Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 171396             May 3, 2006

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY L. ROQUE, JR., JOEL
RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
F.C. BOLASTIG, Petitioners, 
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL
GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.

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G.R. No. 171409             May 3, 2006

NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners, 

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO C.
LOMIBAO, Respondents.

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G.R. No. 171485             May 3, 2006

FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO, AGAPITO A. AQUINO,

MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL.
GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO B.
MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F. LEONEN, NERI
JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED
BY AMADO GAT INCIONG, Petitioners, 
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V.
PUNO, SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP,Respondents.

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G.R. No. 171483             May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C. LABOG AND SECRETARY
GENERAL JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M.
TAN, Petitioners, 
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE HONORABLE EXECUTIVE

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SECRETARY, EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.

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G.R. No. 171400             May 3, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner, 

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO, Respondents.

G.R. No. 171489             May 3, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR M. AMORADO,
ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES
(IBP),Petitioners, 
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO SENGA, IN HIS CAPACITY AS
AFP CHIEF OF STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF,Respondents.

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G.R. No. 171424             May 3, 2006

LOREN B. LEGARDA, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT

AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 Superior strength
– the use of force – cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding
the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He said: "In cases involving
liberty, the scales of justice should weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak." Laws and actions that restrict fundamental
rights come to the courts "with a heavy presumption against their constitutional validity." 2

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential
Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo
committed grave abuse of discretion. Petitioners contend that respondent officials of the Government, in their
professed efforts to defend and preserve democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are void for being unconstitutional.

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Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a
free people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?3

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President
Arroyo issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-
in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: "The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .," and in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians
of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine State – who are now in a tactical alliance
and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the
national media;

WHEREAS, this series of actions is hurting the Philippine State – by obstructing governance including hindering
the growth of the economy and sabotaging the people’s confidence in government and their faith in the
future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening
to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute
aclear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the
extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State – and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-constituted Government elected
in May 2004;

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WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national
media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance, including hindering
the growth of the economy and sabotaging the people’s confidence in the government and their faith in the future
of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right the opening to
intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic
institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a
clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of National
Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under the
Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic of the
Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts of
terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and men of the AFP
and PNP, to immediately carry out the necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these
petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution, Proclamation No.
1017 dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued on the basis
of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP),
were directed to maintain law and order throughout the Philippines, prevent and suppress all form of lawless
violence as well as any act of rebellion and to undertake such action as may be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless violence and
rebellion;

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by virtue

of the powers vested in me by law, hereby declare that the state of national emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause
behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New
People’s Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President

4
Arroyo.4 They considered the aim to oust or assassinate the President and take-over the reigns of government as
a clear and present danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance
of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners’ counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the
President in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners
has shown that PP 1017 was without factual bases. While he explained that it is not respondents’ task to state the
facts behind the questioned Proclamation, however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San Juan
and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention
cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all
costs. They called upon the people to "show and proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the streets in protest, but also by wearing red bands on our left
arms." 5

On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I " which detailed plans for
bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President Arroyo herself. 6 Upon the advice of
her security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in
his possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo
Group and the National People’s Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of
subversive documents.7 Prior to his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day
would be on February 24, 2006, the 20th Anniversary of Edsa I."

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special
Action Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino
Franco, Jr. to "disavow" any defection. The latter promptly obeyed and issued a public statement: "All SAF units
are under the effective control of responsible and trustworthy officers with proven integrity and unquestionable
loyalty."

On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquino’s brother,
businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official
about his group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all systems go
for the planned movement against Arroyo."8

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff
of the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a
critical mass and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because they too, were breaking the
chain of command to join the forces foist to unseat the President. However, Gen. Senga has remained faithful to
his Commander-in-Chief and to the chain of command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio "Ka

5
Roger" Rosal declared: "The Communist Party and revolutionary movement and the entire people look forward to
the possibility in the coming year of accomplishing its immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take much longer to end it."9

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central
Mindanao, publicly announced: "Anti-Arroyo groups within the military and police are growing rapidly, hastened by
the economic difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-
insurgency operations in the field." He claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have been reinforcing since June 2005, it is
probable that the President’s ouster is nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan
was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party
of the Philippines ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.10

By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to
assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to
account for all their men and ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the President suspended classes in all
levels in the entire National Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the
20th anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the President’s mind
were organized for purposes of destabilization, are cancelled.Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including media, can already be implemented."11

Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-
KMU]), marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those
who were already near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the
marching groups, and scatter the massed participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That same evening,
hundreds of riot policemen broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas
Street in Makati City.12

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection
Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed outside the building. 13

6
A few minutes after the search and seizure at the Daily Tribune offices, the police surrounded the premises of
another pro-opposition paper, Malaya, and its sister publication, the tabloid Abante.

The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a ‘strong presence,’ to tell
media outlets not to connive or do anything that would help the rebels in bringing down this government."  The
PNP warned that it would take over any media organization that would not follow "standards set by the
government during the state of national emergency." Director General Lomibao stated that "if they do not follow
the standards – and the standards are - if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’"  National
Telecommunications’ Commissioner Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the government. He warned that
his agency will not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media
coverage when the national security is threatened. 14

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party
and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not a party in any
of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by
the police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at
the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was arrested while with his
wife and golfmates at the Orchard Golf and Country Club in Dasmariñas, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan

Muna Representative Teodoro Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative
Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the
House of Representatives where the "Batasan 5" decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et
al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to
exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches
on the emergency powers of Congress; (2) itis a subterfuge to avoid the constitutional requirements for the
imposition of martial law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and
of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDG’s act
of raiding the Daily Tribune offices as a clear case of "censorship" or "prior restraint." They also claimed that the

7
term "emergency" refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely
no emergency" that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21)
other members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation
of legislative powers"; "violation of freedom of expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity to do so."

In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an "arbitrary and unlawful
exercise by the President of her Martial Law powers." And assuming that PP 1017 is not really a declaration of
Martial Law, petitioners argued that "it amounts to an exercise by the President of emergency powers without
congressional approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and function of a
proclamation as defined under the Revised Administrative Code."

And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and G.O. No. 5 are
"unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of
the press and the right to access to information on matters of public concern, all guaranteed under Article III,
Section 4 of the 1987 Constitution." In this regard, she stated that these issuances prevented her from fully
prosecuting her election protest pending before the Presidential Electoral Tribunal.

In respondents’ Consolidated Comment, the Solicitor General countered that: first, the petitions should be
dismissed for being moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et
al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for
petitioners to implead President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
andfifth, PP 1017 does not violate the people’s right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues
which may be summarized as follows:

A. PROCEDURAL:

1) Whether the issuance of PP 1021 renders the petitions moot and academic.

2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et

al.), 171489(Cadiz et al.), and 171424 (Legarda) have legal standing.

B. SUBSTANTIVE:

1) Whetherthe Supreme Court can review the factual bases of PP 1017.

2) Whether PP 1017 and G.O. No. 5 are unconstitutional.

8
 a. Facial Challenge

b. Constitutional Basis

c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review
enunciated in Marbury v. Madison.21 This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all political authority. It
confers limited powers on the national government. x x x If the government consciously or unconsciously
oversteps these limitations there must be some authority competent to hold it in control, to thwart its
unconstitutional attempt, and thus to vindicate and preserve inviolate the will of the people as expressed
in the Constitution. This power the courts exercise. This is the beginning and the end of the theory of
judicial review.22

But the power of judicial review does not repose upon the courts a "self-starting capacity." 23 Courts may exercise
such power only when the following requisites are present: first, there must be an actual case or
controversy;second, petitioners have to raise a question of constitutionality; third, the constitutional question must
be raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to
the determination of the case itself.24

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion
thereon.

An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial
resolution. It is "definite and concrete, touching the legal relations of parties having adverse legal interest;" a real
and substantial controversy admitting of specific relief. 25 The Solicitor General refutes the existence of such actual
case or controversy, contending that the present petitions were rendered "moot and academic" by President
Arroyo’s issuance of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,26 so that a declaration thereon would be of no practical use or value. 27 Generally, courts decline
jurisdiction over such case28 or dismiss it on ground of mootness.29

The Court holds that President Arroyo’s issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners,
committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify
these alleged illegal acts? These are the vital issues that must be resolved in the present petitions. It must be
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31 second, the exceptional character of the situation and the paramount public interest is

9
involved;32third, when constitutional issue raised requires formulation of controlling principles to guide the bench,
the bar, and the public;33 and fourth, the case is capable of repetition yet evading review. 34

All the foregoing exceptions are present here and justify this Court’s assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the
bar, and in the present petitions, the military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents’ contested actions are capable of repetition. Certainly, the
petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganiban’s Separate Opinion in Sanlakas v. Executive Secretary.36 However, they failed to take into account
the Chief Justice’s very statement that an otherwise "moot" case may still be decided "provided the party raising it
in a proper case has been and/or continues to be prejudiced or damaged as a direct result of its issuance." The
present case falls right within this exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.

Locus standi is defined as "a right of appearance in a court of justice on a given question." 37 In private suits,
standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of
the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit."38 Succinctly put, the
plaintiff’s standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief
as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public right, however…the people are
the real parties…It is at least the right, if not the duty, of every citizen to interfere and see that a public
offence be properly pursued and punished, and that a public grievance be remedied." With respect to
taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which
he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt,42 later reaffirmed
inTileston v. Ullman.43 The same Court ruled that for a private individual to invoke the judicial power to determine
the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest common to all members of the public.

10
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera,44 it held that the person who
impugns the validity of a statute must have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as,Custodio v. President of the Senate,45 Manila Race Horse Trainers’ Association v. De la Fuente,46 Pascual v.
Secretary of Public Works47 and Anti-Chinese League of the Philippines v. Felix. 48

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where
the "transcendental importance" of the cases prompted the Court to act liberally. Such liberality was neither a
rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the issues raised due to the "far-
reaching implications" of the petition notwithstanding its categorical statement that petitioner therein had no
personality to file the suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing
ordinary citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. 51

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have
been allowed to sue under the principle of "transcendental importance." Pertinent are the following cases:

(1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;

(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given the transcendental
importance of the issues involved, the Court may relax the standing requirements and allow the
suit to prosper despite the lack of direct injury to the parties seeking judicial review"  of the Visiting
Forces Agreement;

(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file suit in their
capacity as taxpayers absent a showing that "Balikatan 02-01" involves the exercise of Congress’ taxing
or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v. Zamora,55that in cases of
transcendental importance, the cases must be settled promptly and definitely and standing
requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are
met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Court’s attitude toward legal standing.

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In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a people’s organization does not
give it the requisite personality to question the validity of the on-line lottery contract, more so where it does not
raise any issue of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds
are being misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,57 the Court reiterated the
"direct injury" test with respect to concerned citizens’ cases involving constitutional issues. It held that "there must
be a showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal
official act."

In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are members of Congress have
standing to sue, as they claim that the President’s declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido
Manggagawa, and Social Justice Society, the Court declared them to be devoid of standing, equating them with
the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same
holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged
"direct injury" resulting from "illegal arrest" and "unlawful search" committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also
raised the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged violations of their basic
rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,60 Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.

In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of
their members.65 We take judicial notice of the announcement by the Office of the President banning all rallies
and canceling all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines
(IBP) have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or
its members may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In  Integrated Bar of
the Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to preserve the rule of
law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole citizenry. However, in view of the
transcendental importance of the issue, this Court declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence.
She can no longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired

12
by PP 1017 and G.O. No. 5. Her claim that she is a media personality will not likewise aid her because there was
no showing that the enforcement of these issuances prevented her from pursuing her occupation. Her submission
that she has pending electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She
has not sufficiently shown that PP 1017 will affect the proceedings or result of her case. But considering once
more the transcendental importance of the issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of the "liberality doctrine" on legal standing. It cannot
be doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount
importance to the Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with
bated breath the ruling of this Court on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing requirements for the petitioners in the "PP
1017 cases."1avvphil.net

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President,
during his tenure of office or actual incumbency, 67 may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such. Furthermore, it is important that he
be freed from any form of harassment, hindrance or distraction to enable him to fully attend to the performance of
his official duties and functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and important duties
imposed upon him by the Constitution necessarily impairs the operation of the Government. However, this does
not mean that the President is not accountable to anyone. Like any other official, he remains accountable to the
people68 but he may be removed from office only in the mode provided by law and that is by impeachment. 69

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for President Arroyo to
issue such Proclamation.

The issue of whether the Court may review the factual bases of the President’s exercise of his Commander-in-
Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker70 and Montenegro v.
Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The
tug-of-war always cuts across the line defining "political questions," particularly those questions "in regard to
which full discretionary authority has been delegated to the legislative or executive branch of the
government."75Barcelon and Montenegro were in unison in declaring that the authority to decide whether an
exigency has arisen belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were unanimous in the conviction that
the Court has the authority to inquire into the existence of factual bases in order to determine their constitutional
sufficiency. From the principle of separation of powers, it shifted the focus to the system of checks and
balances, "under which the President is supreme, x x x only if and when he acts within the sphere allotted
to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the
Judicial Department, which in this respect, is, in turn, constitutionally supreme."76 In 1973, the unanimous
Court ofLansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on the issue of
whether the validity of the imposition of Martial Law is a political or justiciable question. 78 Then came Garcia-
Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that "in times of war or national emergency, the President must be given absolute control for
the very life of the nation and the government is in great peril. The President, it intoned, is answerable
only to his conscience, the People, and God."79

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The Integrated Bar of the Philippines v. Zamora 80 -- a recent case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the President’s "calling-out" power as a discretionary
power solely vested in his wisdom, it stressed that "this does not prevent an examination of whether such
power was exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion."This ruling is mainly a result of the Court’s reliance on Section 1, Article
VIII of 1987 Constitution which fortifies the authority of the courts to determine in an appropriate action the validity
of the acts of the political departments. Under the new definition of judicial power, the courts are authorized 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 the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the government. 81 It speaks of judicial prerogative not
only in terms of power but also of duty.82

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that "judicial
inquiry can go no further than to satisfy the Court not that the President’s decision is correct," but that "the
President did not act arbitrarily." Thus, the standard laid down is not correctness, but arbitrariness. 83 In Integrated
Bar of the Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis" and that if he fails, by way of proof, to support his
assertion, then "this Court cannot undertake an independent investigation beyond the pleadings."

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally
bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the
records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist
leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing
the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus,
absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling
for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and
do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists on the Power of the President in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at
the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to
cope with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature
might be inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these
situations, the Crown retained a prerogative "power to act according to discretion for the public good,
without the proscription of the law and sometimes even against it."84 But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting that "the
people have no other remedy in this, as in all other cases where they have no judge on earth, but to
appeal to Heaven."85

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of
government in time of emergency. According to him:

14
The inflexibility of the laws, which prevents them from adopting themselves to circumstances, may, in certain
cases, render them disastrous and make them bring about, at a time of crisis, the ruin of the State…

It is wrong therefore to wish to make political institutions as strong as to render it impossible to suspend their
operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their preservation, the method is
to nominate a supreme lawyer, who shall silence all the laws and suspend for a moment the sovereign authority.
In such a case, there is no doubt about the general will, and it clear that the people’s first intention is that the State
shall not perish.86

Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as he termed it. For him,
it would more likely be cheapened by "indiscreet use." He was unwilling to rely upon an " appeal to heaven."
Instead, he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. 87

John Stuart Mill concluded his ardent defense of representative government: "I am far from condemning, in
cases of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship."88

Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this
chasm in democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra –constitutional measures; for
although they may for a time be beneficial, yet the precedent is pernicious, for if the practice is once established
for good objects, they will in a little while be disregarded under that pretext but for evil purposes. Thus, no republic
will ever be perfect if she has not by law provided for everything, having a remedy for every emergency and fixed
rules for applying it.89

Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into the constitution a regularized
system of standby emergency powers to be invoked with suitable checks and controls in time of national danger.
He attempted forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in
its application in time of emergency, with effective constitutional restraints. 90

Contemporary political theorists, addressing themselves to the problem of response to emergency by

constitutional democracies, have employed the doctrine of constitutional dictatorship. 91 Frederick M. Watkins saw
"no reason why absolutism should not be used as a means for the defense of liberal institutions," provided
it "serves to protect established institutions from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of political life."92 He recognized the
two (2) key elements of the problem of emergency governance, as well as all constitutional
governance: increasing administrative powers of the executive, while at the same time "imposing
limitation upon that power."93 Watkins placed his real faith in a scheme of constitutional dictatorship. These are
the conditions of success of such a dictatorship: "The period of dictatorship must be relatively short…
Dictatorship should always be strictly legitimate in character…Final authority to determine the need for
dictatorship in any given case must never rest with the dictator himself…"94 and the objective of such an
emergency dictatorship should be "strict political conservatism."

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem of concentrating power –
in a government where power has consciously been divided – to cope with… situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to equally strong limitations as to who
shall exercise such powers, when, for how long, and to what end." 96 Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency executive must be appointed by
constitutional means – i.e., he must be legitimate; he should not enjoy power to determine the existence
of an emergency; emergency powers should be exercised under a strict time limitation; and last, the
objective of emergency action must be the defense of the constitutional order."97

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Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a description of a scheme of "constitutional dictatorship" as
solution to the vexing problems presented by emergency. 98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:

1) No general regime or particular institution of constitutional dictatorship should be initiated unless it is
necessary or even indispensable to the preservation of the State and its constitutional order…

2) …the decision to institute a constitutional dictatorship should never be in the hands of the man or men
who will constitute the dictator…

3) No government should initiate a constitutional dictatorship without making specific provisions for its
termination…

4) …all uses of emergency powers and all readjustments in the organization of the government should be
effected in pursuit of constitutional or legal requirements…

5) … no dictatorial institution should be adopted, no right invaded, no regular procedure altered any more
than is absolutely necessary for the conquest of the particular crisis . . .

6) The measures adopted in the prosecution of the a constitutional dictatorship should never be
permanent in character or effect…

7) The dictatorship should be carried on by persons representative of every part of the citizenry interested
in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a constitutional
dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute one should never be
in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for which it was
instituted…

11) …the termination of the crisis must be followed by a complete return as possible to the political and
governmental conditions existing prior to the initiation of the constitutional dictatorship… 99

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did
Watkins. He would secure to Congress final responsibility for declaring the existence or termination of an
emergency, and he places great faith in the effectiveness of congressional investigating committees. 100

Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying
that, "the suggestion that democracies surrender the control of government to an authoritarian ruler in
time of grave danger to the nation is not based upon sound constitutional theory." To appraise emergency
power in terms of constitutional dictatorship serves merely to distort the problem and hinder realistic analysis. It
matters not whether the term "dictator" is used in its normal sense (as applied to authoritarian rulers) or is
employed to embrace all chief executives administering emergency powers. However used, "constitutional
dictatorship" cannot be divorced from the implication of suspension of the processes of constitutionalism. Thus,
they favored instead the "concept of constitutionalism" articulated by Charles H. McIlwain:

A concept of constitutionalism which is less misleading in the analysis of problems of emergency powers, and
which is consistent with the findings of this study, is that formulated by Charles H. McIlwain. While it does not by

16
any means necessarily exclude some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the meaning of constitutionalism, he insisted
that the historical and proper test of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism with the enfeebling of government by
an exaggerated emphasis upon separation of powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted not in the weakening of government but, but
rather in the limiting of it; between which there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak" government, McIlwain meant government
limited to the orderly procedure of law as opposed to the processes of force. The two fundamental
correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of government to the governed.101

In the final analysis, the various approaches to emergency of the above political theorists –- from Lock’s "theory of
prerogative," to Watkins’ doctrine of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept
of Justice Jackson’s "balanced power structure." 102 Executive, legislative, and judicial powers are dispersed to the
President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none
has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or
check upon the other. This system does not weaken the President, it just limits his power, using the language
of McIlwain. In other words, in times of emergency, our Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same time, it obliges him to
operate within carefully prescribed procedural limitations.

a. "Facial Challenge"

Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They claim that its enforcement
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a
"chilling effect" to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing "on their faces" statutes
infree speech cases, also known under the American Law as First Amendment cases. 103

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v.
Salerno,104the US Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine outside the
limited context of the First Amendment" (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that "reflects legitimate state
interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and "constitutionally unprotected conduct."
InBroadrick v. Oklahoma,105 it was held:

It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when
‘such summary action’ is inappropriate. But the plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited
one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction

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moves from ‘pure speech’ toward conduct and that conduct –even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to
regulate only "spoken words" and again, that "overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be applied to protected conduct ."106Here,
the incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.

Second, facial invalidation of laws is considered as "manifestly strong medicine," to be used "sparingly and
only as a last resort," and is "generally disfavored;"107 The reason for this is obvious. Embedded in the
traditional rules governing constitutional adjudication is the principle that a person to whom a law may be applied
will not be heard to challenge a law on the ground that it may conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court.108 A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that
the overbroad law becomes unenforceable until a properly authorized court construes it more narrowly. The factor
that motivates courts to depart from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect
of the overbroad statute on third parties not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the court to refrain from constitutionally protected
speech or expression." An overbreadth ruling is designed to remove that deterrent effect on the speech of those
third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and
pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or
prediction that its very existence may cause others not before the Court to refrain from constitutionally protected
speech or expression. In Younger v. Harris,109 it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully,
since the challenger must establish that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is facially
invalid if men of common intelligence must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing overbreadth doctrine. For one, it is also an analytical
tool for testing "on their faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. Again, petitioners did not

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even attempt to show that PP 1017 is vague in all its application. They also failed to establish that men of
common intelligence cannot understand the meaning and application of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby command the Armed Forces of the
Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion"

Second provision:

"and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally
or upon my direction;"

Third provision:

"as provided in Section 17, Article XII of the Constitution do hereby declare a State of National Emergency."

First Provision: Calling-out Power

The first provision pertains to the President’s calling-out power. In Sanlakas v. Executive Secretary,111 this Court,
through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and  whenever it
becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not be set aside by the President. Upon the
initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or suspension,
convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual
bases of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

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The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged
within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From the most to the least
benign, these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only
criterion for the exercise of the calling-out power is that "whenever it becomes necessary," the President may
call the armed forces "to prevent or suppress lawless violence, invasion or rebellion." Are these conditions
present in the instant cases? As stated earlier, considering the circumstances then prevailing, President Arroyo
found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to
determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless
violence, invasion and rebellion. This involves ordinary police action. But every act that goes beyond the
President’s calling-out power is considered illegal or ultra vires. For this reason, a President must be careful in the
exercise of his powers. He cannot invoke a greater power when he wishes to act under a lesser power. There lies
the wisdom of our Constitution, the greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the President’s authority to declare a "state of
rebellion" (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyo’s
authority to declare a "state of rebellion" emanates from her powers as Chief Executive, the statutory authority
cited in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or condition of public moment
or interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

President Arroyo’s declaration of a "state of rebellion" was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words
ofSanlakas, is harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than
that. In declaring a state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a provision on the State’s extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls for the exercise of an  awesome
power. Obviously, such Proclamation cannot be deemed harmless, without legal significance, or not written, as in
the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so.
What defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her
calling-out power.

The declaration of Martial Law is a "warn[ing] to citizens that the military power has been called upon by the
executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain
of arrest and punishment, not commit any acts which will in any way render more difficult the restoration of order
and the enforcement of law."113

In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr. Justice Vicente V.
Mendoza,114 an authority in constitutional law, said that of the three powers of the President as Commander-in-
Chief, the power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which
should not be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in

20
the keeping of the President for the purpose of enabling him to secure the people from harm and to restore order
so that they can enjoy their individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the
President to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts
that only under a valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its
nature and scope, and any act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on
public assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be exercised by the President as Commander-in-Chief only where
there is a valid declaration of Martial Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an
exercise of President Arroyo’s calling-out power for the armed forces to assist her in preventing or
suppressing lawless violence.

Second Provision: "Take Care" Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is
based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested, 115 the primary function of the President is to enforce the
laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by
the officials and employees of his department. Before assuming office, he is required to take an oath or affirmation
to the effect that as President of the Philippines, he will, among others, "execute its laws." 116 In the exercise of
such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief
of all the armed forces of the country,117 including the Philippine National Police118 under the Department of Interior
and Local Government.119

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro
Casiño, Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President
Arroyo the power to enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the
power to enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to all
decrees, orders and regulations promulgated by me personally or upon my direction."

Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows that it was lifted 120 from
Former President Marcos’ Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-
Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or

21
rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me
personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states:  "to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to
enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction."

Is it within the domain of President Arroyo to promulgate "decrees"?

PP 1017 states in part: "to enforce obedience to all the laws and decrees x x x promulgated by me personally
or upon my direction."

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292
(Administrative Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or permanent character in
implementation or execution of constitutional or statutory powers shall be promulgated in executive orders.

Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect of governmental
operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or condition of public moment or
interest, upon the existence of which the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive order.

Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail or of subordinate or
temporary interest which only concern a particular officer or office of the Government shall be embodied in
memorandum orders.

Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal administration, which the
President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in memorandum circulars.

Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity as Commander-in-
Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same
category and binding force as statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution. 121

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the
authority to promulgate "decrees." Legislative power is peculiarly within the province of the Legislature.
Section 1, Article VI categorically states that "[t]he legislative power shall be vested in the Congress of the
Philippines which shall consist of a Senate and a House of Representatives." To be sure, neither Martial
Law nor a state of rebellion nor a state of emergency can justify President Arroyo’s exercise of legislative power
by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

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As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are
void and, therefore, cannot be enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and property relations, laws on obligations
and contracts and the like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article XII of the Constitution do hereby
declare a state of national emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can
call the military not only to enforce obedience "to all the laws and to all decrees x x x" but also to act pursuant to
the provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during the
emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any
privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress, to take over or direct the operation of any privately-
owned public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the "martial law" thinking of the 1971
Constitutional Convention.122 In effect at the time of its approval was President Marcos’ Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to take over " the management, control
and operation of the Manila Electric Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and)
Filipinas Orient Airways . . . for the successful prosecution by the Government of its effort to contain, solve and
end the present national emergency."

Petitioners, particularly the members of the House of Representatives, claim that President Arroyo’s inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the legislature’s emergency powers.

This is an area that needs delineation.

A distinction must be drawn between the President’s authority to declare "a state of national emergency" and
toexercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional
issues arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled, voting separately,
shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited
period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a

23
declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon
the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to " other
national emergency." If the intention of the Framers of our Constitution was to withhold from the President the
authority to declare a "state of national emergency" pursuant to Section 18, Article VII (calling-out power) and
grant it to Congress (like the declaration of the existence of a state of war), then the Framers could have provided
so. Clearly, they did not intend that Congress should first authorize the President before he can declare a "state of
national emergency." The logical conclusion then is that President Arroyo could validly declare the existence of a
state of national emergency even in the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business
affected with public interest, is a different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise
stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. 123 Considering that Section 17 of Article XII and
Section 23 of Article VI, previously quoted, relate to national emergencies, they must be read together to
determine the limitation of the exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2),
Article VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power
not reposed upon it. However, knowing that during grave emergencies, it may not be possible or practicable for
Congress to meet and exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.124

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of
private business affected with public interest is just another facet of the emergency powers generally reposed
upon Congress. Thus, when Section 17 states that the "the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest," it refers to Congress, not the President. Now, whether
or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant
to a law prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer, 125 held:

It is clear that if the President had authority to issue the order he did, it must be found in some provision of the
Constitution. And it is not claimed that express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of his powers under the Constitution.
Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a
President . . . .;" that "he shall take Care that the Laws be faithfully executed;" and that he "shall be Commander-
in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the President’s military power as Commander-in-Chief
of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in
military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us
here.Even though "theater of war" be an expanding concept, we cannot with faithfulness to our

24
constitutional system hold that the Commander-in-Chief of the Armed Forces has the ultimate power as
such to take possession of private property in order to keep labor disputes from stopping production.
This is a job for the nation’s lawmakers, not for its military authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that grant
executive power to the President. In the framework of our Constitution, the President’s power to see that
the laws are faithfully executed refutes the idea that he is to be a lawmaker.  The Constitution limits his
functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws
he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative Powers herein granted
shall be vested in a Congress of the United States. . ."126

Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17, Article XII refers to
"tsunami," "typhoon," "hurricane"and"similar occurrences." This is a limited view of "emergency."

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing
danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception. 127 Emergencies, as perceived by legislature or executive in the United Sates
since 1933, have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a)economic,128 b) natural disaster,129 and c) national security.130

"Emergency," as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic
crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or
effect.131This is evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committee’s definition of "national emergency" which appears in Section 13,
page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term "national emergency."

MR. BENGZON. Unless they are of such proportions such that they would paralyze government service. 132

xxxxxx

MR. TINGSON. May I ask the committee if "national emergency" refers to military national emergency or could
this be economic emergency?"

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.133

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore,
unable to delegate to the President the power to take over privately-owned public utility or business affected with
public interest.

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In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which extraordinary measures
are exercised, remains in Congress even in times of crisis.

"x x x

After all the criticisms that have been made against the efficiency of the system of the separation of powers, the
fact remains that the Constitution has set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The Filipino people by adopting
parliamentary government have given notice that they share the faith of other democracy-loving peoples in this
system, with all its faults, as the ideal. The point is, under this framework of government, legislation is preserved
for Congress all the time, not excepting periods of crisis no matter how serious. Never in the history of the United
States, the basic features of whose Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another department – unless we regard as legislating the
carrying out of a legislative policy according to prescribed standards; no, not even when that Republic was fighting
a total war, or when it was engaged in a life-and-death struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme perils more than in normal circumstances ‘the various
branches, executive, legislative, and judicial,’ given the ability to act, are called upon ‘to perform the duties and
discharge the responsibilities committed to them respectively."

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court
rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest without authority from
Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such exceptional circumstances
have ceased. Likewise, without legislation, the President has no power to point out the types of businesses
affected with public interest that should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the absence of an emergency powers act
passed by Congress.

c. "AS APPLIED CHALLENGE"

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and
the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of speech, of expression, of the press, and of
assemblyunder the Bill of Rights suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate "direct injury."

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20th Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25,
2006, the CIDG operatives "raided and ransacked without warrant" their office. Three policemen were assigned to
guard their office as a possible "source of destabilization." Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were "turned away
and dispersed" when they went to EDSA and later, to Ayala Avenue, to celebrate the 20th Anniversary of People
Power I.

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A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they resulted from
theimplementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts?  In
general,does the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused135 and may afford an opportunity for abuse in the manner of application.136 The validity of a
statute or ordinance is to be determined from its general purpose and its efficiency to accomplish the end
desired,not from its effects in a particular case.137 PP 1017 is merely an invocation of the President’s calling-
out power. Its general purpose is to command the AFP to suppress all forms of lawless violence, invasion or
rebellion. It had accomplished the end desired which prompted President Arroyo to issue PP 1021. But there is
nothing in PP 1017 allowing the police, expressly or impliedly, to conduct illegal arrest, search or violate the
citizens’ constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is
the essential basis for the exercise of power, and not a mere incidental result arising from its exertion.138This
is logical. Just imagine the absurdity of situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court, majority of the provisions of the Revised Penal Code would
have been declared unconstitutional a long time ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are "acts and
commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines." They
are internal rules issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations create no relation except between the
official who issues them and the official who receives them. 139 They are based on and are the product of, a
relationship in which power is their source, and obedience, their object. 140 For these reasons, one requirement for
these rules to be valid is that they must be reasonable, not arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the " necessary and appropriate actions
and measures to suppress and prevent acts of terrorism and lawless violence."

Unlike the term "lawless violence" which is unarguably extant in our statutes and the Constitution, and which is
invariably associated with "invasion, insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this "definitional predicament" or the "absence of an agreed definition of terrorism" confronts not only our
country, but the international community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the "fight against terrorism" has become one of the basic
slogans when it comes to the justification of the use of force against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly determined by strategic
interests.

The basic problem underlying all these military actions – or threats of the use of force as the most recent by the
United States against Iraq – consists in the absence of an agreed definition of terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by states, by armed
groups such as liberation movements, or by individuals.

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The dilemma can by summarized in the saying "One country’s terrorist is another country’s freedom fighter." The
apparent contradiction or lack of consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were originally labeled as terrorists
by those who controlled the territory at the time, but later became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts – the differentia specifica distinguishing those acts from
eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach a consensus on
the basic issue of definition. The organization has intensified its efforts recently, but has been unable to bridge the
gap between those who associate "terrorism" with any violent act by non-state groups against civilians, state
functionaries or infrastructure or military installations, and those who believe in the concept of the legitimate use of
force when resistance against foreign occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the contradicting
categorization of organizations and movements such as Palestine Liberation Organization (PLO) – which is a
terrorist group for Israel and a liberation movement for Arabs and Muslims – the Kashmiri resistance groups –
who are terrorists in the perception of India, liberation fighters in that of Pakistan – the earlier Contras in
Nicaragua – freedom fighters for the United States, terrorists for the Socialist camp – or, most drastically, the
Afghani Mujahedeen (later to become the Taliban movement): during the Cold War period they were a group of
freedom fighters for the West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting categorizations that cannot be reconciled in any way –
because of opposing political interests that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one and the same
group and its actions be explained? In our analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism will "fluctuate" accordingly.
A state may eventually see itself as protector of the rights of a certain ethnic group outside its territory and will
therefore speak of a "liberation struggle," not of "terrorism" when acts of violence by this group are concerned,
and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of terrorism exactly
because of these conflicting interests of sovereign states that determine in each and every instance how a
particular armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom fighter dichotomy.
A "policy of double standards" on this vital issue of international affairs has been the unavoidable consequence.

This "definitional predicament" of an organization consisting of sovereign states – and not of peoples, in spite of
the emphasis in the Preamble to the United Nations Charter! – has become even more serious in the present
global power constellation: one superpower exercises the decisive role in the Security Council, former great
powers of the Cold War era as well as medium powers are increasingly being marginalized; and the problem has
become even more acute since the terrorist attacks of 11 September 2001 I the United States. 141

The absence of a law defining "acts of terrorism" may result in abuse and oppression on the part of the police or
military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously,
this is abuse and oppression on their part. It must be remembered that an act can only be considered a crime if
there is a law defining the same as such and imposing the corresponding penalty thereon.

So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981
enacted by President Marcos during the Martial Law regime. This decree is entitled "Codifying The Various Laws
on Anti-Subversion and Increasing The Penalties for Membership in Subversive Organizations." The word

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"terrorism" is mentioned in the following provision: "That one who conspires with any other person for the purpose
of overthrowing the Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished
byreclusion temporal x x x."

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define "acts of terrorism." Since
there is no law defining "acts of terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion
to determine what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants, breaking into offices and residences, taking
over the media enterprises, prohibition and dispersal of all assemblies and gatherings unfriendly to the
administration. All these can be effected in the name of G.O. No. 5. These acts go far beyond the calling-out
power of the President. Certainly, they violate the due process clause of the Constitution. Thus, this Court
declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
arenecessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in
pursuing the Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that "the right of the people to be secured in their persons, houses, papers and effects
against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized." 142 The plain import of the
language of the Constitution is that searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the fundamental protection given by this provision is
that between person and police must stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143

In the Brief Account144 submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp
Karingal, Quezon City where he was fingerprinted, photographed and booked like a criminal suspect;  fourth,he
was treated brusquely by policemen who "held his head and tried to push him" inside an unmarked car; fifth, he
was charged with Violation of Batas Pambansa Bilang No. 880145 and Inciting to Sedition; sixth, he was
detained for seven (7) hours; and seventh,he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest
a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it; and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner David’s warrantless arrest. During the
inquest for the charges of inciting to sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the invective  "Oust Gloria Now" and their

29
erroneous assumption that petitioner David was the leader of the rally. 146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was not
wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was
not even known whether petitioner David was the leader of the rally. 147

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people
peaceably to assemble and petition the government for redress of grievances.

"Assembly" means a right on the part of the citizens to meet peaceably for consultation in respect to public affairs.
It is a necessary consequence of our republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not subject to previous restraint or censorship. It
may not be conditioned upon the prior issuance of a permit or authorization from the government authorities
except, of course, if the assembly is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to
peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present
danger that warranted the limitation of that right. As can be gleaned from circumstances, the charges of  inciting
to sedition and violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held that peaceable
assembly cannot be made a crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and peaceful assembly are not to be preserved,
is not as to the auspices under which the meeting was held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution
protects. If the persons assembling have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for their conspiracy or other violations of
valid laws. But it is a different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a
criminal charge.

On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of
KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local government units. This is arbitrary. The
wholesale cancellation of all permits to rally is a blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and present danger of a substantive
evil that the State has a right to prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State may deny the citizens’ right to
exercise it. Indeed, respondents failed to show or convince the Court that the rallyists committed acts amounting
to lawless violence, invasion or rebellion. With the blanket revocation of permits, the distinction between protected
and unprotected assemblies was eliminated.

Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke such permits after due notice and hearing on the

30
determination of the presence of clear and present danger. Here, petitioners were not even notified and heard on
the revocation of their permits.150 The first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person’s right is restricted by government action, it behooves a democratic
government to see to it that the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the
press. Petitioners’ narration of facts, which the Solicitor General failed to refute, established the
following: first, theDaily Tribune’s offices were searched without warrant;second, the police operatives seized
several materials for publication; third, the search was conducted at about 1:00 o’ clock in the morning of
February 25, 2006; fourth,the search was conducted in the absence of any official of the Daily Tribune except the
security guard of the building; and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this government." Director General Lomibao
further stated that "if they do not follow the standards –and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 – we will recommend a ‘takeover.’" National Telecommunications Commissioner Ronald Solis urged
television and radio networks to "cooperate" with the government for the duration of the state of national
emergency. He warned that his agency will not hesitate to recommend the closure of any broadcast outfit
that violates rules set out for media coverage during times when the national security is threatened.151

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with
one specific offence to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of a house, room, or any
other premise be made in the presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in the daytime, unless the property is
on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served
at any time of the day or night. All these rules were violated by the CIDG operatives.

Not only that, the search violated petitioners’ freedom of the press. The best gauge of a free and democratic
society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and
the "We Forum" newspapers. As a consequence of the search and seizure, these premises were padlocked
and sealed, with the further result that the printing and publication of said newspapers were
discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express
themselves in print. This state of being is patently anathematic to a democratic framework where a free,
alert and even militant press is essential for the political enlightenment and growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan Mail" and "We Forum"
newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of policemen in the vicinity of the  The
Daily Tribune offices, and the arrogant warning of government officials to media, are plain censorship. It is that
officious functionary of the repressive government who tells the citizen that he may speak only if allowed to do so,
and no more and no less than what he is permitted to say on pain of punishment should he be so rash as to
disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary intrusions because of its anti-
government sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is essential to the vitality of a

31
representative democracy. It is the duty of the courts to be watchful for the constitutional rights of the citizen, and
against any stealthy encroachments thereon. The motto should always be obsta principiis.154

Incidentally, during the oral arguments, the Solicitor General admitted that the search of the  Tribune’s offices and
the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible "for any
purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune for the
purpose of gathering evidence and you admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I know, Your Honor, and these are
inadmissible for any purpose.155

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to do is to get those past issues.
So why do you have to go there at 1 o’clock in the morning and without any search warrant? Did they become
suddenly part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on
Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the police
could go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

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SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to say this, we do not
condone this. If the people who have been injured by this would want to sue them, they can sue and there
are remedies for this.156

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General,
illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts committed on the occasion of
1017, as I said, it cannot be condoned. You cannot blame the President for, as you said, a misapplication of the
law. These are acts of the police officers, that is their responsibility. 157

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and "should result
in no constitutional or statutory breaches if applied according to their letter."

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions,
pursuant to G.O. No. 5, the military and the police committed acts which violate the citizens’ rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached hereto, is considered an
integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening event – would have normally
rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed
allegedly in pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be
issued. Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed "if
the May 1 rallies" become "unruly and violent." Consequently, the transcendental issues raised by the parties
should not be "evaded;" they must now be resolved to prevent future constitutional aberration.

The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the
AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving
the President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees promulgated by the President; and (3) to
impose standards on media or any form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President – acting as Commander-
in-Chief – addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides
a valid standard – that the military and the police should take only the "necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence."But the words "acts of terrorism" found in G.O.

33
No. 5 have not been legally defined and made punishable by Congress and should thus be deemed deleted from
the said G.O. While "terrorism" has been denounced generally in media, no law has been enacted to guide the
military, and eventually the courts, to determine the limits of the AFP’s authority in carrying out this portion of G.O.
No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless
arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of some articles for publication
and other materials, are not authorized by the Constitution, the law and jurisprudence. Not even by the valid
provisions of PP 1017 and G.O. No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on
the individual police officers concerned. They have not been individually identified and given their day in court.
The civil complaints or causes of action and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or
administrative liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a democratic state.During emergency,
governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to
unduly restrain our people’s liberty.

Perhaps, the vital lesson that we must learn from the theorists who studied the various competing political
philosophies is that, it is possible to grant government the authority to cope with crises without surrendering the
two vital principles of constitutionalism: the maintenance of legal limits to arbitrary power, and political
responsibility of the government to the governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well
as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP
1017 declaring national emergency under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but
such declaration does not authorize the President to take over privately-owned public utility or business affected
with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement
PP 1017, i.e. whatever is "necessary and appropriate actions and measures to suppress and prevent acts
of lawless violence." Considering that "acts of terrorism" have not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU
and NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or
any form of prior restraint on the press, as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

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 SUMMARY OF THE VOTING IN THE PP 1017 DECISION

Fourteen of the 15 SC justices participated in the decision. Senior Associate Justice Reynato S. Puno was on
leave.

Justice Angelina Sandoval Gutierrez’s 78-page ponencia was concurred in by 10 Justices: Chief Justice Artemio
V. Panganiban and Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio T. Carpio, Ma. Alicia
Austria-Martinez, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna, Minita V. Chico-Nazario, and
Cancio C. Garcia.

Both the Chief Justice and Justice Ynares-Santiago wrote separate concurring opinions. The Chief Justice’s
concurring opinion was joined by Justices Carpio, Carpio Morales, and Callejo, Sr.

Justice Dante O. Tinga’s dissenting opinion was joined by Justices Renato C. Corona and Presbitero J. Velasco,
Jr.

35
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 192935               December 7, 2010

LOUIS "BAROK" C. BIRAOGO, Petitioner, 

vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 193036

REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A. DATUMANONG, and REP.
ORLANDO B. FUA, SR., Petitioners, 
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO B. ABAD, Respondents.

DECISION

MENDOZA, J.:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them.

--- Justice Jose P. Laurel1

The role of the Constitution cannot be overlooked. It is through the Constitution that the fundamental powers of
government are established, limited and defined, and by which these powers are distributed among the several
departments.2 The Constitution is the basic and paramount law to which all other laws must conform and to which
all persons, including the highest officials of the land, must defer. 3 Constitutional doctrines must remain steadfast
no matter what may be the tides of time. It cannot be simply made to sway and accommodate the call of situations
and much more tailor itself to the whims and caprices of government and the people who run it. 4

For consideration before the Court are two consolidated cases 5 both of which essentially assail the validity and
constitutionality of Executive Order No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth Commission
of 2010."

The first case is G.R. No. 192935, a special civil action for prohibition instituted by petitioner Louis Biraogo
(Biraogo) in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the
legislative power of Congress under Section 1, Article VI of the Constitution 6 as it usurps the constitutional
authority of the legislature to create a public office and to appropriate funds therefor. 7

The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition filed by petitioners Edcel
C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.

36
The genesis of the foregoing cases can be traced to the events prior to the historic May 2010 elections, when
then Senator Benigno Simeon Aquino III declared his staunch condemnation of graft and corruption with his
slogan, "Kung walang corrupt, walang mahirap." The Filipino people, convinced of his sincerity and of his ability to
carry out this noble objective, catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino found a need for a special body to investigate
reported cases of graft and corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30, 2010, signed Executive Order No. 1 establishing
the Philippine Truth Commission of 2010 (Truth Commission). Pertinent provisions of said executive order read:

EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly enshrines the principle that a
public office is a public trust and mandates that public officers and employees, who are servants of the people,
must at all times be accountable to the latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of this principle and notorious violation of
this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the political, economic, and social life of a
nation; in a very special way it inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming levels, and undermined the people’s trust
and confidence in the Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth regarding certain reports of large scale graft
and corruption in the government and to put a closure to them by the filing of the appropriate cases against those
involved, if warranted, and to deter others from committing the evil, restore the people’s faith and confidence in
the Government and in their public servants;

WHEREAS, the President’s battlecry during his campaign for the Presidency in the last elections "kung walang
corrupt, walang mahirap" expresses a solemn pledge that if elected, he would end corruption and the evil it
breeds;

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise known as the Revised
Administrative Code of the Philippines, gives the President the continuing authority to reorganize the Office of the
President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the Philippines, by virtue of
the powers vested in me by law, do hereby order:

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION,

hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this
end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices

37
and accessories from the private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served
without fear or favor.

The Commission shall be composed of a Chairman and four (4) members who will act as an independent collegial
body.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any,
during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman.

In particular, it shall:

a) Identify and determine the reported cases of such graft and corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to this end require any agency, official or
employee of the Executive Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and documents from the Senate and
the House of Representatives records of investigations conducted by committees thereof relating
to matters or subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from the courts, including the
Sandiganbayan and the Office of the Court Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that purpose, administer oaths
or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a state witness to ensure
that the ends of justice be fully served, that such person who qualifies as a state witness under
the Revised Rules of Court of the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and recommendation, all evidence on
corruption of public officers and employees and their private sector co-principals, accomplices or
accessories, if any, when in the course of its investigation the Commission finds that there is
reasonable ground to believe that they are liable for graft and corruption under pertinent
applicable laws;

h) Call upon any government investigative or prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals and other personnel
determined by it as necessary to carry out its mandate;

38
 j) Promulgate its rules and regulations or rules of procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and necessary in connection with the
objectives and purposes of this Order.

SECTION 3. Staffing Requirements. – x x x.

SECTION 4. Detail of Employees. – x x x.

SECTION 5. Engagement of Experts. – x x x

SECTION 6. Conduct of Proceedings. – x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.

SECTION 8. Protection of Witnesses/Resource Persons. – x x x.

SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government official or
personnel who, without lawful excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative disciplinary action. Any private person who does the
same may be dealt with in accordance with law.

SECTION 10. Duty to Extend Assistance to the Commission. – x x x.

SECTION 11. Budget for the Commission. – The Office of the President shall provide the necessary funds for
the Commission to ensure that it can exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.

SECTION 12. Office. – x x x.

SECTION 13. Furniture/Equipment. – x x x.

SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on or before December
31, 2012.

SECTION 15. Publication of Final Report. – x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is declared unconstitutional, the same shall not
affect the validity and effectivity of the other provisions hereof.

SECTION 19. Effectivity. – This Executive Order shall take effect immediately.

39
DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine Truth Commission (PTC) is a mere ad hoc
body formed under the Office of the President with the primary task to investigate reports of graft and corruption
committed by third-level public officers and employees, their co-principals, accomplices and accessories during
the previous administration, and thereafter to submit its finding and recommendations to the President, Congress
and the Ombudsman. Though it has been described as an "independent collegial body," it is essentially an entity
within the Office of the President Proper and subject to his control. Doubtless, it constitutes a public office, as an
ad hoc body is one.8

To accomplish its task, the PTC shall have all the powers of an investigative body under Section 37, Chapter 9,
Book I of the Administrative Code of 1987. It is not, however, a quasi-judicial body as it cannot adjudicate,
arbitrate, resolve, settle, or render awards in disputes between contending parties. All it can do is gather, collect
and assess evidence of graft and corruption and make recommendations. It may have subpoena powers but it
has no power to cite people in contempt, much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing of an information in our courts of law.
Needless to state, it cannot impose criminal, civil or administrative penalties or sanctions.

The PTC is different from the truth commissions in other countries which have been created as official, transitory
and non-judicial fact-finding bodies "to establish the facts and context of serious violations of human rights or of
international humanitarian law in a country’s past." 9 They are usually established by states emerging from periods
of internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional justice.

