Atty. Evillo C. Pormento v. Joseph Ejercito "Erap" Estrada and Comelec, G.R.

No. 191988, August 31, 2010

RESOLUTION
I.

CORONA, C.J.:

THE FACTS

Private respondent Joseph Erap Ejercito Estrada was elected President of the
Republic of the Philippines in the general elections held on May 11, 1998. He was
however ousted [resigned according to the decision of the Supreme Court in
Estrada vs. Arroyo, G.R. No. 146738, March 2, 2001] from office and was not able to
finish his term. He sought the presidency again in the general elections held on May
10, 2010. Petitioner Atty. Evillo C. Pormento opposed Eraps candidacy and filed a
petition for the latters disqualification, which was however denied by the COMELEC
2nd Division. His motion for reconsideration was subsequently denied by the
COMELEC en banc.
Petitioner filed the instant petition for certiorari 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.
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 President in the May 10, 2010 elections where he
garnered the second highest number of votes.
II.

principles or rules of law which cannot affect the result as to the thing in issue in the
case before it. In other words, when a case is moot, it becomes non-justiciable.

THE ISSUE

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 re-election?
III. THE RULING
[The petition was DENIED DUE COURSE and thereby DISMISSED by the Supreme
Court.]
Private respondent was not elected President the second time he ran [in the May
2010 elections]. 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. There is in this case no definite, concrete, real or
substantial controversy that touches on the legal relations of parties having adverse
legal interests. No specific relief may conclusively be decreed upon by this Court in
this case that will benefit any of the parties herein. 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. The Court is
not empowered to decide moot questions or abstract propositions, or to declare

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.

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.

ROMULO L. NERI, petitioner vs. SENATE COMMITTEE ON ACCOUNTABILITY

OF PUBLIC OFFICERS AND INVESTIGATIONS, SENATE COMMITTEE ON
TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL DEFENSE
AND SECURITY
G.R. No. 180643, March 25, 2008

FACTS: On April 21, 2007, the Department of Transportation and Communication

(DOTC) entered into a contract with Zhong Xing Telecommunications Equipment
(ZTE) for the supply of equipment and services for the National Broadband Network
(NBN) Project in the amount of U.S. $ 329,481,290 (approximately P16 Billion
Pesos). The Project was to be financed by the Peoples Republic of China.
The Senate passed various resolutions relative to the NBN deal. In the September
18, 2007 hearing Jose de Venecia III testified that several high executive officials and
power brokers were using their influence to push the approval of the NBN Project by
the NEDA.
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He
appeared in one hearing wherein he was interrogated for 11 hrs and during which he
admitted that Abalos of COMELEC tried to bribe him with P200M in exchange for his
approval of the NBN project. He further narrated that he informed President Arroyo
about the bribery attempt and that she instructed him not to accept the bribe.

However, when probed further on what they discussed about the NBN Project,
petitioner refused to answer, invoking executive privilege. In particular, he refused to
answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the senate
averring that the communications between GMA and Neri are privileged and that the
jurisprudence laid down in Senate vs Ermita be applied. He was cited in contempt of
respondent committees and an order for his arrest and detention until such time that
he would appear and give his testimony.

HELD:

The communications are covered by executive privilege.

The revocation of EO 464 (advised executive officials and employees to follow and
abide by the Constitution, existing laws and jurisprudence, including, among others,
the case of Senate v. Ermita when they are invited to legislative inquiries in aid of
legislation.), does not in any way diminish the concept of executive privilege. This is
because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to the President,
such as the area of military and foreign relations. Under our Constitution, the
President is the repository of the commander-in-chief, appointing, pardoning, and
diplomatic powers. Consistent with the doctrine of separation of powers, the
information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications
privilege:
1) The protected communication must relate to a quintessential and non-delegable
presidential power.
2) The communication must be authored or solicited and received by a close advisor
of the President or the President himself. The judicial test is that an advisor must be
in operational proximity with the President.
3) The presidential communications privilege remains a qualified privilege that may be
overcome by a showing of adequate need, such that the information sought likely
contains important evidence and by the unavailability of the information elsewhere by
an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive
privilege on the ground that the communications elicited by the three (3) questions
fall under conversation and correspondence between the President and public
officials necessary in her executive and policy decision-making process and, that
the information sought to be disclosed might impair our diplomatic as well as
economic relations with the Peoples Republic of China. Simply put, the bases are
presidential communications privilege and executive privilege on matters relating to
diplomacy or foreign relations.

ISSUE:
Are the communications elicited by the subject three (3) questions covered by
executive privilege?

