(1) imposes on the President the imperative duty to make an appointment
of a Member of the Supreme Court w/in 90 days from the occurrence of the vacancy.
o The failure to do so will be a clear disobedience to the Constitution.  
• SC reverses the Valenzuela case. A misinterpretation like Valenzuela should not be allowed to last
Second Point: The dangers surrounding the concept of “midnight appointment” are neutralized by the JBC.
• One of the reasons underlying the adoption of Sec. 15, Art. 7 was to eliminate midnight appointments from being made by
an outgoing Chief Executive.  
• In Valenzuela, SC held that Sec. 15, Art. 7 is directed against 2 types of appointments: (1) those made for buying votes and
(2) those made for partisan considerations.
nd
o The 2 type (for partisan considerations) was dealt with in Aytona v. Castillo.
o In that case, Pres. Diosdado Macapagal defeated Pres. C.P. Garcia in the elections. Pres. Garcia issued 350
appointments in one night before the inauguration of President Macapagal was considered to be an abuse of
Presidential prerogative on the part of Pres. Garcia.
o EXCEPTION TO THE ABOVE RULE: SC recognized that there may well be appointments to important positions
which have to be made even after the proclamation of the new President.
o Such appointments, so long as they are “few and so spaced as to afford some assurance of deliberate action
and careful consideration of the need for the appointment and the appointee’s qualifications,” can be
made by the outgoing President.

11
MR. DE CASTRO. I understand that our justices now in the Supreme Court, together with the Chief Justice, are only 11.  
MR. CONCEPCION. Yes.  
MR. DE CASTRO. And the second sentence of this subsection  reads: “Any vacancy shall be filled within ninety days from the
 occurrence thereof.”  
MR. CONCEPCION. That is right.  
MR. DE CASTRO. Is this now a mandate to the executive to fill the  vacancy?  
MR. CONCEPCION. That is right. That is borne out of the fact that  in the past 30 years, seldom has the Court had a
complete  complement.

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US v.

Nixon (1974) – general claim of executive privilege

Do the subpoenaed tapes contain admissible evidence? – YES

Does EO 464 contravene the power of inquiry vested in Congress? – YES

Is Section 1 of EO 464 valid? – NO

Neri v. Senate (2008)

(1) Already answered.

AZCUNA, .J: SEPARATE OPINION

• Grant MR and dismiss the petition for lack of merit.

QUISUMBING, . J: SEPARATE OPINION ON MR

Neri v. Senate (SUPRA)

AKBAYAN v. AQUINO (2008) - JPEPA

Is the petition moot and academic? Not entirely.

Is there sufficient public interest to overcome the claim of privilege? –No.

Next issues not really related to the syllabus topic…

• Beltran was able to avail all the administrative remedies.

Gutierrez, Jr. J., concurring

• Dear Ate Charo,

(MAIN ISSUE) What is the law’s treatment of foundlings? – Natural-born citizens

• As a matter of law, foundlings are as a class, natural­ born citizens.

• COMELEC ruled that it did not in disregard of consistent jurisprudence

Is the existence of the JCC valid? – YES

Citizenship based on 1935 Constitution (applicable Constitution)

SYLLABUS TOPIC: “need for post election issue”

BALIK TAYO KAY FPJ:

SC SUMMARY (VERBATIM FROM THE CASE)

o On the same day, Erap signed another letter:

Is Erap immune from suit? – NO

Should prosecution of Erap be enjoined due to prejudicial publicity? – NO.

• This MR was denied, btw.

Was Erap resigned/considered resigned as of January 20, 2001? – YES.

Did prejudicial publicity affect Erap’s right to fair trial? – NO

Was the Angara Diary inadmissible for violating rules on Evidence?

RAFAEL v. EMBROIDERY BOARD (1967) – designation and ex-officio capacity

Are petitioners allowed to hold directorship positions in the NHA? – NO.

Was Bautista’s designation as MARINA OIC unconstitutional? – YES

• Facts according to petitioner Funa:

Was he a de facto or de jure officer? – De Facto

Was del Rosario deprived of due process? – NO

• Under Article VII, Section 13: Section 13:

Is a new preliminary investigation needed? YES.

First Point: Intent of the Framers of the Constitution

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• Beltran was able to avail all the administrative remedies. 

Gutierrez, Jr. J., concurring 

• As a matter of law, foundlings are as a class, natural born citizens.

SYLLABUS TOPIC: “need for post election issue”  