Art 7 Cases

articleVIIconsti [Year]
1

EN BANC
[G.R. Nos. 146710-15. March 2, 2001]
JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as
Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME
AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and
ERNESTO B. FRANCISCO, JR., respondent.
[G.R. No. 146738. March 2, 2001]
JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
D E C I S I O N
PUNO, J .:
On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler and
the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the crisis in the office
of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million
Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by a plethora of
problems that slowly but surely eroded his popularity. His sharp descent from power started
on October 4, 2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the
petitioner, went on air and accused the petitioner, his family and friends of receiving millions
of pesos from jueteng lords.
[1]

The expos immediately ignited reactions of rage. The next day, October 5, 2000,
Senator Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a
fiery privilege speech entitled I Accuse. He accused the petitioner of receiving some P220
million in jueteng money from Governor Singson from November 1998 to August 2000. He
also charged that the petitioner took from Governor Singson P70 million on excise tax on
cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate President
Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel)
and the Committee on Justice (then headed by Senator Renato Cayetano) for joint
investigation.
[2]

The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the petitioner.
Calls for the resignation of the petitioner filled the air. On October 11, Archbishop
Jaime Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost the
moral authority to govern.
[3]
Two days later or on October 13, the Catholic Bishops
Conference of the Philippines joined the cry for the resignation of the petitioner.
[4]
Four days
later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner
take the supreme self-sacrifice of resignation.
[5]
Former President Fidel Ramos also joined
the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services
[6]
and later asked for petitioners
resignation.
[7]
However, petitioner strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington
Sycip.
[8]
On November 2, Secretary Mar Roxas II also resigned from the Department of Trade
and Industry.
[9]
On November 3, Senate President Franklin Drilon, and House Speaker Manuel
Villar, together with some 47 representatives defected from the ruling coalition, Lapian ng
Masang Pilipino.
[10]

The month of November ended with a big bang. In a tumultuous session on November
13, House Speaker Villar transmitted the Articles of Impeachment
[11]
signed by 115
representatives, or more than 1/3 of all the members of the House of Representatives to the
Senate. This caused political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentabella.
[12]
On November 20, the Senate formally opened the impeachment
trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court
Chief Justice Hilario G. Davide, Jr., presiding.
[13]


2

The political temperature rose despite the cold December. On December 7, the
impeachment trial started.
[14]
the battle royale was fought by some of the marquee names in
the legal profession. Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol,
Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel
Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led by
now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving
as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and
Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flamiano, former
Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty.
Raymund Fortun. The day to day trial was covered by live TV and during its course enjoyed
the highest viewing rating. Its high and low points were the constant conversational piece of
the chattering classes. The dramatic point of the December hearings was the testimony of
Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one
foot away from petitioner Estrada when he affixed the signature Jose Velarde on documents
involving a P500 million investment agreement with their bank on February 4, 2000.
[15]

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading.
[16]
Then came the
fateful day of January 16, when by a vote of 11-10
[17]
the senator-judges ruled against the
opening of the second envelop which allegedly contained evidence showing that petitioner
held P3.3 billion in a secret bank account under the name Jose Velarde. The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned
as Senate President.
[18]
The ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands had assembled at the
EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the eleven
(11) senators.
On January 17, the public prosecutors submitted a letter to Speaker Fuentebella
tendering their collective resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal.
[19]
Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the House of Representatives
shall have resolved the issue of resignation of the public prosecutors. Chief Justice Davide
granted the motion.
[20]

January 18 saw the high velocity intensification of the call for petitioners
resignation. A 10-kilometer line of people holding lighted candles formed a human chain
from the Ninoy Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to
symbolize the peoples solidarity in demanding petitioners resignation. Students and teachers
walked out of their classes in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more
and more people.
[21]

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m.,
the petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes,
Chief of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner
agreed to the holding of a snap election for President where he would not be a candidate. It
did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando
Mercado and General Reyes, together with the chiefs of all the armed services went to the
EDSA Shrine.
[22]
In the presence of former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes declared that on behalf of your Armed
Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government.
[23]
A little later, PNP Chief, Director General
Panfilo Lacson and the major service commanders gave a similar stunning
announcement.
[24]
Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.
[25]
Rallies for the resignation of the petitioner
exploded in various parts of the country. To stem the tide of rage, petitioner announced he
was ordering his lawyers to agree to the opening of the highly controversial second
envelop.
[26]
There was no turning back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the first round of
negotiations for the peaceful and orderly transfer of power started at Malacaangs Mabini
Hall, Office of the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive
Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying
Remulla, and Atty. Macel Fernandez, head of the presidential Management Staff, negotiated
for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de
Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando
Perez.
[27]
Outside the palace, there was a brief encounter at Mendiola between pro and anti-
Estrada protesters which resulted in stone-throwing and caused minor injuries. The
negotiations consumed all morning until the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo
as President of the Philippines.
[28]
At 2:30 p.m., petitioner and his family hurriedly left
Malacaang Palace.
[29]
He issued the following press statement:
[30]

20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.

3

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA
It also appears that on the same day, January 20, 2001, he signed the following letter:
[31]

Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA
A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January
20.
[32]
Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.
[33]

On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers and duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:
A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice
Acting on the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by a
letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolved unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer the
oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines, at
noon of January 20, 2001.
This resolution is without prejudice to the disposition of any justiciable case that maybe filed
by a proper party.
Respondent Arroyo appointed members of her Cabinet as well as ambassadors and
special envoys.
[34]
Recognition of respondent Arroyos government by foreign governments
swiftly followed. On January 23, in a reception or vin d honneur at Malacaang, led by the
Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign
diplomats recognized the government of respondent Arroyo.
[35]
US President George W. Bush
gave the respondent a telephone call from the White House conveying US recognition of her
government.
[36]

On January 24, Representative Feliciano Belmonte was elected new Speaker of the
House of Representatives.
[37]
The House then passed Resolution No. 175 expressing the full
support of the House of Representatives to the administration of Her Excellency Gloria
Macapagal-Arroyo, President of the Philippines.
[38]
It also approved Resolution No. 176
expressing the support of the House of Representatives to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending
its congratulations and expressing its support for her administration as a partner in the
attainment of the nations goals under the Constitution.
[39]

On January 26, the respondent signed into law the Solid Waste Management Act.
[40]
A
few days later, she also signed into law the Political Advertising Ban and Fair Election
Practices Act.
[41]

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her
Vice President.
[42]
the next day, February 7, the Senate adopted Resolution No. 82 confirming
the nomination of Senator Guingona, Jr.
[43]
Senators Miriam Defensor-Santiago, Juan Ponce
Enrile, and John Osmea voted yes with reservations, citing as reason therefore the pending
challenge on the legitimacy of respondent Arroyos presidency before the Supreme
Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.
[44]
The House of
Representatives also approved Senator Guingonas nomination in Resolution No.
178.
[45]
Senator Guingona took his oath as Vice President two (2) days later.
[46]

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment
court is functus officio and has been terminated.
[47]
Senator Miriam Defensor-Santiago stated
for the record that she voted against the closure of the impeachment court on the grounds
that the Senate had failed to decide on the impeachment case and that the resolution left open
the question of whether Estrada was still qualified to run for another elective post.
[48]

Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance
rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.
[49]
In another
survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61%
of the Filipinos nationwide accepted President Arroyo as replacement of petitioner

4

Estrada. The survey also revealed that President Arroyo is accepted by 60% in Metro Manila,
by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust
rating increased to 52%. Her presidency is accepted by majorities in all social classes:
58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the
Es or very poor class.
[50]

After his fall from the pedestal of power, the petitioners legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were set
in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October
23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the
Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture, graft
and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines
Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery,
perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong, et al.,
on November 28, 2000 for malversation of public funds, illegal use of public funds and
property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on
November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD
46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to the aforementioned
complaints against him.
Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this
Court GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary
injunction. It sought to enjoin the respondent Ombudsman from conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other
criminal complaint that may be filed in his office, until after the term of petitioner as President
is over and only if legally warranted. Thru another counsel, petitioner, on February 6, filed
GR No. 146738 for Quo Warranto. He prayed for judgment confirming petitioner to be the
lawful and incumbent President of the Republic of the Philippines temporarily unable to
discharge the duties of his office, and declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution. Acting on GR Nos. 146710-15, the Court, on the same day, February 6,
required the respondents to comment thereon within a non-extendible period expiring on 12
February 2001. On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents comments on or before 8:00 a.m. of
February 15.
On February 15, the consolidated cases were orally argued in a four-hour
hearing. Before the hearing, Chief Justice Davide, Jr.,
[51]
and Associate Justice Artemio
Panganiban
[52]
recused themselves on motion of petitioners counsel, former Senator Rene A.
Saguisag. They debunked the charge of counsel Saguisag that they have compromised
themselves by indicating that they have thrown their weight on one side but nonetheless
inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file
their memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution
and press statement for Gag Order on respondent Ombudsman filed by counsel for
petitioner in G.R. No. 146738, the Court resolved:
(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a press
statement justifying the alleged resolution;
(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and
(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against petitioner
Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action
will make the cases at bar moot and academic.
[53]

The parties filed their replies on February 24. On this date, the cases at bar were
deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.
III

5

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases at bar involve a political question

Private respondents
[54]
raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They contend that
shorn of its embroideries, the cases at bar assail the legitimacy of the Arroyo administration.
They stress that respondent Arroyo ascended the presidency through people power; that she
has already taken her oath as the 14
th
President of the Republic; that she has exercised the
powers of the presidency and that she has been recognized by foreign governments. They
submit that these realities on ground constitute the political thicket which the Court cannot
enter.
We reject private respondents submission. To be sure, courts here and abroad, have
tried to lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20
th
century, the political question doctrine which rests
on the principle of separation of powers and on prudential considerations, continue to be
refined in the mills constitutional law.
[55]
In the United States, the most authoritative
guidelines to determine whether a question is political were spelled out by Mr. Justice
Brennan in the 1962 case of Baker v. Carr,
[56]
viz:
x x x Prominent on the surface on any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretions; or the impossibility of a courts undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from the case at bar, there should be
no dismissal for non justiciability on the ground of a political questions presence. The
doctrine of which we treat is one of political questions, not of political cases.
In the Philippine setting, this Court has been continuously confronted with cases calling
for a firmer delineation of the inner and outer perimeters of a political question.
[57]
Our leading
case is Tanada v. Cuenco,
[58]
where this Court, through former Chief Justice Roberto
Concepcion, held that political questions refer to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch
of the government. It is concerned with issues dependent upon the wisdom, not legality of a
particular measure. To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of this court not
only to settle actual controversies involving rights which are legally demandable and
enforceable but also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government.
[59]
Heretofore, the judiciary has focused on the thou shalt nots of the
Constitution directed against the exercise of its jurisdiction.
[60]
With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the Court
power of doing nothing. In sync and symmetry with this intent are other provisions of the
1987 Constitution trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to x x x review, in
an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or
the extension thereof x x x.
Respondents rely on the case of Lawyers League for a Better Philippines and/or
Oliver A. Lozano v. President Corazon C. Aquino, et al.
[61]
and related cases
[62]
to support
their thesis that since the cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases will
show that they are inapplicable. In the cited cases, we held that the government of former
President Aquino was the result of a successful revolution by the sovereign people, albeit a
peaceful one. No less than the Freedom Constitution
[63]
declared that the Aquino government
was installed through a direct exercise of the power of the Filipino people in defiance of the
provisions of the 1973 Constitution, as amended. It is familiar learning that the legitimacy
of a government sired by a successful revolution by people power is beyond judicial scrutiny
for that government automatically orbits out of the constitutional loop. In checkered
contrast, the government of respondent Arroyo is not revolutionary in character. The
oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.
[64]
In her oath,
she categorically swore to preserve and defend the 1987 Constitution. Indeed, she has
stressed that she is discharging the powers of the presidency under the authority of the 1987
Constitution.

6

In fine, the legal distinction between EDSA People Power I and EDSA People Power II
is clear. EDSA I involves the exercise of the people power of revolution which overthrew
the whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of
the new government that resulted from it cannot be the subject of judicial review, but EDSA
II is intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I
presented political question; EDSA II involves legal questions. A brief discourse on
freedom of speech and of the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P.
Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos and
included it as among the reforms sine quibus non.
[65]
The Malolos Constitution, which is
the work of the revolutionary Congress in 1898, provided in its Bill of Rights that Filipinos
shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar means; (2) of the right of association for
purposes of human life and which are not contrary to public means; and (3) of the right to send
petitions to the authorities, individually or collectively. These fundamental rights were
preserved when the United States acquired jurisdiction over the Philippines. In the
instruction to the Second Philippine Commission of April 7, 1900 issued by President
McKinley, it is specifically provided that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances. The guaranty was carried over in the Philippine Bill,
the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29,
1966.
[66]

Thence on, the guaranty was set in stone in our 1935 Constitution,
[67]
and
the 1973
[68]
Constitution. These rights are now safely ensconced in section 4, Article III of
the 1987 Constitution, viz:
Sec. 4. 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.
The indispensability of the peoples freedom of speech and of assembly to democracy is
now self-evident. The reasons are well put by Emerson: first, freedom of expression is
essential as a means of assuring individual fulfillment; second, it is an essential process for
advancing knowledge and discovering truth; third, it is essential to provide for participation in
decision-making by all members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the precarious balance between
healthy cleavage and necessary consensus.
[69]
In this sense, freedom of speech and of
assembly provides a framework in which the conflict necessary to the progress of a
society can take place without destroying the society.
[70]
In Hague v. Committee for
Industrial Organization,
[71]
this function of free speech and assembly was echoed in
theamicus curiae brief filed by the Bill of Rights Committee of the American Bar Association
which emphasized that the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and
by all.
[72]
In the relatively recent case of Subayco v. Sandiganbayan,
[73]
this Court similarly
stressed that "... it should be clear even to those with intellectual deficits that when the
sovereign people assemble to petition for redress of grievances, all should listen. For in a
democracy, it is the people who count; those who are deaf to their grievances are
ciphers.
Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,
[74]
and section 8
[75]
of Article VII, and the
allocation of governmental powers under section 11
[76]
of Article VII. The issues likewise call
for a ruling on the scope of presidential immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case
of Marbury v. Madison,
[77]
the doctrine has been laid down that it is emphatically the
province and duty of the judicial department to say what the law is . . . Thus,
respondents invocation of the doctrine of political is but a foray in the dark.
II
Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is
determinable from the records of the case and by resort to judicial notice. Petitioner denies he
resigned as President or that he suffers from a permanent disability. Hence, he submits that
the office of the President was not vacant when respondent Arroyo took her oath as president.
The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:
Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case
of death, permanent disability, removal from office, or resignation of both the President and
Vice President, the President of the Senate or, in case of his inability, the Speaker of the House
of Representatives, shall then acts as President until President or Vice President shall have
been elected and qualified.
x x x.

7

The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14
th
President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.
[78]
The validity of a resignation is not governed by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.
In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001 after
the oath-taking of respondent Arroyo. Consequently, whether or not petitioner resigned has to
be determined from his acts and omissions before, during and after January 20, 2001 or by
the totality of prior, contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
Using this totality test, we hold that petitioner resigned as President.
To appreciate the public pressure that led to the resignation of the petitioner, it is
important to follow the succession of events after the expos of Governor Singson. The
Senate Blue Ribbon Committee investigated. The more detailed revelations of petitioners
alleged misgovernance in the Blue Ribbon investigation spiked the hate against him. The
Articles of Impeachment filed in the House of Representatives which initially was given a near
cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon, petitioners powerful
political allies began deserting him. Respondent Arroyo quit as Secretary of Social
Welfare. Senate President Drilon and Former Speaker Villar defected with 47 representatives
in tow. Then, his respected senior economic advisers resigned together with his Secretary of
Trade and Industry.
As the political isolation of the petitioner worsened, the peoples call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine was swarming with
people crying for redress of their grievance. Their number grew exponentially. Rallies and
demonstration quickly spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito
Estrada, the diary of Executive Secretary Angara serialized in the Philippine Daily
Inquirer.
[79]
The Angara Diary reveals that in morning of January 19, petitioners loyal
advisers were worried about the swelling of the crowd at EDSA, hence, they decided to crate
an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled
Secretary Angara into his small office at the presidential residence and exclaimed: Ed,
seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)
[80]
An hour later or at 2:30, p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that
petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General
Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and
dramatically announced the AFPs withdrawal of support from the petitioner and their pledge
of support to respondent Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner to
consider the option of dignified exit or resignation.
[81]
Petitioner did nor disagree but
listened intently.
[82]
The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would allowed to go abroad with enough funds
to support him and his family.
[83]
Significantly, the petitioner expressed no objection to the
suggestion for a graceful and dignified exit but said he would never leave the
country.
[84]
At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace.
[85]
This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was
already concerned with the five-day grace period he could stay in the palace. It was a
matter of time.
The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets
cooperate to ensure a) peaceful and orderly transfer of power.
[86]
There was no defiance to
the request. Secretary Angara readily agreed. Again, we note that at this stage, the problem
was already about a peaceful and orderly transfer of power. The resignation of the
petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioners resignation; (2) the
guarantee of the safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner.
[87]
Again, we note that the
resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance
of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:
x x x
I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.
If the envelope is opened, on Monday, he says, he will leave by Monday.

8

The President says. Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this
its too painful. Im tired of the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go.
[88]

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of
resignation.
The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary,
the following happened:
Oppositions deal
7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled Negotiating Points. It reads:
1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.
2. Beginning today, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice president to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police effective immediately.
4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the
security of the president and his family as approved by the national military and police
authority (Vice President).
5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:
1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guaranteed freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities Vice President
(Macapagal).
3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
Transition Period), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function under Vice President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in Annex A heretofore attached to this agreement.
[89]

The second round of negotiation cements the reading that the petitioner has
resigned. It will be noted that during this second round of negotiation, the resignation of
the petitioner was again treated as a given fact. The only unsettled points at that time
were the measures to be undertaken by the parties during and after the transition
period.

9

According to Secretary Angara, the draft agreement which was premised on the
resignation of the petitioner was further refined. It was then signed by their side and he was
ready to fax it to General Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent Arroyo was aborted by
her oath-taking. The Angara Diary narrates the fateful events, viz:
[90]

x x x
11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with
a group he is with. I hear voices in the background.
Agreement
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.
x x x
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved by
the national military and police authority Vice President.
4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.
5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex
B heretofore attached to this agreement.
x x x
11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United Opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait?
What about the agreement)? I asked.
Reyes answered: Wala na, sir (Its over, sir).
I asked him: Di yung transition period, moot and academic na?
And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that part).
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this
matter is already moot and academic. Within moments, Macel erases the first provision and
faxes the documents, which have been signed by myself, Dondon and Macel to Nene Pimentel
and General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provision on security, at least, should be
respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.
The president is too stunned for words.
Final meal
12 noon Gloria takes her oath as President of the Republic of the Philippines.
12:20 p.m. The PSG distributes firearms to some people inside the compound.
The President is having his final meal at the Presidential Residence with the few friends and
Cabinet members who have gathered.

