G.R. No. 192935 December 7, 2010 mahirap.
ber 7, 2010 mahirap." The Filipino people, convinced of his sincerity and of his ability to carry out
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP. SIMEON A.
DATUMANONG, and REP. ORLANDO B. FUA, SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and DEPARTMENT OF BUDGET
AND MANAGEMENT SECRETARY FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality nullify or invalidate an
act of the legislature, but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights which that instrument
secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the Constitution that the
fundamental powers of government are established, limited and defined, and by which
these powers are distributed among the several departments. The Constitution is the
basic and paramount law to which all other laws must conform and to which all persons,
including the highest officials of the land, must defer. Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be simply made to
sway and accommodate the call of situations and much more tailor itself to the whims
and caprices of government and the people who run it.
For consideration before the Court are two consolidated cases both of which essentially
assail the validity and constitutionality of Executive Order No. 1, dated July 30, 2010,
entitled "Creating the Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition instituted by
petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and taxpayer. Biraogo
assails Executive Order No. 1 for being violative of the legislative power of Congress
under Section 1, Article VI of the Constitution as it usurps the constitutional authority of
the legislature to create a public office and to appropriate funds therefor.
The second case, G.R. No. 193036, is a special civil action for certiorari and prohibition
filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and
Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic May
2010 elections, when then Senator Benigno Simeon Aquino III declared his staunch
condemnation of graft and corruption with his slogan, "Kung walang corrupt, walang
Page 1 of 35
this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need for a
special body to investigate reported cases of graft and corruption allegedly committed
during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010, signed
Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth
Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines solemnly
enshrines the principle that a public office is a public trust and mandates that public
officers and employees, who are servants of the people, must at all times be
accountable to the latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this principle
and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the political,
economic, and social life of a nation; in a very special way it inflicts untold misfortune
and misery on the poor, the marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels, and
undermined the people’s trust and confidence in the Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth regarding certain
reports of large scale graft and corruption in the government and to put a closure to
them by the filing of the appropriate cases against those involved, if warranted, and to
deter others from committing the evil, restore the people’s faith and confidence in the
Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency in the last
elections "kung walang corrupt, walang mahirap" expresses a solemn pledge that if
elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during the
previous administration, and which will recommend the prosecution of the offenders
and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292, otherwise
known as the Revised Administrative Code of the Philippines, gives the President the
continuing authority to reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the Republic of the
Philippines, by virtue of the powers vested in me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
The Commission shall be composed of a Chairman and four (4) members who will act as
an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption which it will
investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the cases of
large scale corruption which it has chosen to investigate, and to this end require any
agency, official or employee of the Executive Branch, including government-owned or
controlled corporations, to produce documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents from the
Senate and the House of Representatives records of investigations conducted by
committees thereof relating to matters or subjects being investigated by the
Commission;
d) Upon proper request and representation, obtain information from the courts,
including the Sandiganbayan and the Office of the Court Administrator, information or
documents in respect to corruption cases filed with the Sandiganbayan or the regular
courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that purpose,
administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a state witness to
ensure that the ends of justice be fully served, that such person who qualifies as a state
witness under the Revised Rules of Court of the Philippines be admitted for that
purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and recommendation,
all evidence on corruption of public officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in the course of its investigation the
Commission finds that there is reasonable ground to believe that they are liable for
graft and corruption under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as the
Department of Justice or any of the agencies under it, and the Presidential Anti-Graft
Commission, for such assistance and cooperation as it may require in the discharge of
its functions and duties;
Page 2 of 35
i) Engage or contract the services of resource persons, professionals and other
personnel determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems necessary to
effectively and efficiently carry out the objectives of this Executive Order and to ensure
the orderly conduct of its investigations, proceedings and hearings, including the
presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in connection
with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. – Any government
official or personnel who, without lawful excuse, fails to appear upon subpoena issued
by the Commission or who, appearing before the Commission refuses to take oath or
affirmation, give testimony or produce documents for inspection, when required, shall
be subject to administrative disciplinary action. Any private person who does the same
may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall provide the
necessary funds for the Commission to ensure that it can exercise its powers, execute
its functions, and perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall accomplish its mission on
or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared
unconstitutional, the same shall not affect the validity and effectivity of the other
provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth Commission
(PTC) is a mere ad hoc body formed under the Office of the President with the primary
task to investigate reports of graft and corruption committed by third-level public
officers and employees, their co-principals, accomplices and accessories during the
previous administration, and thereafter to submit its finding and recommendations to
the President, Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of the President
Proper and subject to his control. Doubtless, it constitutes a public office, as an ad hoc
body is one.
To accomplish its task, the PTC shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of 1987. It is not, however, a
quasi-judicial body as it cannot adjudicate, arbitrate, resolve, settle, or render awards in
disputes between contending parties. All it can do is gather, collect and assess
evidence of graft and corruption and make recommendations. It may have subpoena
powers but it has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if probable cause
exists as to warrant the filing of an information in our courts of law. Needless to state, it
cannot impose criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries which have been
created as official, transitory and non-judicial fact-finding bodies "to establish the facts
and context of serious violations of human rights or of international humanitarian law in
a country’s past." They are usually established by states emerging from periods of
internal unrest, civil strife or authoritarianism to serve as mechanisms for transitional
justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate patterns of
abuse committed over a period of time, as opposed to a particular event; (3) they are
temporary bodies that finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially sanctioned, authorized or
empowered by the State. "Commission’s members are usually empowered to conduct
research, support victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to discover and learn
more about past abuses, or formally acknowledge them. They may aim to prepare the
way for prosecutions and recommend institutional reforms."
Thus, their main goals range from retribution to reconciliation. The Nuremburg and
Tokyo war crime tribunals are examples of a retributory or vindicatory body set up to try
and punish those responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa, the principal
function of which was to heal the wounds of past violence and to prevent future conflict
by providing a cathartic experience for victims.
Page 3 of 35
The PTC is a far cry from South Africa’s model. The latter placed more emphasis on
reconciliation than on judicial retribution, while the marching order of the PTC is the
identification and punishment of perpetrators. As one writer puts it:
The order ruled out reconciliation. It translated the Draconian code spelled out by
Aquino in his inaugural speech: "To those who talk about reconciliation, if they mean
that they would like us to simply forget about the wrongs that they have committed in
the past, we have this to say: There can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners asked the
Court to declare it unconstitutional and to enjoin the PTC from performing its functions.
A perusal of the arguments of the petitioners in both cases shows that they are
essentially the same. The petitioners-legislators summarized them in the following
manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of the
Congress to create a public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated authority of the President to
structurally reorganize the Office of the President to achieve economy, simplicity and
efficiency does not include the power to create an entirely new public office which was
hitherto inexistent like the "Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested
the "Truth Commission" with quasi-judicial powers duplicating, if not superseding, those
of the Office of the Ombudsman created under the 1987 Constitution and the
Department of Justice created under the Administrative Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous administration as if
corruption is their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the consistent
and general international practice of four decades wherein States constitute truth
commissions to exclusively investigate human rights violations, which customary
practice forms part of the generally accepted principles of international law which the
Philippines is mandated to adhere to pursuant to the Declaration of Principles enshrined
in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an adventure in
partisan hostility, a launching pad for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread poverty will altogether
vanish if corruption is eliminated without even addressing the other major causes of
poverty.
(g) The mere fact that previous commissions were not constitutionally challenged is of
no moment because neither laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a statute."
In their Consolidated Comment, the respondents, through the Office of the Solicitor
General (OSG), essentially questioned the legal standing of petitioners and defended
the assailed executive order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public office because
the President’s executive power and power of control necessarily include the inherent
power to conduct investigations to ensure that laws are faithfully executed and that, in
any event, the Constitution, Revised Administrative Code of 1987 (E.O. No. 292), 15
Presidential Decree (P.D.) No. 141616 (as amended by P.D. No. 1772), R.A. No. 9970,17
and settled jurisprudence that authorize the President to create or form such bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds because there
is no appropriation but a mere allocation of funds already appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department of Justice (DOJ), because it is a
fact-finding body and not a quasi-judicial body and its functions do not duplicate,
supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection clause because it was
validly created for laudable purposes.
The OSG then points to the continued existence and validity of other executive orders
and presidential issuances creating similar bodies to justify the creation of the PTC such
as Presidential Complaint and Action Commission (PCAC) by President Ramon B.
Magsaysay, Presidential Committee on Administrative Performance Efficiency (PCAPE)
by President Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.
From the petitions, pleadings, transcripts, and memoranda, the following are the
principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their respective
petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation of powers
by usurping the powers of Congress to create and to appropriate funds for public
offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the Ombudsman and
the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive Order No. 1,
the Court needs to ascertain whether the requisites for a valid exercise of its power of
judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling for
the exercise of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has sustained, or
Page 4 of 35
will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.
Among all these limitations, only the legal standing of the petitioners has been put at
issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file their petition
for failure to demonstrate their personal stake in the outcome of the case. It argues that
the petitioners have not shown that they have sustained or are in danger of sustaining
any personal injury attributable to the creation of the PTC. Not claiming to be the
subject of the commission’s investigations, petitioners will not sustain injury in its
creation or as a result of its proceedings.2
The Court disagrees with the OSG in questioning the legal standing of the petitioners-
legislators to assail Executive Order No. 1. Evidently, their petition primarily invokes
usurpation of the power of the Congress as a body to which they belong as members.
This certainly justifies their resolve to take the cudgels for Congress as an institution
and present the complaints on the usurpation of their power and rights as members of
the legislature before the Court. As held in Philippine Constitution Association v.
Enriquez,
To the extent the powers of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of
that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative, powers and
privileges vested by the Constitution in their office remain inviolate. Thus, they are
allowed to question the validity of any official action which, to their mind, infringes on
their prerogatives as legislators.
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no standing to
question the creation of the PTC and the budget for its operations. It emphasizes that
the funds to be used for the creation and operation of the commission are to be taken
from those funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail congressional action but will
simply be an exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he sustained, or is in
danger of sustaining, any personal and direct injury attributable to the implementation
of Executive Order No. 1. Nowhere in his petition is an assertion of a clear right that
may justify his clamor for the Court to exercise judicial power and to wield the axe over
presidential issuances in defense of the Constitution. The case of David v. Arroyo
explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a given
question." In private suits, standing is governed by the "real-parties-in interest" rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in the name of the real
party in interest." Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit." Succinctly put, the plaintiff’s standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a
"citizen," or ‘taxpayer." In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, where it was
held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins: "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to taxpayer’s suits,
Terr v. Jordan held that "the right of a citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed in
Tileston v. Ullman. The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, it held
that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury
as a result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers’ Association v. De la Fuente, Pascual
v. Secretary of Public Works and Anti-Chinese League of the Philippines v. Felix.
[Emphases included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter
of procedure, hence, can be relaxed for nontraditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such as when the matter
is of transcendental importance, of overreaching significance to society, or of
paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held that in cases of
paramount importance where serious constitutional questions are involved, the
standing requirements may be relaxed and a suit may be allowed to prosper even
where there is no direct injury to the party claiming the right of judicial review. In the
first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question
the constitutionality of several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental importance laid down in
CREBA v. ERC and Meralco are non-existent in this case. The Court, however, finds
reason in Biraogo’s assertion that the petition covers matters of transcendental
Page 5 of 35
importance to justify the exercise of jurisdiction by the Court. There are constitutional
issues in the petition which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Where the issues are of transcendental
and paramount importance not only to the public but also to the Bench and the Bar,
they should be resolved for the guidance of all. Undoubtedly, the Filipino people are
more than interested to know the status of the President’s first effort to bring about a
promised change to the country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes of the public, but
because the Court stands firm in its oath to perform its constitutional duty to settle
legal controversies with overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth Commission is a
public office and not merely an adjunct body of the Office of the President. Thus, in
order that the President may create a public office he must be empowered by the
Constitution, a statute or an authorization vested in him by law. According to petitioner,
such power cannot be presumed since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission. He adds that
Section 31 of the Administrative Code of 1987, granting the President the continuing
authority to reorganize his office, cannot serve as basis for the creation of a truth
commission considering the aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish." Insofar as it vests in the President the
plenary power to reorganize the Office of the President to the extent of creating a public
office, Section 31 is inconsistent with the principle of separation of powers enshrined in
the Constitution and must be deemed repealed upon the effectivity thereof.
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation of a public
office lies within the province of Congress and not with the executive branch of
government. They maintain that the delegated authority of the President to reorganize
under Section 31 of the Revised Administrative Code: 1) does not permit the President
to create a public office, much less a truth commission; 2) is limited to the
reorganization of the administrative structure of the Office of the President; 3) is limited
to the restructuring of the internal organs of the Office of the President Proper, transfer
of functions and transfer of agencies; and 4) only to achieve simplicity, economy and
efficiency. Such continuing authority of the President to reorganize his office is limited,
and by issuing Executive Order No. 1, the President overstepped the limits of this
delegated authority.
The OSG counters that there is nothing exclusively legislative about the creation by the
President of a fact-finding body such as a truth commission. Pointing to numerous
offices created by past presidents, it argues that the authority of the President to create
public offices within the Office of the President Proper has long been recognized.37
According to the OSG, the Executive, just like the other two branches of government,
possesses the inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise of its
administrative functions.38 This power, as the OSG explains it, is but an adjunct of the
plenary powers wielded by the President under Section 1 and his power of control under
Section 17, both of Article VII of the Constitution.39
It contends that the President is necessarily vested with the power to conduct fact-
finding investigations, pursuant to his duty to ensure that all laws are enforced by
public officials and employees of his department and in the exercise of his authority to
assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of his officials.40 The power of the President to investigate
is not limited to the exercise of his power of control over his subordinates in the
executive branch, but extends further in the exercise of his other powers, such as his
power to discipline subordinates,41 his power for rule making, adjudication and
licensing purposes42 and in order to be informed on matters which he is entitled to
know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it was held that the
President has the power to reorganize the offices and agencies in the executive
department in line with his constitutionally granted power of control and by virtue of a
valid delegation of the legislative power to reorganize executive offices under existing
statutes.
Thus, the OSG concludes that the power of control necessarily includes the power to
create offices. For the OSG, the President may create the PTC in order to, among others,
put a closure to the reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation of the PTC fall within
the ambit of the power to reorganize as expressed in Section 31 of the Revised
Administrative Code? Section 31 contemplates "reorganization" as limited by the
following functional and structural lines: (1) restructuring the internal organization of
the Office of the President Proper by abolishing, consolidating or merging units thereof
or transferring functions from one unit to another; (2) transferring any function under
the Office of the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions. These point to situations where a body or an office is already
existent but a modification or alteration thereof has to be effected. The creation of an
office is nowhere mentioned, much less envisioned in said provision. Accordingly, the
answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of the President under
Section 31 is a misplaced supposition, even in the plainest meaning attributable to the
term "restructure"– an "alteration of an existing structure." Evidently, the PTC was not
part of the structure of the Office of the President prior to the enactment of Executive
Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must not
lose sight of the very source of the power – that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the Executive
Office and in order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the Office of the
President." For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312 (2000)],
we ruled that reorganization "involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of functions." It takes
place when there is an alteration of the existing structure of government offices or units
therein, including the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. It falls under the Office of the
President. Hence, it is subject to the President’s continuing authority to reorganize.
[Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s power of
control. Control is essentially the power to alter or modify or nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute the
judgment of the former with that of the latter.47 Clearly, the power of control is entirely
different from the power to create public offices. The former is inherent in the
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Executive, while the latter finds basis from either a valid delegation from Congress, or
his inherent duty to faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress, empowering
the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to the above
provision finds statutory basis under P.D. 1416, as amended by P.D. No. 1772.48 The
said law granted the President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus and agencies, to abolish
offices, to transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This decree, in
relation to Section 20, Title I, Book III of E.O. 292 has been invoked in several cases such
as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification for the
President to create a public office. Said decree is already stale, anachronistic and
inoperable. P.D. No. 1416 was a delegation to then President Marcos of the authority to
reorganize the administrative structure of the national government including the power
to create offices and transfer appropriations pursuant to one of the purposes of the
decree, embodied in its last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will necessitate
flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and resiliency during
the interim, P.D. No. 1416, as amended by P.D. No. 1772, became functus oficio upon
the convening of the First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution. In fact, even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the last whereas
clause of P.D. 1416 says "it was enacted to prepare the transition from presidential to
parliamentary. Now, in a parliamentary form of government, the legislative and
executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued. Now would you
agree with me that P.D. 1416 should not be considered effective anymore upon the
promulgation, adoption, ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize the entire
National Government is deemed repealed, at least, upon the adoption of the 1987
Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the basis of P.D.
No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds justification under
Section 17, Article VII of the Constitution, imposing upon the President the duty to
ensure that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the three
principal branches of government is a grant of all powers inherent in them. The
President’s power to conduct investigations to aid him in ensuring the faithful execution
of laws – in this case, fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the authority of the
President to conduct investigations and to create bodies to execute this power is not
explicitly mentioned in the Constitution or in statutes does not mean that he is bereft of
such authority.51 As explained in the landmark case of Marcos v. Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential system of
government and restored the separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the power to
enforce the laws, for the President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the office unless the Constitution
itself withholds it. Furthermore, the Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also grants the President other powers
that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers
of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific
powers so enumerated.
It has been advanced that whatever power inherent in the government that is neither
legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the President are not limited to those specific
powers under the Constitution.53 One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the power to create ad hoc
committees. This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v. Camposano,54 the
authority of the President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative charges filed against the
employees of the Department of Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee cannot be
doubted. Having been constitutionally granted full control of the Executive Department,
to which respondents belong, the President has the obligation to ensure that all
executive officials and employees faithfully comply with the law. With AO 298 as
mandate, the legality of the investigation is sustained. Such validity is not affected by
the fact that the investigating team and the PCAGC had the same composition, or that
the former used the offices and facilities of the latter in conducting the inquiry.
[Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies to exist is
to allow an inquiry into matters which the President is entitled to know so that he can
be properly advised and guided in the performance of his duties relative to the
execution and enforcement of the laws of the land. And if history is to be revisited, this
was also the objective of the investigative bodies created in the past like the PCAC,
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PCAPE, PARGO, the Feliciano Commission, the Melo Commission and the Zenarosa
Commission. There being no changes in the government structure, the Court is not
inclined to declare such executive power as non-existent just because the direction of
the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of Congress to
appropriate funds for the operation of a public office, suffice it to say that there will be
no appropriation but only an allotment or allocations of existing funds already
appropriated. Accordingly, there is no usurpation on the part of the Executive of the
power of Congress to appropriate funds. Further, there is no need to specify the amount
to be earmarked for the operation of the commission because, in the words of the
Solicitor General, "whatever funds the Congress has provided for the Office of the
President will be the very source of the funds for the commission."55 Moreover, since
the amount that would be allocated to the PTC shall be subject to existing auditing rules
and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are faithfully
executed is well recognized. It flows from the faithful-execution clause of the
Constitution under Article VII, Section 17 thereof.56 As the Chief Executive, the
president represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to primarily investigate
reports of graft and corruption and to recommend the appropriate action. As previously
stated, no quasi-judicial powers have been vested in the said body as it cannot
adjudicate rights of persons who come before it. It has been said that "Quasi-judicial
powers involve the power to hear and determine questions of fact to which the
legislative policy is to apply and to decide in accordance with the standards laid down
by law itself in enforcing and administering the same law."58 In simpler terms, judicial
discretion is involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the legislature in
the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate was
delineated by the Court in Cariño v. Commission on Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore, inquire or delve or
probe into, research on, study. The dictionary definition of "investigate" is "to observe or
study closely: inquire into systematically: "to search or inquire into: x x to subject to an
official probe x x: to conduct an official inquiry." The purpose of investigation, of course,
is to discover, to find out, to learn, obtain information. Nowhere included or intimated is
the notion of settling, deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step
by patient inquiry or observation. To trace or track; to search into; to examine and
inquire into with care and accuracy; to find out by careful inquisition; examination; the
taking of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative function, the exercise of
which ordinarily does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry,
judicial or otherwise, for the discovery and collection of facts concerning a certain
matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The dictionary defines the term as "to settle
finally (the rights and duties of the parties to a court case) on the merits of issues
raised: x x to pass judgment on: settle judicially: x x act as judge." And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: x x to
award or grant judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its strictest sense;" and "adjudge"
means: "To pass on judicially, to decide, settle or decree, or to sentence or condemn. x
x. Implies a judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or office. The function of receiving
evidence and ascertaining therefrom the facts of a controversy is not a judicial function.
To be considered as such, the act of receiving evidence and arriving at factual
conclusions in a controversy must be accompanied by the authority of applying the law
to the factual conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of review as may be
provided by law.60 Even respondents themselves admit that the commission is bereft of