Truth commissions have been described as bodies that share the following characteristics: (1) they examine only
past events; (2) they investigate patterns of abuse committed over a period of time, as opposed to a particular
event; (3) they are temporary bodies that finish their work with the submission of a report containing conclusions
and recommendations; and (4) they are officially sanctioned, authorized or empowered by the
State.10"Commission’s members are usually empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them. They may aim to prepare the way for
prosecutions and recommend institutional reforms."11

Thus, their main goals range from retribution to reconciliation. The Nuremburg and Tokyo war crime tribunals are
examples of a retributory or vindicatory body set up to try and punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation Commission of South Africa, the
principal function of which was to heal the wounds of past violence and to prevent future conflict by providing a
cathartic experience for victims.

The PTC is a far cry from South Africa’s model. The latter placed more emphasis on reconciliation than on judicial
retribution, while the marching order of the PTC is the identification and punishment of perpetrators. As one
writer12 puts it:

The order ruled out reconciliation. It translated the Draconian code spelled out by Aquino in his inaugural speech:
"To those who talk about reconciliation, if they mean that they would like us to simply forget about the wrongs that
they have committed in the past, we have this to say: There can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to their occurring over and over again."

40
The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the petitioners asked the Court to declare it
unconstitutional and to enjoin the PTC from performing its functions. A perusal of the arguments of the petitioners
in both cases shows that they are essentially the same. The petitioners-legislators summarized them in the
following manner:

(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the Congress to create a
public office and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987 cannot legitimize
E.O. No. 1 because the delegated authority of the President to structurally reorganize the Office of the
President to achieve economy, simplicity and efficiency does not include the power to create an entirely
new public office which was hitherto inexistent like the "Truth Commission."

(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the "Truth
Commission" with quasi-judicial powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the Department of Justice created under the
Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and
prosecution officials and personnel of the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and present, who may be indictable.

(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent and general
international practice of four decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms part of the generally accepted
principles of international law which the Philippines is mandated to adhere to pursuant to the Declaration
of Principles enshrined in the Constitution.

(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in partisan hostility, a
launching pad for trial/conviction by publicity and a mere populist propaganda to mistakenly impress the
people that widespread poverty will altogether vanish if corruption is eliminated without even addressing
the other major causes of poverty.

(g) The mere fact that previous commissions were not constitutionally challenged is of no moment
because neither laches nor estoppel can bar an eventual question on the constitutionality and validity of
an executive issuance or even a statute."13

In their Consolidated Comment,14 the respondents, through the Office of the Solicitor General (OSG), essentially
questioned the legal standing of petitioners and defended the assailed executive order with the following
arguments:

1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because the President’s
executive power and power of control necessarily include the inherent power to conduct investigations to
ensure that laws are faithfully executed and that, in any event, the Constitution, Revised Administrative
Code of 1987 (E.O. No. 292), 15 Presidential Decree (P.D.) No. 1416 16 (as amended by P.D. No. 1772),
R.A. No. 9970,17 and settled jurisprudence that authorize the President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already appropriated by Congress.

41
 3] The Truth Commission does not duplicate or supersede the functions of the Office of the Ombudsman
(Ombudsman) and the Department of Justice (DOJ), because it is a fact-finding body and not a quasi-
judicial body and its functions do not duplicate, supplant or erode the latter’s jurisdiction.

4] The Truth Commission does not violate the equal protection clause because it was validly created for
laudable purposes.

The OSG then points to the continued existence and validity of other executive orders and presidential issuances
creating similar bodies to justify the creation of the PTC such as Presidential Complaint and Action
Commission(PCAC) by President Ramon B. Magsaysay, Presidential Committee on Administrative Performance
Efficiency(PCAPE) by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations(PARGO) by President Ferdinand E. Marcos.18

From the petitions, pleadings, transcripts, and memoranda, the following are the principal issues to be resolved:

1. Whether or not the petitioners have the legal standing to file their respective petitions and question
Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates the principle of separation of powers by usurping the
powers of Congress to create and to appropriate funds for public offices, agencies and commissions;

3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the equal protection clause; and

5. Whether or not petitioners are entitled to injunctive relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1, the Court needs to
ascertain whether the requisites for a valid exercise of its power of judicial review are present.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging
the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must
have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case.19

Among all these limitations, only the legal standing of the petitioners has been put at issue.

Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to file their petition for failure to demonstrate
their personal stake in the outcome of the case. It argues that the petitioners have not shown that they have
sustained or are in danger of sustaining any personal injury attributable to the creation of the PTC. Not claiming to
be the subject of the commission’s investigations, petitioners will not sustain injury in its creation or as a result of
its proceedings.20

The Court disagrees with the OSG in questioning the legal standing of the petitioners-legislators to assail
Executive Order No. 1. Evidently, their petition primarily invokes usurpation of the power of the Congress as a
body to which they belong as members. This certainly justifies their resolve to take the cudgels for Congress as

42
an institution and present the complaints on the usurpation of their power and rights as members of the legislature
before the Court. As held in Philippine Constitution Association v. Enriquez, 21

To the extent the powers of Congress are impaired, so is the power of each member thereof, since his office
confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of Congress. In such a case, any member of Congress can have a
resort to the courts.

Indeed, legislators have a legal standing to see to it that the prerogative, powers and privileges vested by the
Constitution in their office remain inviolate. Thus, they are allowed to question the validity of any official action
which, to their mind, infringes on their prerogatives as legislators. 22

With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to question the creation of the
PTC and the budget for its operations. 23 It emphasizes that the funds to be used for the creation and operation of
the commission are to be taken from those funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional action but will simply be an exercise of the
President’s power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in danger of sustaining, any
personal and direct injury attributable to the implementation of Executive Order No. 1. Nowhere in his petition is
an assertion of a clear right that may justify his clamor for the Court to exercise judicial power and to wield the axe
over presidential issuances in defense of the Constitution. The case of David v. Arroyo 24 explained the deep-
seated rules on locus standi. Thus:

Locus standi is defined as "a right of appearance in a court of justice on a given question." In private suits,
standing is governed by the "real-parties-in interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of
Civil Procedure, as amended. It provides that "every action must be prosecuted or defended in the name of
the real party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be benefited or
injured by the judgment in the suit or the party entitled to the avails of the suit." Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a "public right" in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person
who is affected no differently from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to seek judicial protection. In
other words, he has to make out a sufficient interest in the vindication of the public order and the securing of relief
as a "citizen" or "taxpayer.

Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in public actions. The distinction
was first laid down in Beauchamp v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public right, however…the people are the real parties…It
is at least the right, if not the duty, of every citizen to interfere and see that a public offence be properly pursued
and punished, and that a public grievance be remedied." With respect to taxpayer’s suits, Terr v. Jordan held that
"the right of a citizen and a taxpayer to maintain an action in courts to restrain the unlawful use of public funds to
his injury cannot be denied."

However, to prevent just about any person from seeking judicial interference in any official policy or act with which
he disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed
inTileston v. Ullman. The same Court ruled that for a private individual to invoke the judicial power to determine

43
the validity of an executive or legislative action, he must show that he has sustained a direct injury as a result
of that action, and it is not sufficient that he has a general interest common to all members of the public.

This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have "a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was upheld in a litany of cases, such
as,Custodio v. President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix. [Emphases included. Citations
omitted]

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be
relaxed for nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest."25

Thus, in Coconut Oil Refiners Association, Inc. v. Torres, 26 the Court held that in cases of paramount importance
where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming the right of judicial review. In the first
Emergency Powers Cases,27 ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general interest shared in common with the
public.

The OSG claims that the determinants of transcendental importance 28 laid down in CREBA v. ERC and
Meralco29 are non-existent in this case. The Court, however, finds reason in Biraogo’s assertion that the petition
covers matters of transcendental importance to justify the exercise of jurisdiction by the Court. There are
constitutional issues in the petition which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. Where the issues are of transcendental and paramount importance not only to the
public but also to the Bench and the Bar, they should be resolved for the guidance of all. 30 Undoubtedly, the
Filipino people are more than interested to know the status of the President’s first effort to bring about a promised
change to the country. The Court takes cognizance of the petition not due to overwhelming political undertones
that clothe the issue in the eyes of the public, but because the Court stands firm in its oath to perform its
constitutional duty to settle legal controversies with overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a public office and not
merely an adjunct body of the Office of the President. 31 Thus, in order that the President may create a public office
he must be empowered by the Constitution, a statute or an authorization vested in him by law. According to
petitioner, such power cannot be presumed 32 since there is no provision in the Constitution or any specific law that
authorizes the President to create a truth commission. 33 He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his office, cannot serve as basis for the
creation of a truth commission considering the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish." 34 Insofar as it vests in the President the plenary power to
reorganize the Office of the President to the extent of creating a public office, Section 31 is inconsistent with the
principle of separation of powers enshrined in the Constitution and must be deemed repealed upon the effectivity
thereof.35

Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public office lies within the
province of Congress and not with the executive branch of government. They maintain that the delegated
authority of the President to reorganize under Section 31 of the Revised Administrative Code: 1) does not permit
the President to create a public office, much less a truth commission; 2) is limited to the reorganization of the
administrative structure of the Office of the President; 3) is limited to the restructuring of the internal organs of the
Office of the President Proper, transfer of functions and transfer of agencies; and 4) only to achieve simplicity,

44
economy and efficiency.36 Such continuing authority of the President to reorganize his office is limited, and by
issuing Executive Order No. 1, the President overstepped the limits of this delegated authority.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding
body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the
authority of the President to create public offices within the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist it in the performance of its constitutionally mandated
functions and in the exercise of its administrative functions. 38 This power, as the OSG explains it, is but an adjunct
of the plenary powers wielded by the President under Section 1 and his power of control under Section 17, both of
Article VII of the Constitution.39

It contends that the President is necessarily vested with the power to conduct fact-finding investigations, pursuant
to his duty to ensure that all laws are enforced by public officials and employees of his department and in the
exercise of his authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of his officials. 40 The power of the President to investigate is not limited to the exercise
of his power of control over his subordinates in the executive branch, but extends further in the exercise of his
other powers, such as his power to discipline subordinates, 41 his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is entitled to know. 43

The OSG also cites the recent case of Banda v. Ermita, 44 where it was held that the President has the power to
reorganize the offices and agencies in the executive department in line with his constitutionally granted power of
control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing
statutes.

Thus, the OSG concludes that the power of control necessarily includes the power to create offices. For the OSG,
the President may create the PTC in order to, among others, put a closure to the reported large scale graft and
corruption in the government.45

The question, therefore, before the Court is this: Does the creation of the PTC fall within the ambit of the power to
reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or
transferring functions from one unit to another; (2) transferring any function under the Office of the President to
any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to
any other Department/Agency or vice versa. Clearly, the provision refers to reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a
body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an
office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in
the negative.

To say that the PTC is borne out of a restructuring of the Office of the President under Section 31 is a misplaced
supposition, even in the plainest meaning attributable to the term "restructure"– an "alteration of an existing
structure." Evidently, the PTC was not part of the structure of the Office of the President prior to the enactment of
Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary, 46

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power – that which
constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known
as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of

45
economy or redundancy of functions." It takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. It falls under the Office of the President. Hence, it is
subject to the President’s continuing authority to reorganize. [Emphasis Supplied]

In the same vein, the creation of the PTC is not justified by the President’s power of control. Control is essentially
the power to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former with that of the latter. 47 Clearly, the power of control is entirely
different from the power to create public offices. The former is inherent in the Executive, while the latter finds
basis from either a valid delegation from Congress, or his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from Congress, empowering the President to create a
public office?

According to the OSG, the power to create a truth commission pursuant to the above provision finds statutory
basis under P.D. 1416, as amended by P.D. No. 1772. 48 The said law granted the President the continuing
authority to reorganize the national government, including the power to group, consolidate bureaus and agencies,
to abolish offices, to transfer functions, to create and classify functions, services and activities, transfer
appropriations, and to standardize salaries and materials. This decree, in relation to Section 20, Title I, Book III of
E.O. 292 has been invoked in several cases such as Larin v. Executive Secretary. 49

The Court, however, declines to recognize P.D. No. 1416 as a justification for the President to create a public
office. Said decree is already stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure of the national government including
the power to create offices and transfer appropriations pursuant to one of the purposes of the decree, embodied
in its last "Whereas" clause:

WHEREAS, the transition towards the parliamentary form of government will necessitate flexibility in the
organization of the national government.

Clearly, as it was only for the purpose of providing manageability and resiliency during the interim, P.D. No. 1416,
as amended by P.D. No. 1772, became functus oficio upon the convening of the First Congress, as expressly
provided in Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General agrees with this
view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas clause of P.D. 1416 says
"it was enacted to prepare the transition from presidential to parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers are fused, correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you agree with me that P.D.
1416 should not be considered effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire National Government is
deemed repealed, at least, upon the adoption of the 1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.50

46
While the power to create a truth commission cannot pass muster on the basis of P.D. No. 1416 as amended by
P.D. No. 1772, the creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing
upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads:

Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall
ensure that the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power in the three principal branches of government
is a grant of all powers inherent in them. The President’s power to conduct investigations to aid him in ensuring
the faithful execution of laws – in this case, fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly mentioned in the Constitution or in
statutes does not mean that he is bereft of such authority. 51 As explained in the landmark case of Marcos v.
Manglapus:52

x x x. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and whatever powers inhere in such positions pertain to
the office unless the Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution
of the laws is only one of the powers of the President. It also grants the President other powers that do not involve
the execution of any provision of law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise
ofspecific powers of the President, it maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers
enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so
enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to
be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the
powers of the President are not limited to those specific powers under the Constitution. 53 One of the recognized
powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully
executed. Thus, in Department of Health v. Camposano,54 the authority of the President to issue Administrative
Order No. 298, creating an investigative committee to look into the administrative charges filed against the
employees of the Department of Health for the anomalous purchase of medicines was upheld. In said case, it was
ruled:

The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be doubted. Having
been constitutionally granted full control of the Executive Department, to which respondents belong, the President
has the obligation to ensure that all executive officials and employees faithfully comply with the law. With AO 298
as mandate, the legality of the investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the former used the offices and facilities of
the latter in conducting the inquiry. [Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is to allow an inquiry into
matters which the President is entitled to know so that he can be properly advised and guided in the performance
of his duties relative to the execution and enforcement of the laws of the land. And if history is to be revisited, this
was also the objective of the investigative bodies created in the past like the PCAC, PCAPE, PARGO, the

47
Feliciano Commission, the Melo Commission and the Zenarosa Commission. There being no changes in the
government structure, the Court is not inclined to declare such executive power as non-existent just because the
direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the
operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations
of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the
power of Congress to appropriate funds. Further, there is no need to specify the amount to be earmarked for the
operation of the commission because, in the words of the Solicitor General, "whatever funds the Congress has
provided for the Office of the President will be the very source of the funds for the commission." 55 Moreover, since
the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is
no impropriety in the funding.

Power of the Truth Commission to Investigate

The President’s power to conduct investigations to ensure that laws are faithfully executed is well recognized. It
flows from the faithful-execution clause of the Constitution under Article VII, Section 17 thereof. 56 As the Chief
Executive, the president represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department. He has the authority to directly assume the functions of the executive
department.57

Invoking this authority, the President constituted the PTC to primarily investigate reports of graft and corruption
and to recommend the appropriate action. As previously stated, no quasi-judicial powers have been vested in the
said body as it cannot adjudicate rights of persons who come before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing and administering the same law." 58 In
simpler terms, judicial discretion is involved in the exercise of these quasi-judicial power, such that it is exclusively
vested in the judiciary and must be clearly authorized by the legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to adjudicate was delineated by the Court in
Cariño v. Commission on Human Rights.59 Thus:

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is
the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the
law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for the discovery and collection
of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve,
rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court
case) on the merits of issues raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to award or grant judicially in
a case of controversy x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or

48
decree, or to sentence or condemn. x x. Implies a judicial determination of a fact, and the entry of a judgment."
[Italics included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a
quasi-judicial agency or office. The function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved authoritatively, finally and definitively,
subject to appeals or modes of review as may be provided by law. 60 Even respondents themselves admit that the
commission is bereft of any quasi-judicial power.61

Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their
respective powers. If at all, the investigative function of the commission will complement those of the two offices.
As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task
of the commission to conduct a fact-finding investigation." 62 The actual prosecution of suspected offenders, much
less adjudication on the merits of the charges against them, 63 is certainly not a function given to the commission.
The phrase, "when in the course of its investigation," under Section 2(g), highlights this fact and gives credence to
a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of
the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman. 64

At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive but is shared with other
similarly authorized government agencies. Thus, in the case of Ombudsman v. Galicia, 65 it was written:

This power of investigation granted to the Ombudsman by the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized government agencies such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the Ombudsman retains concurrent jurisdiction with the Office of
the President and the local Sanggunians to investigate complaints against local elective officials. [Emphasis
supplied].

Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to investigate criminal cases under
Section 15 (1) of R.A. No. 6770, which states:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such
cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above contemplates the conduct of a preliminary
investigation or the determination of the existence of probable cause. This is categorically out of the PTC’s sphere
of functions. Its power to investigate is limited to obtaining facts so that it can advise and guide the President in
the performance of his duties relative to the execution and enforcement of the laws of the land. In this regard, the
PTC commits no act of usurpation of the Ombudsman’s primordial duties.

The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter 1, Title III, Book IV in the
Revised Administrative Code is by no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC are to be accorded
conclusiveness. Much like its predecessors, the Davide Commission, the Feliciano Commission and the Zenarosa
Commission, its findings would, at best, be recommendatory in nature. And being so, the Ombudsman and the
DOJ have a wider degree of latitude to decide whether or not to reject the recommendation. These offices,

49
therefore, are not deprived of their mandated duties but will instead be aided by the reports of the PTC for
possible indictments for violations of graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds
difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the
equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person
be denied the equal protection of the laws.

The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend
that it does not apply equally to all members of the same class such that the intent of singling out the "previous
administration" as its sole object makes the PTC an "adventure in partisan hostility." 66 Thus, in order to be
accorded with validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo. 67

The petitioners argue that the search for truth behind the reported cases of graft and corruption must encompass
acts committed not only during the administration of former President Arroyo but also during prior administrations
where the "same magnitude of controversies and anomalies" 68 were reported to have been committed against the
Filipino people. They assail the classification formulated by the respondents as it does not fall under the
recognized exceptions because first, "there is no substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who abused their public office for personal
gain; and second, the selective classification is not germane to the purpose of Executive Order No. 1 to end
corruption."69 In order to attain constitutional permission, the petitioners advocate that the commission should deal
with "graft and grafters prior and subsequent to the Arroyo administration with the strong arm of the law with equal
force."70

Position of respondents

According to respondents, while Executive Order No. 1 identifies the "previous administration" as the initial
subject of the investigation, following Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said administration. 71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the petitioners argue that no offense is
committed against the equal protection clause for "the segregation of the transactions of public officers during the
previous administration as possible subjects of investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order seeks to correct." 72 To distinguish the Arroyo
administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and confidence in the Government and in their public
servants.

Second. The segregation of the preceding administration as the object of fact-finding is warranted by the reality
that unlike with administrations long gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.

Third. The classification of the previous administration as a separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that could lead to recovery of public monies illegally

50
dissipated, the policy lessons to be learned to ensure that anti-corruption laws are faithfully executed, are more
easily established in the regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of their predecessors to investigations to provide closure to
issues that are pivotal to national life or even as a routine measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies, and the Saguisag Commission created by
former President Joseph Estrada under Administrative Order No, 53, to form an ad-hoc and independent citizens’
committee to investigate all the facts and circumstances surrounding "Philippine Centennial projects" of his
predecessor, former President Fidel V. Ramos.73 [Emphases supplied]

Concept of the Equal Protection Clause

One of the basic principles on which this government was founded is that of the equality of right which is
embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is embraced in the
concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has
been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause. 74

"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated
should be treated alike, both as to rights conferred and responsibilities imposed." 75 It "requires public bodies and
institutions to treat similarly situated individuals in a similar manner." 76 "The purpose of the equal protection clause
is to secure every person within a state’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under the law requires the state to govern impartially,
and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective."78

The equal protection clause is aimed at all official state actions, not just those of the legislature. 79 Its inhibitions
cover all the departments of the government including the political and executive departments, and extend to all
actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken. 80

It, however, does not require the universal application of the laws to all persons or things without distinction. What
it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification, however, to be valid must pass the test
ofreasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class. 81 "Superficial differences do not make for a valid
classification."82

For a classification to meet the requirements of constitutionality, it must include or embrace all persons who
naturally belong to the class.83 "The classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered
by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."84

51
The classification must not be based on existing circumstances only, or so constituted as to preclude addition to
the number included in the class. It must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude" those that should otherwise fall into
a certain classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union 85 and reiterated in a long line
of cases,86

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not require
that things which are different in fact be treated in law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in
the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real differences, that it
must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary. [Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal
protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous administration" 87 only. The intent to
single out the previous administration is plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated solely to investigating and finding out the truth
concerning the reported cases of graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;

SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH COMMISSION,

hereinafter referred to as the "COMMISSION," which shall primarily seek and find the truth on, and toward this
end, investigate reports of graft and corruption of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and employees, their co-principals, accomplices
and accessories from the private sector, if any, during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full measure of justice shall be served
without fear or favor.

SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and accessories from the private sector, if any,
during the previous administration and thereafter submit its finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a
class of past administrations. It is not a class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation
clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution.

52
Though the OSG enumerates several differences between the Arroyo administration and other past
administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the
"previous administration" only. The reports of widespread corruption in the Arroyo administration cannot be taken
as basis for distinguishing said administration from earlier administrations which were also blemished by similar
widespread reports of impropriety. They are not inherent in, and do not inure solely to, the Arroyo administration.
As Justice Isagani Cruz put it, "Superficial differences do not make for a valid classification." 88

The public needs to be enlightened why Executive Order No. 1 chooses to limit the scope of the intended
investigation to the previous administration only. The OSG ventures to opine that "to include other past
administrations, at this point, may unnecessarily overburden the commission and lead it to lose its
effectiveness."89 The reason given is specious. It is without doubt irrelevant to the legitimate and noble objective of
the PTC to stamp out or "end corruption and the evil it breeds." 90

The probability that there would be difficulty in unearthing evidence or that the earlier reports involving the earlier
administrations were already inquired into is beside the point. Obviously, deceased presidents and cases which
have already prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC expected to
conduct simultaneous investigations of previous administrations, given the body’s limited time and resources.
"The law does not require the impossible" (Lex non cogit ad impossibilia).91

Given the foregoing physical and legal impossibility, the Court logically recognizes the unfeasibility of investigating
almost a century’s worth of graft cases. However, the fact remains that Executive Order No. 1 suffers from
arbitrary classification. The PTC, to be true to its mandate of searching for the truth, must not exclude the other
past administrations. The PTC must, at least, have the authority to investigate all past administrations.
Whilereasonable prioritization is permitted, it should not be arbitrary lest it be struck down for being
unconstitutional. In the often quoted language of Yick Wo v. Hopkins, 92

Though the law itself be fair on its face and impartial in appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations
between persons in similar circumstances, material to their rights, the denial of equal justice is still within the
prohibition of the constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its scope is limited. The Court, however, is of
the considered view that although its focus is restricted, the constitutional guarantee of equal protection under the
laws should not in any way be circumvented. The Constitution is the fundamental and paramount law of the nation
to which all other laws must conform and in accordance with which all private rights determined and all public
authority administered.93 Laws that do not conform to the Constitution should be stricken down for being
unconstitutional.94 While the thrust of the PTC is specific, that is, for investigation of acts of graft and corruption,
Executive Order No. 1, to survive, must be read together with the provisions of the Constitution. To exclude the
earlier administrations in the guise of "substantial distinctions" would only confirm the petitioners’ lament that the
subject executive order is only an "adventure in partisan hostility." In the case of US v. Cyprian,95 it was written: "A
rather limited number of such classifications have routinely been held or assumed to be arbitrary; those include:
race, national origin, gender, political activity or membership in a political party, union activity or membership in a
labor union, or more generally the exercise of first amendment rights."