10

By this time, demonstrators have already broken down the first line of defense at
Mendiola. Only the PSG is there to protect the Palace, since the police and military have
already withdrawn their support for the President.
1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys
personal possessions as they can.
During lunch, Ronie Puno mentions that the President needs to release a final statement
before leaving Malacaang.
The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines. While along with many
other legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as president, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shrik from any future challenges that may come ahead in the same service
of our country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be doubted. It was
confirmed by his leaving Malacaang. In the press release containing his final statement, (1)
he acknowledged the oath-taking of the respondent as President of the
Republic albeit with the reservation about its legality; (2) he emphasized he was leaving the
Palace, the seat of the presidency, for the sake of peace and in order to begin the healing
process of our nation. He did not say he was leaving the Palace due to any kind of
inability and that he was going to re-assume the presidency as soon as the disability
disappears; (3) he expressed his gratitude to the people for the opportunity to serve
them. Without doubt, he was referring to the past opportunity given him to serve the people
as President; (4) he assured that he will not shirk from any future challengethat may come
ahead in the same service of our country. Petitioners reference is to a future challenge after
occupying the office of the president which he has given up; and (5) he called on his
supporters to join him in the promotion of a constructive national spirit of reconciliation and
solidarity. Certainly, the national spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The press release was petitioners valedictory,
his final act of farewell. His presidency is now in the past tense.
It is, however, urged that the petitioner did not resign but only took a temporary
leave of absence due to his inability to govern. In support of this thesis, the letter dated
January 20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella
is cited. Again, we refer to the said letter, viz:
Sir
By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my
office. By operation of law and the Constitution, the Vice President shall be the Acting
President.
(Sgd.) Joseph Ejercito Estrada
To say the least, the above letter is wrapped in mystery.
[91]
The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led to
its preparation. Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as strange that the letter,
despite its legal value, was never referred to by the petitioner during the week-long
crisis. To be sure, there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his press release that he
was temporarily unable to govern and that he was leaving the reins of government to
respondent Arroyo for the time being. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly showing his resignation from the presidency, then the
resignation must prevail as a later act. If, however, it was prepared after the press release,
still, it commands scant legal significance. Petitioners resignation from the presidency
cannot be the subject of a changing caprice nor of a whimsical will especially if the
resignation is the result of his repudiation by the people. There is another reason why this
Court cannot give any legal significance to petitioners letter and this shall be discussed in
issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign, he also argues
that he could not resign as a matter of law. He relies on section 12 of RA No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:

11

Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery.
A reading of the legislative history of RA No. 3019 will hardly provide any comfort to
the petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the
bill, when it was submitted to the Senate, did not contain a provision similar to section 12 of
the law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the
author of the bill, reserved to propose during the period of amendments the inclusion of a
provision to the effect that no public official who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall be allowed to voluntarily resign or
retire.
[92]
During the period of amendments, the following provision was inserted as section
15:
Sec. 15. Termination of office No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against him, for
any offense under the Act or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official from office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency.
[93]

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of
the second paragraph of the provision and insisted that the Presidents immunity should extend
even after his tenure.
Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was
thereafter passed. Section 15 above became section 13 under the new bill, but the deliberations
on this particular provision mainly focused on the immunity of the President which was one of
the reasons for the veto of the original bill. There was hardly any debate on the prohibition
against the resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought to be
obvious. It is to prevent the act of resignation or retirement from being used by a public
official as a protective shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution under the Anti-Graft
Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can
be compelled to render service for that would be a violation of his constitutional right.
[94]
A
public official has the right not to serve if he really wants to retire or resign. Nevertheless, if
at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of the
criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.
There is another reason why petitioners contention should be rejected. In the cases at
bar, the records show that when petitioner resigned on January 20, 2001, the cases filed
against him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756,
0-00-1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for the reason that as
the sitting President then, petitioner was immune from suit. Technically, the said cases cannot
be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12
of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any insuperable legal obstacle like the
immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation
that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact
nature of an impeachment proceeding is debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered pending at the time petitioner resigned
because the process already broke down when a majority of the senator-judges voted against
the opening of the second envelope, the public and private prosecutors walked out, the public
prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner
when he resigned.
III
Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable
to perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent on
the same day to Senate President Pimentel and Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge
the inability of the petitioner to discharge the powers and duties of the presidency. His
significant submittal is that Congresshas the ultimate authority under the Constitution to
determine whether the President is incapable of performing his functions in the manner
provided for in section 11 of Article VII.
[95]
This contention is the centerpiece of petitioners
stance that he is a President on leave and respondent Arroyo is only an Acting President.
An examination of section 11, Article VII is in order. It provides:
SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker of
the House of Representatives his written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a written declaration to the contrary,
such powers and duties shall be discharged by the Vice-President as Acting President.

12

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President
is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President of the Senate and to the Speaker of
the House of Representatives his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the Senate and to the Speaker of the
House of Representatives their written declaration that the President is unable to discharge the
powers and duties of his office, the Congress shall decide the issue. For that purpose, the
Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its
rules and without need of call.
If the Congress, within ten days after receipt of the last written declaration, or, if not in session
within twelve days after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the powers and duties of
his office, the Vice-President shall act as President; otherwise, the President shall continue
exercising the powers and duties of his office."
That is the law. Now the operative facts:
(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
(2) Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
(3) Despite receipt of the letter, the House of Representative passed on January 24,
2001 House Resolution No. 175;
[96]

On the same date, the House of the Representatives passed House Resolution No.
176
[97]
which states:
RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATIONS GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the peoples loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended
their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of
national healing and reconciliation with justice for the purpose of national unity and
development;
WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is
divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to
unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;
WHEREAS, without surrendering its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to
extend its congratulations and to express its support for her administration as a partner in the
attainment of the Nations goals under the Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.

13

Speaker
This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
On February 7, 2001, the House of the Representatives passed House Resolution No.
178
[98]
which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYOS NOMINATION OF SENATOR TEOFISTO T. GUINGONA,
JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote of
all members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as Delegate
to the Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the Philippines - qualities which merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General
(4) Also, despite receipt of petitioners letter claiming inability, some twelve (12)
members of the Senate signed the following:
RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolute cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and overcome
the nations challenges.
[99]

On February 7, the Senate also passed Senate Resolution No. 82
[100]
which states:
RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYOS NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR. AS
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

14

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Phillippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence, and courage; who has served the Filipino people with dedicated responsibility
and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice. Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
On the same date, February 7, the Senate likewise passed Senate Resolution No.
83
[101]
which states:
RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS
OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court of Monday, January
15, Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the second envelope
be transferred to the Archives of the Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only
upon written approval of the Senate President.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate
(5) On February 8, the Senate also passed Resolution No. 84 certifying to the
existence of a vacancy in the Senate and calling on the COMELEC to fill up such vacancy
through election to be held simultaneously with the regular election on May 14, 2001 and the
senatorial candidate garnering the thirteenth (13
th
) highest number of votes shall serve only for
the unexpired term of Senator Teofisto T. Guingona, Jr.
(6) Both houses of Congress started sending bills to be signed into law by
respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning Cabinet, without
any recognition from any sector of government, and without any support from the Armed
Forces of the Philippines and the Philippine National Police, the petitioner continues to claim
that his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses of Congress
have recognized respondent Arroyo as the President. Implicitly clear in that recognition

15

is the premise that the inability of petitioner Estrada is no longer temporary. Congress
has clearly rejected petitioners claim of inability.
The question is whether this Court has jurisdiction to review the claim
of temporary inability of petitioner Estrada and thereafter revise the decision of both
Houses of Congress recognizing respondent Arroyo as President of the
Philippines. Following Taada v. Cuenco,
[102]
we hold that this Court cannot exercise its
judicial power for this is an issue in regard to which full discretionary authority has been
delegated to the Legislative x x x branch of the government. Or to use the language
in Baker vs. Carr,
[103]
there is a textually demonstrable constitutional commitment of the
issue to a coordinate political department or a lack of judicially discoverable and manageable
standards for resolving it. Clearly, the Court cannot pass upon petitioners claim of inability
to discharge the powers and duties of the presidency. The question is political innature and
addressed solely to Congress by constitutional fiat. It is a political issue which cannot be
decided by this Court without transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still, he cannot
successfully claim that he is a President on leave on the ground that he is merely unable to
govern temporarily. That claim has been laid to rest by Congress and the decision that
respondent Arroyo is the de jure President made by a co-equal branch of government cannot
be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; andsecond, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioners contentions, a revisit of our legal history on executive
immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction
emerged as a case law. In the 1910 case ofForbes, etc. vs. Chuoco tiaco and
Crossfield,
[104]
the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes,
Governor-General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of
Police and Chief of the Secret Service of the City of Manila, respectively, for damages for
allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:
The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either, that a person injured by the executive authority by an act unjustifiable under the
law has no remedy, but must submit in silence. On the contrary, it means, simply, that the
Governor-General, like the judges of the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the matter
is properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been
deprived his liberty or his property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or property rights have been
invaded, even by the highest authority of the state. The thing which the judiciary can not do
is mulct the Governor-General personally in damages which result from the performance of
his official duty, any more that it can a member of the Philippine Commission or the
Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched the
liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercise discretion in determining whether or not he
had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgment, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, he is entitled to protection in
determining the question of his authority. If he decide wrongly, he is still protected provided
the question of his authority was one over which two men, reasonably qualified for that
position, might honestly differ; but he is not protected if the lack of authority to act is so plain
that two such men could not honestly differ over its determination. In such case, he acts, not
as Governor-General but as a private individual, and, as such, must answer for the
consequences of his act.
Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: x x x. Action upon important matters of state delayed; the time and
substance of the chief executive spent in wrangling litigation; disrespect engendered for the
person of one of the highest officials of the State and for the office he occupies; a tendency to
unrest and disorder; resulting in a way, in a distrust as to the integrity of government
itself.
[105]

Our 1935 Constitution took effect but it did not contain any specific provision on
executive immunity. Then came the tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity. Section 17, Article VII stated:

16

The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.
The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.
In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity
And All The Kings Men: The Law Of Privilege As A Defense To Actions For
Damages,
[106]
petitioners learned counsel, former Dean of the UP college of Law, Atty.
Pacifico Agabin, brightlined the modifications effected by this constitutional amendment on
the existing law on executive privilege. To quote his disquisition:
In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
from civil claims but also from criminal cases and other claims. Second, we enlarged its scope
so that it would cover even acts of the President outside the scope of official duties. And third,
we broadened its coverage so as to include not only the President but also other persons, be
they government officials or private individuals, who acted upon orders of the President. It
can be said that at that point most of us were suffering from AIDS (or absolute immunity
defense syndrome).
The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian
concept of executive immunity in the 1973 Constitution. The move was led by then
Member of Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the principle that a public office
is a public trust. He denounced the immunity as a return to the anachronism the king can do
no wrong.
[107]
The effort failed.
The 1973 Constitution ceased to exist when President Marcos was ousted from office by
the People Power revolution in 1986. When the 1987 Constitution was crafted, its framers
did not reenact the executive immunity provision of the 1973 Constitution. The
following explanation was given by delegate J. Bernas, viz:
[108]

Mr. Suarez. Thank you.
The last question is with reference to the committees omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out this second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from suit
during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigations, as the President-in-exile in Hawaii is now
facing litigations almost daily?
Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.
I thank the Commissioner for the clarification.
We shall now rule on the contentions of petitioner in the light of this history. We reject
his argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed, on
February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.
[109]
Since the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would put a perpetual bar against
his prosecution. Such a submission has nothing to commend itself for it will place him in a
better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment proceedings have become
moot due to the resignation of the President, the proper criminal and civil cases may already
be filed against him, viz:
[110]

x x x
Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgment of conviction has
been rendered by the impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then
his resignation would render the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the ordinary courts.

17

This is in accord with our ruling in In re: Saturnino Bermudez
[111]
that incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure but not beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His
reliance in the case of Lecaroz vs. Sandiganbayan
[112]
and related cases
[113]
are inapropos for
they have a different factual milieu.
We now come to the scope of immunity that can be claimed by petitioner as a non-
sitting President. The cases filed against petitioner Estrada are criminal in character. They
involve plunder, bribery and graft and corruption. By no stretch of the imagination can
these crimes, especially plunder which carries the death penalty, be covered by the allege
mantle of immunity of a non-sitting president. Petitioner cannot cite any decision of this
Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation
from liability for unlawful acts and omissions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but
stands in the same footing as any other trespasser.
[114]
Indeed, a critical reading of current
literature on executive immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,
[115]
US President Richard Nixon, a sitting President,
was subpoenaed to produce certain recordings and documents relating to his conversations
with aids and advisers. Seven advisers of President Nixons associates were facing charges of
conspiracy to obstruct justice and other offenses which were committed in a burglary of the
Democratic National Headquarters in Washingtons Watergate Hotel during the 1972
presidential campaign. President Nixon himself was named an unindicted co-
conspirator. President Nixon moved to quash the subpoena on the ground, among others, that
the President was not subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial proceedings. The claim
was rejected by the US Supreme Court. It concluded that when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal justice. In the 1982 case of Nixon v.
Fitzgerald,
[116]
the US Supreme Court further held that the immunity of the President
from civil damages covers only official acts. Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones
[117]
where it held that the US
Presidents immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch the scope of
executive immunity in our jurisdiction. One of the great themes of the 1987 Constitution is
that a public office is a public trust.
[118]
It declared as a state policy that (t)he State shall
maintain honesty and integrity in the public service and take positive and effective measures
against graft and corruption."
[119]
It ordained that (p)ublic officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives.
[120]
It set the rule that
(t)he right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by
prescription, laches or estoppel.
[121]
It maintained the Sandiganbayan as an anti-graft
court.
[122]
It created the office of the Ombudsman and endowed it with enormous powers,
among which is to "(i)nvestigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
[123]
The Office of the Ombudsman was
also given fiscal autonomy.
[124]
These constitutional policies will be devalued if we sustain
petitioners claim that a non-sitting president enjoys immunity from suit for criminal
acts committed during his incumbency.
V
Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent Ombudsman has developed bias and is
all set to file the criminal cases in violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought on how to deal
with the rain of unrestrained publicity during the investigation and trial of high profile
cases.
[125]
The British approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of an
accused to fair trial suffers a threat.
[126]
The American approach is different. US courts
assume a skeptical approach about the potential effect of pervasive publicity on the right of an
accused to a fair trial. They have developed different strains of tests to resolve this
issue, i.e., substantial probability of irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to
stop the trials or annul convictions in high profile criminal cases.
[127]
In People vs.
Teehankee, Jr.,
[128]
later reiterated in the case of Larranaga vs. Court of Appeals, et
al.,
[129]
we laid down the doctrine that:
We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
now rule that the right of an accused to a fair trial is not incompatible to a free press. To be
sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the handmaiden of effective judicial

18

administration, especially in the criminal field x x x. The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right to
our bedrooms. These news form part of our everyday menu of the facts and fictions of
life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly
protected from publicity lest they lose their impartiality. x x x x x x x x x. Our
judges are learned in the law and trained to disregard off-court evidence and on-camera
performances of parties to a litigation. Their mere exposure to publications and publicity
stunts does not per sefatally infect their impartiality.
At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, the records do not show that the trial
judge developed actual bias against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of circumstances of the case does
not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which
is incapable if change even by evidence presented during the trial. Appellant has the burden to
prove this actual bias and he has not discharged the burden.
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul
de Leon, etc.
[130]
and its companion cases. viz.:
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.
x x x
The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it was wisely
held:
x x x
(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that the time this Nations organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance that
the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking
crime occurs, a community reaction of outrage and public protest often follows, and thereafter
the open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work effectively, it is important that societys
criminal process satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99
L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very nature
of a criminal trial under this Nations system of justice, Cf., e.g., Levine v. United States, 362
US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on matters
relating to the functioning of government. In guaranteeing freedoms such as those of speech
and press, the First Amendment can be read as protecting the right of everyone to attend trials
so as give meaning to those explicit guarantees; the First Amendment right to receive
information and ideas means, in the context of trials, that the guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom doors which had long
been open to the public at the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which it was
deliberately linked by the draftsmen. A trial courtroom is a public place where the people
generally and representatives of the media have a right to be present, and where their
presence historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly guaranteed,

19

have been recognized as indispensable to the enjoyment of enumerated rights. The right to
attend criminal trial is implicit in the guarantees of the First Amendment: without the freedom
to attend such trials, which people have exercised for centuries, important aspects of freedom
of speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino,
et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia
of bias for it does not appear that they considered any extra-record evidence except evidence
properly adduced by the parties. The length of time the investigation was conducted despite its
summary nature and the generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity. (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence to warrant this Court
to enjoin the preliminary investigation of the petitioner by the respondent
Ombudsman. Petitioner needs to offer more than hostile headlines to discharge his burden of
proof.
[131]
He needs to show more weighty social science evidence to successfully prove the
impaired capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged respondent Ombudsman himself
with bias. To quote petitioners submission, the respondent Ombudsman has been influenced
by the barrage of slanted news reports, and he has buckled to the threats and pressures directed
at him by the mobs.
[132]
News reports have also been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the petitioner
[133]
and it is postulated that the
prosecutors investigating the petitioner will be influenced by this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is insubstantial. The
accuracy of the news reports referred to by the petitioner cannot be the subject of judicial
notice by this Court especially in light of the denials of the respondent Ombudsman as to his
alleged prejudice and the presumption of good faith and regularity in the performance of
official duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates.
In truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the
independence to make their own findings and recommendations albeit they are reviewable by
their superiors.
[134]
They can be reversed but they can not be compelled to change their
recommendations nor can they be compelled to prosecute cases which they believe deserve
dismissal. In other words, investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to file the cases against the
petitioner and the latter believes that the finding of probable cause against him is the result of
bias, he still has the remedy of assailing it before the proper court.
VI.
Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now
acquire a different dimension and then move to a new stage - - - the Office of the
Ombudsman. Predictably, the call from the majority for instant justice will hit a higher decibel
while the gnashing of teeth of the minority will be more threatening. It is the sacred duty of
the respondent Ombudsman to balance the right of the State to prosecute the guilty and the
right of an accused to a fair investigation and trial which has been categorized as the most
fundamental of all freedoms.
[135]
To be sure, the duty of a prosecutor is more to do justice and
less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what
Lord Bryce calls the impatient vehemence of the majority. Rights in a democracy are not
decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights
necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved
to be the best form of government, it is because it has respected the right of the minority to
convince the majority that it is wrong. Tolerance of multiformity of thoughts, however
offensive they may be, is the key to mans progress from the cave to civilization. Let us not
throw away that key just to pander to some peoples prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the
respondent Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are
DISMISSED.
SO ORDERED.
EN BANC


20

ATTY. EVILLO C. PORMENTO, G.R. No. 191988
Petitioner,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,

versus PERALTA,

BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA and
SERENO, JJ.
JOSEPH ERAP EJERCITO
ESTRADA and COMMISSION
ON ELECTIONS,
Respondents.
Promulgated:

August 31, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

R E S O L U T I O N
CORONA, C.J .:

What is the proper interpretation of the following provision of Section 4, Article VII of
the Constitution: [t]he President shall not be eligible for any reelection?
The novelty and complexity of the constitutional issue involved in this case present
a temptation that magistrates, lawyers, legal scholars and law students alike would find hard to
resist. However, prudence dictates that this Court exercise judicial restraint where the issue
before it has already been mooted by subsequent events. More importantly, the constitutional
requirement of the existence of a case or an actual controversy for the proper exercise of
the power of judicial review constrains us to refuse the allure of making a grand
pronouncement that, in the end, will amount to nothing but a non-binding opinion.

The petition asks whether private respondent Joseph Ejercito Estrada is covered by
the ban on the President from any reelection. Private respondent was elected President of the
Republic of the Philippines in the general elections held on May 11, 1998. He sought the
presidency again in the general elections held on May 10, 2010. Petitioner Atty. Evillo C.
Pormento opposed private respondents candidacy and filed a petition for disqualification.
However, his petition was denied by the Second Division of public respondent Commission on
Elections (COMELEC).
[1]
His motion for reconsideration was subsequently denied by the
COMELEC en banc.
[2]

Petitioner filed the instant petition for certiorari
[3]
on May 7, 2010. However, under
the Rules of Court, the filing of such petition would not stay the execution of the judgment,
final order or resolution of the COMELEC that is sought to be reviewed.
[4]
Besides, petitioner
did not even pray for the issuance of a temporary restraining order or writ of preliminary
injunction. Hence, private respondent was able to participate as a candidate for the position of

21

President in the May 10, 2010 elections where he garnered the second highest number of
votes.
[5]

Private respondent was not elected President the second time he ran. Since the issue
on the proper interpretation of the phrase any reelection will be premised on a persons
second (whether immediate or not) election as President, there is no case or controversy to be
resolved in this case. No live conflict of legal rights exists.
[6]
There is in this case no definite,
concrete, real or substantial controversy that touches on the legal relations of parties having
adverse legal interests.
[7]
No specific relief may conclusively be decreed upon by this Court in
this case that will benefit any of the parties herein.
[8]
As such, one of the essential requisites
for the exercise of the power of judicial review, the existence of an actual case or controversy,
is sorely lacking in this case.
As a rule, this Court may only adjudicate actual, ongoing controversies.
[9]
The Court
is not empowered to decide moot questions or abstract propositions, or to declare principles or
rules of law which cannot affect the result as to the thing in issue in the case before it.
[10]
In
other words, when a case is moot, it becomes non-justiciable.
[11]

An action is considered moot when it no longer presents a justiciable controversy
because the issues involved have become academic or dead or when the matter in dispute has
already been resolved and hence, one is not entitled to judicial intervention unless the issue is
likely to be raised again between the parties. There is nothing for the court to resolve as the
determination thereof has been overtaken by subsequent events.
[12]

Assuming an actual case or controversy existed prior to the proclamation of a
President who has been duly elected in the May 10, 2010 elections, the same is no longer true
today. Following the results of that elections, private respondent was not elected President for
the second time. Thus, any discussion of his reelection will simply be hypothetical and
speculative. It will serve no useful or practical purpose.