any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the
DOJ or erode their respective powers. If at all, the investigative function of the
commission will complement those of the two offices. As pointed out by the Solicitor
General, the recommendation to prosecute is but a consequence of the overall task of
the commission to conduct a fact-finding investigation."62 The actual prosecution of
suspected offenders, much less adjudication on the merits of the charges against
them,63 is certainly not a function given to the commission. The phrase, "when in the
course of its investigation," under Section 2(g), highlights this fact and gives credence
to a contrary interpretation from that of the petitioners. The function of determining
probable cause for the filing of the appropriate complaints before the courts remains to
be with the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is not exclusive
but is shared with other similarly authorized government agencies. Thus, in the case of
Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987 Constitution and
The Ombudsman Act is not exclusive but is shared with other similarly authorized
government agencies such as the PCGG and judges of municipal trial courts and
municipal circuit trial courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently shared with the
Department of Justice. Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President and the local
Sanggunians to investigate complaints against local elective officials. [Emphasis
supplied].
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to
investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of its primary jurisdiction, it
Page 8 of 35
may take over, at any stage, from any investigatory agency of government, the
investigation of such cases. [Emphases supplied]
The act of investigation by the Ombudsman as enunciated above contemplates the
conduct of a preliminary investigation or the determination of the existence of probable
cause. This is categorically out of the PTC’s sphere of functions. Its power to investigate
is limited to obtaining facts so that it can advise and guide the President in the
performance of his duties relative to the execution and enforcement of the laws of the
land. In this regard, the PTC commits no act of usurpation of the Ombudsman’s
primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3 (2), Chapter
1, Title III, Book IV in the Revised Administrative Code is by no means exclusive and,
thus, can be shared with a body likewise tasked to investigate the commission of
crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the PTC
are to be accorded conclusiveness. Much like its predecessors, the Davide Commission,
the Feliciano Commission and the Zenarosa Commission, its findings would, at best, be
recommendatory in nature. And being so, the Ombudsman and the DOJ have a wider
degree of latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead be aided by
the reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative power of the
President, the Court finds difficulty in upholding the constitutionality of Executive Order
No. 1 in view of its apparent transgression of the equal protection clause enshrined in
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of
law, nor shall any person be denied the equal protection of the laws.
The petitioners assail Executive Order No. 1 because it is violative of this constitutional
safeguard. They contend that it does not apply equally to all members of the same
class such that the intent of singling out the "previous administration" as its sole object
makes the PTC an "adventure in partisan hostility."66 Thus, in order to be accorded with
validity, the commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.67
The petitioners argue that the search for truth behind the reported cases of graft and
corruption must encompass acts committed not only during the administration of
former President Arroyo but also during prior administrations where the "same
magnitude of controversies and anomalies"68 were reported to have been committed
against the Filipino people. They assail the classification formulated by the respondents
as it does not fall under the recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation by Executive Order
No. 1 and other groups or persons who abused their public office for personal gain; and
second, the selective classification is not germane to the purpose of Executive Order
No. 1 to end corruption."69 In order to attain constitutional permission, the petitioners
advocate that the commission should deal with "graft and grafters prior and subsequent
to the Arroyo administration with the strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the "previous
administration" as the initial subject of the investigation, following Section 17 thereof,
the PTC will not confine itself to cases of large scale graft and corruption solely during
the said administration.71 Assuming arguendo that the commission would confine its
proceedings to officials of the previous administration, the petitioners argue that no
offense is committed against the equal protection clause for "the segregation of the
transactions of public officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions and is germane to
the evils which the Executive Order seeks to correct."72 To distinguish the Arroyo
administration from past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft and
corruption in the previous administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against those involved, if
warranted, and to deter others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants.
Second. The segregation of the preceding administration as the object of fact-finding is
warranted by the reality that unlike with administrations long gone, the current
administration will most likely bear the immediate consequence of the policies of the
previous administration.
Third. The classification of the previous administration as a separate class for
investigation lies in the reality that the evidence of possible criminal activity, the
evidence that could lead to recovery of public monies illegally dissipated, the policy
lessons to be learned to ensure that anti-corruption laws are faithfully executed, are
more easily established in the regime that immediately precede the current
administration.
Fourth. Many administrations subject the transactions of their predecessors to
investigations to provide closure to issues that are pivotal to national life or even as a
routine measure of due diligence and good housekeeping by a nascent administration
like the Presidential Commission on Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order No. 1 to pursue the recovery of ill-
gotten wealth of her predecessor former President Ferdinand Marcos and his cronies,
and the Saguisag Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent citizens’ committee to
investigate all the facts and circumstances surrounding "Philippine Centennial projects"
of his predecessor, former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution. The
equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific guaranty against any form of
undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is
the equal protection clause.74
"According to a long line of decisions, equal protection simply requires that all persons
or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed."75 It "requires public bodies and institutions to treat similarly
Page 9 of 35
situated individuals in a similar manner."76 "The purpose of the equal protection clause
is to secure every person within a state’s jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its improper
execution through the state’s duly constituted authorities."77 "In other words, the
concept of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are irrelevant
to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not just those of the
legislature.79 Its inhibitions cover all the departments of the government including the
political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all persons or
things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection clause
permits classification. Such classification, however, to be valid must pass the test of
reasonableness. The test has four requisites: (1) The classification rests on substantial
distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and
(4) It applies equally to all members of the same class.81 "Superficial differences do not
make for a valid classification."82
For a classification to meet the requirements of constitutionality, it must include or
embrace all persons who naturally belong to the class.83 "The classification will be
regarded as invalid if all the members of the class are not similarly treated, both as to
rights conferred and obligations imposed. It is not necessary that the classification be
made with absolute symmetry, in the sense that the members of the class should
possess the same characteristics in equal degree. Substantial similarity will suffice; and
as long as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the other
members, as long as that class is substantially distinguishable from all others, does not
justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so constituted
as to preclude addition to the number included in the class. It must be of such a nature
as to embrace all those who may thereafter be in similar circumstances and conditions.
It must not leave out or "underinclude" those that should otherwise fall into a certain
classification. As elucidated in Victoriano v. Elizalde Rope Workers' Union85 and
reiterated in a long line of cases,86
The guaranty of equal protection of the laws is not a guaranty of equality in the
application of the laws upon all citizens of the state. It is not, therefore, a requirement,
in order to avoid the constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons
according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be
treated in law as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit legislation which
is limited either in the object to which it is directed or by the territory within which it is
to operate.
The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the
grouping of things in speculation or practice because they agree with one another in
certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of
inequality in no manner determines the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences, that it must be
germane to the purpose of the law; that it must not be limited to existing conditions
only; and that it must apply equally to each member of the class. This Court has held
that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck down as
violative of the equal protection clause. The clear mandate of the envisioned truth
commission is to investigate and find out the truth "concerning the reported cases of
graft and corruption during the previous administration"87 only. The intent to single out
the previous administration is plain, patent and manifest. Mention of it has been made
in at least three portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to investigating and
finding out the truth concerning the reported cases of graft and corruption during the
previous administration, and which will recommend the prosecution of the offenders
and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the "COMMISSION," which shall primarily seek
and find the truth on, and toward this end, investigate reports of graft and corruption of
such scale and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be served without fear or
favor.
SECTION 2. Powers and Functions. – The Commission, which shall have all the powers of
an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories from the private sector, if
any, during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman. [Emphases
supplied]
In this regard, it must be borne in mind that the Arroyo administration is but just a
member of a class, that is, a class of past administrations. It is not a class of its own.
Not to include past administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating differentiation clearly
reverberates to label the commission as a vehicle for vindictiveness and selective
retribution.
Though the OSG enumerates several differences between the Arroyo administration and
other past administrations, these distinctions are not substantial enough to merit the
restriction of the investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken as basis for
distinguishing said administration from earlier administrations which were also
blemished by similar widespread reports of impropriety. They are not inherent in, and do
not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it, "Superficial
differences do not make for a valid classification."88
Page 10 of 35
The public needs to be enlightened why Executive Order No. 1 chooses to limit the
scope of the intended investigation to the previous administration only. The OSG
ventures to opine that "to include other past administrations, at this point, may
unnecessarily overburden the commission and lead it to lose its effectiveness."89 The
reason given is specious. It is without doubt irrelevant to the legitimate and noble
objective of the PTC to stamp out or "end corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence or that the earlier
reports involving the earlier administrations were already inquired into is beside the
point. Obviously, deceased presidents and cases which have already prescribed can no
longer be the subjects of inquiry by the PTC. Neither is the PTC expected to conduct
simultaneous investigations of previous administrations, given the body’s limited time
and resources. "The law does not require the impossible" (Lex non cogit ad
impossibilia).91
Given the foregoing physical and legal impossibility, the Court logically recognizes the
unfeasibility of investigating almost a century’s worth of graft cases. However, the fact
remains that Executive Order No. 1 suffers from arbitrary classification. The PTC, to be
true to its mandate of searching for the truth, must not exclude the other past
administrations. The PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not be arbitrary
lest it be struck down for being unconstitutional. In the often quoted language of Yick
Wo v. Hopkins,92
Though the law itself be fair on its face and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and an unequal hand, so as practically
to make unjust and illegal discriminations between persons in similar circumstances,
material to their rights, the denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope is limited.
The Court, however, is of the considered view that although its focus is restricted, the
constitutional guarantee of equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount law of the nation to
which all other laws must conform and in accordance with which all private rights
determined and all public authority administered.93 Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.94 While the thrust of
the PTC is specific, that is, for investigation of acts of graft and corruption, Executive
Order No. 1, to survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial distinctions" would only
confirm the petitioners’ lament that the subject executive order is only an "adventure in
partisan hostility." In the case of US v. Cyprian,95 it was written: "A rather limited
number of such classifications have routinely been held or assumed to be arbitrary;
those include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more generally the
exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the class.96 "Such a
classification must not be based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must be of such a nature
as to embrace all those who may thereafter be in similar circumstances and conditions.
Furthermore, all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the members of
the class must be brought under the influence of the law and treated by it in the same
way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the validity of a
law under the equal protection clause."98 "Legislation is not unconstitutional merely
because it is not all-embracing and does not include all the evils within its reach."99 It
has been written that a regulation challenged under the equal protection clause is not
devoid of a rational predicate simply because it happens to be incomplete.100 In
several instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process.101 "With regard to equal
protection claims, a legislature does not run the risk of losing the entire remedial
scheme simply because it fails, through inadvertence or otherwise, to cover every evil
that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That the previous
administration was picked out was deliberate and intentional as can be gleaned from
the fact that it was underscored at least three times in the assailed executive order. It
must be noted that Executive Order No. 1 does not even mention any particular act,
event or report to be focused on unlike the investigative commissions created in the
past. "The equal protection clause is violated by purposeful and intentional
discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination, the OSG
clarifies that the commission does not only confine itself to cases of large scale graft
and corruption committed during the previous administration.104 The OSG points to
Section 17 of Executive Order No. 1, which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the judgment of the
President there is a need to expand the mandate of the Commission as defined in
Section 1 hereof to include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be so extended
accordingly by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the President the discretion to
expand the scope of investigations of the PTC so as to include the acts of graft and
corruption committed in other past administrations, it does not guarantee that they
would be covered in the future. Such expanded mandate of the commission will still
depend on the whim and caprice of the President. If he would decide not to include
them, the section would then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was "crafted to tailor-fit the prosecution of
officials and personalities of the Arroyo administration."105
The Court tried to seek guidance from the pronouncement in the case of Virata v.
Sandiganbayan,106 that the "PCGG Charter (composed of Executive Orders Nos. 1, 2
and 14) does not violate the equal protection clause." The decision, however, was
devoid of any discussion on how such conclusory statement was arrived at, the principal
issue in said case being only the sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the Supreme
Court, in the exercise of its constitutionally mandated power of Judicial Review with
respect to recent initiatives of the legislature and the executive department, is
exercising undue interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental tenets like the
doctrine of separation of powers? Time and again, this issue has been addressed by the
Court, but it seems that the present political situation calls for it to once again explain
the legal basis of its action lest it continually be accused of being a hindrance to the
nation’s thrust to progress.
Page 11 of 35
The Philippine Supreme Court, according to Article VIII, Section 1 of the 1987
Constitution, is vested with Judicial Power that "includes the duty of the courts of justice
to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave of abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial review which
is the power to declare a treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation unconstitutional. This
power also includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions, ordinances, and
other regulations. These provisions, however, have been fertile grounds of conflict
between the Supreme Court, on one hand, and the two co-equal bodies of government,
on the other. Many times the Court has been accused of asserting superiority over the
other departments.
To answer this accusation, the words of Justice Laurel would be a good source of
enlightenment, to wit: "And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual controversy
the rights which that instrument secures and guarantees to them."107
Thus, the Court, in exercising its power of judicial review, is not imposing its own will
upon a co-equal body but rather simply making sure that any act of government is done
in consonance with the authorities and rights allocated to it by the Constitution. And, if
after said review, the Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble intentions, all
geared towards the betterment of the nation and its people. But then again, it is
important to remember this ethical principle: "The end does not justify the means." No
matter how noble and worthy of admiration the purpose of an act, but if the means to
be employed in accomplishing it is simply irreconcilable with constitutional parameters,
then it cannot still be allowed.108 The Court cannot just turn a blind eye and simply let
it pass. It will continue to uphold the Constitution and its enshrined principles.
"The Constitution must ever remain supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength nor greed for power debase its
rectitude."109
Lest it be misunderstood, this is not the death knell for a truth commission as nobly
envisioned by the present administration. Perhaps a revision of the executive issuance
so as to include the earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the branches of the
government, it is the judiciary which is the most interested in knowing the truth and so
it will not allow itself to be a hindrance or obstacle to its attainment. It must, however,
be emphasized that the search for the truth must be within constitutional bounds for
"ours is still a government of laws and not of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby declared
UNCONSTITUTIONAL insofar as it is violative of the equal protection clause of the
Constitution.
As also prayed for, the respondents are hereby ordered to cease and desist from
carrying out the provisions of Executive Order No. 1.
SO ORDERED
G.R. No. 113105 August 19, 1994
PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and A.
GONZALES, petitioners,
vs.
HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management; HON.
VICENTE T. TAN, as National Treasurer and COMMISSION ON AUDIT,
respondents.
G.R. No. 113174 August 19, 1994
RAUL S. ROCO, as Member of the Philippine Senate, NEPTALI A. GONZALES,
Chairman of the Committee on Finance of the Philippine Senate, and
EDGARDO J. ANGARA, as President and Chief Executive of the Philippine
Senate, all of whom also sue as taxpayers, in their own behalf and in
representation of Senators HEHERSON ALVAREZ, AGAPITO A. AQUINO,
RODOLFO G. BIAZON, JOSE D. LINA, JR., ERNESTO F. HERRERA, BLAS F. OPLE,
JOHN H. OSMENA, GLORIA MACAPAGAL- ARROYO, VICENTE C. SOTTO III,
ARTURO M. TOLENTINO, FRANCISCO S. TATAD, WIGBERTO E. TAÑADA and
FREDDIE N. WEBB, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT,
and THE NATIONAL TREASURER, THE COMMISSION ON AUDIT, impleaded
herein as an unwilling
co-petitioner, respondents.
G.R. No. 113766 August 19, 1994
WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members of the Senate
and as taxpayers, and FREEDOM FROM DEBT COALITION, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR. in his capacity as Executive Secretary, HON.
SALVADOR ENRIQUEZ, JR., in his capacity as Secretary of the Department of
Budget and Management, HON. CARIDAD VALDEHUESA, in her capacity as
National Treasurer, and THE COMMISSION ON AUDIT, respondents.
G.R. No. 113888 August 19, 1994
WIGBERTO E. TAÑADA and ALBERTO G. ROMULO, as Members of the Senate
and as taxpayers, petitioners,
vs.
HON. TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, HON.
SALVADOR ENRIQUEZ, JR., in his capacity as Secretary of the Department of
Budget and Management, HON. CARIDAD VALDEHUESA, in her capacity as
National Treasurer, and THE COMMISSION ON AUDIT, respondents.
Ramon R. Gonzales for petitioners in G.R. No. 113105.
Eddie Tamondong for petitioners in G.R. Nos. 113766 & 113888.
Roco, Buñag, Kapunan, Migallos & Jardeleza for petitioners Raul S. Roco,
Neptali A. Gonzales and Edgardo Angara.
Page 12 of 35
Ceferino Padua Law Office fro intervenor Lawyers Against Monopoly and
Poverty (Lamp).
QUIASON, J.:
Once again this Court is called upon to rule on the conflicting claims of authority
between the Legislative and the Executive in the clash of the powers of the purse and
the sword. Providing the focus for the contest between the President and the Congress
over control of the national budget are the four cases at bench. Judicial intervention is
being sought by a group of concerned taxpayers on the claim that Congress and the
President have impermissibly exceeded their respective authorities, and by several
Senators on the claim that the President has committed grave abuse of discretion or
acted without jurisdiction in the exercise of his veto power.
I
House Bill No. 10900, the General Appropriation Bill of 1994 (GAB of 1994), was passed
and approved by both houses of Congress on December 17, 1993. As passed, it
imposed conditions and limitations on certain items of appropriations in the proposed
budget previously submitted by the President. It also authorized members of Congress
to propose and identify projects in the "pork barrels" allotted to them and to realign
their respective operating budgets.
Pursuant to the procedure on the passage and enactment of bills as prescribed by the
Constitution, Congress presented the said bill to the President for consideration and
approval.
On December 30, 1993, the President signed the bill into law, and declared the same to
have become Republic Act No. 7663, entitled "AN ACT APPROPRIATING FUNDS FOR THE
OPERATION OF THE GOVERNMENT OF THE PHILIPPINES FROM JANUARY ONE TO
DECEMBER THIRTY ONE, NINETEEN HUNDRED AND NINETY-FOUR, AND FOR OTHER
PURPOSES" (GAA of 1994). On the same day, the President delivered his Presidential
Veto Message, specifying the provisions of the bill he vetoed and on which he imposed
certain conditions.
No step was taken in either House of Congress to override the vetoes.
In G.R. No. 113105, the Philippine Constitution Association, Exequiel B. Garcia and
Ramon A. Gonzales as taxpayers, prayed for a writ of prohibition to declare as
unconstitutional and void: (a) Article XLI on the Countrywide Development Fund, the
special provision in Article I entitled Realignment of Allocation for Operational Expenses,
and Article XLVIII on the Appropriation for Debt Service or the amount appropriated
under said Article XLVIII in excess of the P37.9 Billion allocated for the Department of
Education, Culture and Sports; and (b) the veto of the President of the Special Provision
of
Article XLVIII of the GAA of 1994 (Rollo, pp. 88-90, 104-105)
In G.R. No. 113174, sixteen members of the Senate led by Senate President Edgardo J.
Angara, Senator Neptali A. Gonzales, the Chairman of the Committee on Finance, and
Senator Raul S. Roco, sought the issuance of the writs of certiorari, prohibition and
mandamus against the Executive Secretary, the Secretary of the Department of Budget
and Management, and the National Treasurer.
Suing as members of the Senate and taxpayers, petitioners question: (1) the
constitutionality of the conditions imposed by the President in the items of the GAA of
1994: (a) for the Supreme Court, (b) Commission on Audit (COA), (c) Ombudsman, (d)
Commission on Human Rights (CHR), (e) Citizen Armed Forces Geographical Units
(CAFGU'S) and (f) State Universities and Colleges (SUC's); and (2) the constitutionality
of the veto of the special provision in the appropriation for debt service.
In G.R. No. 113766, Senators Alberto G. Romulo and Wigberto Tañada (a co-petitioner in
G.R. No. 113174), together with the Freedom from Debt Coalition, a non-stock domestic
corporation, sought the issuance of the writs of prohibition and mandamus against the
Executive Secretary, the Secretary of the Department of Budget and Management, the
National Treasurer, and the COA.
Petitioners Tañada and Romulo sued as members of the Philippine Senate and
taxpayers, while petitioner Freedom from Debt Coalition sued as a taxpayer. They
challenge the constitutionality of the Presidential veto of the special provision in the
appropriations for debt service and the automatic appropriation of funds therefor.
In G.R. No. 11388, Senators Tañada and Romulo sought the issuance of the writs of
prohibition and mandamus against the same respondents in G.R. No. 113766. In this
petition, petitioners contest the constitutionality of: (1) the veto on four special
provision added to items in the GAA of 1994 for the Armed Forces of the Philippines
(AFP) and the Department of Public Works and Highways (DPWH); and (2) the conditions
imposed by the President in the implementation of certain appropriations for the
CAFGU's, the DPWH, and the National Housing Authority (NHA).
Petitioners also sought the issuance of temporary restraining orders to enjoin
respondents Secretary of Budget and Management, National Treasurer and COA from
enforcing the questioned provisions of the GAA of 1994, but the Court declined to grant
said provisional reliefs on the time- honored principle of according the presumption of
validity to statutes and the presumption of regularity to official acts.
In view of the importance and novelty of most of the issues raised in the four petitions,
the Court invited former Chief Justice Enrique M. Fernando and former Associate Justice
Irene Cortes to submit their respective memoranda as Amicus curiae, which they
graciously did.
II
Locus Standi
When issues of constitutionality are raised, the Court can exercise its power of judicial
review only if the following requisites are compresent: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case (Luz Farms v.
Secretary of the Department of Agrarian Reform, 192 SCRA 51 [1990]; Dumlao v.
Commission on Elections, 95 SCRA 392 [1980]; People v. Vera, 65 Phil. 56 [1937]).
While the Solicitor General did not question the locus standi of petitioners in G.R. No.
113105, he claimed that the remedy of the Senators in the other petitions is political
(i.e., to override the vetoes) in effect saying that they do not have the requisite legal
standing to bring the suits.
The legal standing of the Senate, as an institution, was recognized in Gonzales v.
Macaraig, Jr., 191 SCRA 452 (1990). In said case, 23 Senators, comprising the entire
membership of the Upper House of Congress, filed a petition to nullify the presidential
Page 13 of 35
veto of Section 55 of the GAA of 1989. The filing of the suit was authorized by Senate
Resolution No. 381, adopted on February 2, 1989, and which reads as follows:
Authorizing and Directing the Committee on Finance to Bring in the Name of the Senate
of the Philippines the Proper Suit with the Supreme Court of the Philippines contesting
the Constitutionality of the Veto by the President of Special and General Provisions,
particularly Section 55, of the General Appropriation Bill of 1989 (H.B. No. 19186) and
For Other Purposes.
In the United States, the legal standing of a House of Congress to sue has been
recognized (United States v. American Tel. & Tel. Co., 551 F. 2d 384, 391 [1976]; Notes:
Congressional Access To The Federal Courts, 90 Harvard Law Review 1632 [1977]).
While the petition in G.R. No. 113174 was filed by 16 Senators, including the Senate
President and the Chairman of the Committee on Finance, the suit was not authorized
by the Senate itself. Likewise, the petitions in
G.R. Nos. 113766 and 113888 were filed without an enabling resolution for the purpose.
Therefore, the question of the legal standing of petitioners in the three cases becomes a
preliminary issue before this Court can inquire into the validity of the presidential veto
and the conditions for the implementation of some items in the GAA of 1994.
We rule that a member of the Senate, and of the House of Representatives for that
matter, has the legal standing to question the validity of a presidential veto or a
condition imposed on an item in an appropriation bill.
Where the veto is claimed to have been made without or in excess of the authority
vested on the President by the Constitution, the issue of an impermissible intrusion of
the Executive into the domain of the Legislature arises (Notes: Congressional Standing
To Challenge Executive Action, 122 University of Pennsylvania Law Review 1366
[1974]).
To the extent the power of Congress are impaired, so is the power of each member
thereof, since his office confers a right to participate in the exercise of the powers of
that institution (Coleman v. Miller, 307 U.S. 433 [1939]; Holtzman v. Schlesinger, 484 F.
2d 1307 [1973]).
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress
(Kennedy v. Jones, 412 F. Supp. 353 [1976]). In such a case, any member of Congress
can have a resort to the courts.
Former Chief Justice Enrique M. Fernando, as Amicus Curiae, noted:
This is, then, the clearest case of the Senate as a whole or individual Senators as such
having a substantial interest in the question at issue. It could likewise be said that there
was the requisite injury to their rights as Senators. It would then be futile to raise any
locus standi issue. Any intrusion into the domain appertaining to the Senate is to be
resisted. Similarly, if the situation were reversed, and it is the Executive Branch that
could allege a transgression, its officials could likewise file the corresponding action.
What cannot be denied is that a Senator has standing to maintain inviolate the
prerogatives, powers and privileges vested by the Constitution in his office
(Memorandum, p. 14).
It is true that the Constitution provides a mechanism for overriding a veto (Art. VI, Sec.
27 [1]). Said remedy, however, is available only when the presidential veto is based on
policy or political considerations but not when the veto is claimed to be ultra vires. In
the latter case, it becomes the duty of the Court to draw the dividing line where the made from this Fund. The report shall include the listing of the projects, locations,
exercise of executive power ends and the bounds of legislative jurisdiction begin. implementing agencies and the endorsing officials (GAA of 1994, p. 1245).