To reiterate, in order for a classification to meet the requirements of constitutionality, it must include or embrace
all persons who naturally belong to the class. 96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number included within a class, but must be
of such a nature as to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the discriminatory legislation and
which are indistinguishable from those of the members of the class must be brought under the influence of the law
and treated by it in the same way as are the members of the class." 97

The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a law under the equal
protection clause."98 "Legislation is not unconstitutional merely because it is not all-embracing and does not

53
include all the evils within its reach."99 It has been written that a regulation challenged under the equal protection
clause is not devoid of a rational predicate simply because it happens to be incomplete. 100 In several instances,
the underinclusiveness was not considered a valid reason to strike down a law or regulation where the purpose
can be attained in future legislations or regulations. These cases refer to the "step by step" process. 101 "With
regard to equal protection claims, a legislature does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every evil that might conceivably have been
attacked."102

In Executive Order No. 1, however, there is no inadvertence. That the previous administration was picked out was
deliberate and intentional as can be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination." 103

To disprove petitioners’ contention that there is deliberate discrimination, the OSG clarifies that the commission
does not only confine itself to cases of large scale graft and corruption committed during the previous
administration.104 The OSG points to Section 17 of Executive Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the President there is a
need to expand the mandate of the Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.

The Court is not convinced. Although Section 17 allows the President the discretion to expand the scope of
investigations of the PTC so as to include the acts of graft and corruption committed in other past administrations,
it does not guarantee that they would be covered in the future. Such expanded mandate of the commission will
still depend on the whim and caprice of the President. If he would decide not to include them, the section would
then be meaningless. This will only fortify the fears of the petitioners that the Executive Order No. 1 was "crafted
to tailor-fit the prosecution of officials and personalities of the Arroyo administration." 105

The Court tried to seek guidance from the pronouncement in the case of Virata v. Sandiganbayan,106 that the
"PCGG Charter (composed of Executive Orders Nos. 1, 2 and 14) does not violate the equal protection clause."
The decision, however, was devoid of any discussion on how such conclusory statement was arrived at, the
principal issue in said case being only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not the Supreme Court, in the exercise of its
constitutionally mandated power of Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental tenets like the doctrine of separation of powers?
Time and again, this issue has been addressed by the Court, but it seems that the present political situation calls
for it to once again explain the legal basis of its action lest it continually be accused of being a hindrance to the
nation’s thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987 Constitution, is vested with Judicial
Power that "includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave of abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
government."

Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which is the power to declare a
treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance,
or regulation unconstitutional. This power also includes the duty to rule on the constitutionality of the application,

54
or operation of presidential decrees, proclamations, orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between the Supreme Court, on one hand, and the two
co-equal bodies of government, on the other. Many times the Court has been accused of asserting superiority
over the other departments.

To answer this accusation, the words of Justice Laurel would be a good source of enlightenment, to wit: "And
when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and
guarantees to them."107

Thus, the Court, in exercising its power of judicial review, is not imposing its own will upon a co-equal body but
rather simply making sure that any act of government is done in consonance with the authorities and rights
allocated to it by the Constitution. And, if after said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under review. Otherwise, the Court will not be deterred to
pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with noble intentions, all geared towards the
betterment of the nation and its people. But then again, it is important to remember this ethical principle: "The end
does not justify the means." No matter how noble and worthy of admiration the purpose of an act, but if the means
to be employed in accomplishing it is simply irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution
and its enshrined principles.

"The Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its rectitude." 109

Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present
administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to the Constitution. Of all the branches of
the government, it is the judiciary which is the most interested in knowing the truth and so it will not allow itself to
be a hindrance or obstacle to its attainment. It must, however, be emphasized that the search for the truth must
be within constitutional bounds for "ours is still a government of laws and not of men." 110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared UNCONSTITUTIONAL
insofar as it is violative of the equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist from carrying out the provisions of
Executive Order No. 1.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

55
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 142801-802      July 10, 2001

BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN KHO, BENIGNO
MANGA, LULU MENDOZA, petitioners, 
vs.
HON. EXECUTIVE SECRETARY RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO, DEPARTMENT
OF FINANCE, HON. SECRETARY BENJAMIN DIOKNO, DEPARTMENT OF BUDGET AND MANAGEMENT,
HON. SECRETARY ARTEMIO TUQUERO, DEPARTMENT OF JUSTICE, respondents.

SANDOVAL-GUTIERREZ, J.:

In this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning EIIB, Cesar Posada,
Remedios Princesa, Benjamin Kho, Benigno Manga and Lulu Mendoza, for themselves and in behalf of others
with whom they share a common or general interest, seek the nullification of Executive Order No.
1911 andExecutive Order No. 2232 on the ground that they were issued by the Office of the President with grave
abuse of discretion and in violation of their constitutional right to security of tenure.

The facts are undisputed:

On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No. 127 3 establishing the
Economic Intelligence and Investigation Bureau (EIIB) as part of the structural organization of the Ministry of
Finance.4 The EIIB was designated to perform the following functions:

"(a) Receive, gather and evaluate intelligence reports and information and evidence on the nature, modes
and extent of illegal activities affecting the national economy, such as, but not limited to, economic
sabotage, smuggling, tax evasion, and dollar-salting, investigate the same and aid in the prosecution of
cases;

(b) Coordinate with external agencies in monitoring the financial and economic activities of persons or
entities, whether domestic or foreign, which may adversely affect national financial interest with the goal
of regulating, controlling or preventing said activities;

(c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the general
framework and guidelines in the conduct of intelligence and investigating works;

(d) Supervise, monitor and coordinate all the intelligence and investigation operations of the operating
Bureaus and Offices under the Ministry;

(e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases against
personnel of the Ministry and its constituents units;

(f) Perform such other appropriate functions as may be assigned by the Minister or his deputies." 5

In a desire to achieve harmony of efforts and to prevent possible conflicts among agencies in the course of their
anti-smuggling operations, President Aquino issued Memorandum Order No. 225 on March 17, 1989, providing,
among others, that the EIIB "shall be the agency of primary responsibility for anti-smuggling operations in all land
areas and inland waters and waterways outside the areas of sole jurisdiction of the Bureau of Customs."6

56
Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No. 191 entitled
"Deactivation of the Economic Intelligence and Investigation Bureau."7 Motivated by the fact that "the designated
functions of the EIIB are also being performed by the other existing agencies of the government" and that "there is
a need to constantly monitor the overlapping of functions" among these agencies, former President Estrada
ordered the deactivation of EIIB and the transfer of its functions to the Bureau of Customs and the National
Bureau of Investigation.

Meanwhile, President Estrada issued Executive Order No. 196 8 creating the Presidential Anti-Smuggling Task
Force "Aduana."9

Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued Executive Order
No. 22310 providing that all EIIB personnel occupying positions specified therein shall be deemed separated from
the service effective April 30, 2000, pursuant to a bona fide reorganization resulting to abolition, redundancy,
merger, division, or consolidation of positions.11

Agonizing over the loss of their employment, petitioners now come before this Court invoking our power of judicial
review of Executive Order Nos. 191 and 223. They anchor their petition on the following arguments:

"A

Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being
violative of Section 2(3), Article IX-B of the Philippine Constitution and/or for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction.

B.

The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are considered
to effect a reorganization of the EIIB, such reorganization was made in bad faith.

C.

The President has no authority to abolish the EIIB."

Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation of their right to
security of tenure; (b) tainted with bad faith as they were not actually intended to make the bureaucracy more
efficient but to give way to Task Force "Aduana," the functions of which are essentially and substantially the same
as that of EIIB; and (c) a usurpation of the power of Congress to decide whether or not to abolish the EIIB.

Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President enjoys the totality of the
executive power provided under Sections 1 and 7, Article VII of the Constitution, thus, he has the authority to
issue Executive Order Nos. 191 and 223; (b) the said executive orders were issued in the interest of national
economy, to avoid duplicity of work and to streamline the functions of the bureaucracy; and (c) the EIIB was not
"abolished," it was only "deactivated."

The petition is bereft of merit.

Despite the presence of some procedural flaws in the instant petition, such as, petitioners' disregard of the
hierarchy of courts and the non-exhaustion of administrative remedies, we deem it necessary to address the
issues. It is in the interest of the State that questions relating to the status and existence of a public office be
settled without delay. We are not without precedent. In Dario v. Mison,12 we liberally decreed:

"The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies,
the standing of certain parties to sue, for two reasons, `[b]ecause of the demands of public interest,

57
 including the need for stability in the public service,' and because of the serious implications of these
cases on the administration of the Philippine civil service and the rights of public servants."

At first glance, it seems that the resolution of this case hinges on the question -  Does the "deactivation" of EIIB
constitute "abolition" of an office? However, after coming to terms with the prevailing law and jurisprudence, we
are certain that the ultimate queries should be – a) Does the President have the authority to reorganize the
executive department? and, b) How should the reorganization be carried out?

Surely, there exists a distinction between the words "deactivate" and "abolish." To "deactivate" means to render
inactive or ineffective or to break up by discharging or reassigning personnel, 13 while to "abolish" means to do
away with, to annul, abrogate or destroy completely. 14 In essence, abolition denotes an intention to do away with
the office wholly and permanently.15 Thus, while in abolition, the office ceases to exist, the same is not true
indeactivation where the office continues to exist, albeit remaining dormant or inoperative. Be that as it may,
deactivation and abolition are both reorganization measures.

The Solicitor General only invokes the above distinctions on the mistaken assumption that the President has no
power to abolish an office.

The general rule has always been that the power to abolish a public office is lodged with the legislature. 16 This
proceeds from the legal precept that the power to create includes the power to destroy. A public office is either
created by the Constitution, by statute, or by authority of law. 17 Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that brought it into existence. 18

The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned,
the President's power of control may justify him to inactivate the functions of a particular office, 19 or certain laws
may grant him the broad authority to carry out reorganization measures. 20 The case in point is Larin v. Executive
Secretary.21 In this case, it was argued that there is no law which empowers the President to reorganize the BIR.
In decreeing otherwise, this Court sustained the following legal basis, thus:

"Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to
reorganize the BIR.

We do not agree.

x x x      x x x

Section 48 of R.A. 7645 provides that:

'Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. – The
heads of departments, bureaus and offices and agencies are hereby directed to identify their respective
activities which are no longer essential in the delivery of public services and which may be scaled down,
phased out or abolished, subject to civil service rules and regulations. X x x. Actual scaling down, phasing
out or abolition of the activities shall be effected pursuant to Circulars or Orders issued for the purpose by
the Office of the President.'

Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of offices only
and does not cover the creation of offices or transfer of functions. Nevertheless, the act of creating and
decentralizing is included in the subsequent provision of Section 62 which provides that:

'Sec. 62. Unauthorized organizational charges. - Unless otherwise created by law or directed by the
President of the Philippines, no organizational unit or changes in key positions in any department or
agency shall be authorized in their respective organization structures and be funded from appropriations
by this Act.' (italics ours)

58
 The foregoing provision evidently shows that the President is authorized to effect organizational
changes including the creation of offices in the department or agency concerned.

x x x      x x x

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

'Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and which are
not specifically enumerated above or which are not delegated by the President in accordance with law.'
(italic ours)

This provision speaks of such other powers vested in the President under the law. What law then
gives him the power to reorganize? It is Presidential Decree No. 1772 which amended Presidential
Decree No. 1416. These decrees expressly grant the President of the Philippines the continuing
authority to reorganize the national government, which includes the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions,
services and activities and to standardize salaries and materials. The validity of these two decrees
are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive orders,
proclamations, letters of instructions and other executive issuances not inconsistent with this Constitution
shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or
repealing said decrees." (Emphasis supplied)

Now, let us take a look at the assailed executive order.

In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on
Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A.
7645 quoted in Larin, thus;

"Sec. 77. Organized Changes. Unless otherwise provided by law or directed by the President of the

Philippines, no changes in key positions or organizational units in any department or agency shall be
authorized in their respective organizational structures and funded from appropriations provided by this
Act."

We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect
organizational changes in the department or agency under the executive structure. Such a ruling further finds
support in Section 78 of Republic Act No. 8760. 22 Under this law, the heads of departments, bureaus, offices and
agencies and other entities in the Executive Branch are directed (a) to conduct a comprehensive review of their
respective mandates, missions, objectives, functions, programs, projects, activities and systems and procedures;
(b) identify activities which are no longer essential in the delivery of public services and which may be scaled
down, phased-out or abolished; and (c) adopt measures that will result in the streamlined organization and
improved overall performance of their respective agencies. 23 Section 78 ends up with the mandate that the actual
streamlining and productivity improvement in agency organization and operation shall be effected pursuant
toCirculars or Orders issued for the purpose by the Office of the President.24 The law has spoken clearly.
We are left only with the duty to sustain.

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power – that which
constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known
as the Administrative Code of 1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the
administrative structure of the Office of the President." For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the President. In Canonizado v. Aguirre,25 we ruled that
reorganization "involves the reduction of personnel, consolidation of offices, or abolition thereof by reason

59
of economy or redundancy of functions." It takes place when there is an alteration of the existing structure of
government offices or units therein, including the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. 26 It falls under the Office of the President. Hence, it is
subject to the President's continuing authority to reorganize.

It having been duly established that the President has the authority to carry out reorganization in any branch or
agency of the executive department, what is then left for us to resolve is whether or not the reorganization is valid.
In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith.
Reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more
efficient.27 Pertinently, Republic Act No. 6656 28 provides for the circumstances which may be considered as
evidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit:  (a)where
there is a significant increase in the number of positions in the new staffing pattern of the department or agency
concerned; (b) where an office is abolished and another performing substantially the same functions is
created; (c) where incumbents are replaced by those less qualified in terms of status of appointment,
performance and merit; (d) where there is a classification of offices in the department or agency concerned and
the reclassified offices perform substantially the same functions as the original offices, and (e) where the removal
violates the order of separation.29

Petitioners claim that the deactivation of EIIB was done in bad faith because four days after its deactivation,
President Estrada created the Task Force Aduana.

We are not convinced.

An examination of the pertinent Executive Orders30 shows that the deactivation of EIIB and the creation of Task
Force Aduana were done in good faith. It was not for the purpose of removing the EIIB employees, but to achieve
the ultimate purpose of E.O. No. 191, which is economy. While Task Force Aduana was created to take the place
of EIIB, its creation does not entail expense to the government.

Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196 provides that the
technical, administrative and special staffs of EIIB are to be composed of people who are already in the
public service, they being employees of other existing agencies. Their tenure with the Task Force would
only be temporary, i.e., only when the agency where they belong is called upon to assist the Task Force.
Since their employment with the Task force is only by way of detail or assignment, they retain their
employment with the existing agencies. And should the need for them cease, they would be sent back to
the agency concerned.

Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct control and
supervision of the President as base of the government's anti-smuggling campaign. Such a smaller base has the
necessary powers 1) to enlist the assistance of any department, bureau, or office and to use their respective
personnel, facilities and resources; and 2) "to select and recruit personnel from within the PSG and ISAFP
forassignment to the Task Force." Obviously, the idea is to encourage the utilization of personnel, facilities
and resources of the already existing departments, agencies, bureaus, etc., instead of maintaining an
independent office with a whole set of personnel and facilities. The EIIB had proven itself burdensome for
the government because it maintained separate offices in every region in the Philippines.

And thirdly, it is evident from the yearly budget appropriation of the government that the creation of the Task
Force Aduana was especially intended to lessen EIIB's expenses. Tracing from the yearly General Appropriations
Act, it appears that the allotted amount for the EIIB's general administration, support, and operations for the year
1995, was P128,031,000;31 for 1996, P182,156,000;32 for 1998, P219,889,000;33 and, for
1999,P238,743,000.  These amounts were far above the P50,000,000  allocation to the Task Force Aduana for
34 35

the year 2000.

While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have
additional new powers. The Task Force Aduana, being composed of elements from the Presidential Security

60
Group (PSG) and Intelligence Service Armed Forces of the Philippines (ISAFP), 36 has the essential power to
effect searches, seizures and arrests. The EIIB did not have this power. The Task Force Aduana has the power to
enlist the assistance of any department, bureau, office, or instrumentality of the government, including
government-owned or controlled corporations; and to use their personnel, facilities and resources. Again, the EIIB
did not have this power. And, the Task Force Aduana has the additional authority to conduct investigation of
cases involving ill-gotten wealth. This was not expressly granted to the EIIB.1âwphi1.nêt

Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Sevice
Commission, 37we ruled that a reorganization in good faith is one designed to trim the fat off the bureaucracy and
institute economy and greater efficiency in its operation.

Lastly, we hold that petitioners' right to security of tenure is not violated. Nothing is better settled in our law than
that the abolition of an office within the competence of a legitimate body if done in good faith suffers from no
infirmity. Valid abolition of offices is neither removal nor separation of the incumbents. 38 In the instructive words
laid down by this Court in Dario v. Mison,39 through Justice Abraham F. Sarmiento:

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith.
As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to
make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation
actually occurs because the position itself ceases to exist. And in that case, security of tenure
would not be a Chinese wall. Be that as it may, if the 'abolition,' which is nothing else but a separation
or removal, is done for political reasons or purposely to defeat security of tenure, otherwise not in good
faith, no valid 'abolition' takes and whatever 'abolition' is done, is void ab initio. There is an invalid
'abolition' as where there is merely a change of nomenclature of positions, or where claims of economy
are belied by the existence of ample funds.

Indeed, there is no such thing as an absolute right to hold office. Except constitutional offices which provide for
special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its
salary.40

While we cast a commiserating look upon the plight of all the EIIB employees whose lives perhaps are now torn
with uncertainties, we cannot ignore the unfortunate reality that our government is also battling the impact of a
plummeting economy. Unless the government is given the chance to recuperate by instituting economy and
efficiency in its system, the EIIB will not be the last agency to suffer the impact. We cannot frustrate valid
measures which are designed to rebuild the executive department.

WHEREFORE, the petition is hereby DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena, Ynares-Santiago, De Leon, Jr.,
JJ., concur.

Panganiban and Quisumbing, JJ., in the result.

Gonzaga-Reyes, J., on leave.

61
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 138200               February 27, 2002

SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS (DOTC), petitioner, 

vs.
ROBERTO MABALOT, respondent.

DECISION

BUENA, J.:

At the core of controversy in the instant Petition for Review on Certiorari is the validity of Memorandum Order No.
96-735, dated 19 February 1996, and Department Order No. 97-1025, dated 29 January 1997, both issued by the
Secretary of the Department of Transportation and Communications (DOTC).

The facts are uncontested.

On 19 February 1996, then DOTC Secretary Jesus B. Garcia, Jr., issued Memorandum Order No. 96-
735addressed to Land Transportation Franchising Regulatory Board (LTFRB) Chairman Dante Lantin, viz:

"In the interest of the service, you are hereby directed to effect the transfer of regional functions of that office to
the DOTCCAR Regional Office, pending the creation of a regular Regional Franchising and Regulatory Office
thereat, pursuant to Section 7 of Executive Order No. 202.

"Organic personnel of DOTC-CAR shall perform the LTFRB functions on a concurrent capacity subject to the
direct supervision and control of LTFRB Central Office."

On 13 March 1996, herein respondent Roberto Mabalot filed a petition for certiorari and prohibition with prayer for
preliminary injunction and/or restraining order, 1 against petitioner and LTFRB Chairman Lantin, before the
Regional Trial Court (RTC) of Quezon City, Branch 81, 2 praying among others that Memorandum Order No. 96-
735 be declared "illegal and without effect."

On 20 March 1996, the lower court issued a temporary restraining order enjoining petitioner from implementing
Memorandum Order No. 96-735. On 08 April 1996, the lower court, upon filing of a bond by respondent, issued a
writ of preliminary injunction. On 25 April 1996, then DOTC Secretary Amado Lagdameo, Jr. filed his answer to
the petition.

Thereafter, on 29 January 1997, Secretary Lagdameo issued the assailed Department Order No. 97-1025, to
wit:

"Pursuant to Administrative Order No. 36, dated September 23, 1987, and for purposes of economy and more
effective coordination of the DOTC functions in the Cordillera Administrative Region (CAR), the DOTC-CAR
Regional Office, created by virtue of Executive Order No. 220 dated July 15, 1987, is hereby established as the
Regional Office of the LTFRB and shall exercise the regional functions of the LTFRB in the CAR subject to the
direct supervision and control of LTFRB Central Office.

"The budgetary requirement for this purpose shall come from the Department until such time that its appropriate
budget is included in the General Appropriations Act."

62
After trial, the Office of the Solicitor General (OSG) moved to reopen the hearing in the lower court for the purpose
of enabling petitioner to present Department Order No. 97-1025. In an Order dated 18 February 1997, the lower
court granted the motion.

On 03 April 1997, respondent filed a Motion for Leave to File Supplemental Petition assailing the validity of
Department Order No. 97-1025. On 14 May 1997, the OSG presented Department Order No. 97-1025 after which
petitioner filed a formal offer of exhibits.

In an Order dated 09 June 1997, the lower court admitted petitioner’s documentary exhibits over the objection of
respondent. Likewise, the lower court admitted the supplemental petition filed by respondent to which petitioner
filed an answer thereto.

On 31 March 1999, the lower court rendered a decision the decretal portion of which reads:

"WHEREFORE, judgment is hereby rendered declaring Memorandum Order Nos. 96-733 3 dated February 19,
1996 and 97-1025 dated January 27, 1997 of the respondent DOTC Secretary null and void and without any
legal effect as being violative of the provision of the Constitution against encroachment on the powers of the
legislative department and also of the provision enjoining appointive officials from holding any other office or
employment in the Government.

"The preliminary injunction issued on May 13, 1996 is hereby made permanent.

"No pronouncement as to costs.

"It is so ordered."

Hence, the instant petition where this Court is tasked in the main to resolve the issue of validity of the subject
administrative issuances by the DOTC Secretary.

In his Memorandum4, respondent Mabalot principally argues that "a transfer of the powers and functions of the
LTFRB Regional Office to a DOTC Regional Office or the establishment of the latter as an LTFRB Regional Office
is unconstitutional" for being "an undue exercise of legislative power." To this end, respondent quoted heavily the
lower court’s rationale on this matter, to wit:

"With the restoration of Congress as the legislative body, the transfer of powers and functions, specially those
quasi-judicial (in) nature, could only be effected through legislative fiat. Not even the President of the
Philippines can do so. And much less by the DOTC Secretary who is only a mere extension of the
Presidency. Among the powers of the LTFRB are to issue injunctions, whether prohibitory (or) mandatory, punish
for contempt and to issue subpoena and subpoena duces tecum. These powers devolve by extension on the
LTFRB regional offices in the performance of their functions. They cannot be transferred to another
agency of government without congressional approval embodied in a duty enacted law." (Emphasis ours)

We do not agree. Accordingly, in the absence of any patent or latent constitutional or statutory infirmity attending
the issuance of the challenged orders, this Court upholds Memorandum Order No. 96-735 and Department Order
No. 97-1025 as legal and valid administrative issuances by the DOTC Secretary. Contrary to the opinion of the
lower court, the President - through his duly constituted political agent and alter ego, the DOTC Secretary in the
present case - may legally and validly decree the reorganization of the Department, particularly the establishment
of DOTC-CAR as the LTFRB Regional Office at the Cordillera Administrative Region, with the concomitant
transfer and performance of public functions and responsibilities appurtenant to a regional office of the LTFRB.

At this point, it is apropos to reiterate the elementary rule in administrative law and the law on public officers that a
public office may be created through any of the following modes, to wit, either (1) by the
Constitution(fundamental law), (2) by law (statute duly enacted by Congress), or (3) by authority of law.5

63
Verily, Congress can delegate the power to create positions. This has been settled by decisions of the Court
upholding the validity of reorganization statutes authorizing the President to create, abolish or merge offices in the
executive department.6 Thus, at various times, Congress has vested power in the President to reorganize
executive agencies and redistribute functions, and particular transfers under such statutes have been held to be
within the authority of the President.7

In the instant case, the creation and establishment of LTFRB-CAR Regional Office was made pursuant to the third
mode - by authority of law, which could be decreed for instance, through an Executive Order (E.O.) issued by
the President or an order of an administrative agency such as the Civil Service Commission 8 pursuant to Section
17, Book V of E.O. 292, otherwise known as The Administrative Code of 1987. In the case before us, the DOTC
Secretary issued the assailed Memorandum and Department Orders pursuant to Administrative Order No. 36 of
the President,9 dated 23 September 1987, Section 1 of which explicitly provides:

"Section 1. Establishment of Regional Offices in the CAR- The various departments and other agencies of the
National Government that are currently authorized to maintain regional offices are hereby directed to establish
forthwith their respective regional offices In the Cordillera Administrative Region with territorial coverage as
defined under Section 2 of Executive Order No. 220 dated July 15, 1987, with regional headquarters at Baguio
City."

