MARIA CAROLINA ARAULLO VS BENIGNO 

AQUINO III, FEBRUARY 3, 2015

ISSUE:  Whether or not the DAP realignments or transfers are unconstitutional? 

FACTS:  
Section 24 and 26(2), Article VI, 1987 When President Benigno Aquino III took office,
his administration noticed the sluggish growth of the economy. The World Bank advised that the
economy needed a stimulus plan. Budget Secretary Florencio “Butch” Abad then came up with a
program called the Disbursement Acceleration Program (DAP). The DAP was seen as a remedy
to speed up the funding of government projects. DAP enables the Executive to realign funds
from slow moving projects to priority projects instead of waiting for next year’s appropriation.
So what happens under the DAP was that if a certain government project is being undertaken
slowly by a certain executive agency, the funds allotted therefor will be withdrawn by the
Executive. Once withdrawn, these funds are declared as “savings” by the Executive and said
funds will then be reallotted to other priority projects. The DAP program did work to stimulate
the economy as economic growth was in fact reported and portion of such growth was attributed
to the DAP (as noted by the Supreme Court). 

DECISION:  Yes. The Court held that for the transfer of  appropriated funds to be valid 

RATIO DECIDENDI:  Such transfer must be made upon the concurrence of the following
requisites, namely:  (1) there is a law authorizing the president, the Senate President, the Speaker
of the HOR, the Chief  Justice of the SC, and the heads of the Constitutional Commissions to
transfer such funds within  their respective offices; (2) the funds to be transferred are savings,
generated from the appropriations  for their respective offices; and (3) the purpose of the transfer
is to augment an item in the General  Appropriations Law for their respective offices. That law,
generally, is the GAA of a given fiscal  year. To comply with the first requisite, the GAAs
should expressly authorize such transfers.  Whereas the GAAs of 2011 and 2012 lacked valid
provisions to authorize transfers of funds under  the DAP, such transfers were unconstitutional.
DAP also failed to comply with the second requisite  since the DAP transfers are not savings
contrary to what was being declared by the Executive.  Under the definition of savings in the
GAA, savings only occur, among other instances, when there  is an excess in the funding of a
certain project once it is completed, discontinued, or abandoned.  The GAA does not refer to
savings as funds withdrawn from a slow moving project. Thus, since the  statutory definition of
savings was not complied with under the DAP, there is no basis for the  transfers, further,
savings should only be declared at the end of the fiscal year. However, under the  DAP, funds are
already being withdrawn from certain projects in the middle of the year and  subsequently being
declared as savings by the Executive through the DBM.  

I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely a
program by the Executive and is not a fund nor is it an appropriation. It is a program for
prioritizing government spending. As such, it did not violate the Constitutional provision cited in
Section 29(1), Art. VI of the Constitution. In DAP no additional funds were withdrawn from the
Treasury otherwise, an appropriation made by law would have been required. Funds, which were
already appropriated for by the GAA, were merely being realigned via the DAP.

II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to the
President’s power to refuse to spend appropriations or to retain or deduct appropriations for
whatever reason. Impoundment is actually prohibited by the GAA unless there will be an
unmanageable national government budget deficit (which did not happen). Nevertheless, there’s
no impoundment in the case at bar because what’s involved in the DAP was the transfer of funds.

III. No, the transfers made through the DAP were unconstitutional. It is true that the President
(and even the heads of the other branches of the government) are allowed by the Constitution to
make realignment of funds, however, such transfer or realignment should only be made “within
their respective offices”. Thus, no cross-border transfers/augmentations may be allowed. But
under the DAP, this was violated because funds appropriated by the GAA for the Executive were
being transferred to the Legislative and other non-Executive agencies.

Further, transfers “within their respective offices” also contemplate realignment of funds to an
existing project in the GAA. Under the DAP, even though some projects were within the
Executive, these projects are non-existent insofar as the GAA is concerned because no funds
were appropriated to them in the GAA. Although some of these projects may be legitimate, they
are still non-existent under the GAA because they were not provided for by the GAA. As such,
transfer to such projects is unconstitutional and is without legal basis.

On the issue of what are “savings”

These DAP transfers are not “savings” contrary to what was being declared by the Executive.
Under the definition of “savings” in the GAA, savings only occur, among other instances, when
there is an excess in the funding of a certain project once it is completed, finally discontinued, or
finally abandoned. The GAA does not refer to “savings” as funds withdrawn from a slow moving
project. Thus, since the statutory definition of savings was not complied with under the DAP,
there is no basis at all for the transfers. Further, savings should only be declared at the end of the
fiscal year. But under the DAP, funds are already being withdrawn from certain projects in the
middle of the year and then being declared as “savings” by the Executive particularly by the
DBM.
IV. No. Unprogrammed funds from the GAA cannot be used as money source for the DAP
because under the law, such funds may only be used if there is a certification from the National
Treasurer to the effect that the revenue collections have exceeded the revenue targets. In this
case, no such certification was secured before unprogrammed funds were used.

V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior to it
being declared as unconstitutional by the Supreme Court, is applicable. The DAP has definitely
helped stimulate the economy. It has funded numerous projects. If the Executive is ordered to
reverse all actions under the DAP, then it may cause more harm than good. The DAP effects can
no longer be undone. The beneficiaries of the DAP cannot be asked to return what they received
especially so that they relied on the validity of the DAP. However, the Doctrine of Operative
Fact may not be applicable to the authors, implementers, and proponents of the DAP if it is so
found in the appropriate tribunals (civil, criminal, or administrative) that they have not acted in
good faith.