III Petitioners claim that the power given to the members of Congress to propose and
identify the projects and activities to be funded by the Countrywide Development Fund
G.R. No. 113105 is an encroachment by the legislature on executive power, since said power in an
appropriation act in implementation of a law. They argue that the proposal and
1. Countrywide Development Fund identification of the projects do not involve the making of laws or the repeal and
amendment thereof, the only function given to the Congress by the Constitution (Rollo,
Article XLI of the GAA of 1994 sets up a Countrywide Development Fund of pp. 78- 86).
P2,977,000,000.00 to "be used for infrastructure, purchase of ambulances and
computers and other priority projects and activities and credit facilities to qualified Under the Constitution, the spending power called by James Madison as "the power of
beneficiaries." Said Article provides: the purse," belongs to Congress, subject only to the veto power of the President. The
President may propose the budget, but still the final say on the matter of appropriations
COUNTRYWIDE DEVELOPMENT FUND is lodged in the Congress.

For Fund requirements of countrywide The power of appropriation carries with it the power to specify the project or activity to
development projects P 2,977,000,000 be funded under the appropriation law. It can be as detailed and as broad as Congress
——————— wants it to be.

New Appropriations, by Purpose The Countrywide Development Fund is explicit that it shall be used "for infrastructure,
Current Operating Expenditures purchase of ambulances and computers and other priority projects and activities and
credit facilities to qualified beneficiaries . . ." It was Congress itself that determined the
A. PURPOSE purposes for the appropriation.

Personal Maintenance Capital Total
Services and Other Outlays
Operating
Expenses
1. For Countrywide
Developments Projects P250,000,000 P2,727,000,000 P2,977,000,000
TOTAL NEW
APPROPRIATIONS P250,000,000 P2,727,000,000 P2,977,000,000
Special Provisions
1. Use and Release of Funds. The amount herein appropriated shall be used for
infrastructure, purchase of ambulances and computers and other priority projects and
activities, and credit facilities to qualified beneficiaries as proposed and identified by
officials concerned according to the following allocations: Representatives, P12,500,000
each; Senators, P18,000,000 each; Vice-President, P20,000,000; PROVIDED, That, the
said credit facilities shall be constituted as a revolving fund to be administered by a
government financial institution (GFI) as a trust fund for lending operations. Prior years
releases to local government units and national government agencies for this purpose
shall be turned over to the government financial institution which shall be the sole
administrator of credit facilities released from this fund.
The fund shall be automatically released quarterly by way of Advice of Allotments and
Notice of Cash Allocation directly to the assigned implementing agency not later than
five (5) days after the beginning of each quarter upon submission of the list of projects
and activities by the officials concerned.
2. Submission of Quarterly Reports. The Department of Budget and Management
shall submit within thirty (30) days after the end of each quarter a report to the Senate
Committee on Finance and the House Committee on Appropriations on the releases
Executive function under the Countrywide Development Fund involves implementation
of the priority projects specified in the law.
The authority given to the members of Congress is only to propose and identify projects
to be implemented by the President. Under Article XLI of the GAA of 1994, the President
must perforce examine whether the proposals submitted by the members of Congress
fall within the specific items of expenditures for which the Fund was set up, and if
qualified, he next determines whether they are in line with other projects planned for
the locality. Thereafter, if the proposed projects qualify for funding under the Funds, it is
the President who shall implement them. In short, the proposals and identifications
made by the members of Congress are merely recommendatory.
The procedure of proposing and identifying by members of Congress of particular
projects or activities under Article XLI of the GAA of 1994 is imaginative as it is
innovative.
The Constitution is a framework of a workable government and its interpretation must
take into account the complexities, realities and politics attendant to the operation of
the political branches of government. Prior to the GAA of 1991, there was an uneven
allocation of appropriations for the constituents of the members of Congress, with the
members close to the Congressional leadership or who hold cards for "horse-trading,"
getting more than their less favored colleagues. The members of Congress also had to
reckon with an unsympathetic President, who could exercise his veto power to cancel
from the appropriation bill a pet project of a Representative or Senator.
The Countrywide Development Fund attempts to make equal the unequal. It is also a
recognition that individual members of Congress, far more than the President and their
congressional colleagues are likely to be knowledgeable about the needs of their
respective constituents and the priority to be given each project.
2. Realignment of Operating Expenses

Page 14 of 35
Under the GAA of 1994, the appropriation for the Senate is P472,000,000.00 of which
P464,447,000.00 is appropriated for current operating expenditures, while the (GAA of 1994, pp. 3-4)
appropriation for the House of Representatives is P1,171,924,000.00 of which
P1,165,297,000.00 is appropriated for current operating expenditures (GAA of 1994, pp. The 1994 operating expenditures for the House of Representatives are as follows:
2, 4, 9, 12).
Personal Services
The 1994 operating expenditures for the Senate are as follows:
Salaries, Permanent 261,557
Personal Services Salaries/Wages, Contractual/Emergency 143,643
————
Salaries, Permanent 153,347 Total Salaries and Wages 405,200
Salaries/Wage, Contractual/Emergency 6,870 =======
————
Total Salaries and Wages 160,217 Other Compensation
=======
Step Increments 4,312
Other Compensation Honoraria and Commutable
Allowances 4,764
Compensation Insurance
Premiums 1,159
Step Increments 1,073 Pag-I.B.I.G. Contributions 5,231
Honoraria and Commutable Allowances 3,731 Medicare Premiums 2,281
Compensation Insurance Premiums 1,579
Pag-I.B.I.G. Contributions 1,184 Bonus and Cash Gift 35,669
Medicare Premiums 888 Terminal Leave Benefits 29
Bonus and Cash Gift 14,791 Personnel Economic Relief
Terminal Leave Benefits 2,000 Allowance 21,150
Personnel Economic Relief Allowance 10,266 Additional Compensation of P500 under A.O. 53
Additional Compensation of P500 under A.O. 53 11,130 Others 106,140
Others 57,173 ————
———— Total Other Compensation 202,863
Total Other Compensation 103,815 ————
———— 01 Total Personal Services 608,063
01 Total Personal Services 264,032 =======
=======
Maintenance and Other Operating Expenses
Maintenance and Other Operating Expenses
02 Traveling Expenses 139,611
02 Traveling Expenses 32,841 03 Communication Services 22,514
03 Communication Services 7,666 04 Repair and Maintenance of Government Facilities 5,116
04 Repair and Maintenance of Government Facilities 1,220 05 Repair and Maintenance of Government Vehicles 1,863
05 Repair and Maintenance of Government Vehicles 318 06 Transportation Services 178
06 Transportation Services 128 07 Supplies and Materials 55,248
07 Supplies and Materials 20,189 10 Grants/Subsidies/Contributions 940
08 Rents 24,584 14 Water/Illumination and Power 14,458
14 Water/Illumination and Power 6,561 15 Social Security Benefits and Other Claims 325
15 Social Security Benefits and Other Claims 3,270 17 Training and Seminars Expenses 7,236
17 Training and Seminars Expenses 2,225 18 Extraordinary and Miscellaneous Expenses 14,474
18 Extraordinary and Miscellaneous Expenses 9,360 20 Anti-Insurgency/Contingency Emergency Expenses 9,400
23 Advertising and Publication 23 Advertising and Publication 242
24 Fidelity Bonds and Insurance Premiums 1,325 24 Fidelity Bonds and Insurance Premiums 1,420
29 Other Services 89,778 29 Other Services 284,209
———— ————
Total Maintenance and Other Operating Expenditures 200,415 Total Maintenance and Other Operating Expenditures 557,234
———— ————
Total Current Operating Expenditures 464,447 Total Current Operating Expenditures 1,165,297
======= =======