Emphatically the President, through Administrative Order No. 36, did not merely authorize but  directed, in no
uncertain terms, the various departments and agencies of government to immediately undertake the creation and
establishment of their regional offices in the CAR. To us, Administrative Order No. 36 is a clear and unequivocal
directive and mandate - no less than from the Chief Executive - ordering the heads of government departments
and bureaus to effect the establishment of their respective regional offices in the CAR.

By the Chief Executive’s unequivocal act of issuing Administrative Order No. 36 ordering his  alter ego - the
DOTC Secretary in the present case - to effectuate the creation of Regional Offices in the CAR, the President, in
effect, deemed it fit and proper under the circumstances to act and exercise his authority, albeit through the
various Department Secretaries, so as to put into place the organizational structure and set-up in the CAR and so
as not to compromise in any significant way the performance of public functions and delivery of basic government
services in the Cordillera Administrative Region.1âwphi1

Simply stated, it is as if the President himself carried out the creation and establishment of LTFRB-CAR Regional
Office, when in fact, the DOTC Secretary, as alter ego of the President, directly and merely sought to implement
the Chief Executive’s Administrative Order.

To this end, Section 17, Article VII of the Constitution mandates:

"The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws
be faithfully executed."

By definition, control is "the power of an officer to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to substitute the judgment of the former for that of the latter." 10 It
includes the authority to order the doing of an act by a subordinate  or to undo such act or to assume a
power directly vested in him by law.11

From the purely legal standpoint, the members of the Cabinet are subject at all times to the disposition of the
President since they are merely his alter ego.12 As this Court enunciated in Villena vs. Secretary of the
Interior,13"without minimizing the importance of the heads of various departments, their personality is in reality but
the projection of that of the President." Thus, their acts, "performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief
Executive."

64
Applying the foregoing, it is then clear that the lower court’s pronouncement - that the transfer of powers and
functions and in effect, the creation and establishment of LTFRB-CAR Regional Office, may not be validly made
by the Chief Executive, much less by his mere alter ago and could only be properly effected through a law
enacted by Congress -is to say the least, erroneous.

In Larin vs. Executive Secretary,14 this Court through the ponencia of Mr. Justice Justo Torres, inked an
extensive disquisition on the continuing authority of the President to reorganize the National Government, which
power includes the creation, alteration or abolition of public offices. Thus in Larin, we held that Section 62 of
Republic Act 7645 (General Appropriations Act [G.A.A.] for FY 1993) "evidently shows that the President is
authorized to effect organizational changes including the creation of offices in the department or agency
concerned":

"Section 62. Unauthorized organizational changes.- Unless otherwise created by law or directed by the
President of the Philippines, no organizational unit or changes in key positions in any department or agency shall
be authorized in their respective organization structures and be funded from appropriations by this act."

Petitioner’s contention in Larin that Sections 48 and 62 of R.A. 7645 were riders, deserved scant consideration
from the Court, Well settled is the rule that every law has in its favor the presumption of constitutionality. Unless
and until a specific provision of the law is declared invalid and unconstitutional, the same is valid and binding for
all intents and purposes.15

Worthy to note is that R.A. 8174 (G.A.A for FY 1996) contains similar provisions as embodied in Section 72
(General Provisions) of said law entitled "Organizational Changes" and Section 73 (General Provisions) thereof
entitled "Implementation of Reorganization." Likewise, R.A. 8250 (G.A.A. for FY 1997) has Section 76 (General
Provisions) entitled "Organizational Changes" and Section 77 (General Provisions) entitled " Implementation of
Reorganization."

In the same vein, Section 20, Book III of E.O. No. 292, otherwise known as the Administrative Code of 1987,
provides a strong legal basis for the Chief Executive’s authority to reorganize the National Government, viz:

"Section 20. Residual Powers. - Unless Congress provides otherwise, the President shall exercise such
other powers and functions vested in the President which are provided for under the laws and which are
not specifically enumerated above or which are not delegated by the President in accordance with law."
(Emphasis ours)

This Court, in Larin, had occasion to rule that:

This provision speaks of such other powers vested in the President under the law. What law then gives him the
power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416.
These decrees expressly grant the President of the Philippines the continuing authority to reorganize the
national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices,
to transfer functions, to create and classify functions, services and activities and to standardize salaries and
materials. The validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that
"all laws, decrees, executive orders, proclamations, letters of instructions and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed or revoked." 16 So far, there is
yet no law amending or repealing said decrees."

The pertinent provisions of Presidential Decree No. 1416, as amended by Presidential Decree No. 1772, reads:

"1. The President of the Philippines shall have continuing authority to reorganize the National
Government. In exercising this authority, the President shall be guided by generally acceptable principles
of good government and responsive national development, including but not limited to the following
guidelines for a more efficient, effective, economical and development-oriented governmental framework:

65
 "xxx

"b) Abolish departments, offices, agencies or functions which may not be necessary, or create those
which are necessary, for the efficient conduct of government functions, services and activities;

"c) Transfer functions, appropriations, equipment, properties, records and personnel  from one
department, bureau, office, agency or instrumentality to another;

"d) Create, classify, combine, split, and abolish positions;

"e) Standardize salaries, materials, and equipment;

"f) Create, abolish, group, consolidate, merge or integrate entities, agencies, instrumentalities,
and units of the National Government, as well as expand, amend, change, or otherwise modify
their powers, functions, and authorities, including, with respect to government-owned or
controlled corporations, their corporate life, capitalization, and other relevant aspects of their
charters. (As added by P.D. 1772)

"g) Take such other related actions as may be necessary to carry out the purposes and objectives of this
decree. (As added by P.D. 1772) (Emphasis supplied.)

In fine, the "designation"17 and subsequent establishment18 of DOTC-CAR as the Regional Office of LTFRB in the

Cordillera Administrative Region and the concomitant exercise and performance of functions by the former as the
LTFRB-CAR Regional Office, fall within the scope of the continuing authority of the President to effectively
reorganize the Department of Transportation and Communications.

Beyond this, it must be emphasized that the reorganization in the instant case was decreed  "in the interest of the
service"19 and "for purposes of economy and more effective coordination of the DOTC functions in the Cordillera
Administrative Region."20 In this jurisdiction, reorganization is regarded as valid provided it is pursued in good
faith. As a general rule, a reorganization is carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient.21 To our mind, the reorganization pursued in the case at bar bears the earmark of
good faith. As petitioner points out, 22 "tapping the DOTC-CAR pending the eventual creation of the LTFRB
Regional Office is economical in terms of manpower and resource requirements, thus, reducing expenses from
the limited resources of the government."

Furthermore, under Section 18, Chapter 5, Title XV, Book IV of E.O. 292 23 and Section 4 of E.O. 202, 24 the
Secretary of Transportation and Communications, through his duly designated Undersecretary, shall
exerciseadministrative supervision and control25 over the Land Transportation Franchising and Regulatory
Board (Board).

Worthy of mention too is that by express provision of Department Order No. 97-1025, the LTFRB-CAR Regional
Office is subject to the direct supervision and control of LTFRB Central Office. Under the law, 26 the decisions,
orders or resolutions of the Regional Franchising and Regulatory Offices shall be appealable to the Board within
thirty (30) days from receipt of the decision; the decision, order or resolution of the Board shall be appealable to
the DOTC Secretary. With this appellate set-up and mode of appeal clearly established and in place, no conflict or
absurd circumstance would arise in such manner that a decision of the LTFRB-CAR Regional Office is subject to
review by the DOTC-CAR Regional Office.

As to the issue regarding Sections 7 and 8, Article IX-B of the Constitution, we hold that the assailed Orders of the
DOTC Secretary do not violate the aforementioned constitutional provisions considering that in the case of
Memorandum Order No. 96-735, the organic personnel of the DOTC-CAR were, in effect, merely designated to
perform the additional duties and functions of an LTFRB Regional Office subject to the direct supervision and
control of LTFRB Central Office, pending the creation of a regular LTFRB Regional Office.1âwphi1

66
As held in Triste vs. Leyte State College Board of Trustees:27

"To designate a public officer to another position may mean to vest him with additional duties while he performs
the functions of his permanent office. Or in some cases, a public officer may be designated to a position in an
acting capacity as when an undersecretary is designated to discharge the functions of a Secretary pending the
appointment of a permanent Secretary."

Assuming arguendo that the appointive officials and employees of DOTC-CAR shall be holding more than one
office or employment at the same time as a result of the establishment of such agency as the LTFRB-CAR
pursuant to Department Order No. 97-1025, this Court is of the firm view that such fact still does not constitute a
breach or violation of Section 7, Article IX-B of the Constitution. On this matter, it must be stressed that under the
aforementioned constitutional provision, an office or employment held in the exercise of the  primary functions of
one’s principal office is an exception to, or not within the contemplation, of the prohibition embodied in Section 7,
Article IX-B.

Equally significant is that no evidence was adduced and presented to clearly establish that the appointive officials
and employees of DOTC-CAR shall receive any additional, double or indirect compensation, in violation of
Section 8, Article IX-B of the Constitution. In the absence of any clear and convincing evidence to show any
breach or violation of said constitutional prohibitions, this Court finds no cogent reason to declare the invalidity of
the challenged orders.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED. ACCORDINGLY, the decision
dated 31 March 1999 of the Regional Trial Court of Quezon City-Branch 81 in Special Civil Action Case No. Q-96-
26868 is REVERSED and SET ASIDE.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, De
Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., in the result.

67
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 115863 March 31, 1995

AIDA D. EUGENIO, petitioner, 
vs.
CIVIL SERVICE COMMISSION, HON. TEOFISTO T. GUINGONA, JR. & HON. SALVADOR ENRIQUEZ,
JR.,respondents.

PUNO, J.:

The power of the Civil Service Commission to abolish the Career Executive Service Board is challenged in this
petition for certiorari and prohibition.

First the facts. Petitioner is the Deputy Director of the Philippine Nuclear Research Institute. She applied for a
Career Executive Service (CES) Eligibility and a CESO rank on August 2, 1993, she was given a CES eligibility.
On September 15, 1993, she was recommended to the President for a CESO rank by the Career Executive
Service Board. 1

All was not to turn well for petitioner. On October 1, 1993, respondent Civil Service Commission  2 passed
Resolution No. 93-4359, viz:

RESOLUTION NO. 93-4359

WHEREAS, Section 1(1) of Article IX-B provides that Civil Service shall be administered by the
Civil Service Commission, . . .;

WHEREAS, Section 3, Article IX-B of the 1987 Philippine Constitution provides that "The Civil
Service Commission, as the central personnel agency of the government, is mandated to
establish a career service and adopt measures to promote morale, efficiency, integrity,
responsiveness, progresiveness and courtesy in the civil service, . . .";

WHEREAS, Section 12 (1), Title I, Subtitle A, Book V of the Administrative Code of 1987 grants
the Commission the power, among others, to administer and enforce the constitutional and
statutory provisions on the merit system for all levels and ranks in the Civil Service;

WHEREAS, Section 7, Title I, Subtitle A, Book V of the Administrative Code of 1987 Provides,
among others, that The Career Service shall be characterized by (1) entrance based on merit and
fitness to be determined as far as practicable by competitive examination, or based highly
technical qualifications; (2) opportunity for advancement to higher career positions; and (3)
security of tenure;

WHEREAS, Section 8 (c), Title I, Subtitle A, Book V of the administrative Code of 1987 provides
that "The third level shall cover Positions in the Career Executive Service";

68
 WHEREAS, the Commission recognizes the imperative need to consolidate, integrate and unify
the administration of all levels of positions in the career service.

WHEREAS, the provisions of Section 17, Title I, Subtitle A. Book V of the Administrative Code of
1987 confers on the Commission the power and authority to effect changes in its organization as
the need arises.

WHEREAS, Section 5, Article IX-A of the Constitution provides that the Civil Service Commission
shall enjoy fiscal autonomy and the necessary implications thereof;

NOW THEREFORE, foregoing premises considered, the Civil Service Commission hereby
resolves to streamline reorganize and effect changes in its organizational structure. Pursuant
thereto, the Career Executive Service Board, shall now be known as the Office for Career
Executive Service of the Civil Service Commission. Accordingly, the existing personnel, budget,
properties and equipment of the Career Executive Service Board shall now form part of the Office
for Career Executive Service.

The above resolution became an impediment. to the appointment of petitioner as Civil Service Officer, Rank IV. In
a letter to petitioner, dated June 7, 1994, the Honorable Antonio T. Carpio, Chief Presidential legal Counsel,
stated:

xxx xxx xxx

On 1 October 1993 the Civil Service Commission issued CSC Resolution No. 93-4359 which
abolished the Career Executive Service Board.

Several legal issues have arisen as a result of the issuance of CSC Resolution No. 93-4359,
including whether the Civil Service Commission has authority to abolish the Career Executive
Service Board. Because these issues remain unresolved, the Office of the President has
refrained from considering appointments of career service eligibles to career executive ranks.

xxx xxx xxx

You may, however, bring a case before the appropriate court to settle the legal issues arising
from issuance by the Civil Service Commission of CSC Resolution No. 93-4359, for guidance of
all concerned.

Thank You.

Finding herself bereft of further administrative relief as the Career Executive Service Board which recommended
her CESO Rank IV has been abolished, petitioner filed the petition at bench to annul, among others, resolution
No. 93-4359. The petition is anchored on the following arguments:

A.

IN VIOLATION OF THE CONSTITUTION, RESPONDENT COMMISSION USURPED THE

LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ABOLISHED THE CESB, AN OFFICE
CREATED BY LAW, THROUGH THE ISSUANCE OF CSC: RESOLUTION NO. 93-4359;

B.

ALSO IN VIOLATION OF THE CONSTITUTION, RESPONDENT CSC USURPED THE

LEGISLATIVE FUNCTIONS OF CONGRESS WHEN IT ILLEGALLY AUTHORIZED THE

69
 TRANSFER OF PUBLIC MONEY, THROUGH THE ISSUANCE OF CSC RESOLUTION NO. 93-
4359.

Required to file its Comment, the Solicitor General agreed with the contentions of petitioner. Respondent
Commission, however, chose to defend its ground. It posited the following position:

ARGUMENTS FOR PUBLIC RESPONDENT-CSC

I. THE INSTANT PETITION STATES NO CAUSE OF ACTION AGAINST THE PUBLIC

RESPONDENT-CSC.

II. THE RECOMMENDATION SUBMITTED TO THE PRESIDENT FOR APPOINTMENT TO A

CESO RANK OF PETITIONER EUGENIO WAS A VALID ACT OF THE CAREER EXECUTIVE
SERVICE BOARD OF THE CIVIL SERVICE COMMISSION AND IT DOES NOT HAVE ANY
DEFECT.

III. THE OFFICE OF THE PRESIDENT IS ESTOPPED FROM QUESTIONING THE VALIDITY
OF THE RECOMMENDATION OF THE CESB IN FAVOR OF PETITIONER EUGENIO SINCE
THE PRESIDENT HAS PREVIOUSLY APPOINTED TO CESO RANK FOUR (4) OFFICIALS
SIMILARLY SITUATED AS SAID PETITIONER. FURTHERMORE, LACK OF MEMBERS TO
CONSTITUTE A QUORUM. ASSUMING THERE WAS NO QUORUM, IS NOT THE FAULT OF
PUBLIC RESPONDENT CIVIL SERVICE COMMISSION BUT OF THE PRESIDENT WHO HAS
THE POWER TO APPOINT THE OTHER MEMBERS OF THE CESB.

IV. THE INTEGRATION OF THE CESB INTO THE COMMISSION IS AUTHORIZED BY LAW
(Sec. 12 (1), Title I, Subtitle A, Book V of the Administrative Code of the 1987). THIS
PARTICULAR ISSUE HAD ALREADY BEEN SETTLED WHEN THE HONORABLE COURT
DISMISSED THE PETITION FILED BY THE HONORABLE MEMBERS OF THE HOUSE OF
REPRESENTATIVES, NAMELY: SIMEON A. DATUMANONG, FELICIANO R. BELMONTE, JR.,
RENATO V. DIAZ, AND MANUEL M. GARCIA IN G.R. NO. 114380. THE AFOREMENTIONED
PETITIONERS ALSO QUESTIONED THE INTEGRATION OF THE CESB WITH THE
COMMISSION.

We find merit in the petition. 3

The controlling fact is that the Career Executive Service Board (CESB) was created in the Presidential Decree
(P.D.) No. 1 on September 1, 1974  4 which adopted the Integrated Plan. Article IV, Chapter I, Part of the III of the
said Plan provides:

Article IV — Career Executive Service

1. A Career Executive Service is created to form a continuing pool of well-selected and

development oriented career administrators who shall provide competent and faithful service.

2. A Career Executive Service hereinafter referred to in this Chapter as the Board, is created to
serve as the governing body of the Career Executive Service. The Board shall consist of the
Chairman of the Civil Service Commission as presiding officer, the Executive Secretary and the
Commissioner of the Budget as ex-officio members and two other members from the private
sector and/or the academic community who are familiar with the principles and methods of
personnel administration.

xxx xxx xxx

70
 5. The Board shall promulgate rules, standards and procedures on the selection, classification,
compensation and career development of members of the Career Executive Service. The Board
shall set up the organization and operation of the service. (Emphasis supplied)

It cannot be disputed, therefore, that as the CESB was created by law, it can only be abolished by the legislature.
This follows an unbroken stream of rulings that the creation and abolition of public offices is primarily a legislative
function. As aptly summed up in AM JUR 2d on Public Officers and 
Employees, 5 viz:

Except for such offices as are created by the Constitution, the creation of public offices is
primarily a legislative function. In so far as the legislative power in this respect is not restricted by
constitutional provisions, it supreme, and the legislature may decide for itself what offices are
suitable, necessary, or convenient. When in the exigencies of government it is necessary to
create and define duties, the legislative department has the discretion to determine whether
additional offices shall be created, or whether these duties shall be attached to and become ex-
officio duties of existing offices. An office created by the legislature is wholly within the power of
that body, and it may prescribe the mode of filling the office and the powers and duties of the
incumbent, and if it sees fit, abolish the office.

In the petition at bench, the legislature has not enacted any law authorizing the abolition of the CESB. On the
contrary, in all the General Appropriations Acts from 1975 to 1993, the legislature has set aside funds for the
operation of CESB. Respondent Commission, however, invokes Section 17, Chapter 3, Subtitle A. Title I, Book V
of the Administrative Code of 1987 as the source of its power to abolish the CESB. Section 17 provides:

Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a
Director with at least one Assistant Director, and may have such divisions as are necessary
independent constitutional body, the Commission may effect changes in the organization as the
need arises.

But as well pointed out by petitioner and the Solicitor General, Section 17 must be read together with Section 16
of the said Code which enumerates the offices under the respondent Commission, viz:

Sec. 16. Offices in the Commission. — The Commission shall have the following offices:

(1) The Office of the Executive Director headed by an Executive Director, with a Deputy
Executive Director shall implement policies, standards, rules and regulations promulgated by the
Commission; coordinate the programs of the offices of the Commission and render periodic
reports on their operations, and perform such other functions as may be assigned by the
Commission.

(2) The Merit System Protection Board composed of a Chairman and two (2) members shall have
the following functions:

xxx xxx xxx

(3) The Office of Legal Affairs shall provide the Chairman with legal advice and assistance;
render counselling services; undertake legal studies and researches; prepare opinions and ruling
in the interpretation and application of the Civil Service law, rules and regulations; prosecute
violations of such law, rules and regulations; and represent the Commission before any court or
tribunal.

(4) The Office of Planning and Management shall formulate development plans, programs and
projects; undertake research and studies on the different aspects of public personnel

71
management; administer management improvement programs; and provide fiscal and budgetary
services.

(5) The Central Administrative Office shall provide the Commission with personnel, financial,
logistics and other basic support services.

(6) The Office of Central Personnel Records shall formulate and implement policies, standards,
rules and regulations pertaining to personnel records maintenance, security, control and disposal;
provide storage and extension services; and provide and maintain library services.

(7) The Office of Position Classification and Compensation shall formulate and implement
policies, standards, rules and regulations relative to the administration of position classification
and compensation.

(8) The Office of Recruitment, Examination and Placement shall provide leadership and
assistance in developing and implementing the overall Commission programs relating to
recruitment, execution and placement, and formulate policies, standards, rules and regulations for
the proper implementation of the Commission's examination and placement programs.

(9) The Office of Career Systems and Standards shall provide leadership and assistance in the
formulation and evaluation of personnel systems and standards relative to performance appraisal,
merit promotion, and employee incentive benefit and awards.

(10) The Office of Human Resource Development shall provide leadership and assistance in the
development and retention of qualified and efficient work force in the Civil Service; formulate
standards for training and staff development; administer service-wide scholarship programs;
develop training literature and materials; coordinate and integrate all training activities and
evaluate training programs.

(11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and
regulations for the effective conduct or inspection and audit personnel and personnel
management programs and the exercise of delegated authority; provide technical and advisory
services to Civil Service Regional Offices and government agencies in the implementation of their
personnel programs and evaluation systems.

(12) The Office of Personnel Relations shall provide leadership and assistance in the
development and implementation of policies, standards, rules and regulations in the accreditation
of employee associations or organizations and in the adjustment and settlement of employee
grievances and management of employee disputes.

(13) The Office of Corporate Affairs shall formulate and implement policies, standards, rules and
regulations governing corporate officials and employees in the areas of recruitment, examination,
placement, career development, merit and awards systems, position classification and
compensation, performing appraisal, employee welfare and benefit, discipline and other aspects
of personnel management on the basis of comparable industry practices.

(14) The Office of Retirement Administration shall be responsible for the enforcement of the
constitutional and statutory provisions, relative to retirement and the regulation for the effective
implementation of the retirement of government officials and employees.

(15) The Regional and Field Offices. — The Commission shall have not less than thirteen (13)
Regional offices each to be headed by a Director, and such field offices as may be needed, each
to be headed by an official with at least the rank of an Assistant Director.

72
 As read together, the inescapable conclusion is that respondent Commission's power to reorganize is
limited to offices under its control as enumerated in Section 16, supra. From its inception, the CESB was
intended to be an autonomous entity, albeit administratively attached to respondent Commission. As
conceptualized by the Reorganization Committee "the CESB shall be autonomous. It is expected to view
the problem of building up executive manpower in the government with a broad and positive
outlook." 6 The essential autonomous character of the CESB is not negated by its attachment to
respondent Commission. By said attachment, CESB was not made to fall within the control of respondent
Commission. Under the Administrative Code of 1987, the purpose of attaching one functionally inter-
related government agency to another is to attain "policy and program coordination." This is clearly
etched out in Section 38(3), Chapter 7, Book IV of the aforecited Code, to wit:

(3) Attachment. — (a) This refers to the lateral relationship between the department or its
equivalent and attached agency or corporation for purposes of policy and program coordination.
The coordination may be accomplished by having the department represented in the governing
board of the attached agency or corporation, either as chairman or as a member, with or without
voting rights, if this is permitted by the charter; having the attached corporation or agency comply
with a system of periodic reporting which shall reflect the progress of programs and projects; and
having the department or its equivalent provide general policies through its representative in the
board, which shall serve as the framework for the internal policies of the attached corporation or
agency.

Respondent Commission also relies on the case of Datumanong, et al., vs. Civil Service Commission, G. R. No.
114380 where the petition assailing the abolition of the CESB was dismissed for lack of cause of action. Suffice to
state that the reliance is misplaced considering that the cited case was dismissed for lack of standing of the
petitioner, hence, the lack of cause of action.

IN VIEW WHEREOF, the petition is granted and Resolution No. 93-4359 of the respondent Commission is hereby
annulled and set aside. No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan
and Mendoza, JJ., concur.

73
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 152845               August 5, 2003

DRIANITA BAGAOISAN, FELY MADRIAGA, SHIRLY TAGABAN, RICARDO SARANDI, SUSAN IMPERIAL,
BENJAMIN DEMDEM, RODOLFO DAGA, EDGARDO BACLIG, GREGORIO LABAYAN, HILARIO JEREZ, and
MARIA CORAZON CUANANG, Petitioners, 
vs.
NATIONAL TOBACCO ADMINISTRATION, represented by ANTONIO DE GUZMAN and PERLITA
BAULA,Respondents.