Belgica v. Executive Secretary GR 208566

ISSUE:  Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws
similar thereto are unconstitutional considering that they violate the principles of/constitutional
provisions on (a) separation of powers; (b) non-delegability of legislati 

FACTS:  Belgica, et al filed an Urgent Petition For Certiorari and Prohibition With Prayer For
The Immediate Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction
seeking that the annual "Pork Barrel System," presently embodied in the provisions of the GAA
of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum, discretionary funds,
such as the Malampaya Funds and the Presidential Social Fund, be declared unconstitutional and
null and void for being acts constituting grave abuse of discretion. Also, they pray that the Court
issue a TRO against respondents 

DECISION:  Partly Granted 

RATIO DECIDENDI:  Yes, the PDAF article is unconstitutional. The post-enactment measures

which govern the areas of project identification, fund release and fund realignment are not
related to functions of congressional oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget execution. This violates the principle
of separation of powers. Congress‘role must be confined to mere oversight that must be confined
to: (1) scrutiny and (2) investigation and monitoring of the implementation of laws. Any action
or step beyond that will undermine the separation of powers guaranteed by the constitution.
Thus, the court declares the 2013 pdaf article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the implementation
or enforcement of the budget, unrelated to congressional oversight, as violative of the separation
of powers principle and thus unconstitutional.  
Political Law - Legal requisites for Judicial Inquiry

Actual case or controversy

The questions in these consolidated cases are ripe for adjudication since the challenged funds and
the provisions allowing for their utilization such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for the Presidential Social Fund are
currently existing and operational; hence, there exists an immediate or threatened injury to
petitioners as a result of the unconstitutional use of these public funds.

Respondents submit that the "the political branches are in the best position not only to perform
budget-related reforms but also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a solution at this stage."

The Court must deny respondents submission. To a great degree, the 1987 Constitution has
narrowed the reach of the political question doctrine when it expanded the power of judicial
review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government. With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing

Locus Standi

Clearly, as taxpayers, they possess the requisite standing to question the validity of theexisting
"Pork Barrel System" under which the taxes they pay have been and continue to be utilized. It is
undeniable that petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of
public funds, if the Court so rules. Moreover, as citizens, petitioners have equally fulfilled the
standing requirement given that the issues they have raised may be classified as matters "of
transcendental importance, of overreaching significance to society, or of paramount public
interest.

Political Law - Separations of Powers

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a
function both constitutionally assigned and properly entrusted to the Executive branch of
government. Thus, unless the Constitution provides otherwise, the Executive department should
exclusively exercise all roles and prerogatives which go into the implementation of the national
budget as provided under the GAA as well as any other appropriation law.

Clearly, these post-enactment measures which govern the areas of project identification, fund
release and fund realignment are not related to functions of congressional oversight and, hence,
allow legislators to intervene and/or assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another,
authorized to participate in as Guingona, Jr. puts it "the various operational aspects of
budgeting," including "the evaluation of work and financial plans for individual activities" and
the "regulation and release of funds" in violation of the separation of powers principle.

Political Law - Non- delegability of Legislative Power

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-
enactment identification authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which as settled in Philconsa is lodged in Congress.

Essentially, under the 2013 PDAF Article, individual legislators are given a personal lump-sum
fund from which they are able to dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF
Article authorizes individual legislators to perform the same, undoubtedly, said legislators have
been conferred the power to legislate which the Constitution does not, however, allow. Thus,
keeping with the principle of non-delegability of legislative power, the Court hereby declares the
2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the
similar legislative identification feature as herein discussed, as unconstitutional.

Political Law - Checks and Balances

Under the 2013 PDAF Article, the amount ofP24.79 Billion only appears as a collective
allocation limit since the said amount would be further divided among individual legislators who
would then receive personal lump-sum allocations and could, after the GAA is passed,
effectively appropriate PDAF funds based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the
law, it necessarily means that the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus effectuated without veto consideration. This
kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation
of a budget within a budget" which subverts the prescribed procedure of presentment and
consequently impairs the Presidents power of item veto.

Political Law - Accountability

The Court agrees with petitioners that certain features embedded in some forms of Congressional
Pork Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The
fact that individual legislators are given post-enactment roles in the implementation of the budget
makes it difficult for them to become disinterested "observers" when scrutinizing, investigating
or monitoring the implementation of the appropriation law. To a certain extent, the conduct of
oversight would be tainted as said legislators, who are vested with post-enactment authority,
would, in effect, be checking on activities in which they themselves participate.

Political Law - Local Autonomy

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing public funds for local development.

This concept of legislator control underlying the CDF and PDAF conflicts with the functions of
the various Local Development Councils (LDCs) which are already legally mandated to "assist
the corresponding sanggunian in setting the direction of economic and social development, and
coordinating development efforts within its territorial jurisdiction. Considering that LDCs are
instrumentalities whose functions are essentially geared towards managing local affairs,their
programs, policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except only when acting
as a body.

With PDAF, a Congressman can simply bypass the local development council and initiate
projects on his own, and even take sole credit for its execution. Indeed, this type of personality-
driven project identification has not only contributed little to the overall development of the
district, but has even contributed to "further weakening infrastructure planning and coordination
efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and
thereby subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.

Presidential Pork Barrel

Political Law - validity of appropriation

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by
PD 1993), which respectively provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the "primary and specific" purpose of
authorizing the release of public funds from the National Treasury.

The Court cannot sustain the argument that the appropriation must be the "primary and specific"
purpose of the law in order for a valid appropriation law to exist. To reiterate, if a legal provision
designates a determinate or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate becomes apparent and, hence,
already sufficient to satisfy the requirement of an "appropriation made by law" under
contemplation of the Constitution.

Political Law - Undue Delegation

Petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power
since the phrase "and for such other purposes as may be hereafter directed by the President"
gives the President "unbridled discretion to determine for what purpose the funds will be used."