Page 15 of 35
(GAA of 1994, pp. 11-12)
The Special Provision Applicable to the Congress of the Philippines provides:
4. Realignment of Allocation for Operational Expenses. A member of Congress
may realign his allocation for operational expenses to any other expenses category
provide the total of said allocation is not exceeded. (GAA of 1994, p. 14).
The appropriation for operating expenditures for each House is further divided into
expenditures for salaries, personal services, other compensation benefits, maintenance
expenses and other operating expenses. In turn, each member of Congress is allotted
for his own operating expenditure a proportionate share of the appropriation for the
House to which he belongs. If he does not spend for one items of expense, the provision
in question allows him to transfer his allocation in said item to another item of expense.
Petitioners assail the special provision allowing a member of Congress to realign his
allocation for operational expenses to any other expense category (Rollo, pp. 82-92),
claiming that this practice is prohibited by Section 25(5), Article VI of the Constitution.
Said section provides:
No law shall be passed authorizing any transfer of appropriations: however, the
President, the President of the Senate, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may,
by law, be authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations.
The proviso of said Article of the Constitution grants the President of the Senate and the
Speaker of the House of Representatives the power to augment items in an
appropriation act for their respective offices from savings in other items of their
appropriations, whenever there is a law authorizing such augmentation.
The special provision on realignment of the operating expenses of members of
Congress is authorized by Section 16 of the General Provisions of the GAA of 1994,
which provides:
Expenditure Components. Except by act of the Congress of the Philippines, no change
or modification shall be made in the expenditure items authorized in this Act and other
appropriation laws unless in cases
of augmentations from savings in appropriations as authorized under Section 25(5) of
Article VI of the Constitution (GAA of 1994, p. 1273).
Petitioners argue that the Senate President and the Speaker of the House of
Representatives, but not the individual members of Congress are the ones authorized to
realign the savings as appropriated.
Under the Special Provisions applicable to the Congress of the Philippines, the members
of Congress only determine the necessity of the realignment of the savings in the
allotments for their operating expenses. They are in the best position to do so because
they are the ones who know whether there are savings available in some items and
whether there are deficiencies in other items of their operating expenses that need
augmentation. However, it is the Senate President and the Speaker of the House of
Representatives, as the case may be, who shall approve the realignment. Before giving
their stamp of approval, these two officials will have to see to it that:
(1) The funds to be realigned or transferred are actually savings in the items of
expenditures from which the same are to be taken; and
Page 16 of 35
(2) The transfer or realignment is for the purposes of augmenting the items of
expenditure to which said transfer or realignment is to be made.
3. Highest Priority for Debt Service
While Congress appropriated P86,323,438,000.00 for debt service (Article XLVII of the
GAA of 1994), it appropriated only P37,780,450,000.00 for the Department of Education
Culture and Sports. Petitioners urged that Congress cannot give debt service the
highest priority in the GAA of 1994 (Rollo, pp. 93-94) because under the Constitution it
should be education that is entitled to the highest funding. They invoke Section 5(5),
Article XIV thereof, which provides:
(5) The State shall assign the highest budgetary priority to education and ensure
that teaching will attract and retain its rightful share of the best available talents
through adequate remuneration and other means of job satisfaction and fulfillment.
This issue was raised in Guingona, Jr. v. Carague, 196 SCRA 221 (1991), where this
Court held that Section 5(5), Article XIV of the Constitution, is merely directory, thus:
While it is true that under Section 5(5), Article XIV of the Constitution, Congress is
mandated to "assign the highest budgetary priority to education" in order to "insure
that teaching will attract and retain its rightful share of the best available talents
through adequate remuneration and other means of job satisfaction and fulfillment," it
does not thereby follow that the hands of Congress are so hamstrung as to deprive it
the power to respond to the imperatives of the national interest and for the attainment
of other state policies or objectives.
As aptly observed by respondents, since 1985, the budget for education has tripled to
upgrade and improve the facility of the public school system. The compensation of
teachers has been doubled. The amount of P29,740,611,000.00 set aside for the
Department of Education, Culture and Sports under the General Appropriations Act (R.A.
No. 6381), is the highest budgetary allocation among all department budgets. This is a
clear compliance with the aforesaid constitutional mandate according highest priority to
education.
Having faithfully complied therewith, Congress is certainly not without any power,
guided only by its good judgment, to provide an appropriation, that can reasonably
service our enormous debt, the greater portion of which was inherited from the previous
administration. It is not only a matter of honor and to protect the credit standing of the
country. More especially, the very survival of our economy is at stake. Thus, if in the
process Congress appropriated an amount for debt service bigger than the share
allocated to education, the Court finds and so holds that said appropriation cannot be
thereby assailed as unconstitutional.
G.R. No. 113105
G.R. No. 113174
Veto of Provision on Debt Ceiling
The Congress added a Special Provision to Article XLVIII (Appropriations for Debt
Service) of the GAA of 1994 which provides:
Special Provisions
1. Use of the Fund. The appropriation authorized herein shall be used for payment
of principal and interest of foreign and domestic indebtedness; PROVIDED, That any
payment in excess of the amount herein appropriated shall be subject to the approval
of the President of the Philippines with the concurrence of the Congress of the
Philippines; PROVIDED, FURTHER, That in no case shall this fund be used to pay for the
liabilities of the Central Bank Board of Liquidators.
2. Reporting Requirement. The Bangko Sentral ng Pilipinas and the Department of
Finance shall submit a quarterly report of actual foreign and domestic debt service
payments to the House Committee on Appropriations and Senate Finance Committee
within one (1) month after each quarter (GAA of 1944, pp. 1266).
The President vetoed the first Special Provision, without vetoing the
P86,323,438,000.00 appropriation for debt service in said Article. According to the
President's Veto Message:
IV. APPROPRIATIONS FOR DEBT SERVICE
I would like to emphasize that I concur fully with the desire of Congress to reduce the
debt burden by decreasing the appropriation for debt service as well as the inclusion of
the Special Provision quoted below. Nevertheless, I believe that this debt reduction
scheme cannot be validly done through the 1994 GAA. This must be addressed by
revising our debt policy by way of innovative and comprehensive debt reduction
programs conceptualized within the ambit of the Medium-Term Philippine Development
Plan.
Appropriations for payment of public debt, whether foreign or domestic, are
automatically appropriated pursuant to the Foreign Borrowing Act and Section 31 of P.D.
No. 1177 as reiterated under Section 26, Chapter 4, Book VI of E.O. No. 292, the
Administrative Code of 1987. I wish to emphasize that the constitutionality of such
automatic provisions on debt servicing has been upheld by the Supreme Court in the
case of "Teofisto T. Guingona, Jr., and Aquilino Q. Pimentel, Jr. v. Hon. Guillermo N.
Carague, in his capacity as Secretary of Budget and Management, et al.," G.R. No.
94571, dated April 22, 1991.
I am, therefore vetoing the following special provision for the reason that the GAA is not
the appropriate legislative measure to amend the provisions of the Foreign Borrowing
Act, P.D. No. 1177 and E.O. No. 292:
Use of the Fund. The appropriation authorized herein shall be used for payment of
principal and interest of foreign and domestic indebtedness: PROVIDED, That any
payment in excess of the amount herein appropriated shall be subject to the approval
of the President of the Philippines with the concurrence of the Congress of the
Philippines: PROVIDED, FURTHER, That in no case shall this fund be used to pay for the
liabilities of the Central Bank Board of Liquidators (GAA of 1994, p. 1290).
Petitioners claim that the President cannot veto the Special Provision on the
appropriation for debt service without vetoing the entire amount of P86,323,438.00 for
said purpose (Rollo, G.R. No. 113105, pp. 93-98; Rollo, G.R. No. 113174, pp. 16-18). The
Solicitor General counterposed that the Special Provision did not relate to the item of
appropriation for debt service and could therefore be the subject of an item veto (Rollo,
G.R. No. 113105, pp. 54-60; Rollo, G.R. No. 113174, pp. 72-82).
This issue is a mere rehash of the one put to rest in Gonzales v. Macaraig, Jr., 191 SCRA
452 (1990). In that case, the issue was stated by the Court, thus:
The fundamental issue raised is whether or not the veto by the President of Section 55
of the 1989 Appropriations Bill (Section 55
Page 17 of 35
FY '89), and subsequently of its counterpart Section 16 of the 1990 Appropriations Bill
(Section 16 FY '90), is unconstitutional and without effect.
The Court re-stated the issue, just so there would not be any misunderstanding about it,
thus:
The focal issue for resolution is whether or not the President exceeded the item-veto
power accorded by the Constitution. Or differently put, has the President the power to
veto "provisions" of an Appropriations Bill?
The bases of the petition in Gonzales, which are similar to those invoked in the present
case, are stated as follows:
In essence, petitioners' cause is anchored on the following grounds: (1) the President's
line-veto power as regards appropriation bills is limited to item/s and does not cover
provision/s; therefore, she exceeded her authority when she vetoed Section 55 (FY '89)
and Section 16 (FY '90) which are provisions; (2) when the President objects to a
provision of an appropriation bill, she cannot exercise the item-veto power but should
veto the entire bill; (3) the item-veto power does not carry with it the power to strike out
conditions or restrictions for that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in Article VI, Section 25 [5] of
the 1987 Constitution, has to be provided for by law and, therefore, Congress is also
vested with the prerogative to impose restrictions on the exercise of that power.
The restrictive interpretation urged by petitioners that the President may not veto a
provision without vetoing the entire bill not only disregards the basic principle that a
distinct and severable part of a bill may be the subject of a separate veto but also
overlooks the Constitutional mandate that any provision in the general appropriations
bill shall relate specifically to some particular appropriation therein and that any such
provision shall be limited in its operation to the appropriation to which it relates (1987
Constitution, Article VI, Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to some particular
appropriation to which it relates, and does not relate to the entire bill.
The Court went one step further and ruled that even assuming arguendo that
"provisions" are beyond the executive power to veto, and Section 55
(FY '89) and Section 16 (FY '90) were not "provisions" in the budgetary sense of the
term, they are "inappropriate provisions" that should be treated as "items" for the
purpose of the President's veto power.
The Court, citing Henry v. Edwards, La., 346 So. 2d 153 (1977), said that Congress
cannot include in a general appropriations bill matters that should be more properly
enacted in separate legislation, and if it does that, the inappropriate provisions inserted
by it must be treated as "item", which can be vetoed by the President in the exercise of
his item-veto power.
It is readily apparent that the Special Provision applicable to the appropriation for debt
service insofar as it refers to funds in excess of the amount appropriated in the bill, is
an "inappropriate" provision referring to funds other than the P86,323,438,000.00
appropriated in the General Appropriations Act of 1991.
Likewise the vetoed provision is clearly an attempt to repeal Section 31 of P.D. No. 1177
(Foreign Borrowing Act) and E.O. No. 292, and to reverse the debt payment policy. As
held by the Court in Gonzales, the repeal of these laws should be done in a separate
law, not in the appropriations law.
The Court will indulge every intendment in favor of the constitutionality of a veto, the
same as it will presume the constitutionality of an act of Congress (Texas Co. v. State,
254 P. 1060; 31 Ariz, 485, 53 A.L.R. 258 [1927]).
The veto power, while exercisable by the President, is actually a part of the legislative
process (Memorandum of Justice Irene Cortes as Amicus Curiae, pp. 3-7). That is why it
is found in Article VI on the Legislative Department rather than in Article VII on the
Executive Department in the Constitution. There is, therefore, sound basis to indulge in
the presumption of validity of a veto. The burden shifts on those questioning the validity
thereof to show that its use is a violation of the Constitution.
Under his general veto power, the President has to veto the entire bill, not merely parts
thereof (1987 Constitution, Art. VI, Sec. 27[1]). The exception to the general veto power
is the power given to the President to veto any particular item or items in a general
appropriations bill (1987 Constitution, Art. VI,
Sec. 27[2]). In so doing, the President must veto the entire item.
A general appropriations bill is a special type of legislation, whose content is limited to
specified sums of money dedicated to a specific purpose or a separate fiscal unit
(Beckman, The Item Veto Power of the Executive,
31 Temple Law Quarterly 27 [1957]).
The item veto was first introduced by the Organic Act of the Philippines passed by the
U.S. Congress on August 29, 1916. The concept was adopted from some State
Constitutions.
Cognizant of the legislative practice of inserting provisions, including conditions,
restrictions and limitations, to items in appropriations bills, the Constitutional
Convention added the following sentence to Section 20(2), Article VI of the 1935
Constitution:
. . . When a provision of an appropriation bill affect one or more items of the same, the
President cannot veto the provision without at the same time vetoing the particular
item or items to which it relates . . . .
In short, under the 1935 Constitution, the President was empowered to veto separately
not only items in an appropriations bill but also "provisions".
While the 1987 Constitution did not retain the aforementioned sentence added to
Section 11(2) of Article VI of the 1935 Constitution, it included the following provision:
No provision or enactment shall be embraced in the general appropriations bill unless it
relates specifically to some particular appropriation therein. Any such provision or
enactment shall be limited in its operation to the appropriation to which it relates (Art.
VI, Sec. 25[2]).
In Gonzales, we made it clear that the omission of that sentence of Section 16(2) of the
1935 Constitution in the 1987 Constitution should not be interpreted to mean the
disallowance of the power of the President to veto a "provision".
As the Constitution is explicit that the provision which Congress can include in an
appropriations bill must "relate specifically to some particular appropriation therein"
and "be limited in its operation to the appropriation to which it relates," it follows that
any provision which does not relate to any particular item, or which extends in its
operation beyond an item of appropriation, is considered "an inappropriate provision"
which can be vetoed separately from an item. Also to be included in the category of
"inappropriate provisions" are unconstitutional provisions and provisions which are
Page 18 of 35
intended to amend other laws, because clearly these kind of laws have no place in an
appropriations bill. These are matters of general legislation more appropriately dealt
with in separate enactments. Former Justice Irene Cortes, as Amicus Curiae,
commented that Congress cannot by law establish conditions for and regulate the
exercise of powers of the President given by the Constitution for that would be an
unconstitutional intrusion into executive prerogative.
The doctrine of "inappropriate provision" was well elucidated in Henry v. Edwards,
supra., thus:
Just as the President may not use his item-veto to usurp constitutional powers conferred
on the legislature, neither can the legislature deprive the Governor of the constitutional
powers conferred on him as chief executive officer of the state by including in a general
appropriation bill matters more properly enacted in separate legislation. The Governor's
constitutional power to veto bills of general legislation . . . cannot be abridged by the
careful placement of such measures in a general appropriation bill, thereby forcing the
Governor to choose between approving unacceptable substantive legislation or vetoing
"items" of expenditures essential to the operation of government. The legislature
cannot by location of a bill give it immunity from executive veto. Nor can it circumvent
the Governor's veto power over substantive legislation by artfully drafting general law
measures so that they appear to be true conditions or limitations on an item of
appropriation. Otherwise, the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government in contravention of
the separation of powers doctrine . . . We are no more willing to allow the legislature to
use its appropriation power to infringe on the Governor's constitutional right to veto
matters of substantive legislation than we are to allow the Governor to encroach on the
Constitutional powers of the legislature. In order to avoid this result, we hold that, when
the legislature inserts inappropriate provisions in a general appropriation bill, such
provisions must be treated as "items" for purposes of the Governor's item veto power
over general appropriation bills.
xxx xxx xxx
. . . Legislative control cannot be exercised in such a manner as to encumber the
general appropriation bill with veto-proof "logrolling measures", special interest
provisions which could not succeed if separately enacted, or "riders", substantive pieces
of legislation incorporated in a bill to insure passage without veto . . . (Emphasis
supplied).
Petitioners contend that granting arguendo that the veto of the Special Provision on the
ceiling for debt payment is valid, the President cannot automatically appropriate funds
for debt payment without complying with the conditions for automatic appropriation
under the provisions of R.A. No. 4860 as amended by P.D. No. 81 and the provisions of
P.D. No. 1177 as amended by the Administrative Code of 1987 and P.D. No. 1967 (Rollo,
G.R. No. 113766, pp. 9-15).
Petitioners cannot anticipate that the President will not faithfully execute the laws. The
writ of prohibition will not issue on the fear that official actions will be done in
contravention of the laws.
The President vetoed the entire paragraph one of the Special Provision of the item on
debt service, including the provisions that the appropriation authorized in said item
"shall be used for payment of the principal and interest of foreign and domestic
indebtedness" and that "in no case shall this fund be used to pay for the liabilities of the
Central Bank Board of Liquidators." These provisions are germane to and have a direct
connection with the item on debt service. Inherent in the power of appropriation is the
power to specify how the money shall be spent (Henry v. Edwards, LA, 346 So., 2d.,
153). The said provisos, being appropriate provisions, cannot be vetoed separately.
Hence the item veto of said provisions is void.
We reiterate, in order to obviate any misunderstanding, that we are sustaining the veto
of the Special Provision of the item on debt service only with respect to the proviso
therein requiring that "any payment in excess of the amount herein, appropriated shall
be subject to the approval of the President of the Philippines with the concurrence of
the Congress of the Philippines . . ."
G.R. NO. 113174
G.R. NO. 113766
G.R. NO. 11388
1. Veto of provisions for revolving funds of SUC's.
In the appropriation for State Universities and Colleges (SUC's), the President vetoed
special provisions which authorize the use of income and the creation, operation and
maintenance of revolving funds. The Special Provisions vetoed are the following:
(H. 7) West Visayas State University
Equal Sharing of Income. Income earned by the University subject to Section 13 of the
special provisions applicable to all State Universities and Colleges shall be equally
shared by the University and the University Hospital (GAA of 1994, p. 395).
xxx xxx xxx
(J. 3) Leyte State College
Revolving Fund for the Operation of LSC House and Human Resources Development
Center (HRDC). The income of Leyte State College derived from the operation of its LSC
House and HRDC shall be constituted into a Revolving Fund to be deposited in an
authorized government depository bank for the operational expenses of these
projects/services. The net income of the Revolving Fund at the end of the year shall be
remitted to the National Treasury and shall accrue to the General Fund. The
implementing guidelines shall be issued by the Department of Budget and Management
(GAA of 1994, p. 415).
The vetoed Special Provisions applicable to all SUC's are the following:
12. Use of Income from Extension Services. State Universities and Colleges are
authorized to use their income from their extension services. Subject to the approval of
the Board of Regents and the approval of a special budget pursuant to Sec. 35, Chapter
5, Book VI of E.O.
No. 292, such income shall be utilized solely for faculty development, instructional
materials and work study program (GAA of 1994, p. 490).
xxx xxx xxx
13. Income of State Universities and Colleges. The income of State Universities
and Colleges derived from tuition fees and other sources as may be imposed by
governing boards other than those accruing to revolving funds created under LOI Nos.
872 and 1026 and those authorized to be recorded as trust receipts pursuant to Section
40, Chapter 5, Book VI of E.O. No. 292 shall be deposited with the National Treasury and
recorded as a Special Account in the General Fund pursuant to P.D. No. 1234 and P.D.
No. 1437 for the use of the institution, subject to Section 35, Chapter 5, Book VI of E.O.
No. 292L PROVIDED, That disbursements from the Special Account shall not exceed the
Page 19 of 35
amount actually earned and deposited: PROVIDED, FURTHER, That a cash advance on
such income may be allowed State half of income actually realized during the preceding
year and this cash advance shall be charged against income actually earned during the
budget year: AND PROVIDED, FINALLY, That in no case shall such funds be used to
create positions, nor for payment of salaries, wages or allowances, except as may be
specifically approved by the Department of Budge and Management for income-
producing activities, or to purchase equipment or books, without the prior approval of
the President of the Philippines pursuant to Letter of Implementation No. 29.
All collections of the State Universities and Colleges for fees, charges and receipts
intended for private recipient units, including private foundations affiliated with these
institutions shall be duly acknowledged with official receipts and deposited as a trust
receipt before said income shall be subject to Section 35, Chapter 5, Book VI of E.O. No.
292
(GAA of 1994, p. 490).
The President gave his reason for the veto thus:
Pursuant to Section 65 of the Government Auditing Code of the Philippines, Section 44,
Chapter 5, Book VI of E.O. No. 292, s. 1987 and Section 22, Article VII of the
Constitution, all income earned by all Government offices and agencies shall accrue to
the General Fund of the Government in line with the One Fund Policy enunciated by
Section 29 (1), Article VI and Section 22, Article VII of the Constitution. Likewise, the
creation and establishment of revolving funds shall be authorized by substantive law
pursuant to Section 66 of the Government Auditing Code of the Philippines and Section
45, Chapter 5, Book VI of E.O. No. 292.
Notwithstanding the aforementioned provisions of the Constitution and existing law, I
have noted the proliferation of special provisions authorizing the use of agency income
as well as the creation, operation and maintenance of revolving funds.
I would like to underscore the facts that such income were already considered as
integral part of the revenue and financing sources of the National Expenditure Program
which I previously submitted to Congress. Hence, the grant of new special provisions
authorizing the use of agency income and the establishment of revolving funds over
and above the agency appropriations authorized in this Act shall effectively reduce the
financing sources of the 1994 GAA and, at the same time, increase the level of
expenditures of some agencies beyond the well-coordinated, rationalized levels for such
agencies. This corresponding increases the overall deficit of the National Government
(Veto Message, p. 3).
Petitioners claim that the President acted with grave abuse of discretion when he
disallowed by his veto the "use of income" and the creation of "revolving fund" by the
Western Visayas State University and Leyte State Colleges when he allowed other
government offices, like the National Stud Farm, to use their income for their operating
expenses (Rollo, G.R. No. 113174, pp. 15-16).
There was no undue discrimination when the President vetoed said special provisions
while allowing similar provisions in other government agencies. If some government
agencies were allowed to use their income and maintain a revolving fund for that
purpose, it is because these agencies have been enjoying such privilege before by
virtue of the special laws authorizing such practices as exceptions to the "one-fund
policy" (e.g., R.A. No. 4618 for the National Stud Farm, P.D. No. 902-A for the Securities
and Exchange Commission; E.O. No. 359 for the Department of Budget and
Management's Procurement Service).
2. Veto of provision on 70% (administrative)/30% (contract) ratio for road
maintenance.
In the appropriation for the Department of Public Works and Highways, the President
vetoed the second paragraph of Special Provision No. 2, specifying the 30% maximum
ration of works to be contracted for the maintenance of national roads and bridges. The
said paragraph reads as follows:
2. Release and Use of Road Maintenance Funds. Funds allotted for the
maintenance and repair of roads which are provided in this Act for the Department of
Public Works and Highways shall be released to the respective Engineering District,
subject to such rules and regulations as may be prescribed by the Department of
Budget and Management. Maintenance funds for roads and bridges shall be exempt
from budgetary reserve.
Of the amount herein appropriated for the maintenance of national roads and bridges, a
maximum of thirty percent (30%) shall be contracted out in accordance with guidelines
to be issued by the Department of Public Works and Highways. The balance shall be
used for maintenance by force account.
Five percent (5%) of the total road maintenance fund appropriated herein to be applied
across the board to the allocation of each region shall be set aside for the maintenance
of roads which may be converted to or taken over as national roads during the current
year and the same shall be released to the central office of the said department for
eventual
sub-allotment to the concerned region and district: PROVIDED, That any balance of the
said five percent (5%) shall be restored to the regions on a pro-rata basis for the
maintenance of existing national roads.
No retention or deduction as reserves or overhead expenses shall be made, except as
authorized by law or upon direction of the President
(GAA of 1994, pp. 785-786; Emphasis supplied).
The President gave the following reason for the veto:
While I am cognizant of the well-intended desire of Congress to impose certain
restrictions contained in some special provisions, I am equally aware that many
programs, projects and activities of agencies would require some degree of flexibility to
ensure their successful implementation and therefore risk their completion.
Furthermore, not only could these restrictions and limitations derail and impede
program implementation but they may also result in a breach of contractual obligations.
D.1.a. A study conducted by the Infrastructure Agencies show that for practical intent
and purposes, maintenance by contract could be undertaken to an optimum of seventy
percent (70%) and the remaining thirty percent (30%) by force account. Moreover, the
policy of maximizing implementation through contract maintenance is a covenant of the
Road and Road Transport Program Loan from the Asian Development Bank (ADB Loan
No. 1047-PHI-1990) and Overseas Economic Cooperation Fund (OECF Loan No. PH-C17-
199). The same is a covenant under the World Bank (IBRD) Loan for the Highway
Management Project (IBRD Loan
No. PH-3430) obtained in 1992.