Accordingly, the petition is denied due course and is hereby DISMISSED.
SO ORDERED.
EN BANC
[A.M. No. 98-5-01-SC. November 9, 1998]
In Re Appointments dated March 30, 1998 of Hon. Mateo A. Valenzuela and Hon.
Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago
City and of Branch 24, Cabanatuan City, respectively.
D E C I S I O N
NARVASA, CJ .:
The question presented for resolution in the administrative matter at bar is whether,
during the period of the ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill vacancies in the judiciary, in view of

22

Sections 4(1) and 9 of Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban in the interest of public service.
Resolution of the issues is needful; it will preclude a recurrence of any conflict in the
matter of nominations and appointments to the Judiciary - as that here involved - between the
Chief Executive, on the one hand, and on the other, the Supreme Court and the Judicial and
Bar Council over which the Court exercises general supervision and wields specific powers
including the assignment to it of other functions and duties in addition to its principal one of
recommending appointees to the Judiciary, and the determination of its Members'
emoluments.
[1]

I The Relevant Facts
The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the
relevant facts and is for that reason hereunder reproduce in full.
Referred to the Court En Banc by the Chief Justice are the appointments signed by His
Excellency the President under the date of March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City and of
Branch 24, Cabanatuan City, respectively. The appointments were received at the Chief
Justice's chambers on May 12, 1998. The referral was made in view of the serious
constitutional issue concerning said appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9,
1998. The meeting had been called, according to the Chief Justice as Ex Officio Chairman,
to discuss the question raised by some sectors about the "constitutionality of ***
appointments" to the Court of Appeals, specifically, in light of the forthcoming presidential
elections. Attention was drawn to Section 15, Article VII of the Constitution reading as
follows:
"SEC 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety."
On the other hand, appointments to fill vacancies in the Supreme court during the period
mentioned in the provision just quoted could seemingly be justified by another provision of
the same Constitution. Section 4(1) of Article VIII which states:
"SEC 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof."
Also pertinent although not specifically discussed is Section 9 of the same Article VIII which
provides that for the lower courts, the President shall issue the appointments - from a list of at
least three nominees prepared by the Council for every vacancy - within ninety days from the
submission of the list.
The view was then expressed by Senior associate Justice Florenz D. Regalado, Consultant of
the Council, who had been a member of the Committee of the Executive Department and of
the Committee on the Judicial Department of the 1986 Constitutional Commission, that on the
basis of the Commission's records, the election ban had no application to appointments to the
Court of Appeals. Without any extended discussion or any prior research and study on the
part of the other Members of the JBC, this hypothesis was accepted, and was then submitted to
the President for consideration, together with the Council's nominations for eight (8) vacancies
in the Court of Appeals.
On April 6, 1998 the Chief Justice received an official communication from the Executive
Secretary transmitting the appointments of eight (8) Associate Justices of the Court of Appeals
all of which had been duly signed on March 11, 1998 by His Excellency, the President. In
view of the fact that all the appointments had been signed on March 11, 1998 - the day
immediately before the commencement of the ban on appointments imposed by Section 15,
Article VII of the Constitution - which impliedly but no less clearly indicated that the
President's Office did not agree with the hypothesis that appointments to the Judiciary were
not covered by said ban, the Chief Justice resolved to defer consideration of nominations for
the vacancy in the Supreme Court created by the retirement of Associate Justice Ricardo J.
Francisco, specially considering that the Court had scheduled sessions in Baguio City in April,
1998, that the legislature's representatives to the JBC were occupied with the forthcoming
elections, and that a member of the Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter from the President, addressed to the JBC
requesting transmission of the "list of final nominees" for the vacancy "no later than
Wednesday, May 6, 1998," in view of the duty imposed on him by the Constitution "to fill up
the vacancy *** within ninety (90) days from February 13, 1998, the date the present vacancy
occurred."
On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for
"guidance" respecting the expressed desire of the "regular members" of the JBC to hold a
meeting immediately to fill up the vacancy in the Court in line with the President's letter of
May 4. The Chief Justice advised Secretary Bello to await the reply that he was drafting to the
President's communication, a copy of which he would give to the Secretary the following day.
On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating that no
sessions had been scheduled for the Council after the May elections for the reason that
apparently the President's Office did not share the view posited by the JBC that Section 15,
Article VII of the Constitution had no application to JBC-recommended appointments - the
appointments to the Court of Appeals having been all uniformly dated March 11, 1998, before
the commencement of the prohibition in said provision - thus giving rise to the "need to

23

undertake further study of the matter," prescinding from "the desire to avoid any constitutional
issue regarding the appointment to the mentioned vacancy" and the further fact that "certain
senior members of the Court of Appeals *** (had) asked the Council to reopen the question of
their exclusion on account of age from such (final) list." He closed with the assurance that the
JBC expected to deliberate on the nominations "forthwith upon the completion of the coming
elections." The letter was delivered to Malacaang at about 5 o'clock in the afternoon of May
6, 1998, and a copy given to the Office of Justice Secretary Bello shortly before that hour.
It would appear, however, that the Justice Secretary and the regular members of the Council
had already taken action without awaiting the Chief Justice's promised response to the
President's letter of May 4, 1998. On that day, May 6, 1998, they met at some undisclosed
place, deliberated, and came to an agreement on a resolution which they caused to be reduced
to writing and thereafter signed. In that two-page Resolution they drew attention to Section 4
(1), Article VIII of the Constitution (omitting any mention of Section 15, Article VII) as well as
to the President's letter of May 4 in which he "emphatically requested that the required list of
final nominee be submitted to him;" and pointing out that the "Council would be remiss in its
duties" should it fail to submit the nominations, closed with an appeal that the Chief Justice
convene the Council for the purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This
Resolution they transmitted to the Chief Justice together with their letter, also dated May 6, in
which they emphasized that "we are pressed for time" again drawing attention to Section 4
(1). In Article VIII of the Constitution (and again omitting any reference to Section 15,
Article VII). They ended their letter with the following intriguing paragraph:
"Should the Chief Justice be not disposed to call for the meeting aforesaid, the undersigned
members constituting the majority will be constrained to convene the Council for the purpose
of complying with its Constitutional mandate."
It seems evident, as just intimated, that the resolution and the covering letter were deliberated
on, prepared and signed hours before delivery of the Chief Justice's letter to the President and
the Justice Secretary.
Since the Members of the Council appeared determined to hold a meeting regardless of the
Chief Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock in the
afternoon of May 7, 1998. Present at the meeting were Chief Justice, Secretary Bello, ex
officio member and the regular members of the Council; Justice Regino Hermosisima, Atty.
Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present on the invitation of the Chief
Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N. Bellosillo,
Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M.
Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The Chief Justice reviewed the
events leading to the session, and after discussion, the body agreed to give the President time
to answer the Chief Justice's letter of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter from His Excellency the President in reply
to his letter of May 6 (which the President said had been "received early this morning"). The
President expressed the view that "the election-ban provision (Article VII, Sec. 15) ***
applies only to executive appointments or appointments in the executive branch of
government," the whole article being "entitled 'EXECUTIVE DEPARTMENT.'" He also
observed that further proof of his theory "is the fact that appointments to the judiciary have
special, specific provisions applicable to them" (citing Article VIII, Sec. 4 [1] and Article
VIII, Section 9. In view thereof, he "firmly and respectfully reiterate(d) *** (his) request for
the Judicial and Bar Council to transmit *** the final list of nominees for the lone Supreme
Court vacancy."
The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief
Justice's letter explains the issue quite plainly, it is here quoted in full.
"Thank you for your letter of May 7, 1998, responding to my own communication of May 6,
1998 which, I would like to say, reflects the collective sentiments of my colleagues in the
Supreme Court. Knowing how busy you are, I will deal straightaway with the points set out in
your letter.
The dating of the latest appointments to the Court of Appeals was adverted to merely to
explain how we in the Court and the JBC came to have the impression that you did not share
the view expressed in the JBC minutes of March 9, 1998 'that there is no election ban with
regard to the JBC appointments.' Be this as it may, the Court feels that there is a serious
question concerning the matter in light of the seemingly inconsistent provisions of the
Constitution. The first of these is Section 15, Article VII, which reads:
'SEC. 15. Two months immediately before the next presidential elections and up to the end of
his term, a President or Acting President shall not make appointments, except temporary
appointments to executive positions when continued vacancies therein will prejudice public
service or endanger public safety.'
The second is Section 4(1) of Article VIII which states:
'SEC 4(1) The Supreme Court shall be composed of a Chief Justice and fourteen Associate
Justices. ***. Any vacancy shall be filled within ninety days from the occurrence thereof.'
As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition on the
President: he "shall not make appointments" within the period mentioned, and since there is
no specification of which appointments are proscribed, the same may be considered as
applying to all appointments of any kind and nature. This is the general rule then, the only
exception being only as regards "executive positions" as to which "temporary appointments"
may be made within the interdicted period "when continued vacancies therein will prejudice

24

public service or endanger public safety." As the exception makes reference only to
"executive" positions, it would seem that "judicial" positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme
Court "shall be filled within ninety days from the occurrence thereof." Unlike Section 15,
Article VII, the duty of filling the vacancy is not specifically imposed on the President; hence,
it may be inferred that it is a duty shared by the Judicial and Bar council and the President.
Now, in view of the general prohibition in the first-quoted provision, how is the requirement
of filling vacancies in the Court within ninety days to be construed? One interpretation that
immediately suggests itself is that Section 4(1), Article VIII is a general provision while
Section 15, Article VII is a particular one; that is to say, normally, when there are no
presidential elections - which after all occur only every six years - Section 4(1), Article VIII
shall apply: vacancies in the Supreme Court shall be filled within 90 days; but when (as now)
there are presidential elections, the prohibition in Section 15, Article VII comes into play: the
President shall not make any appointments. The reason for said prohibition, according to Fr.
J. Bernas, S.J., an authority on Constitutional Law and himself a member of the Constitutional
Commission, is "(I)n order not to tie the hands of the incoming President through midnight
appointments." Another interpretation is that put forth in the Minutes of the JBC Meeting of
March 9, 1998.
I must emphasize that the validity of any appointment to the Supreme Court at this time hinges
on the correct interpretation of the foregoing sections of the Constitution. On account of the
importance of the question, I consulted the Court about it but, as I stated in my letter of May 6,
1998, "it declined to take any position, since obviously there had not been enough time to
deliberate on the same *** (although it) did agree that further study was necessary ***."
Since the question has actually come up, and its importance cannot be gainsaid, and it is the
Court that is empowered under the Constitution to make an authoritative interpretation of its
(provisions) or of those of any other law. I believe that the Court may now perhaps consider
the issue ripe for determination and come to grips with it, to avoid any possible polemics
concerning the matter. However the Court resolves the issue, no serious prejudice will be
done. Should the Court rule that the President is indeed prohibited to make appointments in a
presidential election year, then any appointment attempted within the proscribed period would
be void anyway. If the Court should adjudge that the ban has no application to appointments
to the Supreme Court, the JBC may submit nominations and the President may make the
appointment forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must thus be dealt with with utmost
circumspection, to avoid any question regarding the validity of an appointment to the Court at
this time, or any accusation of "midnight" appointments or rash, hasty action on the part of the
JBC or the President.
In view thereof, and upon the advice and consent of the Members of the Court, I am
requesting the regular Members of the Judicial and Bar Council to defer action on the matter
until further advice by the Court. I earnestly make the same request of you, Your Excellency,
I assure you, however, that as befits a matter in which the Chief Executive has evinced much
interest, my colleagues and I will give it preferential and expeditious attention and
consideration. To this end, I intend to convene the Court by next week, at the latest."
On May 8, 1998, again on the insistence of the regular Members of the JBC, another meeting
was held at which were present the Chief Justice, the Secretary of Justice and the three regular
Members above mentioned, as well as Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero,
Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago M. Kapunan, Vicente V.
Mendoza, Artemio V. Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel
P. Purisima. The meeting closed with a resolution that "the constitutional provisions *** (in
question) be referred to the Supreme Court En Banc for appropriate action, together with the
request that the Supreme Court consider that the ninety-day period stated in Section 4 (1),
Article VIII be suspended or interrupted in view of the peculiar circumstances ***."
On May 12, 1998, the Chief Justice received from Malacaang the appointments of two (2)
Judges of the Regional Trial Court mentioned above. This places on the Chief Justice the
obligation of acting thereon; i.e., transmitting the appointments to the appointees so that they
might take their oaths and assume their duties of their office. The trouble is that in doing so,
the Chief Justice runs the risk of acting in a manner inconsistent with the Constitution, for
these appointments appear prima facie, at least, to be expressly prohibited by Section 15,
Article VII of the charter. This circumstance, and the referral of the constitutional question to
the Court in virtue of the Resolution of May 8, 1998, supra, operate to raise a justiciable issue
before the Court, an issue of sufficient importance to warrant consideration and adjudication
on the merits.
Accordingly, the Court Resolved to (1) CONSIDER the case at bar an administrative matter
and cause it to be appropriately docketed; (2) to DIRECT the Clerk of Court to immediately
serve copies of this Resolution on (a) the Office of the President, (b) the Office of the Solicitor
General, (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido B. Vallarta (at their addresses
recorded in the Judicial and Bar Council); and (3) to REQUIRE the Office of the President,
the Office of the Solicitor General, Hon. Mateo A. Valenzuela, and Hon. Placido B. Vallarta
to file their comments on this Resolution within fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the foregoing proceedings and the deliberation by
the Court on the matter, and until further orders, no action be taken on the appointments of
Hon. Valenzuela and Hon. Vallarta which in the meantime shall be held in abeyance and not
given any effect and said appointees shall refrain from taking their oath of office; and that (2)
exercising its power of supervision over the Judicial and Bar Council, said Council and its ex
officio and regular Members herein mentioned be INSTRUCTED, as they are

25

hereby INSTRUCTED, to defer all action on the matter of nominations to fill up the lone
vacancy in the Supreme Court or any other vacancy until further orders.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila

EN BANC

ARTURO M. DE CASTRO,
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC) and
PRESIDENT GLORIA MACAPAGAL
ARROYO,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
JAIME N. SORIANO,
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL (JBC),
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x
PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA),
Petitioner,

- versus -

Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x
IN RE APPLICABILITY OF SECTION 15,
ARTICLE VII OF THE CONSTITUTION
TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA,
Petitioner,
G. R. No. 191002

G.R. No. 191032

G.R. No. 191057

A.M. No. 10-2-5-SC

x - - - - - - - - - - - - - - - - - - - - - - - x
JOHN G. PERALTA,
Petitioner,
- versus -

JUDICIAL AND BAR COUNCIL (JBC).
Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - -x
PETER IRVING CORVERA;

CHRISTIAN ROBERT S. LIM;

ALFONSO V. TAN, JR.;

NATIONAL UNION OF PEOPLES
LAWYERS;

MARLOU B. UBANO;

INTEGRATED BAR OF THE
PHILIPPINES-DAVAO DEL SUR
CHAPTER, represented by its Immediate Past
President, ATTY. ISRAELITO P.
TORREON, and the latter in his own personal
capacity as a MEMBER of the PHILIPPINE
BAR;

MITCHELL JOHN L. BOISER;

BAGONG ALYANSANG BAYAN (BAYAN)
CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY
GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY,
RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE)
CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG
MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO;
ALYANSA NG NAGKAKAISANG
KABATAAN NG SAMBAYANAN PARA SA
KAUNLARAN (ANAKBAYAN) CHAIRMAN
KEN LEONARD RAMOS; TAYO ANG

G.R. No. 191149


26

PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS)
CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION
OF STUDENTS OF THE PHILIPPINES
(NUSP) CHAIRMAN EINSTEIN RECEDES;
COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES
(SCMP) CHAIRMAN MA. CRISTINA
ANGELA GUEVARRA;

WALDEN F. BELLO and LORETTA ANN P.
ROSALES;

WOMEN TRIAL LAWYERS
ORGANIZATION OF THE PHILIPPINES,
represented by YOLANDA QUISUMBING-
JAVELLANA; BELLEZA ALOJADO
DEMAISIP; TERESITA GANDIONCO-
OLEDAN; MA. VERENA KASILAG-
VILLANUEVA; MARILYN STA. ROMANA;
LEONILA DE JESUS; and GUINEVERE
DE LEON.
Intervenors.
x - - - - - - - - - - - - - - - - - - - - - - - -x
ATTY. AMADOR Z. TOLENTINO, JR.,
(IBP
GovernorSouthern Luzon), and ATTY.
ROLAND B. INTING
(IBP GovernorEastern Visayas),
Petitioners,

- versus -

Respondent.
x - - - - - - - - - - - - - - - - - - - - - - - x
PHILIPPINE BAR ASSOCIATION, INC.,
Petitioner,

- versus -

JUDICIAL AND BAR COUNCIL and HER
EXCELLENCY GLORIA MACAPAGAL-
ARROYO,
Respondents.
G.R. No. 191342

G.R. No. 191420

Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:
March 17, 2010
x-----------------------------------------------------------------------------------------x

D E C I S I O N

BERSAMIN, J .:


27

The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs
just days after the coming presidential elections on May 10, 2010. Even before the event
actually happens, it is giving rise to many legal dilemmas. May the incumbent President
appoint his successor, considering that Section 15, Article VII (Executive Department) of the
Constitution prohibits the President or Acting President from making appointments within two
months immediately before the next presidential elections and up to the end of his term, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety? What is the relevance of Section 4 (1),
Article VIII (Judicial Department) of the Constitution, which provides that any vacancy in the
Supreme Court shall be filled within 90 days from the occurrence thereof, to the matter of the
appointment of his successor? May the Judicial and Bar Council (JBC) resume the process of
screening the candidates nominated or being considered to succeed Chief Justice Puno, and
submit the list of nominees to the incumbent President even during the period of the
prohibition under Section 15, Article VII? Doesmandamus lie to compel the submission of the
shortlist of nominees by the JBC?

Precs of the Consolidated Cases

Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R.
No. 191002
[1]
and G.R. No. 191149
[2]
as special civil actions for certiorari andmandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at least
three nominees for the position of the next Chief Justice.

In G.R. No. 191032,
[3]
Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for the
position of Chief Justice.

In G.R. No. 191057, a special civil action for mandamus,
[4]
the Philippine
Constitution Association (PHILCONSA) wants the JBC to submit its list of nominees for the
position of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the prohibition that applies only to
appointments in the Executive Department.

In Administrative Matter No. 10-2-5-SC,
[5]
petitioner Estelito M. Mendoza, a former
Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether
Section 15, Article VII applies to appointments to the Judiciary.

In G.R. No. 191342,
[6]
which the Court consolidated on March 9, 2010 with the
petitions earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated
Bar of the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively,
want to enjoin and restrain the JBC from submitting a list of nominees for the position of
Chief Justice to the President for appointment during the period provided for in Section 15,
Article VII.

All the petitions now before the Court pose as the principal legal question whether the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement. That
question is undoubtedly impressed with transcendental importance to the Nation, because the
appointment of the Chief Justice is any Presidents most important appointment.

A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court of
Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela),
[7]
by

28

which the Court held that Section 15, Article VII prohibited the exercise by the President of
the power to appoint to judicial positions during the period therein fixed.

In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries one side holds that the incumbent President is prohibited from
making appointments within two months immediately before the coming presidential elections
and until the end of her term of office as President on June 30, 2010, while the other insists
that the prohibition applies only to appointments to executive positions that may influence the
election and, anyway, paramount national interest justifies the appointment of a Chief Justice
during the election ban has impelled the JBC to defer the decision to whom to send its list of
at least three nominees, whether to the incumbent President or to her successor.
[8]
He opines
that the JBC is thereby arrogating unto itself the judicial function that is not conferred upon it
by the Constitution, which has limited it to the task of recommending appointees to the
Judiciary, but has not empowered it to finally resolve constitutional questions, which is the
power vested only in the Supreme Court under the Constitution. As such, he contends that the
JBC acted with grave abuse of discretion in deferring the submission of the list of nominees to
the President; and that a final and definitive resolution of the constitutional questions raised
above would diffuse (sic) the tension in the legal community that would go a long way to keep
and maintain stability in the judiciary and the political system.
[9]

In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse
of discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and selection process for the position of
Chief Justice to succeed Chief Justice Puno, because the appointing authority for the position
of Chief Justice is the Supreme Court itself, the Presidents authority being limited to the
appointment of the Members of the Supreme Court. Hence, the JBC should not intervene in
the process, unless a nominee is not yet a Member of the Supreme Court.
[10]

For its part, PHILCONSA observes in its petition in G.R. No. 191057 that
unorthodox and exceptional circumstances spawned by the discordant interpretations, due
perhaps to a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4(1), 8(5) and
9, Art. VIII of the Constitution have bred a frenzied inflammatory legal debate on the
constitutional provisions mentioned that has divided the bench and the bar and the general
public as well, because of its dimensional impact to the nation and the people, thereby
fashioning transcendental questions or issues affecting the JBCs proper exercise of its
principal function of recommending appointees to the Judiciary by submitting only to the
President (not to the next President) a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy from which the members of the Supreme Court and
judges of the lower courts may be appointed.
[11]
PHILCONSA further believes and submits
that now is the time to revisit and review Valenzuela, the strange and exotic Decision of the
Court en banc.
[12]

Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC
to immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno, in
compliance with its mandated duty under the Constitution in the event that the Court resolves
that the President can appoint a Chief Justice even during the election ban under Section 15,
Article VII of the Constitution.
[13]


29

The petitioners in G.R. No. 191342 insist that there is an actual controversy,
considering that the JBC has initiated the process of receiving applications for the position of
Chief Justice and has in fact begun the evaluation process for the applications to the position,
and is perilously near completing the nomination process and coming up with a list of
nominees for submission to the President, entering into the period of the ban on midnight
appointments on March 10, 2010, which only highlights the pressing and compelling need
for a writ of prohibition to enjoin such alleged ministerial function of submitting the list,
especially if it will be cone within the period of the ban on midnight appointments.
[14]

Antecedents

These cases trace their genesis to the controversy that has arisen from the
forthcoming compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days
after the presidential election. Under Section 4(1), in relation to Section 9, Article
VIII, that vacancy shall be filled within ninety days from the occurrence thereof from a list
of at least three nominees prepared by the Judicial and Bar Council for every vacancy.

On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of
the JBC, addressed a letter to the JBC, requesting that the process for nominations to the office
of the Chief Justice be commenced immediately.

In its January 18, 2010 meeting en banc, therefore, the JBC passed a
resolution,
[15]
which reads:

The JBC, in its en banc meeting of January 18, 2010, unanimously
agreed to start the process of filling up the position of Chief Justice to be
vacated on May 17, 2010 upon the retirement of the incumbent Chief
Justice Honorable Reynato S. Puno.