The Court agrees with petitioners that the phrase "and for such other purposes as may be
hereafter directed by the President" under Section 8 of PD 910 constitutes an undue delegation of
legislative power insofar as it does not lay down a sufficient standard to adequately determine the
limits of the Presidents authority with respect to the purpose for which the Malampaya Funds
may be used.

First, the phrase "energy resource development and exploitation programs and projects of the
government" states a singular and general class and hence, cannot be treated as a statutory
reference of specific things from which the general phrase "for such other purposes" may be
limited; second, the said phrase also exhausts the class it represents, namely energy development
programs of the government;and, third, the Executive department has, in fact, used the
Malampaya Funds for non-energy related purposes under the subject phrase, thereby
contradicting respondents own position that it is limited only to "energy resource development
and exploitation programs and projects of the government."

Conclusion

In the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in
view of the inherent defects in the rules within which it operates. It has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget
execution, the system has violated the principle of separation of powers; insofar as it has
conferred unto legislators the power of appropriation by giving them personal, discretionary
funds from which they are able to fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative power ; insofar as it has created
a system of budgeting wherein items are not textualized into the appropriations bill, it has flouted
the prescribed procedure of presentment and, in the process, denied the President the power to
veto items ; insofar as it has diluted the effectiveness of congressional oversight by giving
legislators a stake in the affairs of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired public accountability ; insofar
as it has authorized legislators, who are national officers, to intervene in affairs of purely local
nature, despite the existence of capable local institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds
intended by law for energy-related purposes only to other purposes he may deem fit as well as
other public funds under the broad classification of "priority infrastructure development
projects," it has once more transgressed the principle of non-delegability.
PHILCONSA VS ENRIQUEZ
FACTS:
Petitioners assailed the validity of RA 7663 or General Appropriations Act of 1994.
GAA contains a special provision that allows any members of the Congress the REalignment of
Allocation for Operational Expenses, provided that the total of said allocation is not exceeded.
Philconsa claims that only the Senate President and the Speaker of the House of Representatives
are the ones authorized under the Constitution to realign savings, not the individual members of
Congress themselves.
President signed the law, but Vetoes certain provisions of the law and imposed certain
provisional conditions: that the AFP Chief of Staff is authorized to use savings to augment the
pension funds under the Retirement and Separation Benefits of the AFP.

ISSUE:
Whether or not RA 7663 is violative of Article VI, Section 25 (5) of 1987 Constitution.

RULING:
Yes. Only the Senate President and the Speaker of the House are allowed to approve the
realignment.
Furthermore, two conditions must be met: 1) the funds to be realigned are actually savings, and
2) the transfer is for the purpose of augmenting the items of expenditures to which said transfer
to be made.
As to the certain condition given to the AFP Chief of Staff, it is violative of of Sections 25(5) and
29(1) of the Article VI of the Constitution. The list of those who may be authorized to transfer
funds is exclusive. the AFP Chief of Staff may not be given authority.
 ESTRADA vs. ARROYO
FACTS:
During the May 1998 election, petitioner Joseph Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. From the beginning of his term, however,
petitioner was plagued by problems that slowly eroded his popularity.
On October 4, 2000, Ilocos Sur Governor Chavit Singson, a long time friend of the petitioner,
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.
The expose’ immediately ignited reactions of rage.
On November 13, 2000, House Speaker Villar transmitted the Articles of Impeachment signed by
115 representatives or more than 1/3 of all the members of the House of Representatives to the
Senate. On November 20, 2000, the Senate formally opened the impeachment trial of the
petitioner. On January 16, 2001, by a vote of 11-10, the senator-judges ruled against the opening
of the second envelope which allegedly contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name “Jose Velarde.” The ruling was met by a
spontaneous outburst of anger that hit the streets of the metropolis. Thereafter, the Armed Forces
and the PNP withdrew their support to the Estrada government. Some Cabinet secretaries,
undersecretaries, assistant secretaries and bureau chiefs resigned from their posts.
On January 20, 2001, at about 12 noon, Chief Justice Davide administered the oath to respondent
Arroyo as President of the Philippines. On the same day, petitioner issued a press statement that
he was leaving Malacanang Palace for the sake of peace and in order to begin the healing process
of the nation. It also appeared that on the same day, he signed a letter stating that he was
transmitting a declaration that he was unable to exercise the powers and duties of his office and
that by operation of law and the Constitution, the Vice-President shall be the Acting President. A
copy of the letter was sent to Speaker Fuentebella and Senate President Pimentel on the same
day. After his fall from the power, the petitioner’s legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion.
Petitioner sought to enjoin the respondent Ombudsman from conducting any further proceedings
in any criminal complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted. Erap also filed a Quo Warranto case, praying for
judgment “confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to
have taken her oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution.”

ISSUE:
Whether or not the cases at bar involve a political question.
Whether or not the petitioner resigned as President.
Whether or not the petitioner Is only temporarily unable to Act as President.
Whether or not the petitioner enjoys immunity from suit.
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial
publicity.