In the light of the foregoing and considering the policy of the government to encourage
and maximize private sector participation in the regular repair and maintenance of
infrastructure facilities, I am directly vetoing the underlined second paragraph of
Special Provision No. 2 of the Department of Public Works and Highways (Veto Message,
p. 11).
Page 20 of 35
The second paragraph of Special Provision No. 2 brings to fore the divergence in policy
of Congress and the President. While Congress expressly laid down the condition that
only 30% of the total appropriation for road maintenance should be contracted out, the
President, on the basis of a comprehensive study, believed that contracting out road
maintenance projects at an option of 70% would be more efficient, economical and
practical.
The Special Provision in question is not an inappropriate provision which can be the
subject of a veto. It is not alien to the appropriation for road maintenance, and on the
other hand, it specified how the said item shall be expended — 70% by administrative
and 30% by contract.
The 1987 Constitution allows the addition by Congress of special provisions, conditions
to items in an expenditure bill, which cannot be vetoed separately from the items to
which they relate so long as they are "appropriate" in the budgetary sense (Art. VII, Sec.
25[2]).
The Solicitor General was hard put in justifying the veto of this special provision. He
merely argued that the provision is a complete turnabout from an entrenched practice
of the government to maximize contract maintenance (Rollo, G.R. No. 113888, pp. 85-
86). That is not a ground to veto a provision separate from the item to which it refers.
The veto of the second paragraph of Special Provision No. 2 of the item for the DPWH is
therefore unconstitutional.
3. Veto of provision on purchase of medicines by AFP.
In the appropriation for the Armed Forces of the Philippines (AFP), the President vetoed
the special provision on the purchase by the AFP of medicines in compliance with the
Generics Drugs Law (R.A. No. 6675). The vetoed provision reads:
12. Purchase of Medicines. The purchase of medicines by all Armed Forces of the
Philippines units, hospitals and clinics shall strictly comply with the formulary embodied
in the National Drug Policy of the Department of Health (GAA of 1994, p. 748).
According to the President, while it is desirable to subject the purchase of medicines to
a standard formulary, "it is believed more prudent to provide for a transition period for
its adoption and smooth implementation in the Armed Forces of the Philippines" (Veto
Message, p. 12).
The Special Provision which requires that all purchases of medicines by the AFP should
strictly comply with the formulary embodied in the National Drug Policy of the
Department of Health is an "appropriate" provision. it is a mere advertence by Congress
to the fact that there is an existing law, the Generics Act of 1988, that requires "the
extensive use of drugs with generic names through a rational system of procurement
and distribution." The President believes that it is more prudent to provide for a
transition period for the smooth implementation of the law in the case of purchases by
the Armed Forces of the Philippines, as implied by Section 11 (Education Drive) of the
law itself. This belief, however, cannot justify his veto of the provision on the purchase
of medicines by the AFP.
Being directly related to and inseparable from the appropriation item on purchases of
medicines by the AFP, the special provision cannot be vetoed by the President without
also vetoing the said item (Bolinao Electronics Corporation v. Valencia, 11 SCRA 486
[1964]).
4. Veto of provision on prior approval of Congress for purchase of military
equipment.
In the appropriation for the modernization of the AFP, the President vetoed the
underlined proviso of Special Provision No. 2 on the "Use of Fund," which requires the
prior approval of Congress for the release of the corresponding modernization funds, as
well as the entire Special Provisions
No. 3 on the "Specific Prohibition":
2. Use of the Fund. Of the amount herein appropriated, priority shall be given for
the acquisition of AFP assets necessary for protecting marine, mineral, forest and other
resources within Philippine territorial borders and its economic zone, detection,
prevention or deterrence of air or surface intrusions and to support diplomatic moves
aimed at preserving national dignity, sovereignty and patrimony: PROVIDED, That the
said modernization fund shall not be released until a Table of Organization and
Equipment for FY 1994-2000 is submitted to and approved by Congress.
3. Specific Prohibition. The said Modernization Fund shall not be used for payment
of six (6) additional S-211 Trainer planes, 18 SF-260 Trainer planes and 150 armored
personnel carriers (GAA of 1994, p. 747).
As reason for the veto, the President stated that the said condition and prohibition
violate the Constitutional mandate of non-impairment of contractual obligations, and if
allowed, "shall effectively alter the original intent of the AFP Modernization Fund to
cover all military equipment deemed necessary to modernize the Armed Forces of the
Philippines" (Veto Message, p. 12).
Petitioners claim that Special Provision No. 2 on the "Use of Fund" and Special Provision
No. 3 are conditions or limitations related to the item on the AFP modernization plan.
The requirement in Special Provision No. 2 on the "Use of Fund" for the AFP
modernization program that the President must submit all purchases of military
equipment to Congress for its approval, is an exercise of the "congressional or
legislative veto." By way of definition, a congressional veto is a means whereby the
legislature can block or modify administrative action taken under a statute. It is a form
of legislative control in the implementation of particular executive actions. The form
may be either negative, that is requiring disapproval of the executive action, or
affirmative, requiring approval of the executive action. This device represents a
significant attempt by Congress to move from oversight of the executive to shared
administration (Dixon, The Congressional Veto and Separation of Powers: The Executive
on a Leash,
56 North Carolina Law Review, 423 [1978]).
A congressional veto is subject to serious questions involving the principle of separation
of powers.
However the case at bench is not the proper occasion to resolve the issues of the
validity of the legislative veto as provided in Special Provisions Nos. 2 and 3 because
the issues at hand can be disposed of on other grounds. Any provision blocking an
administrative action in implementing a law or requiring legislative approval of
executive acts must be incorporated in a separate and substantive bill. Therefore, being
"inappropriate" provisions, Special Provisions Nos. 2 and 3 were properly vetoed.
As commented by Justice Irene Cortes in her memorandum as Amicus Curiae: "What
Congress cannot do directly by law it cannot do indirectly by attaching conditions to the
exercise of that power (of the President as Commander-in-Chief) through provisions in
the appropriation law."
Page 21 of 35
Furthermore, Special Provision No. 3, prohibiting the use of the Modernization Funds for
payment of the trainer planes and armored personnel carriers, which have been
contracted for by the AFP, is violative of the Constitutional prohibition on the passage of
laws that impair the obligation of contracts (Art. III, Sec. 10), more so, contracts entered
into by the Government itself.
The veto of said special provision is therefore valid.
5. Veto of provision on use of savings to augment AFP pension funds.
In the appropriation for the AFP Pension and Gratuity Fund, the President vetoed the
new provision authorizing the Chief of Staff to use savings in the AFP to augment
pension and gratuity funds. The vetoed provision reads:
2. Use of Savings. The Chief of Staff, AFP, is authorized, subject to the approval of the
Secretary of National Defense, to use savings in the appropriations provided herein to
augment the pension fund being managed by the AFP Retirement and Separation
Benefits System as provided under Sections 2(a) and 3 of P.D. No. 361 (GAA of 1994,
p. 746).
According to the President, the grant of retirement and separation benefits should be
covered by direct appropriations specifically approved for the purpose pursuant to
Section 29(1) of Article VI of the Constitution. Moreover, he stated that the authority to
use savings is lodged in the officials enumerated in Section 25(5) of Article VI of the
Constitution (Veto Message, pp. 7-8).
Petitioners claim that the Special Provision on AFP Pension and Gratuity Fund is a
condition or limitation which is so intertwined with the item of appropriation that it
could not be separated therefrom.
The Special Provision, which allows the Chief of Staff to use savings to augment the
pension fund for the AFP being managed by the AFP Retirement and Separation Benefits
System is violative of Sections 25(5) and 29(1) of the Article VI of the Constitution.
Under Section 25(5), no law shall be passed authorizing any transfer of appropriations,
and under Section 29(1), no money shall be paid out of
the Treasury except in pursuance of an appropriation made by law. While Section 25(5)
allows as an exception the realignment of savings to augment items in the general
appropriations law for the executive branch, such right must and can be exercised only
by the President pursuant to a specific law.
6. Condition on the deactivation of the CAFGU's.
Congress appropriated compensation for the CAFGU's, including the payment of
separation benefits but it added the following Special Provision:
1. CAFGU Compensation and Separation Benefit. The appropriation authorized
herein shall be used for the compensation of CAFGU's including the payment of their
separation benefit not exceeding one (1) year subsistence allowance for the 11,000
members who will be deactivated in 1994. The Chief of Staff, AFP, shall, subject to the
approval of the Secretary of National Defense, promulgate policies and procedures for
the payment of separation benefit (GAA of 1994, p. 740).
The President declared in his Veto Message that the implementation of this Special
Provision to the item on the CAFGU's shall be subject to prior Presidential approval
pursuant to P.D. No. 1597 and R.A.. No. 6758. He gave the following reasons for
imposing the condition:
I am well cognizant of the laudable intention of Congress in proposing the amendment
of Special Provision No. 1 of the CAFGU. However, it is premature at this point in time of
our peace process to earmark and declare through special provision the actual number
of CAFGU members to be deactivated in CY 1994. I understand that the number to be
deactivated would largely depend on the result or degree of success of the on-going
peace initiatives which are not yet precisely determinable today. I have desisted,
therefore, to directly veto said provisions because this would mean the loss of the entire
special provision to the prejudice of its beneficient provisions. I therefore declare that
the actual implementation of this special provision shall be subject to prior Presidential
approval pursuant to the provisions of P.D. No. 1597 and
R.A. No. 6758 (Veto Message, p. 13).
Petitioners claim that the Congress has required the deactivation of the CAFGU's when
it appropriated the money for payment of the separation pay of the members of thereof.
The President, however, directed that the deactivation should be done in accordance to
his timetable, taking into consideration the peace and order situation in the affected
localities.
Petitioners complain that the directive of the President was tantamount to an
administrative embargo of the congressional will to implement the Constitution's
command to dissolve the CAFGU's (Rollo, G.R. No. 113174,
p. 14; G.R. No. 113888, pp. 9, 14-16). They argue that the President cannot impair or
withhold expenditures authorized and appropriated by Congress when neither the
Appropriations Act nor other legislation authorize such impounding (Rollo, G.R. No.
113888, pp. 15-16).
The Solicitor General contends that it is the President, as Commander-in-Chief of the
Armed Forces of the Philippines, who should determine when the services of the
CAFGU's are no longer needed (Rollo, G.R. No. 113888,
pp. 92-95.).
This is the first case before this Court where the power of the President to impound is
put in issue. Impoundment refers to a refusal by the President, for whatever reason, to
spend funds made available by Congress. It is the failure to spend or obligate budget
authority of any type (Notes: Impoundment of Funds, 86 Harvard Law Review 1505
[1973]).
Those who deny to the President the power to impound argue that once Congress has
set aside the fund for a specific purpose in an appropriations act, it becomes mandatory
on the part of the President to implement the project and to spend the money
appropriated therefor. The President has no discretion on the matter, for the
Constitution imposes on him the duty to faithfully execute the laws.
In refusing or deferring the implementation of an appropriation item, the President in
effect exercises a veto power that is not expressly granted by the Constitution. As a
matter of fact, the Constitution does not say anything about impounding. The source of
the Executive authority must be found elsewhere.
Proponents of impoundment have invoked at least three principal sources of the
authority of the President. Foremost is the authority to impound given to him either
expressly or impliedly by Congress. Second is the executive power drawn from the
President's role as Commander-in-Chief. Third is the Faithful Execution Clause which
ironically is the same provision invoked by petitioners herein.
Page 22 of 35
The proponents insist that a faithful execution of the laws requires that the President
desist from implementing the law if doing so would prejudice public interest. An
example given is when through efficient and prudent management of a project,
substantial savings are made. In such a case, it is sheer folly to expect the President to
spend the entire amount budgeted in the law (Notes: Presidential Impoundment:
Constitutional Theories and Political Realities, 61 Georgetown Law Journal 1295 [1973];
Notes; Protecting the Fisc: Executive Impoundment and Congressional Power, 82 Yale
Law Journal 1686 [1973).
We do not find anything in the language used in the challenged Special Provision that
would imply that Congress intended to deny to the President the right to defer or
reduce the spending, much less to deactivate 11,000 CAFGU members all at once in
1994. But even if such is the intention, the appropriation law is not the proper vehicle
for such purpose. Such intention must be embodied and manifested in another law
considering that it abrades the powers of the Commander-in-Chief and there are
existing laws on the creation of the CAFGU's to be amended. Again we state: a provision
in an appropriations act cannot
be used to repeal or amend other laws, in this case, P.D. No. 1597 and R.A. No. 6758.
7. Condition on the appropriation for the Supreme Court, etc.
(a) In the appropriations for the Supreme Court, Ombudsman, COA, and CHR, the
Congress added the following provisions:
The Judiciary
xxx xxx xxx
Special Provisions
1. Augmentation of any Item in the Court's Appropriations. Any savings in the
appropriations for the Supreme Court and the Lower Courts may be utilized by the Chief
Justice of the Supreme Court to augment any item of the Court's appropriations for (a)
printing of decisions and publication of "Philippine Reports"; (b) Commutable terminal
leaves of Justices and other personnel of the Supreme Court and payment of adjusted
pension rates to retired Justices entitled thereto pursuant to Administrative Matter No.
91-8-225-C.A.; (c) repair, maintenance, improvement and other operating expenses of
the courts' libraries, including purchase of books and periodicals; (d) purchase,
maintenance and improvement of printing equipment; (e) necessary expenses for the
employment of temporary employees, contractual and casual employees, for judicial
administration; (f) maintenance and improvement of the Court's Electronic Data
Processing System; (g) extraordinary expenses of the Chief Justice, attendance in
international conferences and conduct of training programs; (h) commutable
transportation and representation allowances and fringe benefits for Justices, Clerks of
Court, Court Administrator, Chiefs of Offices and other Court personnel in accordance
with the rates prescribed by law; and (i) compensation of attorney-de-officio: PROVIDED,
That as mandated by LOI No. 489 any increase in salary and allowances shall be subject
to the usual procedures and policies as provided for under
P.D. No. 985 and other pertinent laws (GAA of 1994, p. 1128; Emphasis supplied).
xxx xxx xxx
Commission on Audit
xxx xxx xxx
5. Use of Savings. The Chairman of the Commission on Audit is hereby
authorized, subject to appropriate accounting and auditing rules and regulations, to use
savings for the payment of fringe benefits as may be authorized by law for officials and
personnel of the Commission (GAA of 1994, p. 1161; Emphasis supplied).
xxx xxx xxx
Office of the Ombudsman
xxx xxx xxx
6. Augmentation of Items in the appropriation of the Office of the Ombudsman.
The Ombudsman is hereby authorized, subject to appropriate accounting and auditing
rules and regulations to augment items of appropriation in the Office of the
Ombudsman from savings in other items of appropriation actually released, for: (a)
printing and/or publication of decisions, resolutions, training and information materials;
(b) repair, maintenance and improvement of OMB Central and Area/Sectoral facilities;
(c) purchase of books, journals, periodicals and equipment;
(d) payment of commutable representation and transportation allowances of officials
and employees who by reason of their positions are entitled thereto and fringe benefits
as may be authorized specifically by law for officials and personnel of OMB pursuant to
Section 8 of Article IX-B of the Constitution; and (e) for other official purposes subject to
accounting and auditing rules and regulations (GAA of 1994, p. 1174; Emphasis
supplied).
xxx xxx xxx
Commission on Human Rights
xxx xxx xxx
1. Use of Savings. The Chairman of the Commission on Human Rights (CHR) is
hereby authorized, subject to appropriate accounting and auditing rules and
regulations, to augment any item of appropriation in the office of the CHR from savings
in other items of appropriations actually released, for: (a) printing and/or publication of
decisions, resolutions, training materials and educational publications; (b) repair,
maintenance and improvement of Commission's central and regional facilities; (c)
purchase of books, journals, periodicals and equipment, (d) payment of commutable
representation and transportation allowances of officials and employees who by reason
of their positions are entitled thereto and fringe benefits, as may be authorized by law
for officials and personnel of CHR, subject to accounting and auditing rules and
regulations (GAA of 1994, p. 1178; Emphasis supplied).
In his Veto Message, the President expressed his approval of the conditions included in
the GAA of 1994. He noted that:
The said condition is consistent with the Constitutional injunction prescribed under
Section 8, Article IX-B of the Constitution which states that "no elective or appointive
public officer or employee shall receive additional, double, or indirect compensation
unless specifically authorized by law." I am, therefore, confident that the heads of the
said offices shall maintain fidelity to the law and faithfully adhere to the well-
established principle on compensation standardization (Veto Message, p. 10).
Petitioners claim that the conditions imposed by the President violated the
independence and fiscal autonomy of the Supreme Court, the Ombudsman, the COA
and the CHR.
Page 23 of 35
In the first place, the conditions questioned by petitioners were placed in the GAB by
Congress itself, not by the President. The Veto Message merely highlighted the
Constitutional mandate that additional or indirect compensation can only be given
pursuant to law.
In the second place, such statements are mere reminders that the disbursements of
appropriations must be made in accordance with law. Such statements may, at worse,
be treated as superfluities.
(b) In the appropriation for the COA, the President imposed the condition that the
implementation of the budget of the COA be subject to "the guidelines to be issued by
the President."
The provisions subject to said condition reads:
xxx xxx xxx
3. Revolving Fund. The income of the Commission on Audit derived from sources
authorized by the Government Auditing Code of the Philippines (P.D. No. 1445) not
exceeding Ten Million Pesos (P10,000,000) shall be constituted into a revolving fund
which shall be used for maintenance, operating and other incidental expenses to
enhance audit services and audit-related activities. The fund shall be deposited in an
authorized government depository ban, and withdrawals therefrom shall be made in
accordance with the procedure prescribed by law and implementing rules and
regulations: PROVIDED, That any interests earned on such deposit shall be remitted at
the end of each quarter to the national Treasury and shall accrue to the General Fund:
PROVIDED FURTHER, That the Commission on Audit shall submit to the Department of
Budget and Management a quarterly report of income and expenditures of said
revolving fund (GAA of 1994, pp. 1160-1161).
The President cited the "imperative need to rationalize" the implementation,
applicability and operation of use of income and revolving funds. The Veto Message
stated:
. . . I have observed that there are old and long existing special provisions authorizing
the use of income and the creation of revolving funds. As a rule, such authorizations
should be discouraged. However, I take it that these authorizations have legal/statutory
basis aside from being already a vested right to the agencies concerned which should
not be jeopardized through the Veto Message. There is, however, imperative need to
rationalize their implementation, applicability and operation. Thus, in order to
substantiate the purpose and intention of said provisions, I hereby declare that the
operationalization of the following provisions during budget implementation shall be
subject to the guidelines to be issued by the President pursuant to Section 35, Chapter
5, Book VI of E.O. No. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to
Sections 2 and 3 of the General Provisions of this Act (Veto Message, p. 6; Emphasis
Supplied.)
(c) In the appropriation for the DPWH, the President imposed the condition that in
the implementation of DPWH projects, the administrative and engineering overhead of
5% and 3% "shall be subject to the necessary administrative guidelines to be
formulated by the Executive pursuant to existing laws." The condition was imposed
because the provision "needs further study" according to the President.
The following provision was made subject to said condition:
9. Engineering and Administrative Overhead. Not more than five percent (5%) of
the amount for infrastructure project released by the Department of Budget and
Management shall be deducted by DPWH for administrative overhead, detailed
engineering and construction supervision, testing and quality control, and the like, thus
insuring that at least ninety-five percent (95%) of the released fund is available for
direct implementation of the project. PROVIDED, HOWEVER, That for school buildings,
health centers, day-care centers and barangay halls, the deductible amount shall not
exceed three percent (3%).
Violation of, or non-compliance with, this provision shall subject the government official
or employee concerned to administrative, civil and/or criminal sanction under Sections
43 and 80, Book VI of E.O.
No. 292 (GAA of 1994, p. 786).
(d) In the appropriation for the National Housing Authority (NHA), the President
imposed the condition that allocations for specific projects shall be released and
disbursed "in accordance with the housing program of the government, subject to prior
Executive approval."
The provision subject to the said condition reads:
3. Allocations for Specified Projects. The following allocations for the specified
projects shall be set aside for corollary works and used exclusively for the repair,
rehabilitation and construction of buildings, roads, pathwalks, drainage, waterworks
systems, facilities and amenities in the area: PROVIDED, That any road to be
constructed or rehabilitated shall conform with the specifications and standards set by
the Department of Public Works and Highways for such kind of road: PROVIDED,
FURTHER, That savings that may be available in the future shall be used for road repair,
rehabilitation and construction:
(1) Maharlika Village Road — Not less than P5,000,000
(2) Tenement Housing Project (Taguig) — Not less than P3,000,000
(3) Bagong Lipunan Condominium Project (Taguig) — Not less than P2,000,000
4. Allocation of Funds. Out of the amount appropriated for the implementation of
various projects in resettlement areas, Seven Million Five Hundred Thousand Pesos
(P7,500,000) shall be allocated to the Dasmariñas Bagong Bayan resettlement area,
Eighteen Million Pesos (P18,000,000) to the Carmona Relocation Center Area (Gen.
Mariano Alvarez) and Three Million Pesos (P3,000,000) to the Bulihan Sites and
Services, all of which will be for the cementing of roads in accordance with DPWH
standards.
5. Allocation for Sapang Palay. An allocation of Eight Million Pesos (P8,000,000)
shall be set aside for the asphalting of seven (7) kilometer main road of Sapang Palay,
San Jose Del Monte, Bulacan
(GAA of 1994, p. 1216).
The President imposed the conditions: (a) that the "operationalization" of the special
provision on revolving funds of the COA "shall be subject to guidelines to be issued by
the President pursuant to Section 35, Chapter 5,
Book VI of E.O. 292 and Sections 65 and 66 of P.D. No. 1445 in relation to Sections 2 and
3 of the General Provisions of this Act" (Rollo, G.R.
No. 113174, pp. 5,7-8); (b) that the implementation of Special Provision No. 9 of the
DPWH on the mandatory retention of 5% and 3% of the amounts released by said
Department "be subject to the necessary administrative guidelines to be formulated by
the Executive pursuant to existing law" (Rollo, G.R. No. 113888; pp. 10, 14-16); and (c)
that the appropriations authorized for the NHA can be released only "in accordance with
Page 24 of 35
the housing program of the government subject to prior Executive approval" (Rollo, G.R.
No. 113888, pp. 10-11;
14-16).
The conditions objected to by petitioners are mere reminders that the implementation
of the items on which the said conditions were imposed, should be done in accordance
with existing laws, regulations or policies. They did not add anything to what was
already in place at the time of the approval of the GAA of 1994.
There is less basis to complain when the President said that the expenditures shall be
subject to guidelines he will issue. Until the guidelines are issued, it cannot be
determined whether they are proper or inappropriate. The issuance of administrative
guidelines on the use of public funds authorized by Congress is simply an exercise by
the President of his constitutional duty to see that the laws are faithfully executed (1987
Constitution, Art. VII, Sec. 17; Planas v. Gil 67 Phil. 62 [1939]). Under the Faithful
Execution Clause, the President has the power to take "necessary and proper steps" to
carry into execution the law (Schwartz, On Constitutional Law, p. 147 [1977]). These
steps are the ones to be embodied in the guidelines.
IV
Petitioners chose to avail of the special civil actions but those remedies can be used
only when respondents have acted "without or in excess" of jurisdiction, or "with grave
abuse of discretion," (Revised Rules of Court,
Rule 65, Section 2). How can we begrudge the President for vetoing the Special
Provision on the appropriation for debt payment when he merely followed our decision
in Gonzales? How can we say that Congress has abused its discretion when it
appropriated a bigger sum for debt payment than the amount appropriated for
education, when it merely followed our dictum in Guingona?
Article 8 of the Civil Code of Philippines, provides:
Judicial decisions applying or interpreting the laws or the constitution shall from a part
of the legal system of the Philippines.
The Court's interpretation of the law is part of that law as of the date of its enactment
since the court's interpretation merely establishes the contemporary legislative intent
that the construed law purports to carry into effect (People v. Licera, 65 SCRA 270
[1975]). Decisions of the Supreme Court assume the same authority as statutes
(Floresca v. Philex Mining Corporation, 136 SCRA 141 [1985]).
Even if Guingona and Gonzales are considered hard cases that make bad laws and
should be reversed, such reversal cannot nullify prior acts done in reliance thereof.
WHEREFORE, the petitions are DISMISSED, except with respect to
(1) G.R. Nos. 113105 and 113766 only insofar as they pray for the annulment of the
veto of the special provision on debt service specifying that the fund therein
appropriated "shall be used for payment of the principal and interest of foreign and
domestic indebtedness" prohibiting the use of the said funds "to pay for the liabilities of
the Central Bank Board of Liquidators", and (2) G.R. No. 113888 only insofar as it prays
for the annulment of the veto of: (a) the second paragraph of Special Provision No. 2 of
the item of appropriation for the Department of Public Works and Highways (GAA of
1994, pp. 785-786); and (b) Special Provision No. 12 on the purchase of medicines by
the Armed Forces of the Philippines (GAA of 1994, p. 748), which is GRANTED.
SO ORDERED
G.R. No. 164978 October 13, 2005 Florencio B. Abad