It will publish the opening of the position for applications or
recommendations; deliberate on the list of candidates; publish the names
of candidates; accept comments on or opposition to the applications;
conduct public interviews of candidates; and prepare the shortlist of
candidates.

As to the time to submit this shortlist to the proper appointing
authority, in the light of the Constitution, existing laws and jurisprudence,
the JBC welcomes and will consider all views on the matter.

18 January 2010.

(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council

As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January 20,
2010,
[16]
viz:

The Judicial and Bar Council (JBC) announces the opening for
application or recommendation, of the position of CHIEF JUSTICE OF
THE SUPREME COURT, which will be vacated on 17 May 2010 upon
the retirement of the incumbent Chief Justice, HON. REYNATO S.
PUNO.

Applications or recommendations for this position must be
submitted not later than 4 February 2010 (Thursday) to the JBC
Secretariat xxx:


30

The announcement was published on January 20, 2010 in the Philippine Daily
Inquirer and The Philippine Star.
[17]

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

Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from consideration
through his letter dated February 8, 2010. Candidates who accepted their nominations without
conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J. Leonardo-
De Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto G. Sandoval
(Sandiganbayan). Candidates who accepted their nominations with conditions were Associate
Justice Antonio T. Carpio and Associate Justice Conchita Carpio Morales.
[19]
Declining their
nominations were Atty. Henry Villarica (via telephone conversation with the Executive
Officer of the JBC on February 5, 2010) and Atty. Gregorio M. Batiller, Jr. (via telephone
conversation with the Executive Officer of the JBC onFebruary 8, 2010).
[20]

The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to
meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of the
Office of the Ombudsman (due to cases pending in the Office of the Ombudsman).
[21]

In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-De Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The Philippine
Star issues of February 13, 2010.
[22]

Issues

Although it has already begun the process for the filling of the position of Chief
Justice Puno in accordance with its rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the controversy now before us being yet
unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010 when the
vacancy occurs upon the retirement of Chief Justice Puno.

The actions of the JBC have sparked a vigorous debate not only among legal
luminaries, but also among non-legal quarters, and brought out highly disparate opinions on
whether the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza
notes that in Valenzuela, which involved the appointments of two judges of the Regional Trial
Court, the Court addressed this issue now before us as an administrative matter to avoid any
possible polemics concerning the matter, but he opines that the polemics leading
to Valenzuela would be miniscule [sic] compared to the polemics that have now erupted in
regard to the current controversy, and that unless put to a halt, and this may only be
achieved by a ruling from the Court, the integrity of the process and the credibility of whoever
is appointed to the position of Chief Justice, may irreparably be impaired.
[23]


31

Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.

G.R. No. 191002

a. Does the JBC have the power and authority to resolve the
constitutional question of whether the incumbent President can
appoint a Chief Justice during the election ban period?

b. Does the incumbent President have the power and authority to appoint
during the election ban the successor of Chief Justice Puno when he
vacates the position of Chief Justice on his retirement on May 17,
2010?

G.R. No. 191032

a. Is the power to appoint the Chief Justice vested in the Supreme
Court en banc?

G.R. No. 191057

a. Is the constitutional prohibition against appointment under Section 15,
Article VII of the Constitution applicable only to positions in the
Executive Department?

b. Assuming that the prohibition under Section 15, Article VII of the
Constitution also applies to members of the Judiciary, may such
appointments be excepted because they are impressed with public
interest or are demanded by the exigencies of public service, thereby
justifying these appointments during the period of prohibition?

c. Does the JBC have the authority to decide whether or not to include and
submit the names of nominees who manifested interest to be
nominated for the position of Chief Justice on the understanding that
his/her nomination will be submitted to the next President in view of
the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?

A. M. No. 10-2-5-SC

a. Does Section 15, Article VII of the Constitution apply to appointments
to positions in the Judiciary under Section 9, Article VIII of the
Constitution?

b. May President Gloria Macapagal-Arroyo make appointments to the
Judiciary after March 10, 2010, including that for the position of
Chief Justice after Chief Justice Puno retires on May 17, 2010?

G.R. No. 191149

a. Does the JBC have the discretion to withhold the submission of the
short list to President Gloria Macapagal-Arroyo?

G.R. No. 191342

a. Does the JBC have the authority to submit the list of nominees to the
incumbent President without committing a grave violation of the
Constitution and jurisprudence prohibiting the incumbent President
from making midnight appointments two months immediately
preceding the next presidential elections until the end of her term?

b. Is any act performed by the JBC, including the vetting of the
candidates for the position of Chief Justice, constitutionally invalid in
view of the JBCs illegal composition allowing each member from
the Senate and the House of Representatives to have one vote each?

On February 16, 2010, the Court directed the JBC and the Office of the Solicitor
General (OSG) to comment on the consolidated petitions, except that filed in G.R. No.
191342.

On February 26, 2010, the JBC submitted its comment, reporting therein that the
next stage of the process for the selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the preparation of the short list of

32

candidates, including the interview of the constitutional experts, as may be needed.
[24]
It
stated:
[25]

Likewise, the JBC has yet to take a position on when to submit
the shortlist to the proper appointing authority, in light of
Section 4 (1), Article VIII of the Constitution, which provides
that vacancy in the Supreme Court shall be filled within ninety
(90) days from the occurrence thereof, Section 15, Article VII of
the Constitution concerning the ban on Presidential
appointments two (2) months immediately before the next
presidential elections and up to the end of his term and Section
261 (g), Article XXII of the Omnibus Election Code of the
Philippines.

12. Since the Honorable Supreme Court is the final interpreter of the
Constitution, the JBC will be guided by its decision in these
consolidated Petitions and Administrative Matter.

On February 26, 2010, the OSG also submitted its comment, essentially stating that
the incumbent President can appoint the successor of Chief Justice Puno upon his retirement
by May 17, 2010.

The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBCs function to recommend is a continuing process, which does not
begin with each vacancy or end with each nomination, because the goal is to submit the list
of nominees to Malacaang on the very day the vacancy arises;
[26]
the JBC was thus acting
within its jurisdiction when it commenced and set in motion the process of selecting the
nominees to be submitted to the President for the position of Chief Justice to be vacated by
Chief Justice Puno;
[27]
(c) petitioner Sorianos theory that it is the Supreme Court, not the
President, who has the power to appoint the Chief Justice, is incorrect, and proceeds from his
misinterpretation of the phrase members of the Supreme Court found in Section 9, Article
VIII of the Constitution as referring only to the Associate Justices, to the exclusion of the
Chief Justice;
[28]
(d) a writ of mandamus can issue to compel the JBC to submit the list of
nominees to the President, considering that its duty to prepare the list of at least three
nominees is unqualified, and the submission of the list is a ministerial act that the JBC is
mandated to perform under the Constitution; as such, the JBC, the nature of whose principal
function is executive, is not vested with the power to resolve who has the authority to appoint
the next Chief Justice and, therefore, has no discretion to withhold the list from the
President;
[29]
and (e) a writ of mandamus cannot issue to compel the JBC to include or
exclude particular candidates as nominees, considering that there is no imperative duty on its
part to include in or exclude from the list particular individuals, but, on the contrary, the JBCs
determination of who it nominates to the President is an exercise of a discretionary duty.
[30]

The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply to
appointments in the Supreme Court. It argues that any vacancy in the Supreme Court must be
filled within 90 days from its occurrence, pursuant to Section 4(1), Article VIII of the
Constitution;
[31]
that in their deliberations on the mandatory period for the appointment of
Supreme Court Justices, the framers neither mentioned nor referred to the ban against
midnight appointments, or its effects on such period, or vice versa;
[32]
that had the framers
intended the prohibition to apply to Supreme Court appointments, they could have easily
expressly stated so in the Constitution, which explains why the prohibition found in Article
VII (Executive Department) was not written in Article VIII (Judicial Department); and that the
framers also incorporated in Article VIII ample restrictions or limitations on the Presidents
power to appoint members of the Supreme Court to ensure its independence from political
vicissitudes and its insulation from political pressures,
[33]
such as stringent qualifications

33

for the positions, the establishment of the JBC, the specified period within which the President
shall appoint a Supreme Court Justice.

The OSG posits that although Valenzuela involved the appointment of RTC Judges,
the situation now refers to the appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized that there might be the
imperative need for an appointment during the period of the ban, like when the membership
of the Supreme Court should be so reduced that it will have no quorum, or should the voting
on a particular important question requiring expeditious resolution be divided;
[34]
and
that Valenzuela also recognized that the filling of vacancies in the Judiciary is undoubtedly in
the public interest, most especially if there is any compelling reason to justify the making of
the appointments during the period of the prohibition.
[35]

Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases involving
sensitive political issues is quite expected;
[36]
(b) the Court acts as the Presidential Electoral
Tribunal (PET), which, sitting en banc, is the sole judge of all contests relating to the election,
returns, and qualifications of the President and Vice President and, as such, has the power to
correct manifest errors on the statement of votes (SOV) and certificates of canvass
(COC);
[37]
(c) if history has shown that during ordinary times the Chief Justice was appointed
immediately upon the occurrence of the vacancy, from the time of the effectivity of the
Constitution, there is now even more reason to appoint the next Chief Justice immediately
upon the retirement of Chief Justice Puno;
[38]
and (d) should the next Chief Justice come from
among the incumbent Associate Justices of the Supreme Court, thereby causing a vacancy, it
also becomes incumbent upon the JBC to start the selection process for the filling up of the
vacancy in accordance with the constitutional mandate.
[39]

On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:

(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter
Irving Corvera (Corvera);
[40]

(b) The opposition-in-intervention dated February 22, 2010 of Atty.
Christian Robert S. Lim (Lim);

(c) The opposition-in-intervention dated February 23, 2010 of Atty.
Alfonso V. Tan, Jr. (Tan);

(d) The comment/opposition-in-intervention dated March 1, 2010 of the
National Union of Peoples Lawyers (NUPL);

(e) The opposition-in-intervention dated February 25, 2010 of Atty.
Marlou B. Ubano (Ubano);

(f) The opposition-in-intervention dated February 25, 2010 of Integrated
Bar of the Philippines-Davao del Sur Chapter and its Immediate Past
President, Atty. Israelito P. Torreon (IBP- Davao del Sur);

(g) The opposition-in-intervention dated February 26, 2010 of Atty.
Mitchell John L. Boiser (Boiser);

(h)The consolidated comment/opposition-in-intervention dated February
26, 2010 of BAYAN Chairman Dr. Carolina P. Araullo; BAYAN
Secretary General Renato M. Reyes, Jr.; Confederation for Unity,
Recognition and Advancement of Government Employees
(COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano;
Alyansa ng Nagkakaisang Kabataan ng Samayanan Para sa
Kaunlaran (ANAKBAYAN) Chairman Ken Leonard Ramos; Tayo
ang Pag-asa Convenor Alvin Peters; League of Filipino Students
(LFS) Chairman James Mark Terry Lacuanan Ridon; National Union
of Students of the Philippines (NUSP) Chairman Einstein Recedes,
College Editors Guild of the Philippines (CEGP) Chairman Vijae

34

Alquisola; and Student Christian Movement of the Philippines
(SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);

(i) The opposition-in-intervention dated March 3, 2010 of Walden F.
Bello and Loretta Ann P. Rosales (Bello et al.); and

(j) The consolidated comment/opposition-in-intervention dated March 4,
2010 of the Women Trial Lawyers Organization of the Philippines
(WTLOP), represented by Atty. Yolanda Quisumbing-Javellana;
Atty. Belleza Alojado Demaisip; Atty. Teresita Gandionco-Oledan;
Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP).

Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take
the position that De Castros petition was bereft of any basis, because under Section 15,
Article VII, the outgoing President is constitutionally banned from making any appointments
from March 10, 2010 until June 30, 2010, including the appointment of the successor of Chief
Justice Puno. Hence, mandamus does not lie to compel the JBC to submit the list of nominees
to the outgoing President if the constitutional prohibition is already in effect. Tan adds that the
prohibition against midnight appointments was applied by the Court to the appointments to the
Judiciary made by then President Ramos, with the Court holding that the duty of the President
to fill the vacancies within 90 days from occurrence of the vacancies (for the Supreme Court)
or from the submission of the list (for all other courts) was not an excuse to violate the
constitutional prohibition.

Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al.
oppose the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief Justice or even an Associate
Justice does not cause epic damage or absolute disruption or paralysis in the operations of the
Judiciary. They insist that even without the successor of Chief Justice Puno being appointed
by the incumbent President, the Court is allowed to sit and adjudge en banc or in divisions of
three, five or seven members at its discretion; that a full membership of the Court is not
necessary; that petitioner De Castros fears are unfounded and baseless, being based on a mere
possibility, the occurrence of which is entirely unsure; that it is not in the national interest to
have a Chief Justice whose appointment is unconstitutional and, therefore, void; and that such
a situation will create a crisis in the judicial system and will worsen an already vulnerable
political situation.

ice is imperative for the stability of the judicial system and the political situation in the country
when the election-related questions reach the Court as false, because there is an existing law
on filling the void brought about by a vacancy in the office of Chief Justice; that the law is
Section 12 of the Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg.
129 or any other law; that a temporary or an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only provided for by law,
but is also dictated by practical necessity; that the practice was intended to be enshrined in the
1987 Constitution, but the Commissioners decided not to write it in the Constitution on
account of the settled practice; that the practice was followed under the 1987 Constitution,
when, in 1992, at the end of the term of Chief Justice Marcelo B. Fernan, Associate Justice
Andres Narvasa assumed the position as Acting Chief Justice prior to his official appointment
as Chief Justice; that said filling up of a vacancy in the office of the Chief Justice was
acknowledged and even used by analogy in the case of the vacancy of the Chairman of the
Commission on Elections, per Brillantes v. Yorac, 192 SCRA 358; and that the history of the
Supreme Court has shown that this rule of succession has been repeatedly observed and has
become a part of its tradition.

Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus
Election Code penalizes as an election offense the act of any government official who
appoints, promotes, or gives any increase in salary or remuneration or privilege to any
government official or employee during the period of 45 days before a regular election; that
the provision covers all appointing heads, officials, and officers of a government office,
agency or instrumentality, including the President; that for the incumbent President to appoint

35

the next Chief Justice upon the retirement of Chief Justice Puno, or during the period of the
ban under the Omnibus Election Code, constitutes an election offense; that even an
appointment of the next Chief Justice prior to the election ban is fundamentally invalid and
without effect because there can be no appointment until a vacancy occurs; and that the
vacancy for the position can occur only by May 17, 2010.

Intervenor Boiser adds that De Castros prayer to compel the submission of
nominees by the JBC to the incumbent President is off-tangent because the position of Chief
Justice is still not vacant; that to speak of a list, much more a submission of such list, before a
vacancy occurs is glaringly premature; that the proposed advance appointment by the
incumbent President of the next Chief Justice will be unconstitutional; and that no list of
nominees can be submitted by the JBC if there is no vacancy.

All the intervenors-oppositors submit that Section 15, Article VII makes no distinction
between the kinds of appointments made by the President; and that the Court, inValenzuela,
ruled that the appointments by the President of the two judges during the prohibition period
were void.

Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does
not apply only to the appointments in the Executive Department, but also to judicial
appointments, contrary to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition as applicable to judicial
appointments.

Intervenor WTLOP further posits that petitioner Sorianos contention that the power
to appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is utterly
baseless, because the Chief Justice is also a Member of the Supreme Court as contemplated
under Section 9, Article VIII; and that, at any rate, the term members was interpreted
in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the Chief Justice and
the Associate Justices of the Supreme Court; that PHILCONSAs prayer that the Court pass a
resolution declaring that persons who manifest their interest as nominees, but with conditions,
shall not be considered nominees by the JBC is diametrically opposed to the arguments in the
body of its petition; that such glaring inconsistency between the allegations in the body and
the relief prayed for highlights the lack of merit of PHILCONSAs petition; that the role of the
JBC cannot be separated from the constitutional prohibition on the President; and that the
Court must direct the JBC to follow the rule of law, that is, to submit the list of nominees only
to the next duly elected President after the period of the constitutional ban against midnight
appointments has expired.

Oppositor IBP Davao del Sur opines that the JBC because it is neither a judicial
nor a quasi-judicial body has no duty under the Constitution to resolve the question of
whether the incumbent President can appoint a Chief Justice during the period of prohibition;
that even if the JBC has already come up with a short list, it still has to bow to the strict
limitations under Section 15, Article VII; that should the JBC defer submission of the list, it is
not arrogating unto itself a judicial function, but simply respecting the clear mandate of the
Constitution; and that the application of the general rule in Section 15, Article VII to the
Judiciary does not violate the principle of separation of powers, because said provision is an
exception.


36

Oppositors NUPL, Corvera, Lim and BAYAN et al. state that the JBCs act of
nominating appointees to the Supreme Court is purely ministerial and does not involve the
exercise of judgment; that there can be no default on the part of the JBC in submitting the list
of nominees to the President, considering that the call for applications only begins from the
occurrence of the vacancy in the Supreme Court; and that the commencement of the process of
screening of applicants to fill the vacancy in the office of the Chief Justice only begins from
the retirement on May 17, 2010, for, prior to this date, there is no definite legal basis for any
party to claim that the submission or non-submission of the list of nominees to the President
by the JBC is a matter of right under law.

The main question presented in all the filings herein because it involves two
seemingly conflicting provisions of the Constitution imperatively demands the attention and
resolution of this Court, the only authority that can resolve the question definitively and
finally. The imperative demand rests on the ever-present need, first, to safeguard the
independence, reputation, and integrity of the entire Judiciary, particularly this Court, an
institution that has been unnecessarily dragged into the harsh polemics brought on by the
controversy; second, to settle once and for all the doubt about an outgoing Presidents power
to appoint to the Judiciary within the long period starting two months before the presidential
elections until the end of the presidential term; and third, to set a definite guideline for the JBC
to follow in the discharge of its primary office of screening and nominating qualified persons
for appointment to the Judiciary.

Thus, we resolve.

Ruling of the Court

Locus Standi of Petitioners

The preliminary issue to be settled is whether or not the petitioners have locus
standi.

Black defines locus standi as a right of appearance in a court of justice on a given
question.
[41]
In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to regulate the
invocation of the intervention of the Court to correct any official action or policy in order to
avoid obstructing the efficient functioning of public officials and offices involved in public
service. It is required, therefore, that the petitioner must have a personal stake in the outcome
of the controversy, for, as indicated in Agan, Jr. v. Philippine International Air Terminals Co.,
Inc.:
[42]

The question on legal standing is whether such parties have
alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for illumination of
difficult constitutional questions.
[43]
Accordingly, it has been held
that the interest of a person assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that
the law or any government act is invalid, but also that he sustained or
is in imminent danger of sustaining some direct injury as a result of
its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been
or is about to be denied some right or privilege to which he is lawfully
entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.
[44]

It is true that as early as in 1937, in People v. Vera,
[45]
the Court adopted the direct
injury test for determining whether a petitioner in a public action had locus standi.There, the
Court held that the person who would assail the validity of a statute must have a personal and

37

substantial interest in the case such that he has sustained, or will sustain direct injury as a
result. Vera was followed in Custodio v. President of the Senate,
[46]
Manila Race Horse
Trainers Association v. De la Fuente,
[47]
Anti-Chinese League of the Philippines v.
Felix,
[48]
and Pascual v. Secretary of Public Works.
[49]

Yet, the Court has also held that the requirement of locus standi, being a mere
procedural technicality, can be waived by the Court in the exercise of its discretion. For
instance, in 1949, in Araneta v. Dinglasan,
[50]
the Court liberalized the approach when the
cases had transcendental importance. Some notable controversies whose petitioners did not
pass the direct injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan.
[51]

In the 1975 decision in Aquino v. Commission on Elections,
[52]
this Court decided to resolve
the issues raised by the petition due to their far-reaching implications, even if the petitioner
had no personality to file the suit. The liberal approach of Aquino v. Commission on
Elections has been adopted in
several notable cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or validity of laws, regulations,
and rulings.
[53]

However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the petitioner
represents the public in general. Although such petitioner may not be as adversely affected by
the action complained against as are others, it is enough that he sufficiently demonstrates in
his petition that he is entitled to protection or relief from the Court in the vindication of a
public right.

Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to
gain locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest to
sue. In David v. Macapagal-Arroyo,
[54]
the Court aptly explains why:

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,
[55]
where it was held that the plaintiff in a taxpayers
suit is in a different category from the plaintiff in a citizens 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:
[56]
In matter of mere public right, howeverthe people are
the real partiesIt 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
taxpayers suits, Terr v. Jordan
[57]
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.
[58]

Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta
(G.R. No. 191149) all assert their right as citizens filing their petitions on behalf of the public
who are directly affected by the issue of the appointment of the next Chief Justice. De Castro
and Soriano further claim standing as taxpayers, with Soriano averring that he is affected by
the continuing proceedings in the JBC, which involve unnecessary, if not, illegal
disbursement of public funds.
[59]

PHILCONSA alleges itself to be a non-stock, non-profit organization existing under
the law for the purpose of defending, protecting, and preserving the Constitution and

38

promoting its growth and flowering. It also alleges that the Court has recognized its legal
standing to file cases on constitutional issues in several cases.
[60]

In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a
member of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa and
the Regular Batasang Pambansa, and former member of the Faculty of the College of Law of
the University of the Philippines.