DECISION

VITUG, J.:

President Joseph Estrada issued on 30 September 1998 Executive Order No. 29, entitled "Mandating the
Streamlining of the National Tobacco Administration (NTA)," a government agency under the Department of
Agriculture. The order was followed by another issuance, on 27 October 1998, by President Estrada of Executive
Order No. 36, amending Executive Order No. 29, insofar as the new staffing pattern was concerned, by increasing
from four hundred (400) to not exceeding seven hundred fifty (750) the positions affected thereby. In compliance
therewith, the NTA prepared and adopted a new Organization Structure and Staffing Pattern (OSSP) which, on 29
October 1998, was submitted to the Office of the President.

On 11 November 1998, the rank and file employees of NTA Batac, among whom included herein petitioners, filed
a letter-appeal with the Civil Service Commission and sought its assistance in recalling the OSSP. On 04
December 1998, the OSSP was approved by the Department of Budget and Management (DBM) subject to
certain revisions. On even date, the NTA created a placement committee to assist the appointing authority in the
selection and placement of permanent personnel in the revised OSSP. The results of the evaluation by the
committee on the individual qualifications of applicants to the positions in the new OSSP were then disseminated
and posted at the central and provincial offices of the NTA.

On 10 June 1996, petitioners, all occupying different positions at the NTA office in Batac, Ilocos Norte, received
individual notices of termination of their employment with the NTA effective thirty (30) days from receipt thereof.
Finding themselves without any immediate relief from their dismissal from the service, petitioners filed a petition
for certiorari, prohibition and mandamus, with prayer for preliminary mandatory injunction and/or temporary
restraining order, with the Regional Trial Court (RTC) of Batac, Ilocos Norte, and prayed -

"1) that a restraining order be immediately issued enjoining the respondents from enforcing the notice of
termination addressed individually to the petitioners and/or from committing further acts of dispossession
and/or ousting the petitioners from their respective offices;

"2) that a writ of preliminary injunction be issued against the respondents, commanding them to maintain
the status quo to protect the rights of the petitioners pending the determination of the validity of the
implementation of their dismissal from the service; and

"3) that, after trial on the merits, judgment be rendered declaring the notice of termination of the
petitioners illegal and the reorganization null and void and ordering their reinstatement with backwages, if
applicable, commanding the respondents to desist from further terminating their services, and making the
injunction permanent."1

74
The RTC, on 09 September 2000, ordered the NTA to appoint petitioners in the new OSSP to positions similar or
comparable to their respective former assignments. A motion for reconsideration filed by the NTA was denied by
the trial court in its order of 28 February 2001. Thereupon, the NTA filed an appeal with the Court of Appeals,
raising the following issues:

"I. Whether or not respondents submitted evidence as proof that petitioners, individually, were not the
‘best qualified and most deserving’ among the incumbent applicant-employees.

"II. Whether or not incumbent permanent employees, including herein petitioners, automatically enjoy a
preferential right and the right of first refusal to appointments/reappointments in the new Organization
Structure And Staffing Pattern (OSSP) of respondent NTA.

"III. Whether or not respondent NTA in implementing the mandated reorganization pursuant to E.O. No.
29, as amended by E.O. No. 36, strictly adhere to the implementing rules on reorganization, particularly
RA 6656 and of the Civil Service Commission – Rules on Government Reorganization.

"IV. Whether or not the validity of E.O. Nos. 29 and 36 can be put in issue in the instant case/appeal." 2

On 20 February 2002, the appellate court rendered a decision reversing and setting aside the assailed orders of
the trial court.

Petitioners went to this Court to assail the decision of the Court of Appeals, contending that -

"I. The Court of Appeals erred in making a finding that went beyond the issues of the case and which are
contrary to those of the trial court and that it overlooked certain relevant facts not disputed by the parties
and which, if properly considered, would justify a different conclusion;

"II. The Court of Appeals erred in upholding Executive Order Nos. 29 and 36 of the Office of the President
which are mere administrative issuances which do not have the force and effect of a law to warrant
abolition of positions and/or effecting total reorganization;

"III. The Court of Appeals erred in holding that petitioners’ removal from the service is in accordance with
law;

"IV. The Court of Appeals erred in holding that respondent NTA was not guilty of bad faith in the
termination of the services of petitioners; (and)

"V. The Court of Appeals erred in ignoring case law/jurisprudence in the abolition of an office." 3

In its resolution of 10 July 2002, the Court required the NTA to file its comment on the petition. On 18 November
2002, after the NTA had filed its comment of 23 September 2002, the Court issued its resolution denying the
petition for failure of petitioners to sufficiently show any reversible error on the part of the appellate court in its
challenged decision so as to warrant the exercise by this Court of its discretionary appellate jurisdiction. A motion
for reconsideration filed by petitioners was denied in the Court’s resolution of 20 January 2002.

On 21 February 2003, petitioners submitted a "Motion to Admit Petition For En Banc Resolution" of the case
allegedly to address a basic question, i.e., "the legal and constitutional issue on whether the NTA may be
reorganized by an executive fiat, not by legislative action." 4 In their "Petition for an En Banc Resolution"
petitioners would have it that -

"1. The Court of Appeals’ decision upholding the reorganization of the National Tobacco Administration
sets a dangerous precedent in that:

75
 "’a) A mere Executive Order issued by the Office of the President and procured by a government
functionary would have the effect of a blanket authority to reorganize a bureau, office or agency
attached to the various executive departments;

‘b) The President of the Philippines would have the plenary power to reorganize the entire
government Bureaucracy through the issuance of an Executive Order, an administrative issuance
without the benefit of due deliberation, debate and discussion of members of both chambers of
the Congress of the Philippines;

‘c) The right to security of tenure to a career position created by law or statute would be defeated
by the mere adoption of an Organizational Structure and Staffing Pattern issued pursuant to an
Executive Order which is not a law and could thus not abolish an office created by law;

"2. The case law on abolition of an office would be disregarded, ignored and abandoned if the Court of
Appeals decision subject matter of this Petition would remain undisturbed and untouched. In other words,
previous doctrines and precedents of this Highest Court would in effect be reversed and/or modified with
the Court of Appeals judgment, should it remain unchallenged.

"3. Section 4 of Executive Order No. 245 dated July 24, 1987 (Annex ‘D,’ Petition), issued by the
Revolutionary government of former President Corazon Aquino, and the law creating NTA, which
provides that the governing body of NTA is the Board of Directors, would be rendered meaningless,
ineffective and a dead letter law because the challenged NTA reorganization which was erroneously
upheld by the Court of Appeals was adopted and implemented by then NTA Administrator Antonio de
Guzman without the corresponding authority from the Board of Directors as mandated therein. In brief,
the reorganization is an ultra vires act of the NTA Administrator.

"4. The challenged Executive Order No. 29 issued by former President Joseph Estrada but unsigned by
then Executive Secretary Ronaldo Zamora would in effect be erroneously upheld and given legal effect as
to supersede, amend and/or modify Executive Order No. 245, a law issued during the Freedom
Constitution of President Corazon Aquino. In brief, a mere executive order would amend, supersede
and/or render ineffective a law or statute."5

In order to allow the parties a full opportunity to ventilate their views on the matter, the Court ultimately resolved to
hear the parties in oral argument. Essentially, the core question raised by them is whether or not the President,
through the issuance of an executive order, can validly carry out the reorganization of the NTA.

Notwithstanding the apparent procedural lapse on the part of petitioner to implead the Office of the President as
party respondent pursuant to Section 7, Rule 3, of the 1997 Revised Rules of Civil Procedure, 6 this Court
resolved to rule on the merits of the petition.

Buklod ng Kawaning EIIB vs. Zamora7 ruled that the President, based on existing laws, had the authority to carry
out a reorganization in any branch or agency of the executive department. In said case, Buklod ng Kawaning EIIB
challenged the issuance, and sought the nullification, of Executive Order No. 191 (Deactivation of the Economic
Intelligence and Investigation Bureau) and Executive Order No. 223 (Supplementary Executive Order No. 191 on
the Deactivation of the Economic Intelligence and Investigation Bureau and for Other Matters) on the ground that
they were issued by the President with grave abuse of discretion and in violation of their constitutional right to
security of tenure. The Court explained:

"The general rule has always been that the power to abolish a public office is lodged with the legislature. This
proceeds from the legal precept that the power to create includes the power to destroy. A public office is either
created by the Constitution, by statute, or by authority of law. Thus, except where the office was created by the
Constitution itself, it may be abolished by the same legislature that brought it into existence.

76
"The exception, however, is that as far as bureaus, agencies or offices in the executive department are
concerned, the President’s power of control may justify him to inactivate the functions of a particular office, or
certain laws may grant him the broad authority to carry out reorganization measures. The case in point is  Larin v.
Executive Secretary [280 SCRA 713]. In this case, it was argued that there is no law which empowers the
President to reorganize the BIR. In decreeing otherwise, this Court sustained the following legal basis, thus:

"`Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to
reorganize the BIR.

`We do not agree.

`x x x x x x

`Section 48 of R.A. 7645 provides that:

``Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. – The heads of
departments, bureaus and offices and agencies are hereby directed to identify their respective activities which are
no longer essential in the delivery of public services and which may be scaled down, phased out or
abolished,subject to civil service rules and regulations. x x x. Actual scaling down, phasing out or abolition of the
activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.’

`Said provision clearly mentions the acts of `scaling down, phasing out and abolition’ of offices only and does not
cover the creation of offices or transfer of functions. Nevertheless, the act of creating and decentralizing is
included in the subsequent provision of Section 62 which provides that:

``Sec. 62. Unauthorized organizational changes. – Unless otherwise created by law or directed by the President
of the Philippines, no organizational unit or changes in key positions in any department or agency shall be
authorized in their respective organization structures and be funded from appropriations by this Act.’

`The foregoing provision evidently shows that the President is authorized to effect organizational changes
including the creation of offices in the department or agency concerned.

`x x x x x x

`Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:

``Sec. 20. Residual Powers. – Unless Congress provides otherwise, the President shall exercise such other
powers and functions vested in the President which are provided for under the laws  and which are not specifically
enumerated above or which are not delegated by the President in accordance with law.’

`This provision speaks of such other powers vested in the President under the law. What law then gives him the
power to reorganize? It is Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These
decrees expressly grant the President of the Philippines the continuing authority to reorganize the national
government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer
functions, to create and classify functions, services and activities and to standardize salaries and materials.  The
validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that `all laws, decrees,
executive orders, proclamations, letter of instructions and other executive issuances not inconsistent with this
Constitution shall remain operative until amended, repealed or revoked. So far, there is yet no law amending or
repealing said decrees.’

"Now, let us take a look at the assailed executive order.

77
"In the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on
Section 77 of Republic Act 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A.
7645 quoted in Larin, thus:

"`Sec. 77. Organized Changes. – Unless otherwise provided by law or directed by the President of the

Philippines, no changes in key positions or organizational units in any department or agency shall be authorized
in their respective organizational structures and funded from appropriations provided by this Act.’

"We adhere to the x x x ruling in Larin that this provision recognizes the authority of the President to effect
organizational changes in the department or agency under the executive structure. Such a ruling further finds
support in Section 78 of Republic Act No. 8760. Under this law, the heads of departments, bureaus, offices and
agencies and other entities in the Executive Branch are directed (a) to conduct a comprehensive review of this
respective mandates, missions, objectives, functions, programs, projects, activities and systems and procedures;
(b) identify activities which are no longer essential in the delivery of public services and which may be scaled
down, phased-out or abolished; and (c) adopt measures that will result in the streamlined organization and
improved overall performance of their respective agencies. Section 78 ends up with the mandate that the actual
streamlining and productivity improvement in agency organization and operation shall be effected pursuant to
Circulars or Orders issued for the purpose by the Office of the President. The law has spoken clearly. We are left
only with the duty to sustain.

"But of course, the list of legal basis authorizing the President to reorganize any department or agency in the
executive branch does not have to end here. We must not lose sight of the very source of the power – that which
constitutes an express grant of power. Under Section 31, Book III of Executive Order No. 292 (otherwise known
as the Administrative Code of 1987), ‘the President, subject to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize the administrative
structure of the Office of the President.’ For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado vs. Aguirre [323 SCRA 312], we ruled that reorganization
‘involves the reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions.’ It takes place when there is an alteration of the existing structure of government offices
or units therein, including the lines of control, authority and responsibility between them. The EIIB is a bureau
attached to the Department of Finance. It falls under the Office of the President. Hence, it is subject to the
President’s continuing authority to reorganize.

"It having been duly established that the President has the authority to carry out reorganization in any branch or
agency of the executive department, what is then left for us to resolve is whether or not the reorganization is valid.
In this jurisdiction, reorganizations have been regarded as valid provided they are pursued in good faith.
Reorganization is carried out in `good faith’ if it is for the purpose of economy or to make bureaucracy more
efficient. Pertinently, Republic Act No. 6656 provides for the circumstances which may be considered as evidence
of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is
a significant increase in the number of positions in the new staffing pattern of the department or agency
concerned; (b) where an office is abolished and another performing substantially the same functions is created;
(c) where incumbents are replaced by those less qualified in terms of status of appointment, performance and
merit; (d) where there is a classification of offices in the department or agency concerned and the reclassified
offices perform substantially the same functions as the original offices, and (e) where the removal violates the
order of separation."8

The Court of Appeals, in its now assailed decision, has found no evidence of bad faith on the part of the NTA;
thus -

"In the case at bar, we find no evidence that the respondents committed bad faith in issuing the notices of non-
appointment to the petitioners.

78
 "Firstly, the number of positions in the new staffing pattern did not increase. Rather, it decreased from
1,125 positions to 750. It is thus natural that one’s position may be lost through the removal or abolition of
an office.

"Secondly, the petitioners failed to specifically show which offices were abolished and the new ones that
were created performing substantially the same functions.

"Thirdly, the petitioners likewise failed to prove that less qualified employees were appointed to the
positions to which they applied.

"x x x           x x x          x x x

"Fourthly, the preference stated in Section 4 of R.A. 6656, only means that old employees should be
considered first, but it does not necessarily follow that they should then automatically be appointed. This
is because the law does not preclude the infusion of new blood, younger dynamism, or necessary talents
into the government service, provided that the acts of the appointing power are bonafide for the best
interest of the public service and the person chosen has the needed qualifications." 9

These findings of the appellate court are basically factual which this Court must respect and be held bound.

It is important to emphasize that the questioned Executive Orders No. 29 and No. 36 have not abolished
the National Tobacco Administration but merely mandated its reorganization through the streamlining or
reduction of its personnel. Article VII, Section 17,10 of the Constitution, expressly grants the President control of
all executive departments, bureaus, agencies and offices which may justify an executive action to inactivate the
functions of a particular office or to carry out reorganization measures under a broad authority of law. 11 Section 78
of the General Provisions of Republic Act No. 8522 (General Appropriations Act of FY 1998) has decreed that the
President may direct changes in the organization and key positions in any department, bureau or agency pursuant
to Article VI, Section 25,12 of the Constitution, which grants to the Executive Department the authority to
recommend the budget necessary for its operation. Evidently, this grant of power includes the authority to
evaluate each and every government agency, including the determination of the most economical and efficient
staffing pattern, under the Executive Department.

In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D. Zamora, in his capacity as the
Executive Secretary, et al.,13 this Court has had occasion to also delve on the President’s power to reorganize the
Office of the President under Section 31(2) and (3) of Executive Order No. 292 and the power to reorganize the
Office of the President Proper. The Court has there observed:

"x x x. Under Section 31(1) of EO 292, the President can reorganize the Office of the President Proper by
abolishing, consolidating or merging units, or by transferring functions from one unit to another. In contrast, under
Section 31(2) and (3) of EO 292, the President’s power to reorganize offices outside the Office of the President
Proper but still within the Office of the President is limited to merely transferring functions or agencies from the
Office of the President to Departments or Agencies, and vice versa."

The provisions of Section 31, Book III, Chapter 10, of Executive Order No. 292 (Administrative Code of 1987),
above-referred to, reads thusly:

"SEC. 31. Continuing Authority of the President to Reorganize his Office. – The President, subject to the policy in
the Executive Office and in order to achieve simplicity, economy and efficiency, shall have continuing authority to
reorganize the administrative structure of the Office of the President. For this purpose, he may take any of the
following actions:

79
 "(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating or merging units thereof or transferring functions from one unit to another;

"(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

"(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments and agencies."

The first sentence of the law is an express grant to the President of a continuing authority to reorganize the
administrative structure of the Office of the President. The succeeding numbered paragraphs are not in the nature
of provisos that unduly limit the aim and scope of the grant to the President of the power to reorganize but are to
be viewed in consonance therewith. Section 31(1) of Executive Order No. 292 specifically refers to the President’s
power to restructure the internal organization of the Office of the President Proper, by abolishing, consolidating or
merging units hereof or transferring functions from one unit to another, while Section 31(2) and (3) concern
executive offices outside the Office of the President Proper allowing the President to transfer any function under
the Office of the President to any other Department or Agency and vice-versa, and the transfer of any agency
under the Office of the President to any other department or agency and vice-versa. 14

In the present instance, involving neither an abolition nor transfer of offices, the assailed action is a mere
reorganization under the general provisions of the law consisting mainly of streamlining the NTA in the interest of
simplicity, economy and efficiency. It is an act well within the authority of President motivated and carried out,
according to the findings of the appellate court, in good faith, a factual assessment that this Court could only but
accept.15

In passing, relative to petitioners’ "Motion for an En Banc Resolution of the Case," it may be well to remind
counsel, that the Court En Banc is not an appellate tribunal to which appeals from a Division of the Court may be
taken. A Division of the Court is the Supreme Court as fully and veritably as the Court  En Banc itself and a
decision of its Division is as authoritative and final as a decision of the Court En Banc. Referrals of cases from a
Division to the Court En Banc do not take place as just a matter of routine but only on such specified grounds as
the Court in its discretion may allow.16

WHEREFORE, the Motion to Admit Petition for En Banc resolution and the Petition for an En Banc Resolution are
DENIED for lack of merit. Let entry of judgment be made in due course. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ., concur.

80
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 130584             June 27, 2006

YAZAKI TORRES MANUFACTURING, INC., Petitioner, 

vs.
THE COURT OF APPEALS, THE HOME DEVELOPMENT MUTUAL FUND, through its Board of Trustees,
and HONORABLE ZORAYDA AMELIA C. ALONZO, in her capacity as President of the Home Development
Mutual Fund, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, seeking to annul
the Decision1 of the Court of Appeals (Special Eighth Division), dated February 5, 1997, in CA-G.R. SP No. 41487
for having been issued with grave abuse of discretion.

The Home Development Mutual Fund (HDMF) is the government agency tasked with the administration of the
PAG-IBIG2 Fund (Fund) created under Presidential Decree (P.D.) No. 1530, signed into law on June 11, 1978.
The Fund has been intended for housing purposes to be sourced from voluntary contributions from its members.

On December 14, 1980, P.D. No. 1530 was amended by P.D. No. 1752 providing that membership in the Fund is
mandatory for all gainfully-employed Filipinos.

On June 17, 1994, P.D. No. 1752 was amended by Republic Act (R.A.) No. 7742 which took effect on January 1,
1995. Under the new law, the coverage of the Fund extends to all members of the Social Security System and
Government Service Insurance System, as well as their employers. However, membership is voluntary for
employees earning less than P4,000.00 a month.

On July 18, 1994, the HDMF Board of Trustees promulgated Rules and Regulations implementing R.A. No. 7742.
Rule VII provides:

RULE VII
WAIVER OR SUSPENSION

SEC. 1. Waiver or Suspension, Existing Provident or Retirement Plan. – An employer and/or employee group who
has an existing provident or retirement plan as of the effectivity of Republic Act No. 7742, qualified under Republic
Act No. 4917 and actuarially determined to be sound and reasonable by an independent actuary duly accredited
by the Insurance Commission may apply with the Fund for waiver or suspension of coverage. Such waiver or
suspension may be granted by the President of the Fund on the basis of verification that the waiver or suspension
does not contravene any effective collective bargaining or other existing agreement and that the features of the
plan or plans are superior to the Fund and continue to be so. The certificate of waiver or suspension of coverage
issued therein shall only be for a period of one (1) year but the same may be renewed for another year upon the
filing of a proper application within a period of sixty (60) days prior to the expiration of the existing waiver or
suspension.

SEC. 2. Waiver or Suspension, Existing Housing Plan. – An employer and/or employee group who has an
existing housing plan as of the effectivity of Republic Act No. 7742 may apply with the Fund for waiver or

81
suspension of coverage. Such waiver or suspension may be granted by the President of the Fund on the basis of
verification that the waiver or suspension does not contravene any effective collective bargaining or other existing
agreement and that the features of the plan or plans are superior to the Fund and continue to be so. The
certificate of waiver or suspension of coverage issued therein shall only be for a period of one (1) year but the
same may be renewed for another year upon the filing of a proper application within a period of sixty (60) days
prior to the expiration of the existing waiver or suspension.

xxx

SEC. 4. Effects of Waiver or Suspension, Existing Provident or Retirement/Housing Plan. - Waiver or suspension
of coverage granted to an employer under Sections 1 and 2 of this Rule shall likewise apply to his employees who
are members of the employer’s private plan; Provided, That such members are not member-borrowers of the
Fund. A member-borrower shall continue to pay and remit to the fund his monthly contributions together with the
employer contributions to be shouldered by him. A member-saver may opt to remain in good standing by remitting
to the Fund his monthly contributions with or without employer contribution.

Employees who are non-members of the employer’s private plan at the time of the certificate of waiver or
suspension of coverage is granted shall continue to be mandatorily covered by the Fund and their employer is
required to set aside and remit to the Fund the employee contributions together with the employer contributions.

Yazaki Torres Manufacturing, Inc., petitioner herein, a corporation organized under Philippine laws, applied for
and was granted by the HDMF a waiver from the Fund coverage for the period from January 1 to December 31,
1995. The HDMF found that petitioner’s retirement plan for its employees is superior to that offered by the Fund.

On September 1, 1995, the HDMF Board of Trustees amended Rule VII of the Rules and Regulations
implementing R.A. No. 7742. The amended Rule provides:

SEC. 1. Waiver or Suspension Because of Existing Provident/Retirement and Housing Plan. – An employer with a
plan providing both for a provident/retirement and housing benefits for all his employees and existing as of
December 14, 1980, the effectivity date of Presidential Decree No. 1752, may apply with the Fund for waiver or
suspension of the coverage. The provident/retirement aspect of the plan must be qualified under Republic Act No.
4917 and actuarially determined to be sound and reasonable by an independent actuary duly accredited by the
Insurance Commission. The provident/retirement and housing benefits as provided for under the plan must be
superior to the provident/retirement and housing benefits offered by the Fund.

Such waiver or suspension may be granted by the Fund on the basis of actual certification that the waiver or
suspension does not contravene any collective bargaining agreement, any other existing agreement or clearly
spelled out management policy and that features of the plan or plans are superior to the Fund and continue to be
so.

Provided further, That the application must be endorsed by the labor union representing a majority of the
employees or in the absence thereof by at least a majority vote for all the employees in the said establishment in
a meeting specifically called for the purpose; Provided furthermore, That such a meeting be held or conducted
under the supervision of an authorized representative from the Fund.

The certificate of waiver or suspension of coverage issued herein shall only be for a period of one (1) year
effective upon issuance thereof. No certificate of waiver issued by the President of the Fund shall have retroactive
effect. Application for renewal must be filed within sixty (60) days prior to the expiration of the existing waiver or
suspension and such application for renewal shall only be granted based on the same conditions and
requirements under which the original application was approved.

Pending the approval of the application for waiver or suspension of coverage or the application for renewal, the
employer and his covered employees shall continue to be mandatorily covered by the Fund as provided for under
Republic Act No. 7742.

82
 xxx

SEC. 3. Effects of Waiver or Suspension; Existing Provident or Retirement/Housing Plan. – Waiver or suspension
of coverage granted to an employer under Section 1 shall likewise apply to his employees who are members of
the employer’s private plan; Provided, That such members are not member-borrowers of the Fund. A member-
borrower shall continue to pay and remit to the Fund his monthly contributions together with the employer
contribution to be shouldered by him. A member-saver may opt to remain in good standing by remitting to the
Fund his monthly contributions with or without employer contributions. Notwithstanding the certificate of waiver or
suspension granted to the employer, it is still the obligation of the employer to service this type of contributing
employee-member by deducting through salary deductions and remitting to the Fund the contribution as required
herein.