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P. Education
EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY
A.S. MADRIGAL, and SERGIO R. OSMEÑA III, Petitioners 23 August 2004
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR., Avelino J. Cruz, Jr.
MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO,
RENE C. VILLA, and ARTHUR C. YAP, Respondents. National Defense

DECISION 23 August 2004

CARPIO, J.: Rene C. Villa

The Case Agrarian Reform

This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of 23 August 2004
preliminary injunction to declare unconstitutional the appointments issued by President
Gloria Macapagal-Arroyo ("President Arroyo") through Executive Secretary Eduardo R. Joseph H. Durano
Ermita ("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor,
Joseph H. Durano, Raul M. Gonzalez, Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap Tourism
("respondents") as acting secretaries of their respective departments. The petition also
seeks to prohibit respondents from performing the duties of department secretaries. 23 August 2004

Antecedent Facts Michael T. Defensor

The Senate and the House of Representatives ("Congress") commenced their regular Environment and Natural Resources
session on 26 July 2004. The Commission on Appointments, composed of Senators and
Representatives, was constituted on 25 August 2004. 23 August 2004

Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries The appointment papers are uniformly worded as follows:
of their respective departments.
Sir:
Appointee
Pursuant to the provisions of existing laws, you are hereby appointed ACTING
Department SECRETARY, DEPARTMENT OF (appropriate department) vice (name of person replaced).