HELD:
FIRST ISSUE
The cases at bar pose legal and not political questions. The principal issues for resolution require
the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of
Article II, and section 8 of Article VII, and the allocation of governmental powers under section
II of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from
suit. They also involve the correct calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison, the doctrine has been laid down that
“it is emphatically the province and duty of the judicial department to say what the law is . . .”
The Court also distinguished between EDSA People Power I and EDSA People Power II. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office of
the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and
the resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented political question; EDSA II involves
legal questions.
SECOND ISSUE
Using the totality test, the SC held that petitioner resigned as President.
a.) The proposal for a snap election for president in May where he would not be a candidate is an
indicium that petitioner had intended to give up the presidency even at that time.
b.) The Angara diary shows that the President wanted only five-day period promised by Reyes,
as well as to open the second envelop to clear his name.
c.) During the negotiations, the resignation of the petitioner was treated as a given fact. The only
unsettled points at that time were the measures to be undertaken by the parties during and after
transition period.
d.) His resignation was also confirmed by his leaving Malacañang. In the press release
containing his final statement, (1) he acknowledged the oath-taking of the respondent as
President of the Republic albeit with the reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due to any kind of
inability and he was going to re-assume the presidency as soon as the disability disappears; (3)
he expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the people as President; (4) he assured that he
will not shirk from any future challenge that may come ahead in the same service of our country.
Petitioner’s reference is to a future challenge after occupying the office of’ the president which
he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner’s valedictory, his final act of farewell. His presidency is now in the past
tense.
THIRD ISSUE
The petitioner is permanently unable to act as President. Section 11 of Article VII:
“Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions.”
Both houses of Congress have recognized respondent Arroyo as the President. The House of
Representative passed on January 24, 2001 House Resolution No. l75 which states:
“RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES
TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OFTHE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION’S GOALS UNDER THE
CONSTITUTION.”
The Senate also passed Senate Resolution No. 82 which states:
“RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO’S
NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES”
Implicitly clear in that recognition is the premise that the inability of petitioner Estrada is no
longer temporary. Congress has clearly rejected petitioner’s claim of inability. Even if petitioner
can prove that he did not resign, still, he cannot successfully claim that he is a President on leave
on the ground that he is merely unable to govern temporarily. That claim has been laid to rest by
Congress and the decision that respondent Arroyo is the de jure President made by a co-equal
branch of government cannot be reviewed by the Supreme Court.
FOURTH ISSUE
The petitioner does not enjoy immunity from suit. The Supreme Court rejected petitioner’s
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. On February
7, 2001, the Senate passed Senate Resolution No. 83 “Recognizing that the Impeachment Court
is Functus Officio.” Since the Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and then convicted before he can be
prosecuted. The plea, if granted, would put a perpetual bar against his prosecution. The debates
in the Constitutional Commission make it clear that when impeachment proceedings have
become moot due to the resignation of the President, the proper criminal and civil cases may
already be filed against him.
The SC also ruled in In re: Saturnino Bermudez that “incumbent Presidents are immune from
suit or from being brought to court during the period of their incumbency and tenure” but not
beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner cannot demand as a
condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted in
the impeachment proceedings.
Also, petitioner cannot cite any decision of the SC licensing the President to commit criminal
acts and wrapping him with post-tenure immunity from liability. The rule is that unlawful acts of
public officials are not acts of the State and the officer who acts illegally is not acting as such but
stands in the same footing as any other trespasser.
FIFTH ISSUE
Petitioner was not denied the right to impartial trial. Pervasive publicity is not per se prejudicial
to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-
day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of
the trial judge and impaired his impartiality. In the case at bar, the records do not show that the
trial judge developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not
prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is
incapable if change even by evidence presented during the trial. Appellant has the burden to
prove this actual bias and he has not discharged the burden.
NERI VS. SENATE COMMITTEE
FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC)
entered into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of
equipment and services for the National Broadband Network (NBN) Project in the amount of
U.S. $ 329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the
People’s Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007
hearing Jose de Venecia III testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared
in one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos
of COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project.
He further narrated that he informed President Arroyo about the bribery attempt and that she
instructed him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project, petitioner refused
to answer, invoking “executive privilege”. In particular, he refused to answer the questions 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.
He later refused to attend the other hearings and Ermita sent a letter to the senate averring that
the communications between GMA and Neri are privileged and that the jurisprudence laid down
in Senate vs Ermita be applied. He was cited in contempt of respondent committees and an order
for his arrest and detention until such time that he would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive
privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the case of Senate v.
Ermita when they are invited to legislative inquiries in aid of legislation.), does not in any way
diminish the concept of executive privilege. This is because this concept has Constitutional
underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of inquiry
relates to a power textually committed by the Constitution to the President, such as the area of
military and foreign relations. Under our Constitution, the President is the repository of the
commander-in-chief, appointing, pardoning, and diplomatic powers. Consistent with the doctrine
of separation of powers, the information relating to these powers may enjoy greater
confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1) The protected communication must relate to a “quintessential and non-delegable presidential
power.”
2) The communication must be authored or “solicited and received” by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in “operational
proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought “likely contains
important evidence” and by the unavailability of the information elsewhere by an appropriate
investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions “fall under conversation and
correspondence between the President and public officials” necessary in “her executive and
policy decision-making process” and, that “the information sought to be disclosed might impair
our diplomatic as well as economic relations with the People’s Republic of China.” Simply put,
the bases are presidential communications privilege and executive privilege on matters relating
to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the
three (3) questions are covered by the presidential communications privilege. First, the
communications relate to a “quintessential and non-delegable power” of the President, i.e. the
power to enter into an executive agreement with other countries. This authority of the President
to enter into executive agreements without the concurrence of the Legislature has traditionally
been recognized in Philippine jurisprudence. Second, the communications are “received” by a
close advisor of the President. Under the “operational proximity” test, petitioner can be
considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no
adequate showing of a compelling need that would justify the limitation of the privilege and of
the unavailability of the information elsewhere by an appropriate investigating authority.
Respondent Committees further contend that the grant of petitioner’s claim of executive
privilege violates the constitutional provisions on the right of the people to information on
matters of public concern.50 We might have agreed with such contention if petitioner did not
appear before them at all. But petitioner made himself available to them during the September 26
hearing, where he was questioned for eleven (11) hours. Not only that, he expressly manifested
his willingness to answer more questions from the Senators, with the exception only of those
covered by his claim of executive privilege.
The right to public information, like any other right, is subject to limitation. Section 7 of Article
III provides:
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 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.
 Senate vs Ermita
Executive privilege may only be invoked by the President. The President may not authorize her
subordinates to exercise such power.
While it is discretionary for executive officials to show up during question hour, it is mandatory
for them to show up during inquiries in aid of legislation.
FACTS:
This case is about the railway project of the North Luzon Railways Corporation with the China
National Machinery and Equipment Group as well as the Wiretapping activity of the ISAFP, and
the Fertilizer scam.
The Senate Committees sent invitations to various officials of the Executive Department and
AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date arrived,
Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a postponement of
the hearing on Sept. 29 in order 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.” Senate refused the request.
On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others,
mandated that “all heads of departments of the Executive Branch of the government shall secure
the consent of the President prior to appearing before either House of Congress.” Pursuant to this
Order, Executive Sec. Ermita communicated to the Senate that the executive and AFP officials
would not be able to attend the meeting since the President has not yet given her consent. Despite
the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials invited,
attended the investigation. Both faced court marshal for such attendance.
ISSUE:
Whether E.O. 464 contravenes the power of inquiry vested in Congress.
RULING:
To determine the constitutionality of E.O. 464, the Supreme Court discussed the two
different functions of the Legislature: The power to conduct inquiries in aid of legislation and the
power to conduct inquiry during question hour.
Question Hour:
The power to conduct inquiry during question hours is recognized in Article 6, Section 22 of the
1987 Constitution, which reads:
“The heads of departments may, upon their own initiative, with the consent of the President, or
upon the request of either House, as the rules of each House shall provide, appear before and be
heard by such House on any matter pertaining to their departments. Written questions shall be
submitted to the President of the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall not be limited to written
questions, but may cover matters related thereto. When the security of the State or the public
interest so requires and the President so states in writing, the appearance shall be conducted in
executive session.”
The objective of conducting a question hour is to obtain information in pursuit of Congress’
oversight function. When Congress merely seeks to be informed on how department heads are
implementing the statutes which it had issued, the department heads’ appearance is merely
requested.
The Supreme Court construed Section 1 of E.O. 464 as those in relation to the appearance of
department heads during question hour as it explicitly referred to Section 22, Article 6 of the
1987 Constitution.
In aid of Legislation:
The Legislature’s power to conduct inquiry in aid of legislation is expressly recognized in Article
6, section21 of the 1987 Constitution, which reads:
“The Senate or the House of Representatives or any of its respective committees may conduct
inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights
of persons appearing in, or affected by, such inquiries shall be respected.”
The power of inquiry in aid of legislation is inherent in the power to legislate. A legislative body
cannot legislate wisely or effectively in the absence of information respecting the conditions
which the legislation is intended to affect or change. And where the legislative body does not
itself possess the requisite information, recourse must be had to others who do possess it.
But 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”. This is the
power of the government to withhold information from the public, the courts, and the Congress.
This is recognized only to certain types of information of a sensitive character. When Congress
exercise 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 official may be exempted from this power — the President.
Section 2 & 3 of E.O. 464 requires that all the public officials enumerated in Section 2(b) should
secure the consent of the President prior to appearing before either house of Congress. The
enumeration is broad. In view thereof, whenever an official invokes E.O.464 to justify the 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.
The letter sent by the Executive Secretary to Senator Drilon 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 official possesses information that is covered by the
executive privilege. Certainly, 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.
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. 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.
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 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.
Wherefore, the petitions are partly granted. Sections 2(b) and 3 of E.O. 464 are declared void.
Section 1(a) are however valid.
FUNA vs Ermita
Facts:
This is a petition for certiorari, prohibition and mandamus under Rule 65 with prayer for
the issuance of a temporary restraining order and/or writ of preliminary injunction, to declare as
unconstitutional the designation of respondent Undersecretary Maria Elena H. Bautista as
Officer-in-Charge (OIC) of the Maritime Industry Authority (MARINA).
On October 4, 2006, President Gloria Macapagal-Arroyo appointed respondent Maria Elena H.
Bautista (Bautista) as Undersecretary of the Department of Transportation and Communications
(DOTC).
On September 1, 2008, following the resignation of then MARINA Administrator Vicente T.
Suazo, Jr., Bautista was designated as Officer-in-Charge (OIC), Office of the Administrator,
MARINA, in concurrent capacity as DOTC Undersecretary.
On October 21, 2008, Dennis A. B. Funa in his capacity as taxpayer, concerned citizen and
lawyer, filed the instant petition challenging the constitutionality of Bautista’s
appointment/designation, which is proscribed by the prohibition on the President, Vice-President,
the Members of the Cabinet, and their deputies and assistants to hold any other office or
employment.
On January 5, 2009, during the pendency of this petition, Bautista was appointed Administrator
of the MARINA and she assumed her duties and responsibilities as such on February 2, 2009.
Petitioner argues that Bautista’s concurrent positions as DOTC Undersecretary and MARINA
OIC is in violation of Section 13, Article VII of the 1987 Constitution .
On the other hand, the respondents argue that the requisites of a judicial inquiry are not present
in this case. In fact, there no longer exists an actual controversy that needs to be resolved in view
of the appointment of respondent Bautista as MARINA Administrator effective February 2, 2009
and the relinquishment of her post as DOTC Undersecretary for Maritime Transport, which
rendered the present petition moot and academic. Petitioner’s prayer for a temporary restraining
order or writ of preliminary injunction is likewise moot and academic since, with this
supervening event, there is nothing left to enjoin.
Issue:
Whether or not the designation of respondent Bautista as OIC of MARINA, concurrent
with the position of DOTC Undersecretary for Maritime Transport to which she had been
appointed, violated the constitutional proscription against dual or multiple offices for Cabinet
Members and their deputies and assistants.
Held:
The petition is meritorious.
Petitioner having alleged a grave violation of the constitutional prohibition against Members of
the Cabinet, their deputies and assistants holding two (2) or more positions in government, the
fact that he filed this suit as a concerned citizen sufficiently confers him with standing to sue for
redress of such illegal act by public officials.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no practical use or value.
Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. But
even in cases where supervening events had made the cases moot, this Court did not hesitate to
resolve the legal or constitutional issues raised to formulate controlling principles to guide the
bench, bar, and public. In the present case, the mootness of the petition does not bar its
resolution.
Resolution of the present controversy hinges on the correct application of Section 13, Article VII
of the 1987 Constitution, which provides:
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.
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.
On the other hand, Section 7, paragraph (2), Article IX-B reads:
Sec. 7. x x x
Unless otherwise allowed by law or the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.
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, Article VI prohibiting Senators and
Members of the House of Representatives from holding "any other office or employment in the
Government"; and when compared with other officials and employees such as members of the
armed forces and civil service employees, we concluded thus:
These sweeping, all-embracing prohibitions imposed on the President and his official family,
which prohibitions are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of the armed forces,
are proof of the intent of the 1987 Constitution to treat the President and his official family as a
class by itself and to impose upon said class stricter prohibitions.
Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice-President, Members of the Cabinet, their deputies and
assistants.
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, 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: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Respondent Bautista being then the appointed Undersecretary of DOTC, she was thus covered by
the stricter prohibition under Section 13, Article VII and consequently she cannot invoke the
exception provided in Section 7, paragraph 2, Article IX-B where holding another office is
allowed by law or the primary functions of the position. Neither was she designated OIC of
MARINA in an ex-officio capacity, which is the exception recognized in Civil Liberties Union.
WHEREFORE, the petition is GRANTED. The designation of respondent Ma. Elena H. Bautista
as Officer-in-Charge, Office of the Administrator, Maritime Industry Authority, in a concurrent
capacity with her position as DOTC Undersecretary for Maritime Transport, is hereby declared
UNCONSTITUTIONAL for being violative of Section 13, Article VII of the 1987 Constitution
and therefore, NULL and VOID.
Note:
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office. When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official, as where, in
the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors of
the Philippine Tourism Authority, or where, under the Constitution, three Justices of the Supreme
Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate or the
House of Representatives. It is said that appointment is essentially executive while designation is
legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding of
the term. However, where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.
An ad interim appointment is a permanent appointment because it takes effect immediately and
can no longer be withdrawn by the President. “Ad interim” means “in the meantime” that
Congress is in recess.