Employees who are non-members of the employer’s private plan at the time the certificate of waiver or
suspension of coverage is granted shall continue to be mandatorily covered by the Fund and their employer is
required to set aside and remit to the Fund the employee contributions together with the employer’s required
contributions.

xxx

After its waiver from the Fund coverage lapsed, petitioner applied for a renewal. The ground relied upon was once
again its "superior retirement plan" to that of the Fund.

On February 16, 1996, the HDMF Chief Executive Officer disapproved petitioner’s application on the ground that
its retirement plan is not superior to that provided by the Fund. Petitioner was then directed "to register its
employees with the Fund and to remit their monthly contributions together with the mandatory employer’s share."

Petitioner interposed an appeal to the HDMF Board of Trustees, but in a Resolution dated May 29, 1996, the
Board denied the appeal.

Thereupon, petitioner filed with the Court of Appeals a petition for review, docketed as CA-G.R. SP No. 41487.

In a Decision dated February 5, 1997, the Court of Appeals (Special Eighth Division) denied the petition, holding
that:

Petitioner contends that the existing rules and regulations cannot be amended unless and until R.A. No. 7742 is
likewise amended and since the September 1, 1995 amendment on Rule VII of the HDMF rules and regulations
was beyond the 60-day period required under Section 5 of R.A. No. 7742, the same is invalid. To uphold these
arguments would render the administrative agency inutile to correct the rules and regulations duly promulgated by
it. A contario, such rules and regulations or orders may be amended, modified or revoked to conform to the
requirements of the law or the demands of justice (Benito v. Public Service Commission, 86 Phil. 624 [1950];
Raymundo Transportation Co. v. Tanay Transit Co., 63 Phil. 1064 [1936]). The only limitation is that the
administrative regulations cannot extend the law and amend a legislative enactment for settled is the rule that
administrative regulations must be in harmony with the provisions of the law (Land Bank of the Philippines v.
Court of Appeals, 249 SCRA 149 [1995]). In case of discrepancy between the basic law and an implementing rule
or regulation, the former prevails (Shell Philippines, Inc. v. Central Bank of the Philippines, 162 SCRA 628 [1988]).

The September 1, 1995 amendment to the rules requiring both provident/retirement and housing plans to the
employees in order that the employer may be granted a waiver or suspension of the Pag-ibig Fund coverage is in
harmony with WHEREAS clauses of Presidential Decree No. 1752, thus:

WHEREAS, the Government, in pursuit of the Constitutional mandates on the promotion of public welfare through
ample social services, as well as its humanist commitment to the interests of the working group, in relation

83
particularly to their need for decent shelter has established the Home Development Mutual Fund, under
Presidential Decree 1530, a system of employee – employer contributions for housing purposes; and

WHEREAS, there is need to strengthen the Home Development Mutual Funds and make it more effective both as
savings generation and home building program for the gainfully-employed members of the Philippine society;
(Emphasis supplied)

The governing law which is Section 19 of Pres. Decree No. 1752 states:lavvphi1.net

SEC. 19. Existing Provident/Housing Plans – An employer and/or employee – group who, at the time this Decree
becomes effective have their own provident and/or employee – housing plans, may register with the Fund, for any
of the following purposes:

(a) For annual certification of waiver or suspension from coverage or participation in the Fund, which shall be
granted on the basis of verification that the waiver or suspension does not contravene any effective collective
bargaining agreement and that the features of the plan or plans are superior to the Fund or continue to be so; or

xxxxxxxxx

x x x The grant of the certification of waiver to the petitioner was only for a specific period, i.e., from January 1,
1995 to December 31, 1995 but subject to the condition that the same may be renewed for another year upon the
filing of the proper application within 60 days prior to the expiration of the existing waiver or suspension. The grant
is merely a privilege which the State in the exercise of its police power has the right not to renew the same as the
exigency of the case warrants. After the lapse of the specified period, the HDMF is not automatically required to
enter another contract with the petitioner as long as the latter applies for renewal of certification. To reiterate,
Section 1 of the original HDMF rules, the law in force at the time of the granting of the certification of waiver to the
petitioner, provides "[s]uch waiver or suspension may be granted by the President of the Fund on the basis of
verification that the waiver or suspension does not contravene any effective collective bargaining or other existing
agreement and that the features of the plan or plans are superior to the Fund and continue to be so." The word
"may" is merely permissive and operates to confer discretion upon a party (Capati v. Ocampo, 113 SCRA 794
[1982]). The disapproval of the petitioner’s application for renewal of waiver from the Pag-ibig Fund coverage was
by reason that the petitioner’s retirement plan was not superior to Pag-ibig Fund (Annex "D", Petition, p. 30,
Rollo). It is well-settled principle that the finding of facts by the administrative bodies which has acquired the
expertise in the field is entitled to great respect and, should not be disturbed on appeal unless it is shown that it
has patently misappreciated the facts. Petitioner however failed to prove by sufficient evidence that the findings of
the President of the Fund was patently erroneous. 3

Petitioner filed its Motion for Reconsideration, but it was denied in a Resolution dated June 17, 1997.

Hence, the instant petition for certiorari.4

Petitioner contends that the Court of Appeals acted with grave abuse of discretion in upholding the HDMF’s
Resolution denying petitioner’s application for renewal of waiver of the Fund membership coverage; and in
confirming the authority of the HDMF to amend the implementing Rules of the Fund. It claims that Section 5 of
R.A. No. 7742 does not grant HDMF the power to amend the implementing Rules and Regulations, contending
that "the power to make laws does not necessarily include the power to alter or repeal the same." Since the
HDMF is merely an administrative agency tasked to implement the law, its authority to promulgate implementing
Rules does not include the power to amend or revise them.

It is a doctrine of long-standing that courts will not interfere in matters which are addressed to the sound discretion
of the government agency entrusted with regulation of activities coming under the special and technical training
and knowledge of such agency.5 For the exercise of administrative discretion is a policy decision and a matter that
best be discharged by the government agency concerned and not by the courts. 6 In this case, there is no showing
that the HDMF arbitrarily, whimsically or capriciously denied petitioner’s application for renewal of its waiver. It

84
conducted the necessary investigation, comparison, evaluation, and deliberation of petitioner’s retirement
plan vis-à-vis the Fund. This Court thus holds that the Court of Appeals committed no grave abuse of discretion
amounting to lack or excess of jurisdiction when it affirmed the denial of petitioner’s application for renewal of
waiver by the HDMF.

Moreover, the grant of waiver or exemption from the coverage of the Fund is but a mere privilege granted by the
State. A privilege is a particular and peculiar benefit or advantage enjoyed by a person, company, or class beyond
the common advantages of other citizens.7 Like any other privilege or exemption, it may be withdrawn by the
State on a finding that the recipient is no longer entitled to it. There is no provision whatsoever in R.A. No. 7742 or
its Implementing Rules and Regulations that the HDMF shall automatically renew a waiver from the Fund
coverage upon an application for renewal. The task of determining whether such application should be granted is
best discharged by the HDMF, not by the courts. Absent a showing that the denial of petitioner’s application by
the HDMF is tainted by caprice, arbitrariness, or despotism, this Court will not interfere in the exercise of its
discretion.

Petitioner claims that under the original Implementing Rules and Regulations of the HDMF, superior retirement
plan and superior housing plan were separate and alternative grounds for the waiver of the Fund coverage.
However, under the Amended Rules and Regulations, superior retirement plan and superior housing plan are joint
requirements. Since petitioner does not have a housing plan, this is the reason why its retirement plan was not
considered superior to that of the Fund. Hence, its application for renewal of waiver was denied. Consequently, it
insists that the HDMF exceeded its authority when it amended its original Rules and Regulations.

The legislative power is granted pursuant to Section 1, Article VI of the Constitution which provides:

SEC. 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.

The legislative power has been described generally as the power to make, alter, and repeal laws. 8 The authority
to amend, change, or modify a law is thus part of such legislative power. It is the peculiar province of the
legislature to prescribe general rules for the government of society. However, the legislature cannot foresee every
contingency involved in a particular problem that it seeks to address. Thus, it has become customary for it to
delegate to instrumentalities of the executive department, known as administrative agencies, the power to make
rules and regulations. This is because statutes are generally couched in general terms which express the policies,
purposes, objectives, remedies and sanctions intended by the legislature. The details and manner of carrying out
the law are left to the administrative agency charged with its implementation. In this sense, rules and regulations
promulgated by an administrative agency are the product of a delegated power to create new or additional legal
provisions that have the effect of law. 9 Hence, in general, rules and regulations issued by an administrative
agency, pursuant to the authority conferred upon it by law, have the force and effect, or partake of the nature, of a
statute.10

The law delegated to the HDMF the rule-making power since this is necessary for the proper exercise of its
authority to administer the Fund. Following the doctrine of necessary implication, this grant of express power to
formulate implementing rules and regulations must necessarily include the power to amend, revise, alter, or
repeal the same.

WHEREFORE, the petition is DISMISSED. The Decision and Resolution of the Court of Appeals dated February
5 and July 17, 1997 in CA-G.R. SP No. 41487 are AFFIRMED IN TOTO. Costs against petitioner.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

85
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 137473            August 2, 2001

ESTELITO V. REMOLONA, petitioner, 
vs.
CIVIL SERVICE COMMISSION, respondent.

PUNO, J.:

The present petition seeks to review and set aside the Decision rendered by the Court of Appeals dated July 31,
19981 upholding the decision of the Civil Service Commission which ordered the dismissal of petitioner Estelito V.
Remolona (Remolona) from the government service for dishonesty, and the Resolution dated February 5,
19992denying petitioner's motion for reconsideration.

Records show that petitioner Estelito V. Remolona is the Postmaster at the Postal Office Service in Infanta,
Quezon, while his wife Nery Remolona is a teacher at the Kiborosa Elementary School.

In a letter3 dated January 3, 1991, Francisco R. America, District Supervisor of the Department of Education,
Culture & Sports at Infanta, Quezon, inquired from the Civil Service Commission (CSC) as to the status of the civil
service eligibility of Mrs. Remolona who purportedly got a rating of 81.25% as per Report of Rating issued by the
National Board for Teachers.4 Mr. America likewise disclosed that he received information that Mrs. Remolona
was campaigning for a fee of P8,000.00 per examinee for a passing mark in the teacher's board examinations. --

On February 11, 1991, then CSC Chairman Patricia A. Sto. Tomas issued an Order directing CSC Region IV
Director Bella Amilhasan to conduct an investigation on Mrs. Remolona's eligibility, after verification from the
Register of Eligibles in the Office for Central Personnel Records revealed "that Remolona's name is not in the list
of passing and failing examinees, and that the list of examinees for December 10, 1989 does not include the
name of Remolona. Furthermore, Examination No. 061285 as indicated in her report of rating belongs to a certain
Marlou C. Madelo, who took the examination in Cagayan de Oro and got a rating of 65.00%." 5

During the preliminary investigation conducted by Jaime G. Pasion, Director II, Civil Service Field Office, Lucena
City, Quezon, only petitioner Remolona appeared. He signed a written statement of facts 6 regarding the issuance
of the questioned Report of Rating of Mrs. Remolona, which is summarized in the Memorandum 7 submitted by
Director Pasion as follows:

"3.1 That sometime in the first week of September, 1990, while riding in a Kapalaran Transit Bus from
Sta. Cruz, Laguna on his way to San Pablo City, he met one Atty. Hadji Salupadin (this is how it sounded)
who happened to be sitting beside him;

3.2 That a conversation broke out between them until he was able to confide his problem to Atty.
Salupadin about his wife having difficulty in acquiring an eligibility;

3.3 That Atty. Salupadin who represented himself as working at the Batasan, offered his help for a fee of
P3,000.00;

3.4 That the following day they met at the Batasan where he gave the amount of P2,000.00,
requirements, application form and picture of his wife;

86
 3.5 That the following week, Thursday, at around 1:00 P.M., they met again at the Batasan where he
handed to Atty. Salupadin the amount of P1,000.00 plus P500.00 bonus who in turn handed to him the
Report of Rating of one Nery C. Remolona with a passing grade, then they parted;

3.6 That sometime in the last week of September, he showed the Report of Rating to the District
Supervisor, Francisco America who informed her (sic) that there was no vacancy;

3.7 That he went to Lucena City and complained to Dr. Magsino in writing . . . that Mr. America is asking
for money in exchange for the appointment of his wife but failed to make good his promise. He attached
the corroborating affidavits of Mesdames Carmelinda Pradillada and Rosemarie P. Romantico and Nery
C. Remolona x x x;

3.8 That from 1986 to 1988, Mr. America was able to get six (6) checks at P2,600.00 each plus bonus of
Nery C. Remolona;

3.9 That Mr. America got mad at them. And when he felt that Mr. America would verify the authenticity of
his wife's Report of Rating, he burned the original."

Furthermore, Remolona admitted that he was responsible in acquiring the alleged fake eligibility, that his wife has
no knowledge thereof, and that he did it because he wanted them to be together. Based on the foregoing, Director
Pasion recommended the filing of the appropriate administrative action against Remolona but absolved Mrs. Nery
Remolona from any liability since it has not been shown that she willfully participated in the commission of the
offense.

Consequently, a Formal Charge dated April 6, 1993 was filed against petitioner Remolona, Nery C. Remolona,
and Atty. Hadji Salupadin for possession of fake eligibility, falsification and dishonesty. 8 A formal hearing ensued
wherein the parties presented their respective evidence. Thereafter, CSC Regional Director Bella A. Amilhasan
issued a Memorandum dated February 14, 1995 9 recommending that the spouses Estelito and Nery Remolona be
found guilty as charged and be meted the corresponding penalty.

Said recommendation was adopted by the CSG which issued Resolution No. 95-2908 on April 20, 1995, finding
the spouses Estelito and Nery Remolona guilty of dishonesty and imposing the penalty of dismissal and all its
accessory penalties. The case against Atty. Hadji Salupadin was held in abeyance pending proof of his
identity.10In its Resolution No. 965510 11 dated August 27, 1996, the CSC, acting on the motion for reconsideration
filed by the spouses Remolona, absolved Nery Remolona from liability and held that:

"Further, a review of the records and of the arguments presented fails to persuade this Commission to
reconsider its earlier resolution insofar as Estelito Remolona's culpability is concerned. The evidence is
substantial enough to effect his conviction. His act of securing a fake eligibility for his wife is proved by
substantial evidence. However, in the case of Nery Remolona, the Commission finds her innocent of the
offense charged, for there is no evidence to show that she has used the fake eligibility to support an
appointment or promotion. In fact, Nery Remolona did not indicate in her Personal Data Sheet that she
possesses any eligibility. It must be pointed out that it was her husband who unilaterally worked to secure
a fake eligibility for her.

WHEREFORE, the instant Motion for Reconsideration is hereby denied insofar as respondent Estelito
Remolona is concerned. However, Resolution No. 95-2908 is modified in the sense that respondent Nery
Remolona is exonerated of the charges. Accordingly, Nery Remolona is automatically reinstated to her
former position as Teacher with back salaries and other benefits."

On appeal, the Court of Appeals rendered its questioned decision dismissing the petition for review filed by herein
petitioner Remolona. His motion for reconsideration and/or new trial was likewise denied. Hence, this petition for
review.

87
Petitioner submits that the Court of Appeals erred:

"1. in denying petitioner's motion for new trial;

2. in holding that petitioner is liable for dishonesty; and

3. in sustaining the dismissal of the petitioner for an offense not work connected in relation to his official
position in the government service."

The main issue posed for resolution is whether a civil service employee can be dismissed from the government
service for an offense which is not work-related or which is not connected with the performance of his official duty.
Remolona likewise imputes a violation of his right to due process during the preliminary investigation because he
was not assisted by counsel. He claims that the extra-judicial admission allegedly signed by him is inadmissible
because he was merely made to sign a blank form. He also avers that his motion for new trial should be granted
on the ground that the transcript of stenographic notes taken during the hearing of the case before the Regional
Office of the CSC was not forwarded to the Court of Appeals. Finally, he pleads that the penalty of dismissal with
forfeiture of all benefits is too harsh considering the nature of the offense for which he was convicted, the length of
his service in government, that this is his first offense, and the fact that no damage was caused to the
government.

The submission of Remolona that his alleged extra-judicial confession is inadmissible because he was not
assisted by counsel during the investigation as required under Section 12 paragraphs 1 and 3, Article III of the
1987 Constitution deserves scant consideration.

The right to counsel under Section 12 of the Bill of Rights is meant to protect a suspect in a criminal case under
custodial investigation. Custodial investigation is the stage where the police investigation is no longer a general
inquiry into an unsolved crime but has begun to focus on a particular suspect who had been taken into custody by
the police to carry out a process of interrogation that lends itself to elicit incriminating statements. It is when
questions are initiated by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. The right to counsel attaches only upon the start of such
investigation. Therefore, the exclusionary rule under paragraph (2), Section 12 of the Bill of Rights applies only to
admissions made in a criminal investigation but not to those made in an administrative investigation. 12

While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact
remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's capacity to represent himself, and no duty rests
on such body to furnish the person being investigated with counsel. In an administrative proceeding, a respondent
has the option of engaging the services of counsel or not. This is clear from the provisions of Section 32, Article
VII of Republic Act No. 2260 (otherwise known as the Civil Service Act) and Section 39, paragraph 2, Rule XIV
(on discipline) of the Omnibus Rules Implementing Book V of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987). Thus, the right to counsel is not always imperative in administrative investigations
because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measure
against erring public officers and employees, with the purpose of maintaining the dignity of government service.
As such, the hearing conducted by the investigating authority is not part of a criminal prosecution. 13

In the case at bar, Remolona was not accused of any crime in the investigation conducted by the CSC field office.
The investigation was conducted for the purpose of ascertaining the facts and whether there is a prima facie
evidence sufficient to form a belief that an offense cognizable by the CSC has been committed and that
Remolona is probably guilty thereof and should be administratively charged. Perforce, the admissions made by
Remolona during such investigation may be used as evidence to justify his dismissal.

The contention of Remolona that he never executed an extra-judicial admission and that he merely signed a blank
form cannot be given credence. Remolona occupies a high position in government as Postmaster at Infanta,

88
Quezon and, as such, he is expected to be circumspect in his actions specially where he is being administratively
charged with a grave offense which carries the penalty of dismissal from service.

Remolona insists that his dismissal is a violation of his right to due process under Section 2(3), Article XI (B) of
the Constitution which provides that "no officer or employee in the Civil Service shall be removed or suspended
except for cause." Although the offense of dishonesty is punishable under the Civil Service law, Remolona opines
that such act must have been committed in the performance of his function and duty as Postmaster. Considering
that the charge of dishonesty involves the falsification of the certificate of rating of his wife Nery Remolona, the
same has no bearing on his office and hence, he is deemed not to have been dismissed for cause. This
proposition is untenable.

It cannot be denied that dishonesty is considered a grave offense punishable by dismissal for the first offense
under Section 23, Rule XIV of the Rules Implementing Book V of Executive Order No. 292. And the rule is that
dishonesty, in order to warrant dismissal, need not be committed in the course of the performance of duty by the
person charged. The rationale for the rule is that if a government officer or employee is dishonest or is guilty of
oppression or grave misconduct, even if said defects of character are not connected with his office, they affect his
right to continue in office. The Government cannot tolerate in its service a dishonest official, even if he performs
his duties correctly and well, because by reason of his government position, he is given more and ample
opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the
government other than the office where he is employed; and by reason of his office, he enjoys and possesses a
certain influence and power which renders the victims of his grave misconduct, oppression and dishonesty less
disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee
cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to
continue in office and the discipline and morale of the service. 14

The principle is that when an officer or employee is disciplined, the object sought is not the punishment of such
officer or employee but the improvement of the public service and the preservation of the public's faith and
confidence in the government.15

The general rule is that where the findings of the administrative body are amply supported by substantial
evidence, such findings are accorded not only respect but also finality, and are binding on this Court. 16 It is not for
the reviewing court to weigh the conflicting evidence, determine the credibility of witnesses, or otherwise
substitute its own judgment for that of the administrative agency on the sufficiency of evidence. 17 Thus, when
confronted with conflicting versions of factual matters, it is for the administrative agency concerned in the exercise
of discretion to determine which party deserves credence on the basis of the evidence received. 18 The rule,
therefore, is that courts of justice will not generally interfere with purely administrative matters which are
addressed to the sound discretion of government agencies unless there is a clear showing that the latter acted
arbitrarily or with grave abuse of discretion or when they have acted in a capricious and whimsical manner such
that their action may amount to an excess of jurisdiction. 19

We have carefully scrutinized the records of the case below and we find no compelling reason to deviate from the
findings of the CSC and the Court of Appeals. The written admission of Remolona is replete with details that could
have been known only to him. No ill-motive or bad faith was ever imputed to Director Pasion who conducted the
investigation. The presumption that official duty has been regularly performed remains unrebutted.

The transmittal of the transcript of stenographic notes taken during the formal hearing before the CSC is entirely a
matter of discretion on the part of the Court of Appeals. Revised Administrative Circular No. 1-95 of this Court
clearly states that in resolving appeals from quasi-judicial agencies, it is within the discretion of the Court of
Appeals to have the original records of the proceedings under review transmitted to it. 20 Verily, the Court of
Appeals decided the merits of the case on the bases of the uncontroverted facts and admissions contained in the
pleadings filed by the parties.

We likewise find no merit in the contention of Remolona that the penalty of dismissal is too harsh considering that
there was no damage caused to the government since the certificate of rating was never used to get an

89
appointment for his wife, Nery Remolona. Although no pecuniary damage was incurred by the government, there
was still falsification of an official document that constitutes gross dishonesty which cannot be countenanced,
considering that he was an accountable officer and occupied a sensitive position. 21 The Code of Conduct and
Ethical Standards for Public Officials and Employees enunciates the State policy of promoting a high standard of
ethics and utmost responsibility in the public service.

WHEREFORE, the decision appealed from is hereby AFFIRMED in toto.

SO ORDERED.

Bellosillo, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr.,
JJ ., concur.
Davide, Jr., C .J ., Melo, Panganiban, Buena, JJ ., on official leave.
Sandoval-Gutierrez, J ., is on leave.

90
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIÑO, in his capacity as Secretary of the Department of Education, Culture & Sports, DR.
ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of Manila, petitioners, 
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA IBABAO, HELEN
LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and APOLINARIO ESBER, respondents.

NARVASA, J.:p

The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the Solicitor General,
may be formulated as follows: where the relief sought from the Commission on Human Rights by a party in a case
consists of the review and reversal or modification of a decision or order issued by a court of justice or
government agency or official exercising quasi-judicial functions, may the Commission take cognizance of the
case and grant that relief? Stated otherwise, where a particular subject-matter is placed by law within the
jurisdiction of a court or other government agency or official for purposes of trial and adjudgment, may the
Commission on Human Rights take cognizance of the same subject-matter for the same purposes of hearing and
adjudication?

The facts narrated in the petition are not denied by the respondents and are hence taken as substantially correct
for purposes of ruling on the legal questions posed in the present action. These facts, 1 together with others
involved in related cases recently resolved by this Court 2 or otherwise undisputed on the record, are hereunder
set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among them members
of the Manila Public School Teachers Association (MPSTA) and Alliance of Concerned Teachers (ACT) undertook
what they described as "mass concerted actions" to "dramatize and highlight" their plight resulting from the
alleged failure of the public authorities to act upon grievances that had time and again been brought to the latter's
attention. According to them they had decided to undertake said "mass concerted actions" after the protest rally
staged at the DECS premises on September 14, 1990 without disrupting classes as a last call for the government
to negotiate the granting of demands had elicited no response from the Secretary of Education. The "mass
actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in
peaceable assemblies, etc. Through their representatives, the teachers participating in the mass actions were
served with an order of the Secretary of Education to return to work in 24 hours or face dismissal, and a
memorandum directing the DECS officials concerned to initiate dismissal proceedings against those who did not
comply and to hire their replacements. Those directives notwithstanding, the mass actions continued into the
week, with more teachers joining in the days that followed. 3

Among those who took part in the "concerted mass actions" were the eight (8) private respondents herein,
teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-political demands of
the MPSTA. 4

91
2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were administratively
charged on the basis of the principal's report and given five (5) days to answer the charges. They were also
preventively suspended for ninety (90) days "pursuant to Section 41 of P.D. 807" and temporarily replaced
(unmarked CHR Exhibits, Annexes F, G, H). An investigation committee was consequently formed to hear the
charges in accordance with P.D. 807. 5

3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants Graciano Budoy,
Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named respondents, 6 the latter filed
separate answers, opted for a formal investigation, and also moved "for suspension of the administrative
proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive
writ/temporary restraining order." But when their motion for suspension was denied by Order dated November 8,
1990 of the Investigating Committee, which later also denied their motion for reconsideration orally made at the
hearing of November 14, 1990, "the respondents led by their counsel staged a walkout signifying their intent to
boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cariño dated
December 17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents
submitted by the respondents, decreeing dismissal from the service of Apolinario Esber and the suspension for
nine (9) months of Babaran, Budoy and del Castillo. 8

4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of Manila against
petitioner (Cariño), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the MPSTA went to the
Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on the) alleged violation of the
striking teachers" right to due process and peaceable assembly docketed as G.R. No. 95445, supra. The ACT
also filed a similar petition before the Supreme Court . . . docketed as G.R. No. 95590."  9 Both petitions in this
Court were filed in behalf of the teacher associations, a few named individuals, and "other teacher-members so
numerous similarly situated" or "other similarly situated public school teachers too numerous to be impleaded."