The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the
legal standing to enjoin the submission of the list of nominees by the JBC to the President, for
[a]n adjudication of the proper interpretation and application of the constitutional ban on
midnight appointments with regard to respondent JBCs function in submitting the list of
nominees is well within the concern of petitioners, who are duty bound to ensure that
obedience and respect for the Constitution is upheld, most especially by government offices,
such as respondent JBC, who are specifically tasked to perform crucial functions in the whole
scheme of our democratic institution. They further allege that, reposed in them as members of
the Bar, is a clear legal interest in the process of selecting the members of the Supreme Court,
and in the selection of the Chief Justice, considering that the person appointed becomes a
member of the body that has constitutional supervision and authority over them and other
members of the legal profession.
[61]

The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues before
us are of transcendental importance to the people as a whole, and to the petitioners in
particular. Indeed, the issues affect everyone (including the petitioners), regardless of ones
personal interest in life, because they concern that great doubt about the authority of the
incumbent President to appoint not only the successor of the retiring incumbent Chief Justice,
but also others who may serve in the Judiciary, which already suffers from a far too great
number of vacancies in the ranks of trial judges throughout the country.

In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental importance, or
otherwise requires a liberalization of the requirement.
[62]

Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the
doubt now in order to remove any obstacle or obstruction to the resolution of the essential
issue squarely presented herein. We are not to shirk from discharging our solemn duty by
reason alone of an obstacle more technical than otherwise. In Agan, Jr. v.Philippine
International Air Terminals Co., Inc.,
[63]
we pointed out: Standing is a peculiar concept in
constitutional law because in some cases, suits are not brought by parties who have been
personally injured by the operation of a law or any other government act but by concerned
citizens, taxpayers or voters who actually sue in the public interest. But even if, strictly
speaking, the petitioners are not covered by the definition, it is still within the wide discretion
of the Court to waive the requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised.
[64]

Justiciability

Intervenor NUPL maintains that there is no actual case or controversy that is
appropriate or ripe for adjudication, considering that although the selection process

39

commenced by the JBC is going on, there is yet no final list of nominees; hence, there is no
imminent controversy as to whether such list must be submitted to the incumbent President, or
reserved for submission to the incoming President.

Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for
judicial determination, pointing out that petitioner De Castro has not even shown that the JBC
has already completed its selection process and is now ready to submit the list to the
incumbent President; and that petitioner De Castro is merely presenting a hypothetical
scenario that is clearly not sufficient for the Court to exercise its power of judicial review.

Intervenors Corvera and Lim separately opine that De Castros petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the Court to
exercise its power of judicial review.

Intervenor BAYAN et al. contend that the petitioners are seeking a mere advisory
opinion on what the JBC and the President should do, and are not invoking any issues that are
justiciable in nature.

Intervenors Bello et al. submit that there exist no conflict of legal rights and no
assertion of opposite legal claims in any of the petitions; that PHILCONSA does not allege
any action taken by the JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and interpretations of legal experts, or
associations of lawyers and law students on the issues published in the daily newspapers are
matters of paramount and transcendental importance to the bench, bar and general public;
that PHILCONSA fails not only to cite any legal duty or allege any failure to perform the
duty, but also to indicate what specific action should be done by the JBC; that Mendoza does
not even attempt to portray the matter as a controversy or conflict of rights, but, instead, prays
that the Court should rule for the guidance of the JBC; that the fact that the Court supervises
the JBC does not automatically imply that the Court can rule on the issues presented in the
Mendoza petition, because supervision involves oversight, which means that the subordinate
officer or body must first act, and if such action is not in accordance with prescribed rules,
then, and only then, may the person exercising oversight order the action to be redone to
conform to the prescribed rules; that the Mendoza petition does not allege that the JBC has
performed a specific act susceptible to correction for being illegal or unconstitutional; and that
the Mendoza petition asks the Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the state of the law in the absence
of an actual case or controversy.

We hold that the petitions set forth an actual case or controversy that is ripe for
judicial determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President for
consideration of which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the process of nomination
pursuant to its rules and practices, although it has yet to decide whether to submit the list of
nominees to the incumbent outgoing President or to the next President, makes the situation
ripe for judicial determination, because the next steps are the public interview of the
candidates, the preparation of the short list of candidates, and the interview of constitutional
experts, as may be needed.

A part of the question to be reviewed by the Court is whether the JBC properly
initiated the process, there being an insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is, after May 17, 2010). Another

40

part is, of course, whether the JBC may resume its process until the short list is prepared, in
view of the provision of Section 4(1), Article VIII, which unqualifiedly requires the President
to appoint one from the short list to fill the vacancy in the Supreme Court (be it the Chief
Justice or an Associate Justice) within 90 days from the occurrence of the vacancy.

The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to continue the
process until the submission of the list of nominees; the insistence of some of the petitioners to
compel the JBC through mandamus to submit the short list to the incumbent President; the
counter-insistence of the intervenors to prohibit the JBC from submitting the short list to the
incumbent President on the ground that said list should be submitted instead to the next
President; the strong position that the incumbent President is already prohibited under Section
15, Article VII from making any appointments, including those to the Judiciary, starting on
May 10, 2010 until June 30, 2010; and the contrary position that the incumbent President is
not so prohibited are only some of the real issues for determination. All such issues establish
the ripeness of the controversy, considering that for some the short list must be
submitted before the vacancy actually occurs by May 17, 2010. The outcome will not be an
abstraction, or a merely hypothetical exercise. The resolution of the controversy will surely
settle with finality the nagging questions that are preventing the JBC from moving on with
the process that it already began, or that are reasons persuading the JBC to desist from the rest
of the process.

We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one alleges
conduct arguably affected with a constitutional interest, but seemingly proscribed by the
Constitution. A reasonable certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for bringing a challenge, provided the
Court has sufficient facts before it to enable it to intelligently adjudicate the issues.
[65]
Herein,
the facts are not in doubt, for only legal issues remain.

Substantive Merits

I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary

Two constitutional provisions are seemingly in conflict.

The first, Section 15, Article VII (Executive Department), provides:

Section 15. Two months immediately before the next presidential
elections and up to the end of his term, a President or Acting President
shall not make appointments, except temporary appointments to executive
positions when continued vacancies therein will prejudice public service
or endanger public safety.

The other, Section 4 (1), Article VIII (Judicial Department), states:

Section 4. (1). The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven Members. Any vacancy shall
be filled within ninety days from the occurrence thereof.

In the consolidated petitions, the petitioners, with the exception of Soriano,
Tolentino and Inting, submit that the incumbent President can appoint the successor of Chief
Justice Puno upon his retirement on May 17, 2010, on the ground that the prohibition against

41

presidential appointments under Section 15, Article VII does not extend to appointments in the
Judiciary.

The Court agrees with the submission.

First. The records of the deliberations of the Constitutional Commission reveal that
the framers devoted time to meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and arrangement of the provisions of the
Constitution were not arbitrarily or whimsically done by the framers, but purposely made to
reflect their intention and manifest their vision of what the Constitution should contain.

The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative (Article
VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The arrangement
was a true recognition of the principle of separation of powers that underlies the political
structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy member of the
Court) explained in his sponsorship speech:

We have in the political part of this Constitution opted for the
separation of powers in government because we believe that the only way
to protect freedom and liberty is to separate and divide the awesome
powers of government. Hence, we return to the separation of powers
doctrine and the legislative, executive and judicial departments.
[66]

As can be seen, Article VII is devoted to the Executive Department, and, among
others, it lists the powers vested by the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.

Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4(1) and Section 9 of
this Article are the provisions specifically providing for the appointment of Supreme Court
Justices. In particular, Section 9 states that the appointment of Supreme Court Justices can
only be made by the President upon the submission of a list of at least three nominees by the
JBC; Section 4(1) of the Article mandates the President to fill the vacancy within90 days from
the occurrence of the vacancy.

Had the framers intended to extend the prohibition contained in Section 15, Article
VII to the appointment of Members of the Supreme Court, they could have explicitly done so.
They could not have ignored the meticulous ordering of the provisions. They would
have easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII itself,
most likely in Section 4 (1), Article VIII. That such specification was not done only reveals
that the prohibition against the President or Acting President making appointments within two
months before the next presidential elections and up to the end of the Presidents or Acting
Presidents term does not refer to the Members of the Supreme Court.

Although Valenzuela
[67]
came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the

42

deliberations of the Constitutional Commission. Thereby, the confirmation made to the JBC
by then Senior Associate Justice Florenz D. Regalado of this Court, a former member of the
Constitutional Commission, about the prohibition not being intended to apply to the
appointments to the Judiciary, which confirmation Valenzuela even expressly mentioned,
should prevail.

Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4
(1), Article VIII, viz:

V . Intent of the Constitutional Commission

The journal of the Commission which drew up the present
Constitution discloses that the original proposal was to have an eleven-
member Supreme Court. Commissioner Eulogio Lerum wanted to increase
the number of Justices to fifteen. He also wished to ensure that that
number would not be reduced for any appreciable length of time (even
only temporarily), and to this end proposed that any vacancy must be
filled within two months from the date that the vacancy occurs. His
proposal to have a 15-member Court was not initially adopted. Persisting
however in his desire to make certain that the size of the Court would not
be decreased for any substantial period as a result of vacancies, Lerum
proposed the insertion in the provision (anent the Courts membership) of
the same mandate that IN CASE OF ANY VACANCY, THE SAME
SHALL BE FILLED WITHIN TWO MONTHS FROM OCCURRENCE
THEREOF. He later agreed to suggestions to make the period three,
instead of two, months. As thus amended, the proposal was approved. As
it turned out, however, the Commission ultimately agreed on a fifteen-
member Court. Thus it was that the section fixing the composition of
the Supreme Court came to include a command to fill up any vacancy
therein within 90 days from its occurrence.

In this connection, it may be pointed out that that instruction that
any vacancy shall be filled within ninety days (in the last sentence of
Section 4 (1) of Article VIII) contrasts with the prohibition in Section 15,
Article VII, which is couched in stronger negative language - that a
President or Acting President shall not make appointments

The commission later approved a proposal of Commissioner
Hilario G. Davide, Jr. (now a Member of this Court) to add to what is now
Section 9 of Article VIII, the following paragraph: WITH RESPECT TO
LOWER COURTS, THE PRESIDENT SHALL ISSUE THE
APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE LIST (of nominees by the Judicial and Bar Council to the
President). Davide stated that his purpose was to provide a uniform rule
for lower courts. According to him, the 90-day period should be counted
from submission of the list of nominees to the President in view of the
possibility that the President might reject the list submitted to him and the
JBC thus need more time to submit a new one.

On the other hand, Section 15, Article VII - which in effect
deprives the President of his appointing power two months immediately
before the next presidential elections up to the end of his term - was
approved without discussion.
[68]

However, the reference to the records of the Constitutional Commission did not advance
or support the result in Valenzuela. Far to the contrary, the records disclosed the express intent
of the framers to enshrine in the Constitution, upon the initiative of Commissioner Eulogio
Lerum, a command [to the President] to fill up any vacancy therein within 90 days from its
occurrence, which even Valenzuela conceded.
[69]
The exchanges during deliberations of the
Constitutional Commission on October 8, 1986 further show that the filling of a vacancy in the
Supreme Court within the 90-day period was a true mandate for the President, viz:

MR. DE CASTRO. I understand that our justices now in the Supreme
Court, together with the Chief Justice, are only 11.

MR. CONCEPCION. Yes.

MR. DE CASTRO. And the second sentence of this subsection
reads: Any vacancy shall be filled within ninety days from the
occurrence thereof.

MR. CONCEPCION. That is right.

MR. DE CASTRO. Is this now a mandate to the executive to fill
the vacancy?

43

MR. CONCEPCION. That is right. That is borne out of the fact
that in the past 30 years, seldom has the Court had a complete
complement.
[70]

Moreover, the usage in Section 4(1), Article VIII of the word shall an imperative,
operating to impose a duty that may be enforced
[71]
should not be disregarded. Thereby,
Sections 4(1) imposes on the President the imperative duty to make an appointment of a
Member of the Supreme Court within 90 days from the occurrence of the vacancy. The failure
by the President to do so will be a clear disobedience to the Constitution.

The 90-day limitation fixed in Section 4(1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot be defeated by mere judicial
interpretation in Valenzuela to the effect that Section 15, Article VII prevailed because it was
couched in stronger negative language. Such interpretation even turned out to be
conjectural, in light of the records of the Constitutional Commissions deliberations on Section
4 (1), Article VIII.

How Valenzuela justified its pronouncement and result is hardly warranted.
According to an authority on statutory construction:
[72]

xxx the court should seek to avoid any conflict in the provisions of
the statute by endeavoring to harmonize and reconcile every part so that
each shall be effective. It is not easy to draft a statute, or any other writing
for that matter, which may not in some manner contain conflicting
provisions. But what appears to the reader to be a conflict may not have
seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what
appears to be on its face a conflict may be cleared up and the provisions
reconciled.

Consequently, that construction which will leave every word
operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. But a word should not be given
effect, if to do so gives the statute a meaning contrary to the intent of the
legislature. On the other hand, if full effect cannot be given to the words of
a statute, they must be made effective as far as possible. Nor should the
provisions of a statute which are inconsistent be harmonized at a sacrifice
of the legislative intention. It may be that two provisions are
irreconcilable; if so, the one which expresses the intent of the law-makers
should control. And the arbitrary rule has been frequently announced that
where there is an irreconcilable conflict between the different provisions
of a statute, the provision last in order of position will prevail, since it is
the latest expression of the legislative will. Obviously, the rule is subject
to deserved criticism. It is seldom applied, and probably then only where
an irreconcilable conflict exists between different sections of the same act,
and after all other means of ascertaining the meaning of the legislature
have been exhausted. Where the conflict is between two statutes, more
may be said in favor of the rules application, largely because of the
principle of implied repeal.

In this connection, PHILCONSAs urging of a revisit and a review of Valenzuela is
timely and appropriate. Valenzuela arbitrarily ignored the express intent of the Constitutional
Commission to have Section 4 (1), Article VIII stand independently of any other provision,
least of all one found in Article VII. It further ignored that the two provisions had no
irreconcilable conflict, regardless of Section 15, Article VII being couched in the negative. As
judges, we are not to unduly interpret, and should not accept an interpretation that defeats the
intent of the framers.
[73]

Consequently, prohibiting the incumbent President from appointing a Chief Justice on
the premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed.
[74]
It will not do to merely distinguishValenzuela from these
cases, for the result to be reached herein is entirely incompatible with

44

what Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.

We reverse Valenzuela.

Second. Section 15, Article VII does not apply as well to all other appointments in
the Judiciary.

There is no question that one of the reasons underlying the adoption of Section 15 as
part of Article VII was to eliminate midnight appointments from being made by
anoutgoing Chief Executive in the mold of the appointments dealt with in the leading case
of Aytona v. Castillo.
[75]
In fact, in Valenzuela, the Court so observed, stating that:

xxx it appears that Section 15, Article VII is directed against two
types of appointments: (1) those made for buying votes and (2) those made
for partisan considerations. The first refers to those appointments made
within the two months preceding a Presidential election and are similar to
those which are declared election offenses in the Omnibus Election
Code, viz.:

xxx

The second type of appointments prohibited by Section 15, Article
VII consists of the so-called midnight appointments. In Aytona v.
Castillo, it was held that after the proclamation of Diosdado Macapagal as
duly elected President, President Carlos P. Garcia, who was defeated in his
bid for reelection, became no more than a caretaker administrator whose
duty was to prepare for the orderly transfer of authority to the incoming
President. Said the Court:

The filling up of vacancies in important positions, if
few, and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for
the appointment and appointee's qualifications may
undoubtedly be permitted. But the issuance of 350
appointments in one night and the planned induction of
almost all of them in a few hours before the inauguration
of the new President may, with some reason, be regarded
by the latter as an abuse of Presidential prerogatives, the
steps taken being apparently a mere partisan effort to fill
all vacant positions irrespective of fitness and other
conditions, and thereby to deprive the new administration
of an opportunity to make the corresponding
appointments.

As indicated, the Court recognized that there may well be
appointments to important positions which have to be made even after the
proclamation of the new President. Such appointments, so long as they
are few and so spaced as to afford some assurance of deliberate
action and careful consideration of the need for the appointment and
the appointees qualifications, can be made by the outgoing
President. Accordingly, several appointments made by President Garcia,
which were shown to have been well considered, were upheld.

Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to contemplate
not only midnight appointments those made obviously for
partisan reasons as shown by their number and the time of their
making but also appointments presumed made for the purpose of
influencing the outcome of the Presidential election.

On the other hand, the exception in the same Section 15 of Article
VII allowing appointments to be made during the period of the ban
therein provided is much narrower than that recognized inAytona. The
exception allows only the making of temporary appointments
to executive positions when continued vacancies will prejudice public
service or endanger public safety. Obviously, the article greatly restricts
the appointing power of the President during the period of the ban.

Considering the respective reasons for the time frames for filling
vacancies in the courts and the restriction on the President's power of
appointment, it is this Courts view that, as a general proposition, in case
of conflict, the former should yield to the latter. Surely, the prevention of
vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary
vacancies can abide the period of the ban which, incidentally and as
earlier pointed out, comes to exist only once in every six
years. Moreover, those occurring in the lower courts can be filled
temporarily by designation. But prohibited appointments are long-lasting
and permanent in their effects. They may, as earlier pointed out, in fact

45

influence the results of elections and, for that reason, their making is
considered an election offense.
[76]

Given the background and rationale for the prohibition in Section 15, Article VII,
we have no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their establishment of the JBC and their
subjecting the nomination and screening of candidates for judicial positions to the unhurried
and deliberate prior process of the JBC ensured that there would no longer
bemidnight appointments to the Judiciary. If midnight appointments in the mold
of Aytona were made in haste and with irregularities, or made by an outgoing Chief Executive
in the last days of his administration out of a desire to subvert the policies of the incoming
President or for partisanship,
[77]
the appointments to the Judiciary made after the establishment
of the JBC would not be suffering from such defects because of the JBCs prior processing of
candidates. Indeed, it is axiomatic in statutory construction that the ascertainment of the
purpose of the enactment is a step in the process of ascertaining the intent or meaning of the
enactment, because the reason for the enactment must necessarily shed considerable light on
the law of the statute, i.e., the intent; hence, the enactment should be construed with
reference to its intended scope and purpose, and the court should seek to carry out this purpose
rather than to defeat it.
[78]

Also, the intervention of the JBC eliminates the danger that appointments to the
Judiciary can be made for the purpose of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the time of the establishment of the
JBC shows that even candidates for judicial positions at any level backed by people influential
with the President could not always be assured of being recommended for the consideration of
the President, because they first had to undergo the vetting of the JBC and pass muster
there. Indeed, the creation of the JBC was precisely intended to de-politicize the Judiciary by
doing away with the intervention of the Commission on Appointments. This insulating process
was absent from the Aytona midnight appointment.

Third. As earlier stated, the non-applicability of Section 15, Article VII to
appointments in the Judiciary was confirmed by then Senior Associate Justice Regalado to the
JBC itself when it met on March 9, 1998 to discuss the question raised by some sectors about
the constitutionality of xxx appointments to the Court of Appeals in light of the forthcoming
presidential elections. He assured that on the basis of the (Constitutional) Commissions
records, the election ban had no application to appointments to the Court of Appeals.
[79]
This
confirmation was accepted by the JBC, which then submitted to the President for
consideration the nominations for the eight vacancies in the Court of Appeals.
[80]

The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on interpretation to
determine the intent of the framers rather than on the deliberations of the Constitutional
Commission. Much of the unfounded doubt about the Presidents power to appoint during the
period of prohibition in Section 15, Article VII could have been dispelled since its
promulgation on November 9, 1998, had Valenzuela properly acknowledged and relied on the
confirmation of a distinguished member of the Constitutional Commission like Justice
Regalado.

Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section15, and
Section 16) concern the appointing powers of the President.


46

Section 14 speaks of the power of the succeeding President to revoke appointments
made by an Acting President,
[81]
and evidently refers only to appointments in the Executive
Department. It has no application to appointments in the Judiciary,
because temporary or acting appointments can only undermine the independence of the
Judiciary due to their being revocable at will.
[82]
The letter and spirit of the Constitution
safeguard that independence. Also, there is no law in the books that authorizes
the revocation of appointments in the Judiciary. Prior to their mandatory retirement or
resignation, judges of the first and second level courts and the Justices of the third level courts
may only be removed for cause, but the Members of the Supreme Court may be removed only
by impeachment.

Section 16 covers only the presidential appointments that require confirmation by
the Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement was
removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the restored
requirement did not include appointments to the Judiciary.
[83]

Section 14, Section 15, and Section 16 are obviously of the same character, in that
they affect the power of the President to appoint. The fact that Section 14 and Section 16 refer
only to appointments within the Executive Department renders conclusive that Section 15 also
applies only to the Executive Department. This conclusion is consistent with the rule that
every part of the statute must be interpreted with reference to the context, i.e. that every part
must be considered together with the other parts, and kept subservient to the general intent of
the whole enactment.
[84]
It is absurd to assume that the framers deliberately situated Section
15 between Section 14 and Section 16, if they intended Section 15 to cover all kinds of
presidential appointments. If that was their intention in respect of appointments to the
Judiciary, the framers, if only to be clear, would have easily and surely inserted a similar
prohibition in Article VIII, most likely within Section 4 (1) thereof.