Matibag vs Benipayo
FACTS:
The COMELEC en banc appointed petitioner as “Acting Director IV” of the EID. Such
appointment was renewed in “temporary” capacity twice, first by Chairperson Demetrio and then
by Commissioner Javier. Later, PGMA appointed, ad interim, Benipayo as COMELEC
Chairman, and Borra and Tuason as COMELEC Commissioners, each for a term of 7 yrs. The
three took their oaths of office and assumed their positions. However, since the Commission on
Appointments did not act on said appointments, PGMA renewed the ad interim appointments.

ISSUES:
1. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad
interim appointments issued by the President amounts to a temporary appointment prohibited by
Sec. 1(2), Art. IX-C.

2. Assuming that the first ad interim appointments and the first assumption of office by
Benipayo, Borra and Tuason are legal, whether or not the renewal of their ad interim
appointments and subsequent assumption of office to the same positions violate the prohibition
on reappointment under Sec. 1(2), Art. IX-C.

RULING:
Nature of Ad Interim Appointments

An ad interim appointment is a permanent appointment because it takes effect immediately and

can no longer be withdrawn by the President once the appointee has qualified into office. The
fact that is subject to confirmation by the Commission on Appointments does not alter its
permanent character. The Constitution itself makes an ad interim appointment permanent in
character by making it effective until disapproved by the Commission on Appointments or until
the next adjournment of Congress. The second paragraph of Sec.16, Art.VII of the Constitution
provides as follows:

“The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval
by the Commission on Appointments or until the next adjournment of the Congress.”
Thus, the ad interim appointment remains effective until such disapproval or next adjournment,
signifying that it can no longer be withdrawn or revoked by the President. xxx

…the term “ad interim appointment”… means a permanent appointment made by the President
in the meantime that Congress is in recess. It does not mean a temporary appointment that can be
withdrawn or revoked at any time. The term, although not found in the text of the Constitution,
has acquired a definite legal meaning under Philippine jurisprudence.

Right of an Ad Interim Appointee

An ad interim appointee who has qualified and assumed office becomes at that moment a
government employee and therefore part of the civil service. He enjoys the constitution
protection that “[n]o officer or employee in the civil service shall be removed or suspended
except for cause provided by law.” Thus, an ad interim appointment becomes complete and
irrevocable once the appointee has qualified into office. The withdrawal or revocation of an ad
interim appointment is possible only if it is communicated to the appointee before the moment he
qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.
Once an appointee has qualified, he acquires a legal right to the office which is protected not
only by statute but also by the Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process.

How an Ad Interim Appointment is Terminated

An ad interim appointment can be terminated for two causes specified in the Constitution. The
first cause is the disapproval of his ad interim appointment by the Commission on Appointments.
The second cause is the adjournment of Congress without the Commission on Appointments
acting on his appointment. These two causes are resolutory conditions expressly imposed by the
Constitution on all ad interim appointments. These resolutory conditions constitute, in effect, a
Sword of Damocles over the heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of Damocles over the heads of the ad
interim appointees.