5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27, 1990 to the
Commission on Human Rights to complain that while they were participating in peaceful mass actions, they
suddenly learned of their replacements as teachers, allegedly without notice and consequently for reasons
completely unknown to them. 10

6. Their complaints — and those of other teachers also "ordered suspended by the . . . (DECS)," all numbering
forty-two (42) — were docketed as "Striking Teachers CHR Case No. 90775." In connection therewith the
Commission scheduled a "dialogue" on October 11, 1990, and sent a subpoena to Secretary Cariño requiring his
attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cariño) received the
subpoena which was served at his office, . . . (the) Commission, with the Chairman presiding, and Commissioners
Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the case;" it heard the complainants' counsel (a)
explain that his clients had been "denied due process and suspended without formal notice, and unjustly, since
they did not join the mass leave," and (b) expatiate on the grievances which were "the cause of the mass leave of
MPSTA teachers, (and) with which causes they (CHR complainants) sympathize." 12 The Commission thereafter
issued an Order 13 reciting these facts and making the following disposition:

To be properly apprised of the real facts of the case and be accordingly guided in its investigation
and resolution of the matter, considering that these forty two teachers are now suspended and
deprived of their wages, which they need very badly, Secretary Isidro Cariño, of the Department
of Education, Culture and Sports, Dr. Erlinda Lolarga, school superintendent of Manila and the
Principal of Ramon Magsaysay High School, Manila, are hereby enjoined to appear and enlighten
the Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any and all
documents relevant to the allegations aforestated herein to assist the Commission in this matter.
Otherwise, the Commission will resolve the complaint on the basis of complainants' evidence.

xxx xxx xxx

92
7. Through the Office of the Solicitor General, Secretary Cariño sought and was granted leave to file a motion to
dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging as grounds therefor, "that
the complaint states no cause of action and that the CHR has no jurisdiction over the case." 14

8. Pending determination by the Commission of the motion to dismiss, judgments affecting the "striking teachers"
were promulgated in two (2) cases, as aforestated, viz.:

a) The Decision dated December l7, 1990 of Education Secretary Cariño in Case No. DECS 90-
082, decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9)
months of Babaran, Budoy and del Castillo; 15 and

b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and 95590
dismissing the petitions "without prejudice to any appeals, if still timely, that the individual
petitioners may take to the Civil Service Commission on the matters complained of," 16 and inter
alia "ruling that it was prima facie lawful for petitioner Cariño to issue return-to-work orders, file
administrative charges against recalcitrants, preventively suspend them, and issue decision on
those charges." 17

9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cariño's motion to dismiss and
required him and Superintendent Lolarga "to submit their counter-affidavits within ten (10) days . . . (after which)
the Commission shall proceed to hear and resolve the case on the merits with or without respondents counter
affidavit." 18 It held that the "striking teachers" "were denied due process of law; . . . they should not have been
replaced without a chance to reply to the administrative charges;" there had been a violation of their civil and
political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to
the Supreme Court . . . the facts before . . . (it) are different from those in the case decided by the Supreme Court"
(the reference being unmistakably to this Court's joint Resolution of August 6, 1991 in G.R. Nos. 95445 and
95590, supra).

It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf of petitioner
Cariño, has commenced the present action of certiorari and prohibition.

The Commission on Human Rights has made clear its position that it does not feel bound by this Court's joint
Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to hear and resolve the
case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends, in other words, to try and decide or
hear and determine, i.e., exercise jurisdiction over the following general issues:

1) whether or not the striking teachers were denied due process, and just cause exists for the imposition of
administrative disciplinary sanctions on them by their superiors; and

2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with which
causes they (CHR complainants) sympathize," justify their mass action or strike.

The Commission evidently intends to itself adjudicate, that is to say, determine with character of finality and
definiteness, the same issues which have been passed upon and decided by the Secretary of Education, Culture
& Sports, subject to appeal to the Civil Service Commission, this Court having in fact, as aforementioned,
declared that the teachers affected may take appeals to the Civil Service Commission on said matters, if still
timely.

The threshold question is whether or not the Commission on Human Rights has the power under the Constitution
to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or
adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases,
like alleged human rights violations involving civil or political rights.

93
The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the
fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the
functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it
may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations
involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the  judicial
function of a court of justice, or even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly speaking. To be considered
such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by
the authority of applying the law to those factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided
by law. 21 This function, to repeat, the Commission does not have. 22

The proposition is made clear by the constitutional provisions specifying the powers of the Commission on Human
Rights.

The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it
succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of
the Constitution. 24 Its powers and functions are the following 25

(1) Investigate, on its own or on complaint by any party, all forms of human rights violations
involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad, and provide for preventive measures and legal
aid services to the underprivileged whose human rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to enhance respect for
the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to provide for
compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty obligations on
human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to determine the truth in any
investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the performance of its
functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

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As should at once be observed, only the first of the enumerated powers and functions bears any resemblance to
adjudication or adjudgment. The Constitution clearly and categorically grants to the Commission the power
toinvestigate all forms of human rights violations involving civil and political rights. It can exercise that power on its
own initiative or on complaint of any person. It may exercise that power pursuant to such rules of procedure as it
may adopt and, in cases of violations of said rules, cite for contempt in accordance with the Rules of Court. In the
course of any investigation conducted by it or under its authority, it may grant immunity from prosecution to any
person whose testimony or whose possession of documents or other evidence is necessary or convenient to
determine the truth. It may also request the assistance of any department, bureau, office, or agency in the
performance of its functions, in the conduct of its investigation or in extending such remedy as may be required by
its findings. 26

But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even quasi-judicial
bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the technical sense, these
terms have well understood and quite distinct meanings.

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to observe or study closely: inquire into systematically. "to
search or inquire into: . . . to subject to an official probe . . .: to conduct an official inquiry." 27 The purpose of
investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or intimated is
the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the
law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to inquire; to make an investigation,"
"investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection
of facts concerning a certain matter or matters." 29

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide, determine, resolve,
rule on, settle. The dictionary defines the term as "to settle finally (the rights and duties of the parties to a court
case) on the merits of issues raised: . . . to pass judgment on: settle judicially: . . . act as judge." 30 And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . . . to award or grant judicially in
a case of controversy . . . ." 31

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. . . . Implies a judicial determination of a fact, and the entry of a judgment." 32

Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot and should
not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers HRC Case No. 90-775,
as it has announced it means to do; and it cannot do so even if there be a claim that in the administrative
disciplinary proceedings against the teachers in question, initiated and conducted by the DECS, their human
rights, or civil or political rights had been transgressed. More particularly, the Commission has no power to
"resolve on the merits" the question of (a) whether or not the mass concerted actions engaged in by the teachers
constitute and are prohibited or otherwise restricted by law; (b) whether or not the act of carrying on and taking
part in those actions, and the failure of the teachers to discontinue those actions, and return to their classes
despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules and
regulations warranting administrative disciplinary sanctions, or are justified by the grievances complained of by
them; and (c) what where the particular acts done by each individual teacher and what sanctions, if any, may
properly be imposed for said acts or omissions.

95
These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of Education, being
within the scope of the disciplinary powers granted to him under the Civil Service Law, and also, within the
appellate jurisdiction of the Civil Service Commission.

Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues and resolved
them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service
Commission; and even this Court itself has had occasion to pass upon said issues. 34

Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in disciplinary
cases are correct and are adequately based on substantial evidence; whether or not the proceedings themselves
are void or defective in not having accorded the respondents due process; and whether or not the Secretary of
Education had in truth committed "human rights violations involving civil and political rights," are matters which
may be passed upon and determined through a motion for reconsideration addressed to the Secretary Education
himself, and in the event of an adverse verdict, may be reviewed by the Civil Service Commission and eventually
the Supreme Court.

The Commission on Human Rights simply has no place in this scheme of things. It has no business intruding into
the jurisdiction and functions of the Education Secretary or the Civil Service Commission. It has no business going
over the same ground traversed by the latter and making its own judgment on the questions involved. This would
accord success to what may well have been the complaining teachers' strategy to abort, frustrate or negate the
judgment of the Education Secretary in the administrative cases against them which they anticipated would be
adverse to them.

This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human Rights would serve no useful purpose. If its
investigation should result in conclusions contrary to those reached by Secretary Cariño, it would have no power
anyway to reverse the Secretary's conclusions. Reversal thereof can only by done by the Civil Service
Commission and lastly by this Court. The only thing the Commission can do, if it concludes that Secretary Cariño
was in error, is to refer the matter to the appropriate Government agency or tribunal for assistance; that would be
the Civil Service Commission. 35 It cannot arrogate unto itself the appellate jurisdiction of the Civil Service
Commission.

WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET ASIDE, and the
respondent Commission on Human Rights and the Chairman and Members thereof are prohibited "to hear and
resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits."

SO ORDERED.

Melencio-Herrera, Cruz, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr. and Romero, JJ,
concur.

96
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 130230             April 15, 2005

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, Petitioner, 

vs.
DANTE O. GARIN, respondent.

DECISION

CHICO-NAZARIO, J.:

At issue in this case is the validity of Section 5(f) of Republic Act No. 7924 creating the Metropolitan Manila
Development Authority (MMDA), which authorizes it to confiscate and suspend or revoke driver's licenses in the
enforcement of traffic laws and regulations.

The issue arose from an incident involving the respondent Dante O. Garin, a lawyer, who was issued a traffic
violation receipt (TVR) and his driver's license confiscated for parking illegally along Gandara Street, Binondo,
Manila, on 05 August 1995.  The following statements were printed on the TVR:

You are hereby directed to report to the MMDA Traffic Operations Center Port Area Manila after 48 hours from
date of apprehension for disposition/appropriate action thereon.  Criminal case shall be filed for failure to redeem
license after 30 days.

Valid as temporary DRIVER'S license for seven days from date of apprehension. 1

Shortly before the expiration of the TVR's validity, the respondent addressed a letter 2 to then MMDA Chairman
Prospero Oreta requesting the return of his driver's license, and expressing his preference for his case to be filed
in court.

Receiving no immediate reply, Garin filed the original complaint 3 with application for preliminary injunction in
Branch 260 of the Regional Trial Court (RTC) of Parañaque, on 12 September 1995, contending that, in the
absence of any implementing rules and regulations, Sec. 5(f) of Rep. Act No. 7924 grants the MMDA unbridled
discretion to deprive erring motorists of their licenses, pre-empting a judicial determination of the validity of the
deprivation, thereby violating the due process clause of the Constitution.  The respondent further contended that
the provision violates the constitutional prohibition against undue delegation of legislative authority, allowing as it
does the MMDA to fix and impose unspecified – and therefore unlimited - fines and other penalties on erring
motorists.

In support of his application for a writ of preliminary injunction, Garin alleged that he suffered and continues to
suffer great and irreparable damage because of the deprivation of his license and that, absent any implementing
rules from the Metro Manila Council, the TVR and the confiscation of his license have no legal basis.

For its part, the MMDA, represented by the Office of the Solicitor General, pointed out that the powers granted to
it by Sec. 5(f) of Rep. Act No. 7924 are limited to the fixing, collection and imposition of fines and penalties for
traffic violations, which powers are legislative and executive in nature; the judiciary retains the right to determine
the validity of the penalty imposed.  It further argued that the doctrine of separation of powers does not preclude
"admixture" of the three powers of government in administrative agencies. 4

97
The MMDA also refuted Garin's allegation that the Metro Manila Council, the governing board and policy making
body of the petitioner, has as yet to formulate the implementing rules for Sec. 5(f) of Rep. Act No. 7924 and
directed the court's attention to MMDA Memorandum Circular No. TT-95-001 dated 15 April 1995.   Respondent
Garin, however, questioned the validity of MMDA Memorandum Circular No. TT-95-001, as he claims that it was
passed by the Metro Manila Council in the absence of a quorum.

Judge Helen Bautista-Ricafort issued a temporary restraining order on 26 September 1995, extending the validity
of the TVR as a temporary driver's license for twenty more days.  A preliminary mandatory injunction was granted
on 23 October 1995, and the MMDA was directed to return the respondent's driver's license.

On 14 August 1997, the trial court rendered the assailed decision 5 in favor of the herein respondent and held that:

a.         There was indeed no quorum in that First Regular Meeting of the MMDA Council held on March 23, 1995,
hence MMDA Memorandum Circular No. TT-95-001, authorizing confiscation of driver's licenses upon issuance of
a TVR, is void ab initio.

b.         The summary confiscation of a driver's license without first giving the driver an opportunity to be heard;
depriving him of a property right (driver's license) without DUE PROCESS; not filling (sic) in Court the complaint of
supposed traffic infraction, cannot be justified by any legislation (and is) hence unconstitutional.

WHEREFORE, the temporary writ of preliminary injunction is hereby made permanent; th(e) MMDA is directed to
return to plaintiff his driver's license; th(e) MMDA is likewise ordered to desist from confiscating driver's license
without first giving the driver the opportunity to be heard in an appropriate proceeding.

In filing this petition,6 the MMDA reiterates and reinforces its argument in the court below and contends that a
license to operate a motor vehicle is neither a contract nor a property right, but is a privilege subject to reasonable
regulation under the police power in the interest of the public safety and welfare.  The petitioner further argues
that revocation or suspension of this privilege does not constitute a taking without due process as long as the
licensee is given the right to appeal the revocation.

To buttress its argument that a licensee may indeed appeal the taking and the judiciary retains the power to
determine the validity of the confiscation, suspension or revocation of the license, the petitioner points out that
under the terms of the confiscation, the licensee has three options:

1.  To voluntarily pay the imposable fine,

2.  To protest the apprehension by filing a protest with the MMDA Adjudication Committee, or

3.  To request the referral of the TVR to the Public Prosecutor's Office.

The MMDA likewise argues that Memorandum Circular No. TT-95-001 was validly passed in the presence of a
quorum, and that the lower court's finding that it had not was based on a "misapprehension of facts," which the
petitioner would have us review.  Moreover, it asserts that though the circular is the basis for the issuance of
TVRs, the basis for the summary confiscation of licenses is Sec. 5(f) of Rep. Act No. 7924 itself, and that such
power is self-executory and does not require the issuance of any implementing regulation or circular.

Meanwhile, on 12 August 2004, the MMDA, through its Chairman Bayani Fernando, implemented Memorandum
Circular No. 04, Series of 2004, outlining the procedures for the use of the Metropolitan Traffic Ticket (MTT)
scheme.  Under the circular, erring motorists are issued an MTT, which can be paid at any Metrobank branch.  
Traffic enforcers may no longer confiscate drivers' licenses as a matter of course in cases of traffic violations.   All
motorists with unredeemed TVRs were given seven days from the date of implementation of the new system to
pay their fines and redeem their license or vehicle plates. 7

98
It would seem, therefore, that insofar as the absence of a prima facie case to enjoin the petitioner from
confiscating drivers' licenses is concerned, recent events have overtaken the Court's need to decide this case,
which has been rendered moot and academic by the implementation of Memorandum Circular No. 04, Series of
2004.

The petitioner, however, is not precluded from re-implementing Memorandum Circular No. TT-95-001, or any
other scheme, for that matter, that would entail confiscating drivers' licenses.  For the proper implementation,
therefore, of the petitioner's future programs, this Court deems it appropriate to make the following observations:

1.      A license to operate a motor vehicle is a privilege that the state may withhold in the exercise of its
police power.

The petitioner correctly points out that a license to operate a motor vehicle is not a property right, but a privilege
granted by the state, which may be suspended or revoked by the state in the exercise of its police power, in the
interest of the public safety and welfare, subject to the procedural due process requirements.  This is consistent
with our rulings in Pedro v. Provincial Board of Rizal 8 on the license to operate a cockpit, Tan v. Director of
Forestry9 and Oposa v. Factoran10 on timber licensing agreements, and Surigao Electric Co., Inc. v. Municipality
of Surigao11 on a legislative franchise to operate an electric plant.

Petitioner cites a long list of American cases to prove this point, such as State ex. Rel. Sullivan,12 which states in
part that, "the legislative power to regulate travel over the highways and thoroughfares of the state for the general
welfare is extensive.  It may be exercised in any reasonable manner to conserve the safety of travelers and
pedestrians.  Since motor vehicles are instruments of potential danger, their registration and the licensing of their
operators have been required almost from their first appearance.  The right to operate them in public places is not
a natural and unrestrained right, but a privilege subject to reasonable regulation, under the police power, in the
interest of the public safety and welfare. The power to license imports further power to withhold or to revoke such
license upon noncompliance with prescribed conditions."

Likewise, the petitioner quotes the Pennsylvania Supreme Court in Commonwealth v. Funk,13 to the effect that:
"Automobiles are vehicles of great speed and power.  The use of them constitutes an element of danger to
persons and property upon the highways.  Carefully operated, an automobile is still a dangerous instrumentality,
but, when operated by careless or incompetent persons, it becomes an engine of destruction.   The Legislature, in
the exercise of the police power of the commonwealth, not only may, but must, prescribe how and by whom motor
vehicles shall be operated on the highways.  One of the primary purposes of a system of general regulation of the
subject matter, as here by the Vehicle Code, is to insure the competency of the operator of motor vehicles.   Such
a general law is manifestly directed to the promotion of public safety and is well within the police power."

The common thread running through the cited cases is that it is the legislature, in the exercise of police power,
which has the power and responsibility to regulate how and by whom motor vehicles may be operated on the
state highways.

2.         The MMDA is not vested with police power.

In Metro Manila Development Authority v. Bel-Air Village Association, Inc.,14 we categorically stated that Rep. Act
No. 7924 does not grant the MMDA with police power, let alone legislative power, and that all its functions are
administrative in nature.

The said case also involved the herein petitioner MMDA which claimed that it had the authority to open a
subdivision street owned by the Bel-Air Village Association, Inc. to public traffic because it is an agent of the state
endowed with police power in the delivery of basic services in Metro Manila.  From this premise, the MMDA
argued that there was no need for the City of Makati to enact an ordinance opening Neptune Street to the public.

Tracing the legislative history of Rep. Act No. 7924 creating the MMDA, we concluded that the MMDA is not a
local government unit or a public corporation endowed with legislative power, and, unlike its predecessor, the

99
Metro Manila Commission, it has no power to enact ordinances for the welfare of the community.   Thus, in the
absence of an ordinance from the City of Makati, its own order to open the street was invalid.

We restate here the doctrine in the said decision as it applies to the case at bar: police power, as an inherent
attribute of sovereignty, is the power vested by the Constitution in the legislature to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not
repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth, and for the
subjects of the same.

Having been lodged primarily in the National Legislature, it cannot be exercised by any group or body of
individuals not possessing legislative power. The National Legislature, however, may delegate this power to the
president and administrative boards as well as the lawmaking bodies of municipal corporations or local
government units (LGUs). Once delegated, the agents can exercise only such legislative powers as are conferred
on them by the national lawmaking body.

Our Congress delegated police power to the LGUs in the Local Government Code of 1991. 15 A local government
is a "political subdivision of a nation or state which is constituted by law and has substantial control of local
affairs."16 Local government units are the provinces, cities, municipalities and barangays, which exercise police
power through their respective legislative bodies.

Metropolitan or Metro Manila is a body composed of several local government units.  With the passage of Rep.
Act No. 7924 in 1995, Metropolitan Manila was declared as a "special development and administrative region"
and the administration of "metro-wide" basic services affecting the region placed under "a development authority"
referred to as the MMDA.  Thus:

. . . [T]he powers of the MMDA are limited to the following acts: formulation, coordination, regulation,
implementation, preparation, management, monitoring, setting of policies, installation of a system and
administration. There is no syllable in R. A. No. 7924 that grants the MMDA police power, let alone
legislative power. Even the Metro Manila Council has not been delegated any legislative power. Unlike the
legislative bodies of the local government units, there is no provision in R. A. No. 7924 that empowers the
MMDA or its Council to "enact ordinances, approve resolutions and appropriate funds for the general
welfare" of the inhabitants of Metro Manila. The MMDA is, as termed in the charter itself, a "development
authority." It is an agency created for the purpose of laying down policies and coordinating with the
various national government agencies, people's organizations, non-governmental organizations and the
private sector for the efficient and expeditious delivery of basic services in the vast metropolitan area . All
its functions are administrative in nature and these are actually summed up in the charter itself, viz:

"Sec. 2. Creation of the Metropolitan Manila Development Authority. -- -x x x.

The MMDA shall perform planning, monitoring and coordinative functions, and in the process
exercise regulatory and supervisory authority over the delivery of metro-wide services within
Metro Manila, without diminution of the autonomy of the local government units concerning purely
local matters."

….

Clearly, the MMDA is not a political unit of government.  The power delegated to the MMDA is that given to the
Metro Manila Council to promulgate administrative rules and regulations in the implementation of the MMDA's
functions.  There is no grant of authority to enact ordinances and regulations for the general welfare of the
inhabitants of the metropolis. 17 (footnotes omitted, emphasis supplied)

Therefore, insofar as Sec. 5(f) of Rep. Act No. 7924 is understood by the lower court and by the petitioner to grant
the MMDA the power to confiscate and suspend or revoke drivers' licenses without need of any other legislative
enactment, such is an unauthorized exercise of police power.

100
 3.      Sec. 5(f) grants the MMDA with the duty to enforce existing traffic rules and regulations.

Section 5 of Rep. Act No. 7924 enumerates the "Functions and Powers of the Metro Manila Development
Authority." The contested clause in Sec. 5(f) states that the petitioner shall "install and administer a single
ticketing system, fix, impose and collect fines and penalties for all kinds of violations of traffic rules and
regulations, whether moving or nonmoving in nature, and confiscate and suspend or revoke drivers' licenses  in
the enforcement of such traffic laws and regulations, the provisions of Rep. Act No. 4136 18 and P.D. No. 160519 to
the contrary notwithstanding," and that "(f)or this purpose, the Authority shall enforce all traffic laws and
regulations in Metro Manila, through its traffic operation center, and may deputize members of the PNP, traffic
enforcers of local government units, duly licensed security guards, or members of non-governmental
organizations to whom may be delegated certain authority, subject to such conditions and requirements as the
Authority may impose."

Thus, where there is a traffic law or regulation validly enacted by the legislature or those agencies to whom
legislative powers have been delegated (the City of Manila in this case), the petitioner is not precluded – and in
fact is duty-bound – to confiscate and suspend or revoke drivers' licenses in the exercise of its mandate of
transport and traffic management, as well as the administration and implementation of all traffic enforcement
operations, traffic engineering services and traffic education programs. 20

This is consistent with our ruling in Bel-Air that the MMDA is a development authority created for the purpose of
laying down policies and coordinating with the various national government agencies, people's organizations,
non-governmental organizations and the private sector, which may enforce, but not enact, ordinances.

This is also consistent with the fundamental rule of statutory construction that a statute is to be read in a manner
that would breathe life into it, rather than defeat it, 21 and is supported by the criteria in cases of this nature that all
reasonable doubts should be resolved in favor of the constitutionality of a statute. 22

A last word.  The MMDA was intended to coordinate services with metro-wide impact that transcend local political
boundaries or would entail huge expenditures if provided by the individual LGUs, especially with regard to
transport and traffic management,23 and we are aware of the valiant efforts of the petitioner to untangle the
increasingly traffic-snarled roads of Metro Manila.  But these laudable intentions are limited by the MMDA's
enabling law, which we can but interpret, and petitioner must be reminded that its efforts in this respect must be
authorized by a valid law, or ordinance, or regulation arising from a legitimate source.

WHEREFORE, the petition is dismissed.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

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