Fifth. To hold like the Court did in Valenzuela that Section 15 extends to
appointments to the Judiciary further undermines the intent of the Constitution of ensuring the
independence of the Judicial Department from the Executive and Legislative Departments.
Such a holding will tie the Judiciary and the Supreme Court to the fortunes or misfortunes of
political leaders vying for the Presidency in a presidential election. Consequently, the wisdom
of having the new President, instead of the current incumbent President, appoint the next Chief
Justice is itself suspect, and cannot ensure judicial independence, because the appointee can
also become beholden to the appointing authority. In contrast, the appointment by the
incumbent President does not run the same risk of compromising judicial independence,
precisely because her term will end by June 30, 2010.

Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief Justice
Puno within the context of Section 4 (1), Article VIII, because anyway there will still be about
45 days of the 90 days mandated in Section 4(1), Article VIII remaining.

The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Punos retirement by May 17, 2010. It ignores the need to apply Section
4(1) to every situation of a vacancy in the Supreme Court.

The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4(1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.

47

Section 4 (3), Article VII requires the regular elections to be held on the second
Monday of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If
the regular presidential elections are held on May 8, the period of the prohibition is 115 days.
If such elections are held on May 14, the period of the prohibition is 109 days. Either period of
the prohibition is longer than the full mandatory 90-day period to fill the vacancy in the
Supreme Court. The result is that there are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of 109 days and the 90-day
mandatory period for appointments) in which the outgoing President would be in no position
to comply with the constitutional duty to fill up a vacancy in the Supreme Court. It is safe to
assume that the framers of the Constitution could not have intended such an absurdity. In fact,
in their deliberations on the mandatory period for the appointment of Supreme Court Justices
under Section 4 (1), Article VIII, the framers neither discussed, nor mentioned, nor referred to
the ban against midnight appointments under Section 15, Article VII, or its effects on the 90-
day period, or vice versa. They did not need to, because they never intended Section 15,
Article VII to apply to a vacancy in the Supreme Court, or in any of the lower courts.

Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on
whether a JBC list is necessary at all for the President any President to appoint a Chief
Justice if the appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:

xxx. The Members of the Supreme Court xxx shall be appointed by
the President from a list of at least three nominees prepared by the Judicial
and Bar Council for any vacancy. Such appointments need no
confirmation.
xxx

The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of candidates
for the Supreme Court, not of those who are already members or sitting justices of the Court,
all of whom have previously been vetted by the JBC.

Can the President, therefore, appoint any of the incumbent Justices of the Court as
Chief Justice?

The question is not squarely before us at the moment, but it should lend itself to a
deeper analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enriles
statement that the President can appoint the Chief Justice from among the sitting justices of
the Court even without a JBC list.

II
The Judiciary Act of 1948

The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still address
the situation of having the next President appoint the successor.

Section 12 of the Judiciary Act of 1948 states:

Section 12. Vacancy in Office of Chief Justice. In case of a
vacancy in the office of Chief Justice of the Supreme Court or of his
inability to perform the duties and powers of his office, they shall devolve

48

upon the Associate Justice who is first in precedence, until such disability
is removed, or another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who succeeds to the office
of Chief Justice.

The provision calls for an Acting Chief Justice in the event of a vacancy in the office
of the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers of the office of the Chief
Justice shall devolve upon the Associate Justice who is first in precedence until a new Chief
Justice is appointed or until the disability is removed.

Notwithstanding that there is no pressing need to dwell on this peripheral matter after
the Court has hereby resolved the question of consequence, we do not find it amiss to confront
the matter now.

We cannot agree with the posture.

A review of Sections 4(1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the
President from a list of at least three nominees prepared by the JBC for every vacancy, which
appointments require no confirmation by the Commission on Appointments. With reference to
the Chief Justice, he or she is appointed by the President as Chief Justice, and the appointment
is never in an acting capacity. The express reference to a Chief Justice abhors the idea that the
framers contemplated an Acting Chief Justice to head the membership of the Supreme Court.
Otherwise, they would have simply written so in the Constitution. Consequently, to rely on
Section 12 of the Judiciary Act of 1948 in order to forestall the imperative need to appoint the
next Chief Justice soonest is to defy the plain intent of the Constitution.

For sure, the framers intended the position of Chief Justice to be permanent, not one
to be occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare situation
in which the new Chief Justice is not yet appointed, or in which the incumbent Chief Justice is
unable to perform the duties and powers of the office. It ought to be remembered, however,
that it was enacted because the Chief Justice appointed under the 1935 Constitution was
subject to the confirmation of the Commission on Appointments, and the confirmation process
might take longer than expected.

The appointment of the next Chief Justice by the incumbent President is preferable
to having the Associate Justice who is first in precedence take over. Under the Constitution,
the heads of the Legislative and Executive Departments are popularly elected, and whoever
are elected and proclaimed at once become the leaders of their respective Departments.
However, the lack of any appointed occupant of the office of Chief Justice harms the
independence of the Judiciary, because the Chief Justice is the head of the entire Judiciary.
The Chief Justice performs functions absolutely significant to the life of the nation. With the
entire Supreme Court being the Presidential Electoral Tribunal, the Chief Justice is the
Chairman of the Tribunal. There being no obstacle to the appointment of the next Chief
Justice, aside from its being mandatory for the incumbent President to make within the 90-day
period from May 17, 2010, there is no justification to insist that the successor of Chief Justice
Puno be appointed by the next President.

Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the

49

appointment to and assumption of office of his successor, on the other hand. As summarized
in the comment of the OSG, the chronology of succession is as follows:

1. When Chief Justice Claudio Teehankee retired on April 18, 1988,
Chief Justice Pedro Yap was appointed on the same day;

2. When Chief Justice Yap retired on July 1, 1988, Chief Justice
Marcelo Fernan was appointed on the same day;

3. When Chief Justice Fernan resigned on December 7, 1991, Chief
Justice Andres Narvasa was appointed the following day, December
8, 1991;

4. When Chief Justice Narvasa retired on November 29, 1998, Chief
Justice Hilario Davide, Jr. was sworn into office the following early
morning of November 30, 1998;

5. When Chief Justice Davide retired on December 19, 2005, Chief
Justice Artemio Panganiban was appointed the next day, December
20, 2005; and

6. When Chief Justice Panganiban retired on December 6, 2006, Chief
Justice Reynato S. Puno took his oath as Chief Justice
at midnight of December 6, 2006.
[85]

III
Writ of mandamusdoes not lie against the JBC

May the JBC be compelled to submit the list of nominees to the President?

Mandamus shall issue when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act that the law specifically enjoins as a duty
resulting from an office, trust, or station.
[86]
It is proper when the act against which it is
directed is one addressed to the discretion of the tribunal or officer. Mandamus is not available
to direct the exercise of a judgment or discretion in a particular way.
[87]

For mandamus to lie, the following requisites must be complied with: (a) the plaintiff
has a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform
the act, because it is mandated by law; (c) the defendant unlawfully neglects the performance
of the duty enjoined by law; (d) the act to be performed is ministerial, not discretionary; and
(e) there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of
law.

Section 8(5) and Section 9, Article VIII, mandate the JBC to submit a list of at least
three nominees to the President for every vacancy in the Judiciary:

Section 8. xxx

(5) The Council shall have the principal function of
recommending appointees to the Judiciary. xxx

Section 9. The Members of the Supreme Court and judges of lower
courts shall be appointed by the President from a list of at least three
nominees prepared by the Judicial and Bar Council for every
vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue the appointments
within ninety days from the submission of the list.

However, Section 4(1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and within
90 days from the submission of the list, in the case of the lower courts. The 90-day period is
directed at the President, not at the JBC. Thus, the JBC should start the process of selecting the
candidates to fill the vacancy in the Supreme Court before the occurrence of the vacancy.


50

Under the Constitution, it is mandatory for the JBC to submit to the President the list
of nominees to fill a vacancy in the Supreme Court in order to enable the President to appoint
one of them within the 90-day period from the occurrence of the vacancy. The JBC has no
discretion to submit the list to the President after the vacancy occurs, because that shortens the
90-day period allowed by the Constitution for the President to make the appointment. For the
JBC to do so will be unconscionable on its part, considering that it will
thereby effectively and illegally deprive the President of the ample time granted under the
Constitution to reflect on the qualifications of the nominees named in the list of the JBC
before making the appointment.

The duty of the JBC to submit a list of nominees before the start of the Presidents
mandatory 90-day period to appoint is ministerial, but its selection of the candidates whose
names will be in the list to be submitted to the President lies within the discretion of the JBC.
The object of the petitions for mandamus herein should only refer to the duty to submit to the
President the list of nominees for every vacancy in the Judiciary, because in order to constitute
unlawful neglect of duty, there must be an unjustified delay in performing that
duty.
[88]
For mandamus to lie against the JBC, therefore, there should be an unexplained delay
on its part in recommending nominees to the Judiciary, that is, in submitting the list to the
President.

The distinction between a ministerial act and a discretionary one has been delineated
in the following manner:

The distinction between a ministerial and discretionary act is well
delineated. A purely ministerial act or duty is one which an officer or
tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the
exercise of his own judgment upon the propriety or impropriety of the
act done. If the law imposes a duty upon a public officer and gives him
the right to decide how or when the duty shall be performed, such
duty is discretionary and not ministerial. The duty is ministerial only
when the discharge of the same requires neither the exercise of official
discretion or judgment.
[89]

Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to
issue a writ of mandamus against the JBC. The actions for that purpose are premature, because
it is clear that the JBC still has until May 17, 2010, at the latest, within which to submit the list
of nominees to the President to fill the vacancy created by the compulsory retirement of Chief
Justice Puno.

IV
Writ of prohibition does not lie against the JBC

In light of the foregoing disquisitions, the conclusion is ineluctable that only the
President can appoint the Chief Justice. Hence, Sorianos petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening in the process of nominating the
successor of Chief Justice Puno, lacks merit.

On the other hand, the petition for prohibition in G.R. No. 191342 is similarly
devoid of merit. The challenge mounted against the composition of the JBC based on the
allegedly unconstitutional allocation of a vote each to the ex officio members from the Senate
and the House of Representatives, thereby prejudicing the chances of some candidates for
nomination by raising the minimum number of votes required in accordance with the rules of
the JBC, is not based on the petitioners actual interest, because they have not alleged in their

51

petition that they were nominated to the JBC to fill some vacancies in the Judiciary. Thus, the
petitioners lack locus standi on that issue.

WHEREFORE, the Court:

1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and
G.R. No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;

2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No.
191342 for lack of merit; and

3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial
and Bar Council:

(a) To resume its proceedings for the nomination of candidates to fill the
vacancy to be created by the compulsory retirement of Chief Justice
Reynato S. Puno byMay 17, 2010;

(b) To prepare the short list of nominees for the position of Chief Justice;

(c) To submit to the incumbent President the short list of nominees for the
position of Chief Justice on or before May 17, 2010; and

(d) To continue its proceedings for the nomination of candidates to fill
other vacancies in the Judiciary and submit to the President the short
list of nominees corresponding thereto in accordance with this
decision.

SO ORDERED.
EN BANC
[G.R. No. 147780. May 10, 2001]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ, P/DIRECTOR
LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.
[G.R. No. 147781. May 10, 2001]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES, Secretary of
National Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO PEREZ,
GENERAL DIOMEDIO VILLANUEVA, P/DIR. LEANDRO MENDOZA and
P/SR. SUPT. REYNALDO BERROYA, respondents.
[G.R. No. 147810. May 10, 2001]

52

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE DEPARTMENT
OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES
OF THE PHILIPPINES, GENERAL DIOMEDIO VILLANUEVA, THE
PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDRO
MENDOZA, respondents.
R E S O L U T I O N
MELO, J .:
On May 1, 2001, President Macapagal-Arroyo, faced by an angry and violent mob
armed with explosives, firearms, bladed weapons, clubs, stones and other deadly weapons
assaulting and attempting to break into Malacaang, issued Proclamation No. 38 declaring that
there was a state of rebellion in the National Capital Region. She likewise issued General
Order No. 1 directing the Armed Forces of the Philippines and the Philippine National Police
to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged
leaders and promoters of the rebellion were thereafter effected.
Aggrieved by the warrantless arrests, and the declaration of a state of rebellion, which
allegedly gave a semblance of legality to the arrests, the following four related petitions were
filed before the Court-
(1) G.R. No. 147780 for prohibition, injunction, mandamus, and habeas corpus (with an
urgent application for the issuance of temporary restraining order and/or writ of preliminary
injunction) filed by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2)
G.R. No. 147781 for mandamus and/or review of the factual basis for the suspension of the
privilege of the writ of habeas corpus, with prayer for a temporary restraining order filed by
Miriam Defensor-Santiago; (3) G.R. No. 147799 for prohibition and injunction with prayer for
a writ of preliminary injunction and/or restraining order filed by Rolando A. Lumbao; and (4)
G.R. No. 147810 for certiorari and prohibition filed by the political party Laban ng
Demokratikong Pilipino.
All the foregoing petitions assail the declaration of a state of rebellion by President
Gloria Macapagal-Arroyo and the warrantless arrests allegedly effected by virtue thereof, as
having no basis both in fact an in law. Significantly, on May 6, 2001, President Macapagal-
Arroyo ordered the lifting of the declaration of a state of rebellion in Metro
Manila. Accordingly, the instant petitions have been rendered moot and academic. As to
petitioners claim that the proclamation of a state of rebellion is being used by the
authorities to justify warrantless arrests, the Secretary of Justice denies that it has issued a
particular order to arrest specific persons in connection with the rebellion. He states that
what is extant are general instructions to law enforcement officers and military agencies to
implement Proclamation No. 38. Indeed, as stated in respondents Joint Comments:
[I]t is already the declared intention of the Justice Department and police authorities to
obtain regular warrants of arrests from the courts for all acts committed prior to and
until May 1, 2001 which means that preliminary investigators will henceforth be
conducted.
(Comment, G.R. No. 147780, p.
28; G.R. No. 147781, p. 18; G.R.
No. 147799, p. 16; G.R. No.
147810, p. 24)
With this declaration, petitioners apprehensions as to warrantless arrests should be laid
to rest.
In quelling or suppressing the rebellion, the authorities may only resort to warrantless
arrests of persons suspected of rebellion, as provided under Section 5, Rule 113 of the Rules of
Court, if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus,
not based on the declaration of a state of rebellion.
Moreover, petitioners contention in G.R. No. 147780 (Lacson Petition), 147781
(Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent
danger of being arrested without warrant do not justify their resort to the extraordinary
remedies of mandamus and prohibition, since an individual subjected to warrantless arrest is
not without adequate remedies in the ordinary course of law. Such an individual may ask for a
preliminary investigation under Rule 112 of the Rules of court, where he may adduce evidence
in his defense, or he may submit himself to inquest proceedings to determine whether or not
he should remain under custody and correspondingly be charged in court. Further, a person
subject of a warrantless arrest must be delivered to the proper judicial authorities within the
periods provided in Article 125 of the Revised Penal Code, otherwise the arresting officer
could be held liable for delay in the delivery of detained persons. Should the detention be
without legal ground, the person arrested can charge the arresting officer with arbitrary
detention. All this is without prejudice to his filing an action for damages against the arresting
officer under Article 32 of the Civil Code. Verily, petitioners have a surfeit of other remedies
which they can avail themselves of, thereby making the prayer for prohibition
and mandamus improper at this time (Sections 2 and 3, Rule 65, Rules of Court).
Aside from the foregoing reasons, several considerations likewise inevitably call for the
dismissal of the petitions at bar.
G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson,
Aquino, and Mancao pray that the appropriate court before whom the informations against
petitioners are filed be directed to desist from arraigning and proceeding with the trial of the
case, until the instant petition is finally resolved. This relief is clearly premature considering

53

that as of this date, no complaints or charges have been filed against any of the petitioners for
any crime. And in the event that the same are later filed, this court cannot enjoin criminal
prosecution conducted in accordance with the Rules of Court, for by that time any arrest
would have been in pursuance of a duly issued warrant.
As regards petitioners prayer that the hold departure orders issued against them be
declared null and void ab initio, it is to be noted that petitioners are not directly assailing the
validity of the subject hold departure orders in their petition. The are not even expressing
intention to leave the country in the near future. The prayer to set aside the same must be
made in proper proceedings initiated for that purpose.
Anent petitioners allegations ex abundante ad cautelam in support of their application
for the issuance of a writ of habeas corpus, it is manifest that the writ is not called for since its
purpose is to relieve petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA 149
[1991]), a matter which remains speculative up to this very day.
G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one
for mandamus. It is basic in matters relating to petitions for mandamus that the legal right of
the petitioner to the performance of a particular act which is sought to be compelled must be
clear and complete. Mandamus will not issue the right to relief is clear at the time of the
award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the present time, petitioner Defensor-
Santiago has not shown that she is in imminent danger of being arrested without a warrant. In
point of fact, the authorities have categorically stated that petitioner will not be arrested
without a warrant.
G.R. No. 147799

Petitioner Lumbao, leader of the Peoples Movement against Poverty (PMAP), for his
part, argues that the declaration of a state of rebellion is violative of the doctrine of
separation of powers, being an encroachment on the domain of the judiciary which has the
constitutional prerogative to determine or interpret what took place on May 1, 2001, and that
the declaration of a state of rebellion cannot be an exception to the general rule on the
allocation of the governmental powers.
We disagree. To be sure, section 18, Article VII of the Constitution expressly provides
that [t]he 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 thus, we held in Integrated Bar of the Philippines v.
Hon. Zamora, (G.R. No. 141284, August 15, 2000):
xxx The factual necessity of calling out the armed forces is not easily quantifiable and cannot
be objectively established since matters considered for satisfying the same is a combination of
several factors which are not always accessible to the courts. Besides the absence of testual
standards that the court may use to judge necessity, information necessary to arrive at such
judgment might also prove unmanageable for the courts. Certain pertinent information
necessary to arrive at such judgment might also prove unmanageable for the courts. Certain
pertinent information might be difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that there is a need to call out
the armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence network to
gather information, some of which may be classified as highly confidential or affecting the
security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and mass
destruction of property. xxx
(at
pp. 22-23)
The Court, in a proper case, may look into the sufficiency of the factual basis of the
exercise of this power. However, this is no longer feasible at this time, Proclamation No. 38
having been lifted.
G.R. No. 147810

Petitioner Laban ng Demoktratikong Pilipino is not a real party-in-interest. The rule
requires that a party must show a personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision so as to warrant an invocation of the
courts jurisdiction and to justify the exercise of the courts remedial powers in his behalf
(KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]). Here, petitioner has not
demonstrated any injury to itself which would justify resort to the Court. Petitioner is a
juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless
arrest. Nor is it alleged that its leaders, members, and supporters are being threatened with
warrantless arrest and detention for the crime of rebellion. Every action must be brought in
the name of the party whose legal right has been invaded or infringed, or whose legal right is
under imminent threat of invasion or infringement.

54

At best, the instant petition may be considered as an action for declaratory relief,
petitioner claiming that its right to freedom of expression and freedom of assembly is affected
by the declaration of a state of rebellion and that said proclamation is invalid for being
contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords little comfort to
petitioner, this Court not having jurisdiction in the first instance over such a petition. Section
5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases
affecting ambassadors, other public ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
WHEREFORE, premises considered, the petitions are hereby DISMISSED. However,
in G.R. No. 147780, 147781, and 147799, respondents, consistent and congruent with their
undertaking earlier adverted to, together with their agents, representatives, and all persons
acting for and in their behalf, are hereby enjoined from arresting petitioners therein without
the required judicial warrant for all acts committed in relation to or in connection with the
May 1, 2001 siege of Malacaang.
SO ORDERED.