Ad Interim Appointment vs. Temporary Appointment

While an ad interim appointment is permanent and irrevocable except as provided by law, an

appointment or designation in a temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. A temporary or acting appointee does not enjoy any security of
tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the
President from making to the three independent constitutional commissions, including the
COMELEC xxx

Was the Renewal of Appointment Valid?

There is no dispute that an ad interim appointee disapproved by the Commission on

Appointments can no longer be extended a new appointment. The disapproval is a final decision
of the Commission on Appointments in the exercise of its checking power on the appointing
authority of the President. The disapproval is a decision on the merits, being a refusal by the
Commission on Appointments to give its consent after deliberating on the qualifications of the
appointee. Since the Constitution does not provide for any appeal from such decision, the
disapproval is final and binding on the appointee as well as on the appointing power. In this
instance, the President can no longer renew the appointment not because of the constitutional
prohibition on reappointment, but because of a final decision by the Commission on
Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the

Commission on Appointments to organize is another matter. A by-passed appointment is one that
has not been finally acted upon on the merits by the Commission on Appointments at the close of
the session of Congress. There is no final decision by the Commission on Appointments to give
or withhold its consent to the appointment as required by the Constitution. Absent such decision,
the President is free to renew the ad interim appointment of a by-passed appointee xxx

The prohibition on reappointment in Section 1 (2), Article IX-C of the Constitution applies
neither to disapproved nor by-passed ad interim appointments. A disapproved ad interim
appointment cannot be revived by another ad interim appointment because the disapproval is
final under Section 16, Article VII of the Constitution, and not because a reappointment is
prohibited under Section 1 (2), Article IX-C of the Constitution. A by-passed ad interim
appointment can be revived by a new ad interim appointment because there is no final
disapproval under Section 16, Article VII of the Constitution, and such new appointment will not
result in the appointee serving beyond the fixed term of seven years

Binamira vs. Garrucho, Jr. (1990)

RAMON P. BINAMIRA, petitioner,
vs.
PETER D. GARRUCHO, JR., respondent.
G.R. No. 92008 | 188 SCRA 154 | July 30, 1990 | En Banc | Justice Cruz
Political and International Law | Constitutional Law | Executive Department | Power of
Appointment
It is an appointment (and not a designation) that results in security of tenure

FACTS:
In 1986, petitioner Binamira, as evidenced by the memorandum which allowed him to qualify,
was designated General Manager (GM) of the Phil Tourism Authority (PTA) by the then Minister
of Tourism and Chair of the PTA Board. In 1990, President Aquino, on noting that he was not
designated by herself but merely by said Minister contrary to that required by law, designated the
new Sec. of Tourism respondent Garrucho as the GM until such time she makes an appointment
thereto. Binamira now seeks reinstatement, claiming he has been removed without just cause in
violation of his security of tenure.

ISSUE:
Does Binamira have a claim on security of tenure?

RULING:
No. It is not disputed that Binamira was not appointed by the President but only designated by
the Minister of Tourism. Where the person is merely designated and not appointed, the
implication is that he shall hold the office only in a temporary capacity and may be replaced at
will by the appointing authority. In this sense, the designation is considered only an acting or
temporary appointment, which does not confer security of tenure. It is when an appointment is
completed, usually with its confirmation, that security of tenure results for the person chosen,
unless he is replaceable at pleasure because of the nature of his office.¹ Moreover, even if it is to
be conceded that his designation by the Minister constituted an act of the President—as Binamira
contends—such act shall be considered valid only if not “disapproved or reprobated by the
President” which is what happened in the case at bar.

¹ Appointment and designation, distinguished. – Appointment may be defined as the selection, by

the authority vested with power, of an individual who is to exercise the functions of a given
office. Designation, on the other hand connotes merely the imposition by law of additional duties
on an incumbent official. It is said that appointment is essentially executive while designation is
legislative.

Case Digest: De Castro v. JBC

6/25/2020

0 COMMENTS

ISSUE: Whether or not the incumbent President can appoint the next Chief Justice

FACTS: These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4(1), in relation to Section 9, Article VIII, that “vacancy
shall be filled within ninety days from the occurrence thereof” from a “list of at least three
nominees prepared by the Judicial and Bar Council for every vacancy.” Also considering that
Section 15, Article VII (Executive Department) of the Constitution prohibits the President or
Acting President from making appointments within two months immediately before the next
presidential elections and up to the end of his term, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service or endanger public
safety. The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice. Conformably with its existing practice, the
JBC “automatically considered” for the position of Chief Justice the five most senior of the
Associate Justices of the Court, namely: Associate Justice Antonio T. Carpio; Associate Justice
Renato C. Corona; Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J.
Velasco, Jr.; and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined
their nomination through letters dated January 18, 2010 and January 25, 2010, respectively. The
OSG contends that the incumbent President may appoint the next Chief Justice, because the
prohibition under Section 15, Article VII of the Constitution does not apply to appointments in
the Supreme Court.

DECISION: Denied

RATIO DECIDENDI: Prohibition under section 15, Article VII does not apply to appointments
to fill a vacancy in the Supreme Court or to other appointments to the judiciary. The records of
the deliberations of the Constitutional Commission reveal that the framers devoted time to
meticulously drafting, styling, and arranging the Constitution. Such meticulousness indicates that
the organization and arrangement of the provisions of the Constitution were not arbitrarily or
whimsically done by the framers, but purposely made to reflect their intention and manifest their
vision of what the Constitution should contain. As can be seen, Article VII is devoted to the
Executive Department, and, among others, it lists the powers vested by the Constitution in the
President. The presidential power of appointment is dealt with in Sections 14, 15 and 16 of the
Article. Had the framers intended to extend the prohibition contained in Section 15, Article VII
to the appointment of Members of the Supreme Court, they could have explicitly done so. They
could not have ignored the meticulous ordering of the provisions. They would have easily and
surely written the prohibition made explicit in Section 15, Article VII as being equally applicable
to the appointment of Members of the Supreme Court in Article VIII itself, most likely in Section
4 (1), Article VIII.
Case Digest: Marcos v. Manglapus
6/25/2020

0 COMMENTS

ISSUE: Whether or not, in the exercise of executive power, the President may prohibit the
Marcoses from returning to the Philippines.