Using the above elements, we are convinced that, indeed, the communications
elicited by the three (3) questions are covered by the presidential communications
privilege. First, the communications relate to a quintessential and non-delegable

power of the President, i.e. the power to enter into an executive agreement with
other countries. This authority of the President to enter into executive agreements
without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence. Second, the communications are received by a close
advisor of the President. Under the operational proximity test, petitioner can be
considered a close advisor, being a member of President Arroyos cabinet. And third,
there is no adequate showing of a compelling need that would justify the limitation of
the privilege and of the unavailability of the information elsewhere by an appropriate
investigating authority.

Respondent Committees further contend that the grant of petitioners claim of

executive privilege violates the constitutional provisions on the right of the people to
information on matters of public concern.50 We might have agreed with such
contention if petitioner did not appear before them at all. But petitioner made himself
available to them during the September 26 hearing, where he was questioned for
eleven (11) hours. Not only that, he expressly manifested his willingness to answer
more questions from the Senators, with the exception only of those covered by his
claim of executive privilege.

The right to public information, like any other right, is subject to limitation. Section 7 of
Article III provides:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to government research data used
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.

Exchange Commission if it wants to be a private corporation. The fallo of the Decision

read:

Dante Liban, et al. v. Richard Gordon, G.R. No. 175352, January 18, 2011
RESOLUTION
I.

LEONARDO-DE CASTRO, J.:

THE FACTS

Petitioners Liban, et al., who were officers of the Board of Directors of the Quezon
City Red Cross Chapter, filed with the Supreme Court what they styled as Petition to
Declare Richard J. Gordon as Having Forfeited His Seat in the Senate against
respondent Gordon, who was elected Chairman of the Philippine National Red Cross
(PNRC) Board of Governors during his incumbency as Senator.
Petitioners alleged that by accepting the chairmanship of the PNRC Board of
Governors, respondent Gordon ceased to be a member of the Senate pursuant to
Sec. 13, Article VI of the Constitution, which provides that [n]o Senator . . . may hold
any other office or employment in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or
their subsidiaries, during his term without forfeiting his seat. Petitioners cited the
case of Camporedondo vs. NLRC, G.R. No. 129049, decided August 6, 1999, which
held that the PNRC is a GOCC, in supporting their argument that respondent Gordon
automatically forfeited his seat in the Senate when he accepted and held the position
of Chairman of the PNRC Board of Governors.

Formerly, in its Decision dated July 15, 2009, the Court, voting 7-5,[1] held that the
office of the PNRC Chairman is NOT a government office or an office in a GOCC for
purposes of the prohibition in Sec. 13, Article VI of the 1987 Constitution. The PNRC
Chairman is elected by the PNRC Board of Governors; he is not appointed by the
President or by any subordinate government official. Moreover, the PNRC is NOT a
GOCC because it is a privately-owned, privately-funded, and privately-run charitable
organization and because it is controlled by a Board of Governors four-fifths of which
are private sector individuals. Therefore, respondent Gordon did not forfeit his
legislative seat when he was elected as PNRC Chairman during his incumbency as
Senator.

The Court however held further that the PNRC Charter, R.A. 95, as amended by PD
1264 and 1643, is void insofar as it creates the PNRC as a private corporation since
Section 7, Article XIV of the 1935 Constitution states that [t]he Congress shall not,
except by general law, provide for the formation, organization, or regulation of private
corporations, unless such corporations are owned or controlled by the Government or
any subdivision or instrumentality thereof. The Court thus directed the PNRC to
incorporate under the Corporation Code and register with the Securities and

WHEREFORE, we declare that the office of the Chairman of the Philippine National
Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of the
1987 Constitution. We also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12,
and 13 of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as
amended by Presidential Decree Nos. 1264 and 1643, are VOID because they create
the PNRC as a private corporation or grant it corporate powers.
Respondent Gordon filed a Motion for Clarification and/or for Reconsideration of the
Decision. The PNRC likewise moved to intervene and filed its own Motion for Partial
Reconsideration. They basically questioned the second part of the Decision with
regard to the pronouncement on the nature of the PNRC and the constitutionality of
some provisions of the PNRC Charter.
II.

THE ISSUE

Was it correct for the Court to have passed upon and decided on the issue of the
constitutionality of the PNRC charter? Corollarily: What is the nature of the PNRC?
III.

THE RULING

[The Court GRANTED reconsideration and MODIFIED the dispositive portion of the
Decision by deleting the second sentence thereof.]
NO, it was not correct for the Court to have decided on the constitutional issue
because it was not the very lis mota of the case. The PNRC is sui generis in nature; it
is neither strictly a GOCC nor a private corporation.