[G.R. No. 147780. May 10, 2001.]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO
,
petitioners

vs
. SECRETARYHERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT.
REYNALDOBERROYA
,
respondents

FACTS:
On May 1, 2001, President Macapagal-Arroyo, faced by an armed mob assaulting
andattempting to break into Malacaang, issued Proclamation No. 38 declaring
that there was a state of rebellion in NCR. She also issued General Order No. 1
directing the AFP and the PNP to suppress therebellion. Warrantless arrests of
several alleged leaders and promoters of the "rebellion" followed. Aggrieved, 4
related petitions were filed before the Court. The case at bar is for
prohibition,injunction,
mandamus
, and
habeas corpus
(with an urgent application for the issuance of temporaryrestraining order
and/or writ of preliminary injunction). Petitioners assail the declaration of a
state of rebellion by PGMA and the warrantless arrests allegedly effected by
virtue thereof, as having no basisboth in fact and in law.On May 6, 2001, PGMA
ordered the lifting of the declaration of a "state of rebellion" in MetroManila.
Accordingly, the instant petitions have been rendered moot and academic. As to
petitioners'claim that the proclamation of a "state of rebellion" is being used by
the authorities to justifywarrantless arrests, the Secretary of Justice denies
that it has issued a particular order to arrest specificpersons in connection with
the "rebellion."
ISSUE:
Whether or not there is a valid warrantless arrest against the petitioners.
HELD:
No. In quelling or suppressing the rebellion, the authorities may only resort to
warrantlessarrests of persons suspected of rebellion, as provided under Section
5, Rule 113 of the Rules of Court, if the circumstances so warrant. The
warrantless arrest feared by petitioners is, thus, not based on thedeclaration of
a "state of rebellion." Petitioners' contention that they are under imminent
danger of being arrested without warrant do not justify their resort to the
extraordinary remediesof
mandamus
and prohibition, since an individual subjected to warrantless arrest is not
withoutadequate remedies in the ordinary course of law. The prayer for
prohibition and
mandamus
is improperat this time. As regards petitioners' prayer that the hold departure
orders issued against them be declarednull and void
ab initio
, it is to be noted that petitioners are not directly assailing the validity of
thesubject hold departure orders in their petition. They are not even expressing
intention to leave thecountry in the near future. The prayer to set aside the
same must be made in proper proceedingsinitiated for that purpose. Anent
petitioners' allegations
ex abundante ad cautelam
in support of their application for theissuance of a writ of
habeas corpus

55

, it is manifest that the writ is not called for since its purpose is torelieve
petitioners from unlawful restraint, a matter which remains speculative up to
this very day. Petition is DISMISSED. However, respondents, consistent and
congruent with their undertakingearlier adverted to, together with their agents,
representatives, and all persons acting for and in theirbehalf, are hereby
enjoined from arresting petitioners therein without the required judicial warrant
forall acts committed in relation to or in connection with the May 1, 2001 siege
of Malacaang.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as represented by Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA
L. MAZA,
Petitioner,

- versus -

ALBERTO ROMULO, in his capacity as Executive
Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs,
Respondents.
G.R. No. 159618

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:

February 1, 2011
x-----------------------------------------------------------------------------------------x

D E C I S I O N
VELASCO, JR., J .:

The Case

This petition
[1]
for certiorari, mandamus and prohibition under Rule 65 assails and
seeks to nullify the Non-Surrender Agreement concluded by and between the Republic of the
Philippines (RP) and the United States of America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group established to represent
the marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the
Secretary of Foreign Affairs during the period material to this case. Respondent Alberto
Romulo was impleaded in his capacity as then Executive Secretary.
[2]

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute
[3]
establishing
the International Criminal Court (ICC) with the power to exercise its jurisdiction over
persons for the most serious crimes of international concern x x x and shall be complementary
to the national criminal jurisdictions.
[4]
The serious crimes adverted to coverthose
considered grave under international law, such as genocide, crimes against humanity, war
crimes, and crimes of aggression.
[5]

On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo,
signed the Rome Statute which, by its terms, is subject to ratification, acceptance or
approval by the signatory states.
[6]
As of the filing of the instant petition, only 92 out of

56

the 139 signatory countries appear to have completed the ratification, approval and
concurrence process. The Philippines is not among the 92.

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note
No. 0470 to the Department of Foreign Affairs (DFA) proposing the terms of the non-
surrender bilateral agreement (Agreement, hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-03
[7]
dated May 13, 2003 (E/N BFO-028-03,
hereinafter), the RP, represented by then DFA Secretary Ople, agreed with and accepted the
US proposals embodied under the US Embassy Note adverted to and put in effect
the Agreement with the US government. In esse, the Agreement aims to protect what it refers
to and defines as persons of the RP and US from frivolous and harassment suits that might
be brought against them in international tribunals.
[8]
It is reflective of the increasing pace of
the strategic security and defense partnership between the two countries. As of May 2, 2003,
similar bilateral agreements have been effected by and between theUS and 33 other
countries.
[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or
former Government officials, employees (including contractors), or
military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall
not, absent the express consent of the first Party,

(a) be surrendered or transferred by any means to any
international tribunal for any purpose, unless such tribunal
has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other
entity or third country, or expelled to a third country, for
the purpose of surrender to or transfer to any international
tribunal, unless such tribunal has been established by the
UN Security Council.

3. When the [US] extradites, surrenders, or otherwise transfers a
person of the Philippines to a third country, the [US] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the
Republic of the Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers
a person of the [USA] to a third country, the [GRP] will not agree to the
surrender or transfer of that person by the third country to any
international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the
[US].

5. This Agreement shall remain in force until one year after the
date on which one party notifies the other of its intent to terminate the
Agreement. The provisions of this Agreement shall continue to apply with
respect to any act occurring, or any allegation arising, before the effective
date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of
the non-surrender agreement, Ambassador Ricciardone replied in his letter of October 28,
2003 that the exchange of diplomatic notes constituted a legally binding agreement under
international law; and that, under US law, the said agreement did not require the advice and
consent of the US Senate.
[10]

In this proceeding, petitioner imputes grave abuse of discretion to respondents in
concluding and ratifying the Agreement and prays that it be struck down as unconstitutional,
or at least declared as without force and effect.


57

For their part, respondents question petitioners standing to maintain a suit and
counter that the Agreement, being in the nature of an executive agreement, does not require
Senate concurrence for its efficacy. And for reasons detailed in their comment, respondents
assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA]
SECRETARY x x x GRAVELY ABUSED THEIR DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR
CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13
MAY 2003, WHEN THE PHILIPPINE GOVERNMENT HAS
ALREADY SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE
PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents
gravely abused their discretion when they capriciously
abandoned, waived and relinquished our only legitimate
recourse through the Rome Statute of the [ICC] to prosecute and
try persons as defined in the x x x Agreement, x x x or
literally any conduit of American interests, who have committed
crimes of genocide, crimes against humanity, war crimes and the
crime of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome
Statute of the [ICC] the [RP] President and the [DFA] Secretary
x x x are obliged by the principle of good faith to refrain from
doing all acts which would substantially impair the value of the
undertaking as signed.

C. Whether the x x x Agreement constitutes an act which defeats
the object and purpose of the Rome Statute of the International
Criminal Court and contravenes the obligation of good faith
inherent in the signature of the President affixed on the Rome
Statute of the International Criminal Court, and if so whether
the x x x Agreement is void and unenforceable on this ground.

D. Whether the RP-US Non-Surrender Agreement is void and
unenforceable for grave abuse of discretion amounting to lack or
excess of jurisdiction in connection with its execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS
VOID AB INITIO FOR CONTRACTING OBLIGATIONS
THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES
OF INTERNATIONAL LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND
EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST
TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE
SENATE x x x.
[11]

The foregoing issues may be summarized into two: first, whether or not
the Agreement was contracted validly, which resolves itself into the question of whether or not
respondents gravely abused their discretion in concluding it; and second, whether or not
the Agreement, which has not been submitted to the Senate for concurrence, contravenes and
undermines the Rome Statute and other treaties. But because respondents expectedly raised it,
we shall first tackle the issue of petitioners legal standing.
The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the
validity or invalidity of the Agreement carries with it constitutional significance and is of
paramount importance that justifies its standing. Cited in this regard is what is usually

58

referred to as the emergency powers cases,
[12]
in which ordinary citizens and taxpayers were
accorded the personality to question the constitutionality of executive issuances.

Locus standi is a right of appearance in a court of justice on a given
question.
[13]
Specifically, it is a partys personal and substantial interest in a case where he
has sustained or will sustain direct injury as a result
[14]
of the act being challenged, and calls
for more than just a generalized grievance.
[15]
The term interest refers to material interest,
as distinguished from one that is merely incidental.
[16]
The rationale for requiring a party who
challenges the validity of a law or international agreement to allege such a personal stake in
the outcome of the controversy is to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.
[17]

Locus standi, however, is merely a matter of procedure and it has been recognized
that, in some cases, suits are not brought by parties who have been personally injured by the
operation of a law or any other government act, but by concerned citizens, taxpayers, or voters
who actually sue in the public interest.
[18]
Consequently, in a catena of cases,
[19]
this Court has
invariably adopted a liberal stance on locus standi.

Going by the petition, petitioners representatives pursue the instant suit primarily as
concerned citizens raising issues of transcendental importance, both for the Republic and the
citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action,
a petitioner needs to meet certain specific requirements before he can be clothed with
standing. Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc.
[20]
expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers
and legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing
the constitutionality of a statute must be direct and personal. He must be
able to show, not only that the law or any government act is invalid, but
also that he sustained or is in imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that he suffers thereby
in some indefinite way. It must appear that the person complaining has
been or is about to be denied some right or privilege to which he is
lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of. In fine, when the
proceeding involves the assertion of a public right, the mere fact that he is
a citizen satisfies the requirement of personal interest.
[21]

In the case at bar, petitioners representatives have complied with the qualifying
conditions or specific requirements exacted under the locus standi rule. As citizens, their
interest in the subject matter of the petition is direct and personal. At the very least, their
assertions questioning the Agreement are made of a public right, i.e., to ascertain that
theAgreement did not go against established national policies, practices, and obligations
bearing on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at
hand impels the Court to brush aside the procedural barrier posed by the traditional
requirement of locus standi, as we have done in a long line of earlier cases, notably in the old
but oft-cited emergency powers cases
[22]
and Kilosbayan v. Guingona, Jr.
[23]
In cases of
transcendental importance, we wrote again in Bayan v. Zamora,
[24]
The Court may relax the

59

standing requirements and allow a suit to prosper even where there is no direct injury to the
party claiming the right of judicial review.

Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not
shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in
matters that involve grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department of the government,
[25]
we
cannot but resolve head on the issues raised before us. Indeed, where an action of any branch
of government is seriously alleged to have infringed the Constitution or is done with grave
abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle
it. As in this petition, issues are precisely raised putting to the fore the propriety of
the Agreement pending the ratification of the Rome Statute.

Validity of the RP-US Non-Surrender Agreement

Petitioners initial challenge against the Agreement relates to form, its threshold
posture being that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized
international doctrines, practices, and jargonsis untenable. One of these is the doctrine of
incorporation, as expressed in Section 2, Article II of the Constitution, wherein the Philippines
adopts the generally accepted principles of international law and international jurisprudence as
part of the law of the land and adheres to the policy of peace, cooperation, and amity with all
nations.
[26]
An exchange of notes falls into the category of inter-governmental
agreements,
[27]
which is an internationally accepted form of international agreement. The
United Nations Treaty Collections (Treaty Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement, that
has many similarities with the private law contract. The agreement
consists of the exchange of two documents, each of the parties being in the
possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State
to record its assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of exchange of
notes is frequently resorted to, either because of its speedy procedure, or,
sometimes, to avoid the process of legislative approval.
[28]

In another perspective, the terms exchange of notes and executive agreements
have been used interchangeably, exchange of notes being considered a form of executive
agreement that becomes binding through executive action.
[29]
On the other hand, executive
agreements concluded by the President sometimes take the form of exchange of notes and at
other times that of more formal documents denominated agreements or protocols.
[30]
As
former US High Commissioner to the Philippines Francis B. Sayre observed in his work, The
Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other
governments ends and agreements whether denominated executive
agreements or exchange of notes or otherwise begin, may sometimes be
difficult of ready ascertainment.
[31]
x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed
as the Non-Surrender Agreement itself, or as an integral instrument of acceptance thereof or as
consent to be boundis a recognized mode of concluding a legally binding international
written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an
international agreement concluded between states in written form and governed by

60

international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.
[32]
International agreements may be in
the form of (1) treaties that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not require legislative
concurrence and are usually less formal and deal with a narrower range of subject matters than
treaties.
[33]

Under international law, there is no difference between treaties and executive
agreements in terms of their binding effects on the contracting states concerned,
[34]
as long as
the negotiating functionaries have remained within their powers.
[35]
Neither, on the domestic
sphere, can one be held valid if it violates the Constitution.
[36]
Authorities are, however, agreed
that one is distinct from another for accepted reasons apart from the concurrence-requirement
aspect.
[37]
As has been observed by US constitutional scholars, a treaty has greater dignity
than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people;
[38]
a ratified treaty,
unlike an executive agreement, takes precedence over any prior statutory enactment.
[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it
does of the nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner
takes a cue from Commissioner of Customs v. Eastern Sea Trading, in which the Court
reproduced the following observations made by US legal scholars: [I]nternational agreements
involving political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties [while] those
embodying adjustments of detail carrying out well established national policies and traditions
and those involving arrangements of a more or less temporary nature take the form of
executive agreements.
[40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall
under any of the subject-categories that are enumerated in the Eastern Sea Trading case, and
that may be covered by an executive agreement, such as commercial/consular relations, most-
favored nation rights, patent rights, trademark and copyright protection, postal and navigation
arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of
Zambales and Merchant,
[41]
holding that an executive agreement through an exchange of notes
cannot be used to amend a treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast
rules on the propriety of entering, on a given subject, into a treaty or an executive agreement
as an instrument of international relations. The primary consideration in the choice of the
form of agreement is the parties intent and desire to craft an international agreement in the
form they so wish to further their respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an
executive agreement, as the parties in either international agreement each labor under
the pacta sunt servanda
[42]
principle.

As may be noted, almost half a century has elapsed since the Court rendered its
decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more
complex and the domain of international law wider, as to include such subjects as human

61

rights, the environment, and the sea. In fact, in the US alone, the executive agreements
executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific
cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation,
and nuclear safety, among others.
[43]
Surely, the enumeration in Eastern Sea Trading cannot
circumscribe the option of each state on the matter of which the international agreement
format would be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
x x x It would be useless to undertake to discuss here the large
variety of executive agreements as such concluded from time to time.
Hundreds of executive agreements, other than those entered into under the
trade-agreement act, have been negotiated with foreign governments. x x x
They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom
matters and commercial relations generally, international claims, postal
matters, the registration of trademarks and copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-
authorized
[44]
or a treaty-implementing executive agreement,
[45]
which necessarily would cover
the same matters subject of the underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution
[46]
when a
treaty is required, the Constitution does not classify any subject, like that involving political
issues, to be in the form of, and ratified as, a treaty. What the Constitution merely prescribes
is that treaties need the concurrence of the Senate by a vote defined therein to complete the
ratification process.

Petitioners reliance on Adolfo
[47]
is misplaced, said case being inapplicable owing to
different factual milieus. There, the Court held that an executive agreement cannot be used to
amend a duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive
agreement that does not require the concurrence of the Senate for its ratification may not be
used to amend a treaty that, under the Constitution, is the product of the ratifying acts of the
Executive and the Senate. The presence of a treaty, purportedly being subject to amendment
by an executive agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third
main issue raised, referring to the validity and effectivity of the Agreement without the
concurrence by at least two-thirds of all the members of the Senate. The Court has,
in Eastern Sea Trading,
[48]
as reiterated in Bayan,
[49]
given recognition to the obligatory effect
of executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding
agreements without the necessity of subsequent Congressional approval
has been confirmed by long usage. From the earliest days of our history,
we have entered executive agreements covering such subjects as
commercial and consular relations, most favored-nation rights, patent
rights, trademark and copyright protection, postal and navigation
arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.

The Agreement Not in Contravention of the Rome Statute

It is the petitioners next contention that the Agreement undermines the
establishment of the ICC and is null and void insofar as it unduly restricts the ICCs
jurisdiction and infringes upon the effectivity of the Rome Statute. Petitioner posits that
the Agreement was constituted solely for the purpose of providing individuals or groups of
individuals with immunity from the jurisdiction of the ICC; and such grant of immunity
through non-surrender agreements allegedly does not legitimately fall within the scope of Art.

62

98 of theRome Statute. It concludes that state parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, thereby constituting a
breach of Arts. 27,
[50]
86,
[51]
89
[52]
and 90
[53]
thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to
ensure that those responsible for the worst possible crimes are brought to justice in all cases,
primarily by states, but as a last resort, by the ICC; thus, any agreementlike the non-
surrender agreementthat precludes the ICC from exercising its complementary function of
acting when a state is unable to or unwilling to do so, defeats the object and purpose of the
Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of
a signatory of the Rome Statute, are obliged by the imperatives of good faith to refrain from
performing acts that substantially devalue the purpose and object of the Statute, as
signed. Adding a nullifying ingredient to the Agreement, according to petitioner, is the fact
that it has an immoral purpose or is otherwise at variance with a priorly executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or undermine,
nor does it differ from, the Rome Statute. Far from going against each other, one
complements the other. As a matter of fact, the principle of complementarity underpins the
creation of the ICC. As aptly pointed out by respondents and admitted by petitioners, the
jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of the
signatory states].
[54]
Art. 1 of the Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby
established. It x x x shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to
national criminal jurisdictions. The jurisdiction and functioning of the
Court shall be governed by the provisions of this Statute. (Emphasis
ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is
the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. This provision indicates that primary jurisdiction over the so-called
international crimes rests, at the first instance, with the state where the crime was committed;
secondarily, with the ICC in appropriate situations contemplated under Art. 17, par. 1
[55]
of
the Rome Statute.

Of particular note is the application of the principle of ne bis in idem
[56]
under par. 3
of Art. 20, Rome Statute, which again underscores the primacy of the jurisdiction of a state
vis-a-vis that of the ICC. As far as relevant, the provision states that no person who has been
tried by another court for conduct x x x [constituting crimes within its jurisdiction] shall be
tried by the [International Criminal] Court with respect to the same conduct x x x.

The foregoing provisions of the Rome Statute, taken collectively, argue against the
idea of jurisdictional conflict between the Philippines, as party to the non-surrender
agreement, and the ICC; or the idea of the Agreement substantially impairing the value of the
RPs undertaking under the Rome Statute. Ignoring for a while the fact that the RP signed the
Rome Statute ahead of the Agreement, it is abundantly clear to us that the Rome Statute
expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes

63

committed within their respective borders, the complementary jurisdiction of the ICC coming
into play only when the signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering
into the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention
[57]
to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing in
the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome
Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring person,
should the process require the requested state to perform an act that would violate some
international agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which
reads:

Article 98

Cooperation with respect to waiver of immunity
and consent to surrender

x x x x

2. The Court may not proceed with a request for
surrender which would require the requested State to act
inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to
surrender a person of that State to the Court, unless the Court can first
obtain the cooperation of the sending State for the giving of consent
for the surrender.

Moreover, under international law, there is a considerable difference between a
State-Party and a signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a
signatory state is only obliged to refrain from acts which would defeat the object and purpose
of a treaty;
[58]
whereas a State-Party, on the other hand, is legally obliged to follow all the
provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the
Rome Statute and not a State-Party for lack of ratification by the Senate. Thus, it is only
obliged to refrain from acts which would defeat the object and purpose of the Rome Statute.
Any argument obliging the Philippines to follow any provision in the treaty would be
premature.

As a result, petitioners argument that State-Parties with non-surrender agreements
are prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86,
89 and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not
incompatible with the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting
State is a State not Party to this Statute the requested State, if it is not under an international
obligation to extradite the person to the requesting State, shall give priority to the request for
surrender from the Court. x x x In applying the provision, certain undisputed facts should be
pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute;
and second, there is an international agreement between the US and the Philippines regarding
extradition or surrender of persons, i.e., the Agreement. Clearly, even assuming that the
Philippines is a State-Party, the Rome Statute still recognizes the primacy of international
agreements entered into between States, even when one of the States is not a State-Party to the
Rome Statute.


64

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its
sovereignty by bargaining away the jurisdiction of the ICC to prosecute US nationals,
government officials/employees or military personnel who commit serious crimes of
international concerns in the Philippines. Formulating petitioners argument a bit differently,
the RP, by entering into the Agreement, does thereby abdicate its sovereignty, abdication being
done by its waiving or abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and
confirmance of the Philippines national criminal jurisdiction. National criminal jurisdiction
being primary, as explained above, it is always the responsibility and within the prerogative of
the RP either to prosecute criminal offenses equally covered by the Rome Statute or to accede
to the jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the US, as
the term is understood in the Agreement, under our national criminal justice system. Or it may
opt not to exercise its criminal jurisdiction over its erring citizens or over US persons
committing high crimes in the country and defer to the secondary criminal jurisdiction of the
ICC over them. As to persons of the US whom the Philippines refuses to prosecute, the
country would, in effect, accord discretion to the US to exercise either its national criminal
jurisdiction over the person concerned or to give its consent to the referral of the matter to
the ICC for trial. In the same breath, the US must extend the same privilege to
the Philippines with respect to persons of the RP committing high crimes
within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to
the Philippines agreeing to undertake the things set forth in the Agreement. Surely, one State
can agree to waive jurisdictionto the extent agreed uponto subjects of another State due to
the recognition of the principle of extraterritorial immunity. What the Court wrote in Nicolas
v. Romulo
[59]
a case involving the implementation of the criminal jurisdiction provisions of
the RP-US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements
recognizing immunity from jurisdiction or some aspects of jurisdiction
(such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. x x
x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated
on the postulate that some of its provisions constitute a virtual abdication of its
sovereignty. Almost every time a state enters into an international agreement, it voluntarily
sheds off part of its sovereignty. The Constitution, as drafted, did not envision a
reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to
the policy of cooperation and amity with all nations.
[60]

By their nature, treaties and international agreements actually have a limiting effect
on the otherwise encompassing and absolute nature of sovereignty. By their voluntary act,
nations may decide to surrender or waive some aspects of their state power or agree to limit
the exercise of their otherwise exclusive and absolute jurisdiction. The usual underlying
consideration in this partial surrender may be the greater benefits derived from a pact or a
reciprocal undertaking of one contracting party to grant the same privileges or immunities to

65

the other. On the rationale that the Philippines has adopted the generally accepted principles
of international law as part of the law of the land, a portion of sovereignty may be waived
without violating the Constitution.
[61]
Such waiver does not amount to an unconstitutional
diminution or deprivation of jurisdiction of Philippine courts.
[62]

Agreement Not Immoral/Not at Variance
with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing
immoral obligations and/or being at variance with allegedly universally recognized principles
of international law. The immoral aspect proceeds from the fact that the Agreement, as
petitioner would put it, leaves criminals immune from responsibility for unimaginable
atrocities that deeply shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.
[63]

The above argument is a kind of recycling of petitioners earlier position, which, as
already discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.
[64]

The Court is not persuaded. Suffice it to state in this regard that the non-surrender
agreement, as aptly described by the Solicitor General, is an assertion by the Philippinesof its
desire to try and punish crimes under its national law. x x x The agreement is a recognition of
the primacy and competence of the countrys judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing high crimes of international
concern to escape criminal trial and punishment. This is manifestly incorrect. Persons who
may have committed acts penalized under the Rome Statute can be prosecuted and punished in
the Philippines or in the US; or with the consent of the RP or the US, before the ICC,
assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome
Statute have been met. For perspective, what the Agreement contextually prohibits is the
surrender by either party of individuals to international tribunals, like the ICC, without the
consent of the other party, which may desire to prosecute the crime under its existing
laws. With the view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the
non-surrender agreement over an offense considered criminal by both Philippine laws and the
Rome Statute.