FACTS: Former President Ferdinand E. Marcos was deposed from the presidency via the non-
violent “people power” revolution and was forced into exile. Marcos, in his deathbed, has
signified his wish to return to the Philippines to die. But President Corazon Aquino, considering
the dire consequences to the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise and move forward,
has stood firmly on the decision to bar the return of Marcos and his family. Marcos filed for a
petition of mandamus and prohibition to order the respondents to issue them their travel
documents and prevent the implementation of President Aquino’s decision to bar Marcos from
returning in the Philippines. Petitioner questions Aquino’s power to bar his return in the country.
According to the Marcoses, such act deprives them of their right to life, liberty, property without
due process and equal protection of the laws. They also said that it deprives them of their right to
travel which according to Section 6, Article 3 of the constitution, may only be impaired by a
court order.

DECISION: Dismissed
RATIO DECIDENDI: Separation of power dictates that each department has exclusive powers.
According to Section 1, Article VII of the 1987 Philippine Constitution, “the executive power
shall be vested in the President of the Philippines.” However, it does not define what is meant by
“executive power” although in the same article it touches on exercise of certain powers by the
President, i.e., the power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power to grant reprieves, commutations and pardons…
(art VII secfs. 14-23). Although the constitution outlines tasks of the president, this list is not
defined & exclusive. She has residual & discretionary powers not stated in the Constitution
which include the power to protect the general welfare of the people. She is obliged to protect the
people, promote their welfare & advance national interest. (Art. II, Sec. 4-5 of the Constitution).
Residual powers, according to Theodore Roosevelt, dictate that the President can do anything
which is not forbidden in the Constitution (Corwin, supra at 153), inevitable to vest discretionary
powers on the President (Hyman, American President) and that the president has to maintain
peace during times of emergency but also on the day-to-day operation of the State
GUDANI VS. SENGA
Posted by kaye lee on 10:51 PM
GR No. 170165, August 15, 2006 [Article VI Sec. 22: Congress' Power of Inquiry; Legislative
Investigation]

FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud
and the surfacing of the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials of the
executive department including the military establishment from appearing in any legislative
inquiry without her consent. AFP Chief of Staff Gen. Senga issued a Memorandum, prohibiting
Gen. Gudani, Col. Balutan et al from appearing before the Senate Committee without
Presidential approval. However, the two appeared before the Senate in spite the fact that a
directive has been given to them. As a result, the two were relieved of their assignments for
allegedly violating the Articles of War and the time honoured principle of the “Chain of
Command.” Gen. Senga ordered them to be subjected before the General Court Martial
proceedings for willfuly violating an order of a superior officer.

ISSUE:
Whether or not the President has the authority to issue an order to the members of the AFP
preventing them from testifying before a legislative inquiry.

RULING:
Yes. The SC hold that President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such injunction is
liable under military justice. At the same time, any chamber of Congress which seeks the
appearance before it of a military officer against the consent of the President has adequate
remedies under law to compel such attendance. Any military official whom Congress summons
to testify before it may be compelled to do so by the President. If the President is not so inclined,
the President may be commanded by judicial order to compel the attendance of the military
officer. Final judicial orders have the force of the law of the land which the President has the
duty to faithfully execute.
SC ruled in Senate v. Ermita that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In
doing so, the Court recognized the considerable limitations on executive privilege, and affirmed
that the privilege must be formally invoked on specified grounds. However, the ability of the
President to prevent military officers from testifying before Congress does not turn on executive
privilege, but on the Chief Executive’s power as commander-in-chief to control the actions and
speech of members of the armed forces. The President’s prerogatives as commander-in-chief are
not hampered by the same limitations as in executive privilege.

At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the
legislature’s functions is the conduct of inquiries in aid of legislation. Inasmuch as it is ill-
advised for Congress to interfere with the President’s power as commander-in-chief, it is
similarly detrimental for the President to unduly interfere with Congress’s right to conduct
legislative inquiries. The impasse did not come to pass in this petition, since petitioners testified
anyway despite the presidential prohibition. Yet the Court is aware that with its pronouncement
today that the President has the right to require prior consent from members of the armed forces,
the clash may soon loom or actualize.

The duty falls on the shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the President has earlier disagreed
with the notion of officers appearing before the legislature to testify, the Chief Executive is
nonetheless obliged to comply with the final orders of the courts.
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Case Digest: Bayan vs Exec Secretary

6/26/2020

0 COMMENTS

ISSUE: Whether or not the Visiting Forces Agreement (VFA) unconstitutional

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

DECISION: No

RATIO DECIDENDI: Section 25, Article XVIII disallows foreign military bases, troops, or
facilities in the country, unless the following conditions are sufficiently met, viz: (a) it must be
under a treaty; (b) the treaty must be duly concurred in by the Senate and, when so required by
congress, ratified by a majority of the votes cast by the people in a national referendum; and (c)
recognized as a treaty by the other contracting state. There is no dispute as to the presence of
the first two requisites in the case of the VFA. The concurrence handed by the Senate through
Resolution No. 18 is in accordance with the provisions of the Constitution . . . the provision in
[in §25, Article XVIII] requiring ratification by a majority of the votes cast in a national
referendum being unnecessary since Congress has not required it.