The issue of constitutionality of R.A. No. 95 was not raised by the parties, and was
not among the issues defined in the body of the Decision; thus, it was not the very lis
mota of the case. We have reiterated the rule as to when the Court will consider the
issue of constitutionality in Alvarez v. PICOP Resources, Inc., thus:

This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It
is a well-established rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question is raised by
the parties and that when it is raised, if the record also presents some other ground
upon which the court may [rest] its judgment, that course will be adopted and the
constitutional question will be left for consideration until such question will be
unavoidable.

[T]his Court should not have declared void certain sections of . . . the PNRC Charter.
Instead, the Court should have exercised judicial restraint on this matter, especially
since there was some other ground upon which the Court could have based its
judgment. Furthermore, the PNRC, the entity most adversely affected by this
declaration of unconstitutionality, which was not even originally a party to this case,
was being compelled, as a consequence of the Decision, to suddenly reorganize and
incorporate under the Corporation Code, after more than sixty (60) years of existence
in this country.

Since its enactment, the PNRC Charter was amended several times, particularly on
June 11, 1953, August 16, 1971, December 15, 1977, and October 1, 1979, by virtue
of R.A. No. 855, R.A. No. 6373, P.D. No. 1264, and P.D. No. 1643, respectively. The
passage of several laws relating to the PNRCs corporate existence notwithstanding
the effectivity of the constitutional proscription on the creation of private corporations
by law is a recognition that the PNRC is not strictly in the nature of a private
corporation contemplated by the aforesaid constitutional ban.

A closer look at the nature of the PNRC would show that there is none like it[,] not just
in terms of structure, but also in terms of history, public service and official status
accorded to it by the State and the international community. There is merit in PNRCs
contention that its structure is sui generis. It is in recognition of this sui generis
character of the PNRC that R.A. No. 95 has remained valid and effective from the
time of its enactment in March 22, 1947 under the 1935 Constitution and during the
effectivity of the 1973 Constitution and the 1987 Constitution. The PNRC Charter and
its amendatory laws have not been questioned or challenged on constitutional
grounds, not even in this case before the Court now.

[T]his Court [must] recognize the countrys adherence to the Geneva Convention and
respect the unique status of the PNRC in consonance with its treaty obligations. The
Geneva Convention has the force and effect of law. Under the Constitution, the
Philippines adopts the generally accepted principles of international law as part of the
law of the land. This constitutional provision must be reconciled and harmonized with
Article XII, Section 16 of the Constitution, instead of using the latter to negate the
former. By requiring the PNRC to organize under the Corporation Code just like any
other private corporation, the Decision of July 15, 2009 lost sight of the PNRCs
special status under international humanitarian law and as an auxiliary of the State,
designated to assist it in discharging its obligations under the Geneva Conventions.

The PNRC, as a National Society of the International Red Cross and Red Crescent
Movement, can neither be classified as an instrumentality of the State, so as not to
lose its character of neutrality as well as its independence, nor strictly as a private
corporation since it is regulated by international humanitarian law and is treated as an
auxiliary of the State.

Although [the PNRC] is neither a subdivision, agency, or instrumentality of the

government, nor a GOCC or a subsidiary thereof . . . so much so that respondent,
under the Decision, was correctly allowed to hold his position as Chairman thereof
concurrently while he served as a Senator, such a conclusion does not ipso facto
imply that the PNRC is a private corporation within the contemplation of the
provision of the Constitution, that must be organized under the Corporation Code.
[T]he sui generis character of PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.

In sum, the PNRC enjoys a special status as an important ally and auxiliary of the
government in the humanitarian field in accordance with its commitments under
international law. This Court cannot all of a sudden refuse to recognize its existence,
especially since the issue of the constitutionality of the PNRC Charter was never
raised by the parties. It bears emphasizing that the PNRC has responded to almost
all national disasters since 1947, and is widely known to provide a substantial portion
of the countrys blood requirements. Its humanitarian work is unparalleled. The Court
should not shake its existence to the core in an untimely and drastic manner that
would not only have negative consequences to those who depend on it in times of
disaster and armed hostilities but also have adverse effects on the image of the
Philippines in the international community. The sections of the PNRC Charter that
were declared void must therefore stay.

[Thus, R.A. No. 95 remains valid and constitutional in its entirety. The Court
MODIFIED the dispositive portion of the Decision by deleting the second sentence, to
now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine National
Red Cross is not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13, Article VI of the
1987 Constitution.]