No Grave Abuse of Discretion

Petitioners final point revolves around the necessity of the Senates concurrence in
the Agreement. And without specifically saying so, petitioner would argue that the non-
surrender agreement was executed by the President, thru the DFA Secretary, in grave abuse of
discretion.

The Court need not delve on and belabor the first portion of the above posture of
petitioner, the same having been discussed at length earlier on. As to the second portion, We
wish to state that petitioner virtually faults the President for performing, through respondents,
a task conferred the President by the Constitutionthe power to enter into international
agreements.

66

By constitutional fiat and by the nature of his or her office, the President, as head of
state and government, is the sole organ and authority in the external affairs of the
country.
[65]
The Constitution vests in the President the power to enter into international
agreements, subject, in appropriate cases, to the required concurrence votes of the Senate. But
as earlier indicated, executive agreements may be validly entered into without such
concurrence. As the President wields vast powers and influence, her conduct in the external
affairs of the nation is, as Bayan would put it, executive altogether. The right of the
President to enter into or ratify binding executive agreements has been confirmed by long
practice.
[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President
Gloria Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the
scope of the authority and discretion vested in her by the Constitution. At the end of the day,
the Presidentby ratifying, thru her deputies, the non-surrender agreementdid nothing more
than discharge a constitutional duty and exercise a prerogative that pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other
issues raised herein, it may perhaps be pertinent to remind all and sundry that about the time
this petition was interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office
of the Executive Secretary.
[67]
As the Court emphasized in said case, the power to ratify a
treaty, the Statute in that instance, rests with the President, subject to the concurrence of the
Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President
is his or her prerogative to refuse to submit a treaty to the Senate; or having secured the latters
consent to the ratification of the treaty, refuse to ratify it.
[68]
This prerogative, the Court
hastened to add, is the Presidents alone and cannot be encroached upon via a writ of
mandamus. Barring intervening events, then, the Philippines remains to be just a signatory to
the Rome Statute. Under Art. 125
[69]
thereof, the final acts required to complete the treaty
process and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be
done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No.
(RA) 9851, otherwise known as the Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity. Sec. 17 of RA 9851,
particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine
authorities maydispense with the investigation or prosecution of a crime
punishable under this Act if another court or international tribunal is
already conducting the investigation or undertaking the prosecution of
such crime. Instead, the authorities maysurrender or extradite
suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the
applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the
States obligation in relation to grave crimes against the law of nations, i.e., genocide, crimes
against humanity and war crimes. Relying on the above-quoted statutory proviso, the view
posits that the Philippine is required to surrender to the proper international tribunal those
persons accused of the grave crimes defined under RA 9851, if it does not exercise its primary
jurisdiction to prosecute them.

67

The basic premise rests on the interpretation that if it does not decide to prosecute a
foreign national for violations of RA 9851, the Philippines has only two options, to wit: (1)
surrender the accused to the proper international tribunal; or (2) surrender the accused to
another State if such surrender is pursuant to the applicable extradition laws and
treaties. But the Philippines may exercise these options only in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution of
such crime; otherwise, the Philippines must prosecute the crime before its own courts
pursuant to RA 9851.

Posing the situation of a US national under prosecution by an international tribunal
for any crime under RA 9851, the Philippines has the option to surrender such USnational to
the international tribunal if it decides not to prosecute such US national here. The view asserts
that this option of the Philippines under Sec. 17 of RA 9851 is not subject to the consent of
the US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent of
the US before the Philippines can exercise such option, requires an amendatory law. In line
with this scenario, the view strongly argues that the Agreement prevents the Philippines
without the consent of the USfrom surrendering to any international tribunal US nationals
accused of crimes covered by RA 9851, and, thus, in effect amends Sec. 17 of RA
9851. Consequently, the view is strongly impressed that theAgreement cannot be embodied in
a simple executive agreement in the form of an exchange of notes but must be implemented
through an extradition law or a treaty with the corresponding formalities.

Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the generally accepted
principles of international law as part of the law of the land, the Court is further
impressed to perceive the Rome Statute as declaratory of customary international law. In
other words, the Statute embodies principles of law which constitute customary international
law or custom and for which reason it assumes the status of an enforceable domestic law in the
context of the aforecited constitutional provision. As a corollary, it is argued that any
derogation from the Rome Statute principles cannot be undertaken via a mere executive
agreement, which, as an exclusive act of the executive branch, can only implement, but cannot
amend or repeal, an existing law. The Agreement, so the argument goes, seeks to frustrate the
objects of the principles of law or alters customary rules embodied in the Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the
concurrence of the Senate, the theory being that a Senate- ratified treaty partakes of the nature
of a municipal law that can amend or supersede another law, in this instance Sec. 17 of RA
9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec.
2, Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that
the Agreement does not amend or is repugnant to RA 9851. For another, the view does not
clearly state what precise principles of law, if any, the Agreement alters. And for a third, it
does not demonstrate in the concrete how the Agreement seeks to frustrate the objectives of
the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome
Statute as the former merely reinforces the primacy of the national jurisdiction of the US and

68

the Philippines in prosecuting criminal offenses committed by their respective citizens
and military personnel, among others. The jurisdiction of the ICC pursuant to the Rome
Statute over high crimes indicated thereat is clearly and unmistakably complementary to the
national criminal jurisdiction of the signatory states.

Moreover, RA 9851 clearly: (1) defines and establishes the crimes against
international humanitarian law, genocide and other crimes against humanity;
[70]
(2) provides
penal sanctions and criminal liability for their commission;
[71]
and (3) establishes special
courts for the prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.
[72]
Nowhere in RA 9851 is there a proviso that goes against the tenor of
the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851
as requiring the Philippine State to surrender to the proper international tribunal those persons
accused of crimes sanctioned under said law if it does not exercise its primary jurisdiction to
prosecute such persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to surrender or not a person accused of
the crimes under RA 9851. The statutory proviso uses the word may. It is settled doctrine
in statutory construction that the word may denotes discretion, and cannot be construed as
having mandatory effect.
[73]
Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when
the Philippines does not exercise its primary jurisdiction in cases where another court or
international tribunal is already conducting the investigation or undertaking the prosecution of
such crime, still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said
legal proviso aptly provides that the surrender may be made to another State pursuant to the
applicable extradition laws and treaties. The Agreement can already be considered a treaty
following this Courts decision in Nicolas v. Romulo
[74]
which cited Weinberger v.
Rossi.
[75]
In Nicolas, We held that an executive agreement is a treaty within the meaning of
that word in international law and constitutes enforceable domestic law vis--vis the United
States.
[76]

Likewise, the Philippines and the US already have an existing extradition treaty, i.e.,
RP-US Extradition Treaty, which was executed on November 13, 1994. The pertinent
Philippine law, on the other hand, is Presidential Decree No. 1069, issued on January 13,
1977. Thus, the Agreement, in conjunction with the RP-US Extradition Treaty, would neither
violate nor run counter to Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda
[77]
is similarly improper. In that case, several
petitions were filed questioning the power of the President to enter into foreign loan
agreements. However, before the petitions could be resolved by the Court, the Office of the
Solicitor General filed a Manifestation and Motion averring that the Philippine Government
decided not to continue with the ZTE National Broadband Network Project, thus rendering the
petition moot. In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed moot.
Accordingly, it dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal
implications of an executive agreement. He stated that an executive agreement has the force
and effect of law x x x [it] cannot amend or repeal prior laws.
[78]
Hence, this argument finds
no application in this case seeing as RA 9851 is a subsequent law, not a prior one. Notably,
this argument cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA
9851 for the reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense
shall be an extraditable offense if it is punishableunder the laws in both Contracting
Parties x x x,
[79]
and thereby concluding that while the Philippines has criminalized under
RA 9851 the acts defined in the Rome Statute as war crimes, genocide and other crimes
against humanity, there is no similar legislation in the US. It is further argued that, citing U.S.

69

v. Coolidge, in the US, a person cannot be tried in the federal courts for an international crime
unless Congress adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes
mentioned earlier. In fact, as early as October 2006, the US enacted a law criminalizing war
crimes. Section 2441, Chapter 118, Part I, Title 18 of the United States Code Annotated
(USCA) provides for the criminal offense of war crimes which is similar to the war crimes
found in both the Rome Statute and RA 9851, thus:

(a) Offense Whoever, whether inside or outside the United States,
commits a war crime, in any of the circumstances described in
subsection (b), shall be fined under this title or imprisoned for life or
any term of years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are
that the person committing such war crime or the victim of such war
crime is a member of the Armed Forces of the United States or a
national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any
conduct
(1) Defined as a grave breach in any of the international conventions
signed at Geneva 12 August 1949, or any protocol to such
convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the
Hague Convention IV, Respecting the Laws and Customs of
War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as
defined in subsection [d]) when committed in the context of and
in association with an armed conflict not of an international
character; or
(4) Of a person who, in relation to an armed conflict and contrary to
the provisions of the Protocol on Prohibitions or Restrictions on
the Use of Mines, Booby-Traps and Other Devices as amended
at Geneva on 3 May 1996 (Protocol II as amended on 3 May
1996), when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.
[80]

Similarly, in December 2009, the US adopted a law that criminalized genocide, to
wit:

1091. Genocide

(a) Basic Offense Whoever, whether in the time of
peace or in time of war and with specific intent to destroy, in
whole or in substantial part, a national, ethnic, racial or religious
group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental
faculties of members of the group through drugs, torture, or
similar techniques;
(4) subjects the group to conditions of life that are
intended to cause the physical destruction of the group in
whole or in part;
(5) imposes measures intended to prevent births within the
group; or
(6) transfers by force children of the group to another
group;
shall be punished as provided in subsection (b).
[81]

Arguing further, another view has been advanced that the current US laws do not
cover every crime listed within the jurisdiction of the ICC and that there is a gap between the
definitions of the different crimes under the US laws versus the Rome Statute. The view used
a report written by Victoria K. Holt and Elisabeth W. Dallas, entitled On Trial: The US
Military and the International Criminal Court, as its basis.

At the outset, it should be pointed out that the report used may not have any weight or
value under international law. Article 38 of the Statute of the International Court of Justice
(ICJ) lists the sources of international law, as follows: (1) international conventions, whether
general or particular, establishing rules expressly recognized by the contesting states; (2)
international custom, as evidence of a general practice accepted as law; (3) the general
principles of law recognized by civilized nations; and (4) subject to the provisions of Article
59, judicial decisions and the teachings of the most highly qualified publicists of the

70

various nations, as subsidiary means for the determination of rules of law. The report does
not fall under any of the foregoing enumerated sources. It cannot even be considered as the
teachings of highly qualified publicists. A highly qualified publicist is a scholar of public
international law and the term usually refers to legal scholars or academic writers.
[82]
It has
not been shown that the authors
[83]
of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the
definitions of the crimes are nonexistent. To highlight, the table below shows the definitions
of genocide and war crimes under the Rome Statute vis--vis the definitions under US laws:

Rome Statute US Law
Article 6
Genocide
For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm
to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole
or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the
group to another group.
1091. Genocide

(a) Basic Offense Whoever, whether in
the time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members
of that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or
similar techniques;
(4) subjects the group to conditions of life
that are intended to cause the physical
destruction of the group in whole or in
part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group
to another group;
shall be punished as provided in subsection
(b).
Article 8
War Crimes
2. For the purpose of this Statute, war
crimes means:
(a) Definition As used in this Section the
term war crime means any conduct
(1) Defined as a grave breach in any of
the international conventions signed
(a) Grave breaches of the Geneva
Conventions of 12 August 1949, namely,
any of the following acts against persons or
property protected under the provisions of
the relevant Geneva Convention: x x x
[84]

(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework
of international law, namely, any of the
following acts:
x x x x
(c) In the case of an armed conflict not of an
international character, serious violations of
article 3 common to the four Geneva
Conventions of 12 August 1949, namely,
any of the following acts committed against
persons taking no active part in the
hostilities, including members of armed
forces who have laid down their arms and
those placed hors de combat by sickness,
wounds, detention or any other cause:
x x x x
(d) Paragraph 2 (c) applies to armed
conflicts not of an international character
and thus does not apply to situations of
internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence
or other acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not of
an international character, within the
established framework of international law,
namely, any of the following acts: x x x.
at Geneva12 August 1949, or any
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28
of the Annex to the Hague Convention
IV, Respecting the Laws and Customs
of War on Land, signed 18 October
1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d]
[85]
) when committed in
the context of and in association with
an armed conflict not of an
international character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the Use
of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3
May 1996 (Protocol II as amended on
3 May 1996), when the United States
is a party to such Protocol, willfully
kills or causes serious injury to
civilians.
[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit:

Few believed there were wide differences between the crimes
under the jurisdiction of the Court and crimes within the Uniform Code of
Military Justice that would expose US personnel to the Court.
Since US military lawyers were instrumental in drafting the elements of
crimes outlined in the Rome Statute, they ensured that most of the crimes
were consistent with those outlined in the UCMJ and gave strength to

71

complementarity for the US. Small areas of potential gaps between the
UCMJ and the Rome Statute, military experts argued, could be addressed
through existing military laws.
[87]
x x x

The report went on further to say that [a]ccording to those involved, the elements
of crimes laid out in the Rome Statute have been part of US military doctrine for
decades.
[88]
Thus, the argument proffered cannot stand.

Nonetheless, despite the lack of actual domestic legislation, the US notably follows
the doctrine of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete
Habana
[89]
case already held international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction as
often as questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be
had to the customs and usages of civilized nations, and, as evidence of
these, to the works of jurists and commentators who by years of labor,
research, and experience have made themselves peculiarly well acquainted
with the subjects of which they treat. Such works are resorted to by
judicial tribunals, not for the speculations of their authors concerning what
the law ought to be, but for the trustworthy evidence of what the law really
is.
[90]
(Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of
domestic legislation. The cited ruling in U.S. v. Coolidge,
[91]
which in turn is based on the
holding in U.S. v. Hudson,
[92]
only applies to common law and not to the law of nations or
international law.
[93]
Indeed, the Court in U.S. v. Hudson only considered the question,
whether the Circuit Courts of the United States can exercise a common law jurisdiction in
criminal cases.
[94]
Stated otherwise, there is no common law crime in theUS but this is
considerably different from international law.

The US doubtless recognizes international law as part of the law of the land,
necessarily including international crimes, even without any local statute.
[95]
In fact, years
later, US courts would apply international law as a source of criminal liability despite the lack
of a local statute criminalizing it as such. So it was that in Ex Parte Quirin
[96]
the US Supreme
Court noted that [f]rom the very beginning of its history this Court has recognized and
applied the law of war as including that part of the law of nations which prescribes, for the
conduct of war, the status, rights and duties of enemy nations as well as of enemy
individuals.
[97]
It went on further to explain that Congress had not undertaken the task of
codifying the specific offenses covered in the law of war, thus:

It is no objection that Congress in providing for the trial of such
offenses has not itself undertaken to codify that branch of
international law or to mark its precise boundaries, or to enumerate
or define by statute all the acts which that law condemns. An Act of
Congress punishing the crime of piracy as defined by the law of nations is
an appropriate exercise of its constitutional authority, Art. I, s 8, cl. 10, to
define and punish the offense since it has adopted by reference the
sufficiently precise definition of international law. x x x Similarly by the
reference in the 15th Article of War to offenders or offenses that x x x by
the law of war may be triable by such military commissions. Congress has
incorporated by reference, as within the jurisdiction of military
commissions, all offenses which are defined as such by the law of war x x
x, and which may constitutionally be included within that jurisdiction.
[98]
x
x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has
been held that genocide, war crimes and crimes against humanity have attained the status of
customary international law. Some even go so far as to state that these crimes have attained
the status of jus cogens.
[99]

Customary international law or international custom is a source of international law
as stated in the Statute of the ICJ.
[100]
It is defined as the general and consistent practice of
states recognized and followed by them from a sense of legal obligation.
[101]
In order to
establish the customary status of a particular norm, two elements must concur: State practice,
the objective element; and opinio juris sive necessitates, the subjective element.
[102]


72

State practice refers to the continuous repetition of the same or similar kind of acts
or norms by States.
[103]
It is demonstrated upon the existence of the following elements: (1)
generality; (2) uniformity and consistency; and (3) duration.
[104]
While, opinio juris, the
psychological element, requires that the state practice or norm be carried out in such a way,
as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule
of law requiring it.
[105]

The term jus cogens means the compelling law.
[106]
Corollary, a jus
cogens norm holds the highest hierarchical position among all other customary norms and
principles.
[107]
As a result, jus cogens norms are deemed peremptory and non-
derogable.
[108]
When applied to international crimes, jus cogens crimes have been deemed so
fundamental to the existence of a just international legal order that states cannot derogate from
them, even by agreement.
[109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any
state may exercise jurisdiction over an individual who commits certain heinous and widely
condemned offenses, even when no other recognized basis for jurisdiction exists.
[110]
The
rationale behind this principle is that the crime committed is so egregious that it is considered
to be committed against all members of the international community
[111]
and thus granting
every State jurisdiction over the crime.
[112]

Therefore, even with the current lack of domestic legislation on the part of the US, it
still has both the doctrine of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal,
found in the Rome Statute is not declaratory of customary international law.

The first element of customary international law, i.e., established, widespread, and
consistent practice on the part of States,
[113]
does not, under the premises, appear to be
obtaining as reflected in this simple reality: As of October 12, 2010, only 114
[114]
States have
ratified the Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July
1, 2002. The fact that 114 States out of a total of 194
[115]
countries in the world, or roughly
58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles
contained in the Statute have attained the status of customary law and should be deemed as
obligatory international law. The numbers even tend to argue against the urgency of
establishing international criminal courts envisioned in the Rome Statute. Lest it be
overlooked, the Philippines, judging by the action or inaction of its top officials, does not even
feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed
since the Philippine representative signed the Statute, but the treaty has not been transmitted to
the Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of
the concurring elements, thus:

Custom or customary international law means a general and
consistent practice of states followed by them from a sense of legal
obligation [opinio juris] x x x. This statement contains the two basic
elements of custom: the material factor, that is how the states behave, and
the psychological factor or subjective factor, that is, why they behave the
way they do.

x x x x

The initial factor for determining the existence of custom is the
actual behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

x x x x

Duration therefore is not the most important element. More
important is the consistency and the generality of the practice. x x x

x x x x

Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it obligatory

73

to behave thus or do they do it only as a matter of courtesy? Opinio juris,
or the belief that a certain form of behavior is obligatory, is what makes
practice an international rule. Without it, practice is not
law.
[116]
(Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice,
among the different countries in the world that the prosecution of internationally recognized
crimes of genocide, etc. should be handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or
the psychological element must be deemed non-existent, for an inquiry on why states behave
the way they do presupposes, in the first place, that they are actually behaving, as a matter of
settled and consistent practice, in a certain manner. This implicitly requires belief that the
practice in question is rendered obligatory by the existence of a rule of law requiring
it.
[117]
Like the first element, the second element has likewise not been shown to be present.

Further, the Rome Statute itself rejects the concept of universal jurisdiction over the
crimes enumerated therein as evidenced by it requiring State consent.
[118]
Even further,
the Rome Statute specifically and unequivocally requires that: This Statute is subject to
ratification, acceptance or approval by signatory States.
[119]
These clearly negate the
argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be
afforded great respect. The power to enter into executive agreements has long been recognized
to be lodged with the President. As We held in Neri v. Senate Committee on Accountability of
Public Officers and Investigations, [t]he power to enter into an executive agreement is in
essence an executive power. This authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence.
[120]
The rationale behind this principle is the inviolable doctrine of separation
of powers among the legislative, executive and judicial branches of the government. Thus,
absent any clear contravention of the law, courts should exercise utmost caution in declaring
any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US
Non-Surrender Agreement ought to be in the form of a treaty, to be effective, has to be
rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition is
hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

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