Date of Appointment By virtue hereof, you may qualify and enter upon the performance of the duties and
functions of the office, furnishing this Office and the Civil Service Commission with
Arthur C. Yap copies of your Oath of Office.

Agriculture (signed)

15 August 2004 Gloria Arroyo

Alberto G. Romulo Respondents took their oath of office and assumed duties as acting secretaries.

Foreign Affairs On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara
("Senator Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada
23 August 2004 ("Senator Ejercito-Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson
("Senator Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator
Raul M. Gonzalez Madrigal"), and Sergio R. Osmeña, III ("Senator Osmeña") ("petitioners") filed the
present petition as Senators of the Republic of the Philippines.
Justice
Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo
23 August 2004 issued ad interim appointments3 to respondents as secretaries of the departments to

Page 25 of 35
which they were previously appointed in an acting capacity. The appointment papers
are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD
INTERIM], DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon the performance of the duties and
functions of the office, furnishing this Office and the Civil Service Commission with
copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyo’s appointment of
respondents as acting secretaries without the consent of the Commission on
Appointments while Congress is in session.
The Court’s Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had
extended to respondents ad interim appointments on 23 September 2004 immediately
after the recess of Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done.4 However, as an
exception to the rule on mootness, courts will decide a question otherwise moot if it is
capable of repetition yet evading review.5
In the present case, the mootness of the petition does not bar its resolution. The
question of the constitutionality of the President’s appointment of department
secretaries in an acting capacity while Congress is in session will arise in every such
appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not
interfere with the exercise of this executive power except in those instances when the
Constitution expressly allows it to interfere.6 Limitations on the executive power to
appoint are construed strictly against the legislature.7 The scope of the legislature’s
interference in the executive’s power to appoint is limited to the power to prescribe the
qualifications to an appointive office. Congress cannot appoint a person to an office in
the guise of prescribing qualifications to that office. Neither may Congress impose on
the President the duty to appoint any particular person to an office.8
However, even if the Commission on Appointments is composed of members of
Congress, the exercise of its powers is executive and not legislative. The Commission on
Page 26 of 35
Appointments does not legislate when it exercises its power to give or withhold consent
to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its
membership is confined to members of Congress, said Commission is independent of
Congress. The powers of the Commission do not come from Congress, but emanate
directly from the Constitution. Hence, it is not an agent of Congress. In fact, the
functions of the Commissioner are purely executive in nature. xxx9
On Petitioners’ Standing
The Solicitor General states that the present petition is a quo warranto proceeding
because, with the exception of Secretary Ermita, petitioners effectively seek to oust
respondents for unlawfully exercising the powers of department secretaries. The
Solicitor General further states that petitioners may not claim standing as Senators
because no power of the Commission on Appointments has been "infringed upon or
violated by the President. xxx If at all, the Commission on Appointments as a body
(rather than individual members of the Congress) may possess standing in this case."10
Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction
over unconstitutional acts of the President.11 Petitioners further contend that they
possess standing because President Arroyo’s appointment of department secretaries in
an acting capacity while Congress is in session impairs the powers of Congress.
Petitioners cite Sanlakas v. Executive Secretary12 as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise of the
powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress. In
such a case, any member of Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is
error for petitioners to claim standing in the present case as members of Congress.
President Arroyo’s issuance of acting appointments while Congress is in session impairs
no power of Congress. Among the petitioners, only the following are members of the
Commission on Appointments of the 13th Congress: Senator Enrile as Minority Floor
Leader, Senator Lacson as Assistant Minority Floor Leader, and Senator Angara, Senator
Ejercito-Estrada, and Senator Osmeña as members.
Thus, on the impairment of the prerogatives of members of the Commission on
Appointments, only Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have
standing in the present petition. This is in contrast to Senators Pimentel, Estrada, Lim,
and Madrigal, who, though vigilant in protecting their perceived prerogatives as
members of Congress, possess no standing in the present petition.
The Constitutionality of President Arroyo’s Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have appointed respondents as
acting secretaries because "in case of a vacancy in the Office of a Secretary, it is only
an Undersecretary who can be designated as Acting Secretary."13 Petitioners base their
argument on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO 292"),14
which enumerates the powers and duties of the undersecretary. Paragraph 5 of Section
10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:
xxx
(5) Temporarily discharge the duties of the Secretary in the latter’s absence or inability
to discharge his duties for any cause or in case of vacancy of the said office, unless
otherwise provided by law. Where there are more than one Undersecretary, the
Secretary shall allocate the foregoing powers and duties among them. The President
shall likewise make the temporary designation of Acting Secretary from among them;
and
xxx
Petitioners further assert that "while Congress is in session, there can be no
appointments, whether regular or acting, to a vacant position of an office needing
confirmation by the Commission on Appointments, without first having obtained its
consent."15
In sharp contrast, respondents maintain that the President can issue appointments in an
acting capacity to department secretaries without the consent of the Commission on
Appointments even while Congress is in session. Respondents point to Section 16,
Article VII of the 1987 Constitution. Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to the President’s power of
appointment. Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall exercise the power to appoint
such officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily
designate an officer already in the government service or any other competent person
to perform the functions of an office in the executive branch, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the office is unable to
perform his duties by reason of illness, absence or any other cause; or (b) there exists a
vacancy[.]
(2) The person designated shall receive the compensation attached to the position,
unless he is already in the government service in which case he shall receive only such
additional compensation as, with his existing salary, shall not exceed the salary
authorized by law for the position filled. The compensation hereby authorized shall be
paid out of the funds appropriated for the office or agency concerned.
Page 27 of 35
(3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines of thought.
Petitioners assert that the President cannot issue appointments in an acting capacity to
department secretaries while Congress is in session because the law does not give the
President such power. In contrast, respondents insist that the President can issue such
appointments because no law prohibits such appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a
stop-gap measure intended to fill an office for a limited time until the appointment of a
permanent occupant to the office.16 In case of vacancy in an office occupied by an alter
ego of the President, such as the office of a department secretary, the President must
necessarily appoint an alter ego of her choice as acting secretary before the permanent
appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to appoint
automatically the undersecretary as her temporary alter ego. An alter ego, whether
temporary or permanent, holds a position of great trust and confidence. Congress, in
the guise of prescribing qualifications to an office, cannot impose on the President who
her alter ego should be.
The office of a department secretary may become vacant while Congress is in session.
Since a department secretary is the alter ego of the President, the acting appointee to
the office must necessarily have the President’s confidence. Thus, by the very nature of
the office of a department secretary, the President must appoint in an acting capacity a
person of her choice even while Congress is in session. That person may or may not be
the permanent appointee, but practical reasons may make it expedient that the acting
appointee will also be the permanent appointee.
The law expressly allows the President to make such acting appointment. Section 17,
Chapter 5, Title I, Book III of EO 292 states that "[t]he President may temporarily
designate an officer already in the government service or any other competent person
to perform the functions of an office in the executive branch." Thus, the President may
even appoint in an acting capacity a person not yet in the government service, as long
as the President deems that person competent.
Petitioners assert that Section 17 does not apply to appointments vested in the
President by the Constitution, because it only applies to appointments vested in the
President by law. Petitioners forget that Congress is not the only source of law. "Law"
refers to the Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions.17
Finally, petitioners claim that the issuance of appointments in an acting capacity is
susceptible to abuse. Petitioners fail to consider that acting appointments cannot
exceed one year as expressly provided in Section 17(3), Chapter 5, Title I, Book III of EO
292. The law has incorporated this safeguard to prevent abuses, like the use of acting
appointments as a way to circumvent confirmation by the Commission on
Appointments.
In distinguishing ad interim appointments from appointments in an acting capacity, a
noted textbook writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting
capacity. Both of them are effective upon acceptance. But ad-interim appointments are
extended only during a recess of Congress, whereas acting appointments may be
extended any time there is a vacancy. Moreover ad-interim appointments are submitted
to the Commission on Appointments for confirmation or rejection; acting appointments
are not submitted to the Commission on Appointments. Acting appointments are a way
of temporarily filling important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on Appointments.18
However, we find no abuse in the present case. The absence of abuse is readily
apparent from President Arroyo’s issuance of ad interim appointments to respondents
immediately upon the recess of Congress, way before the lapse of one year.
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.
SO ORDERED
G.R. No. 139554 July 21, 2006
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, petitioners,
vs.
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 139565 July 21, 2006
BALTAZAR N. ENDRIGA, MA. PAZ D. LAGDAMEO, PATRICIA C. SISON, IRMA PONCE-ENRILE
POTENCIANO, and DOREEN FERNANDEZ, petitioners,
vs.
ARMITA B. RUFINO, ZENAIDA R. TANTOCO, LORENZO CALMA, RAFAEL SIMPAO, JR., and
FREDDIE GARCIA, respondents.
DECISION
CARPIO, J.:
Presidential Decree No. 15 (PD 15) created the Cultural Center of the Philippines (CCP)
for the primary purpose of propagating arts and culture in the Philippines.1 The CCP is
to awaken the consciousness of the Filipino people to their artistic and cultural heritage
and encourage them to preserve, promote, enhance, and develop such heritage.2
PD 15 created a Board of Trustees ("Board") to govern the CCP. PD 15 mandates the
Board to draw up programs and projects that (1) cultivate and enhance public interest
in, and appreciation of, Philippine art; (2) discover and develop talents connected with
Philippine cultural pursuits; (3) create opportunities for individual and national self-
expression in cultural affairs; and (4) encourage the organization of cultural groups and
the staging of cultural exhibitions.3 The Board administers and holds in trust real and
personal properties of the CCP for the benefit of the Filipino people.4 The Board invests
income derived from its projects and operations in a Cultural Development Fund set up
to attain the CCP's objectives.5
The consolidated petitions in the case at bar stem from a quo warranto proceeding
involving two sets of CCP Boards. The controversy revolves on who between the
contending groups, both claiming as the rightful trustees of the CCP Board, has the
legal right to hold office. The resolution of the issue boils down to the constitutionality
of the provision of PD 15 on the manner of filling vacancies in the Board.
The Case
Page 28 of 35
Before us are two consolidated Petitions for Review on Certiorari under Rule 45 of the
1997 Rules of Civil Procedure. In G.R. No. 139554, petitioners Armita B. Rufino
("Rufino"), Zenaida R. Tantoco ("Tantoco"),6 Lorenzo Calma ("Calma"), Rafael Simpao, Jr.
("Simpao"), and Freddie Garcia ("Garcia"), represented by the Solicitor General and
collectively referred to as the Rufino group, seek to set aside the Decision7 dated 14
May 1999 of the Court of Appeals in CA-G.R. SP No. 50272 as well as the Resolution
dated 3 August 1999 denying the motion for reconsideration. The dispositive portion of
the appellate court's decision reads:
WHEREFORE, judgment is hereby rendered
1) Declaring petitioners [the Endriga group] to have a clear right to their respective
offices to which they were elected by the CCP Board up to the expiration of their 4-year
term,
2) Ousting respondents [the Rufino group], except respondent Zenaida R. Tantoco, from
their respective offices and excluding them therefrom, and
3) Dismissing the case against respondent Zenaida R. Tantoco.
SO ORDERED.8
In G.R. No. 139565, petitioners Baltazar N. Endriga ("Endriga"), Ma. Paz D. Lagdameo
("Lagdameo"), Patricia C. Sison ("Sison"), Irma Ponce-Enrile Potenciano ("Potenciano"),
and Doreen Fernandez ("Fernandez"), collectively referred to as the Endriga group,
assail the Resolution dated 3 August 1999 issued by the Court of Appeals in the same
case insofar as it denied their Motion for Immediate Execution of the Decision dated 14
May 1999.
The Antecedents
On 25 June 1966, then President Ferdinand E. Marcos issued Executive Order No. 30 (EO
30) creating the Cultural Center of the Philippines as a trust governed by a Board of
Trustees of seven members to preserve and promote Philippine culture. The original
founding trustees, who were all appointed by President Marcos, were Imelda
Romualdez-Marcos, Juan Ponce-Enrile, Andres Soriano, Jr., Antonio Madrigal, Father
Horacio Dela Costa, S.J., I.P. Soliongco, and Ernesto Rufino.
On 5 October 1972, or soon after the declaration of Martial Law, President Marcos
issued PD 15,9 the CCP's charter, which converted the CCP under EO 30 into a non-
municipal public corporation free from the "pressure or influence of politics."10 PD 15
increased the members of CCP's Board from seven to nine trustees. Later, Executive
Order No. 1058, issued on 10 October 1985, increased further the trustees to 11.
After the People Power Revolution in 1986, then President Corazon C. Aquino asked for
the courtesy resignations of the then incumbent CCP trustees and appointed new
trustees to the Board. Eventually, during the term of President Fidel V. Ramos, the CCP
Board included Endriga, Lagdameo, Sison, Potenciano, Fernandez, Lenora A. Cabili
("Cabili"), and Manuel T. Mañosa ("Mañosa").
On 22 December 1998, then President Joseph E. Estrada appointed seven new trustees
to the CCP Board for a term of four years to replace the Endriga group as well as two
other incumbent trustees. The seven new trustees were:
1. Armita B. Rufino - President, vice Baltazar N. Endriga
2. Zenaida R. Tantoco - Member, vice Doreen Fernandez

3. Federico Pascual - Member, vice Lenora A. Cabili
4. Rafael Buenaventura - Member, vice Manuel T. Mañosa
5. Lorenzo Calma - Member, vice Ma. Paz D. Lagdameo
6. Rafael Simpao, Jr. - Member, vice Patricia C. Sison
7. Freddie Garcia - Member, vice Irma Ponce-Enrile Potenciano
Except for Tantoco, the Rufino group took their respective oaths of office and assumed
the performance of their duties in early January 1999.
On 6 January 1999, the Endriga group filed a petition for quo warranto before this Court
questioning President Estrada's appointment of seven new members to the CCP Board.
The Endriga group alleged that under Section 6(b) of PD 15, vacancies in the CCP Board
"shall be filled by election by a vote of a majority of the trustees held at the next
regular meeting x x x." In case "only one trustee survive[s], the vacancies shall be filled
by the surviving trustee acting in consultation with the ranking officers of the [CCP]."
The Endriga group claimed that it is only when the CCP Board is entirely vacant may the
President of the Philippines fill such vacancies, acting in consultation with the ranking
officers of the CCP.
The Endriga group asserted that when former President Estrada appointed the Rufino
group, only one seat was vacant due to the expiration of Mañosa's term. The CCP Board
then had 10 incumbent trustees, namely, Endriga, Lagdameo, Sison, Potenciano,
Fernandez, together with Cabili, Father Bernardo P. Perez ("Fr. Perez"), Eduardo De los
Angeles ("De los Angeles"), Ma. Cecilia Lazaro ("Lazaro"), and Gloria M. Angara
("Angara"). President Estrada retained Fr. Perez, De los Angeles, Lazaro, and Angara as
trustees.
Endriga's term was to expire on 26 July 1999, while the terms of Lagdameo, Sison,
Potenciano, and Fernandez were to expire on 6 February 1999. The Endriga group
maintained that under the CCP Charter, the trustees' fixed four-year term could only be
terminated "by reason of resignation, incapacity, death, or other cause." Presidential
action was neither necessary nor justified since the CCP Board then still had 10
incumbent trustees who had the statutory power to fill by election any vacancy in the
Board.
The Endriga group refused to accept that the CCP was under the supervision and control
of the President. The Endriga group cited Section 3 of PD 15, which states that the CCP
"shall enjoy autonomy of policy and operation x x x."
The Court referred the Endriga group's petition to the Court of Appeals "for appropriate
action" in observance of the hierarchy of courts.
On 14 May 1999, the Court of Appeals rendered the Decision under review granting the
quo warranto petition. The Court of Appeals declared the Endriga group lawfully entitled
to hold office as CCP trustees. On the other hand, the appellate court's Decision ousted
the Rufino group from the CCP Board.
In their motion for reconsideration, the Rufino group asserted that the law could only
delegate to the CCP Board the power to appoint officers lower in rank than the trustees
of the Board. The law may not validly confer on the CCP trustees the authority to
appoint or elect their fellow trustees, for the latter would be officers of equal rank and
not of lower rank. Section 6(b) of PD 15 authorizing the CCP trustees to elect their
Page 29 of 35
fellow trustees should be declared unconstitutional being repugnant to Section 16,
Article VII of the 1987 Constitution allowing the appointment only of "officers lower in
rank" than the appointing power.
On 3 August 1999, the Court of Appeals denied the Rufino group's motion for
reconsideration. The Court of Appeals also denied the Endriga group's motion for
immediate execution of the 14 May 1999 Decision.
Hence, the instant consolidated petitions.
Meanwhile, Angara filed a Petition-in-Intervention before this Court alleging that
although she was not named as a respondent in the quo warranto petition, she has an
interest in the case as the then incumbent CCP Board Chairperson. Angara adopted the
same position and offered the same arguments as the Rufino group.
The Ruling of the Court of Appeals
The Court of Appeals held that Section 6(b) of PD 15 providing for the manner of filling
vacancies in the CCP Board is clear, plain, and free from ambiguity. Section 6(b) of PD
15 mandates the remaining trustees to fill by election vacancies in the CCP Board. Only
when the Board is entirely vacant, which is not the situation in the present case, may
the President exercise his power to appoint.
The Court of Appeals stated that the legislative history of PD 15 shows a clear intent "to
insulate the position of trustee from the pressure or influence of politics by abandoning
appointment by the President of the Philippines as the mode of filling"11 vacancies in
the CCP Board. The Court of Appeals held that until Section 6(b) of PD 15 is declared
unconstitutional in a proper case, it remains the law. The Court of Appeals also clarified
that PD 15 vests on the CCP Chairperson the power to appoint all officers, staff, and
personnel of the CCP, subject to confirmation by the Board.
The Court of Appeals denied the Rufino group's motion for reconsideration for failure to
raise new issues except the argument that Section 6(b) of PD 15 is unconstitutional. The
Court of Appeals declined to rule on the constitutionality of Section 6(b) of PD 15 since
the Rufino group raised this issue for the first time in the motion for reconsideration.
The Court of Appeals also held, "Nor may the President's constitutional and/or statutory
power of supervision and control over government corporations restrict or modify the
application of the CCP Charter."12
The Court of Appeals, moreover, denied the Endriga group's motion for immediate
execution of judgment on the ground that the reasons submitted to justify execution
pending appeal were not persuasive.
The Issues
In G.R. No. 139554, the Rufino group, through the Solicitor General, contends that the
Court of Appeals committed reversible error:
I
x x x in holding that it was "not actuated" to pass upon the constitutionality of Section
6(b) of PD 15 inasmuch as the issue was raised for the first time in [Rufino et al.'s]
motion for reconsideration;
II
x x x in not holding that Section 6(b) of PD 15 is unconstitutional considering that:

A. x x x [it] is an invalid delegation of the President's appointing power under the
Constitution;
B. x x x [it] effectively deprives the President of his constitutional power of control and
supervision over the CCP;
III
x x x in declaring the provisions of PD 15 as clear and complete and in failing to apply
the executive/administrative construction x x x which has been consistently recognized
and accepted since 1972;
IV
x x x in finding that [Endriga et al.] have a clear legal right to be the incumbent trustees
and officers of the CCP considering that:
A. Endriga et al. are estopped from instituting the quo warranto action since they
recognized and benefited from the administrative construction regarding the filling of
vacancies in the CCP Board of Trustees x x x;
B. x x x [Endriga et al.'s] terms did not legally commence as [they] were not validly
elected under PD 15;
C. assuming that [Endriga et al.] were validly elected, they lost their right to retain their
offices because their terms as trustees expired on 31 December 1998;
D. [Endriga et al.] assumed positions in conflict x x x with their offices in the CCP and
were thus not entitled to retain the same;
V the Board also elected the Chairman and President.
x x x in not dismissing the quo warranto petition for being moot x x x;
VI
x x x in holding that [Rufino et al.'s] prayer [that the] disputed offices [be declared]
entirely as vacant is bereft of basis and amounts to "an admission of their lack of right
to the office they claim."13
In G.R. No. 139565, the Endriga group raises the following issue:
whether a writ of quo warranto involving a public office should be declared a self-
executing judgment and deemed immediately executory under Rule 39, Section 4 of the
Rules of Court.14
The Court's Ruling
The petition in G.R. No. 139554 has merit.
The battle for CCP's leadership between the Rufino and Endriga groups dealt a blow to
the country's artistic and cultural activities. The highly publicized leadership row over
the CCP created discord among management, artists, scholars, employees, and even
the public because of the public interest at stake.
Page 30 of 35
Subsequently, the assumption to office of a new President in 2001 seemingly restored
normalcy to the CCP leadership. After then Vice-President Gloria Macapagal-Arroyo
assumed the Presidency on 20 January 2001, the Rufino group tendered their respective
resignations on 24-29 January 2001 as trustees of the CCP Board. On 12 July 2001,
President Macapagal-Arroyo appointed 11 trustees to the CCP Board with the
corresponding positions set opposite their names:
1. Baltazar N. Endriga - Chairman
2. Nestor O. Jardin - President
3. Ma. Paz D. Lagdameo - Member
4. Teresita O. Luz - Member
5. Irma P.E. Potenciano - Member
6. Eduardo D. De los Angeles - Member
7. Patricia C. Sison - Member
8. Benjamin H. Cervantes - Member
9. Sonia M. Roco - Member
10. Ruperto S. Nicdao, Jr. - Member
11. Lina F. Litton - Member
In its special meeting on 13 July 2001, the CCP Board elected these 11 newly-appointed
trustees to the same positions and as trustees of the CCP Board. In the same meeting,
On 21 December 2001, the Solicitor General submitted to this Court a manifestation
stating that the "election of the trustees was made without prejudice to the resolution
of the constitutional issues before this Honorable Court in G.R. Nos. 139554 and
139565, x x x."15
The Issue of Mootness
We first consider the Rufino group's contention that the Endriga group's quo warranto
suit should have been dismissed for being moot. The Rufino group argued that when the
Endriga group's terms subsequently expired, there was no more actual controversy for
the Court to decide.
For the Court to exercise its power of adjudication, there must be an actual case or
controversy — one that involves a conflict of legal rights, an assertion of opposite legal
claims susceptible of judicial resolution.16 The case must not be moot or based on
extra-legal or other similar considerations not cognizable by courts of justice.17 A case
becomes moot when its purpose has become stale.18
The purpose of the quo warranto petition was to oust the Rufino group from the CCP
Board and to declare the Endriga group as the rightful trustees of the CCP Board. It may
appear that supervening events have rendered this case moot with the resignation of
the Rufino group as well as the expiration of the terms of the Endriga group based on
their appointments by then President Ramos. A "new" set of CCP trustees had been
appointed by President Macapagal-Arroyo and subsequently elected by the CCP Board.

However, there are times when the controversy is of such character that to prevent its
recurrence, and to assure respect for constitutional limitations, this Court must pass on
the merits of a case. This is one such case.
The issues raised here are no longer just determinative of the respective rights of the
contending parties. The issues pertaining to circumstances personal to the Endriga
group may have become stale. These issues are (1) whether the Endriga group is
estopped from bringing the quo warranto for they themselves were appointed by the
incumbent President; (2) whether they were validly elected by the remaining CCP
trustees; (3) whether their terms expired on 31 December 1998 as specified in their
appointment papers; and (4) whether they are entitled to immediate execution of
judgment.
However, the constitutional question that gave rise to these issues will continue to
spawn the same controversy in the future, unless the threshold constitutional question
is resolved — the validity of Section 6(b) and (c) of PD 15 on the manner of filling
vacancies in the CCP Board. While the issues may be set aside in the meantime, they
are certain to recur every four years, especially when a new President assumes office,
generating the same controversy all over again. Thus, the issues raised here are
capable of repetition, yet evading review if compromises are resorted every time the
same controversy erupts and the constitutionality of Section 6(b) and (c) of PD 15 is not
resolved.
The Court cannot refrain from passing upon the constitutionality of Section 6(b) and (c)
of PD 15 if only to prevent a repeat of this regrettable controversy and to protect the
CCP from being periodically wracked by internecine politics. Every President who
assumes office naturally wants to appoint his or her own trustees to the CCP Board. A
frontal clash will thus periodically arise between the President's constitutional power to
appoint under Section 16, Article VII of the 1987 Constitution and the CCP trustees'
power to elect their fellow trustees under Section 6(b) and (c) of PD 15.
This Court may, in the exercise of its sound discretion, brush aside procedural
barriers19 and take cognizance of constitutional issues due to their paramount
importance. It is the Court's duty to apply the 1987 Constitution in accordance with
what it says and not in accordance with how the Legislature or the Executive would
want it interpreted.20 This Court has the final word on what the law means.21 The
Court must assure respect for the constitutional limitations embodied in the 1987
Constitution.
Interpreting Section 6(b) and (c) of PD 15
At the heart of the controversy is Section 6(b) of PD 15, as amended, which reads:
Board of Trustees. — The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without
compensation.
xxxx
(b) Vacancies in the Board of Trustees due to termination of term, resignation,
incapacity, death or other cause as may be provided in the By-laws, shall be filled by
election by a vote of a majority of the trustees held at the next regular meeting
following occurrence of such vacancy. The elected trustee shall then hold office for a
complete term of four years unless sooner terminated by reason of resignation,
incapacity, death or other cause. Should only one trustee survive, the vacancies shall
be filled by the surviving trustee acting in consultation with the ranking officers of the
Page 31 of 35
Center. Such officers shall be designated in the Center's Code of By-Laws. Should for
any reason the Board be left entirely vacant, the same shall be filled by the President of
the Philippines acting in consultation with the aforementioned ranking officers of the
Center. (Emphasis supplied)
Inextricably related to Section 6(b) is Section 6(c) which limits the terms of the trustees,
as follows:
(c) No person may serve as trustee who is not a resident of the Philippines, of good
moral standing in the community and at least 25 years of age: Provided, That there
shall always be a majority of the trustees who are citizens of the Philippines. Trustees
may not be reelected for more than two (2) consecutive terms. (Emphasis supplied)
The clear and categorical language of Section 6(b) of PD 15 states that vacancies in the
CCP Board shall be filled by a majority vote of the remaining trustees. Should only one
trustee survive, the vacancies shall be filled by the surviving trustee acting in
consultation with the ranking officers of the CCP. Should the Board become entirely
vacant, the vacancies shall be filled by the President of the Philippines acting in
consultation with the same ranking officers of the CCP. Thus, the remaining trustees,
whether one or more, elect their fellow trustees for a fixed four-year term. On the other
hand, Section 6(c) of PD 15 does not allow trustees to reelect fellow trustees for more
than two consecutive terms.
The Power of Appointment
The source of the President's power to appoint, as well as the Legislature's authority to
delegate the power to appoint, is found in Section 16, Article VII of the 1987
Constitution which provides:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other
public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads of
departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next
adjournment of the Congress. (Emphasis supplied)
The power to appoint is the prerogative of the President, except in those instances
when the Constitution provides otherwise. Usurpation of this fundamentally Executive
power by the Legislative and Judicial branches violates the system of separation of
powers that inheres in our democratic republican government.22
Under Section 16, Article VII of the 1987 Constitution, the President appoints three
groups of officers. The first group refers to the heads of the Executive departments,
ambassadors, other public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are vested in
the President by the Constitution. The second group refers to those whom the President
may be authorized by law to appoint. The third group refers to all other officers of the
Government whose appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the heads of departments, agencies,
commissions, or boards. The present case involves the interpretation of Section 16,
Article VII of the 1987 Constitution with respect to the appointment of this fourth group
of officers.23
The President appoints the first group of officers with the consent of the Commission on
Appointments. The President appoints the second and third groups of officers without
the consent of the Commission on Appointments. The President appoints the third group
of officers if the law is silent on who is the appointing power, or if the law authorizing
the head of a department, agency, commission, or board to appoint is declared
unconstitutional. Thus, if Section 6(b) and (c) of PD 15 is found unconstitutional, the
President shall appoint the trustees of the CCP Board because the trustees fall under
the third group of officers.
The Scope of the Appointment Power of the Heads of
Departments, Agencies, Commissions, or Boards
The original text of Section 16, Article VII of the 1987 Constitution, as written in
Resolution No. 51724 of the Constitutional Commission, is almost a verbatim copy of
the one found in the 1935 Constitution. Constitutional Commissioner Father Joaquin
Bernas, S.J., explains the evolution of this provision and its import, thus:
The last sentence of the first paragraph of Section 16 x x x is a relic from the 1935 and
1973 Constitutions, x x x.
Under the 1935 Constitution, the provision was: "but the Congress may by law vest the
appointment of inferior officers in the President alone, in the courts, or in the heads of
departments." As already seen, it meant that, while the general rule was that all
presidential appointments needed confirmation by the Commission on Appointments,
Congress could relax this rule by vesting the power to appoint "inferior officers" in "the
President alone, in the courts, or in the heads of departments." It also meant that while,
generally, appointing authority belongs to the President, Congress could let others
share in such authority. And the word "inferior" was understood to mean not petty or
unimportant but lower in rank than those to whom appointing authority could be given.
Under the 1973 Constitution, according to which the power of the President to appoint
was not limited by any other body, the provision read: "However, the Batasang
Pambansa may by law vest in members of the Cabinet, courts, heads of agencies,
commissions, and boards the power to appoint inferior officers in their respective
offices." No mention was made of the President. The premise was that the power to
appoint belonged to the President; but the Batasan could diffuse this authority by
allowing it to be shared by officers other than the President.
The 1987 provision also has the evident intent of allowing Congress to give to officers
other than the President the authority to appoint. To that extent therefore reference to
the President is pointless. And by using the word "alone," copying the tenor of the 1935
provision, it implies, it is submitted, that the general rule in the 1935 Constitution of
requiring confirmation by the Commission on Appointments had not been changed.
Thereby the picture has been blurred. This confused text, however, should be attributed
to oversight. Reference to the President must be ignored and the whole sentence must
be read merely as authority for Congress to vest appointing power in courts, in heads of
departments, agencies, commissions, or boards after the manner of the 1973 text.
Incidentally, the 1987 text, in order to eschew any pejorative connotation, avoids the
phrase "inferior officers" and translates it instead into "officers lower in rank," that is,
Page 32 of 35
lower in rank than the courts or the heads of departments, agencies, commissions, or
boards.25 (Emphasis supplied)
The framers of the 1987 Constitution clearly intended that Congress could by law vest
the appointment of lower-ranked officers in the heads of departments, agencies,
commissions, or boards. The deliberations26 of the 1986 Constitutional Commission
explain this intent beyond any doubt.27
The framers of the 1987 Constitution changed the qualifying word "inferior" to the less
disparaging phrase "lower in rank" purely for style. However, the clear intent remained
that these inferior or lower in rank officers are the subordinates of the heads of
departments, agencies, commissions, or boards who are vested by law with the power
to appoint. The express language of the Constitution and the clear intent of its framers
point to only one conclusion — the officers whom the heads of departments, agencies,
commissions, or boards may appoint must be of lower rank than those vested by law
with the power to appoint.
Congress May Vest the Authority to Appoint
Only in the Heads of the Named Offices
Further, Section 16, Article VII of the 1987 Constitution authorizes Congress to vest "in
the heads of departments, agencies, commissions, or boards" the power to appoint
lower-ranked officers. Section 16 provides:
The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards. (Emphasis supplied)
In a department in the Executive branch, the head is the Secretary. The law may not
authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked
officers in the Executive department. In an agency, the power is vested in the head of
the agency for it would be preposterous to vest it in the agency itself. In a commission,
the head is the chairperson of the commission. In a board, the head is also the
chairperson of the board. In the last three situations, the law may not also authorize
officers other than the heads of the agency, commission, or board to appoint lower-
ranked officers.
The grant of the power to appoint to the heads of agencies, commissions, or boards is a
matter of legislative grace. Congress has the discretion to grant to, or withhold from,
the heads of agencies, commissions, or boards the power to appoint lower-ranked
officers. If it so grants, Congress may impose certain conditions for the exercise of such
legislative delegation, like requiring the recommendation of subordinate officers or the
concurrence of the other members of the commission or board.
This is in contrast to the President's power to appoint which is a self-executing power
vested by the Constitution itself and thus not subject to legislative limitations or
conditions.28 The power to appoint conferred directly by the Constitution on the
Supreme Court en banc29 and on the Constitutional Commissions30 is also self-
executing and not subject to legislative limitations or conditions.
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers
specifically in the "heads" of the specified offices, and in no other person.31 The word
"heads" refers to the chairpersons of the commissions or boards and not to their
members, for several reasons.
First, a plain reading of the last sentence of the first paragraph of Section 16, Article VII
of the 1987 Constitution shows that the word "heads" refers to all the offices
succeeding that term, namely, the departments, agencies, commissions, or boards. This
plain reading is consistent with other related provisions of the Constitution.
Second, agencies, like departments, have no collegial governing bodies but have only
chief executives or heads of agencies. Thus, the word "heads" applies to agencies. Any
other interpretation is untenable.
Third, all commissions or boards have chief executives who are their heads. Since the
Constitution speaks of "heads" of offices, and all commissions or boards have chief
executives or heads, the word "heads" could only refer to the chief executives or heads
of the commissions or boards.
Fourth, the counterpart provisions of Section 16, Article VII of the 1987 Constitution in
the 1935 and 1973 Constitutions uniformly refer to "heads" of offices. The 1935
Constitution limited the grant of the appointment power only to "heads of
departments."32 The 1973 Constitution expanded such grant to other officers, namely,
"members of the Cabinet, x x x, courts, heads of agencies, commissions, and boards x x
x."33
If the 1973 Constitution intended to extend the grant to members of commissions or
boards, it could have followed the same language used for "members of the Cabinet" so
as to state "members of commissions or boards." Alternatively, the 1973 Constitution
could have placed the words commissions and boards after the word "courts" so as to
state "members of the Cabinet, x x x, courts, commissions and boards." Instead, the
1973 Constitution used "heads of agencies, commissions, and boards."
Fifth, the 1935, 1973, and 1987 Constitutions make a clear distinction whenever
granting the power to appoint lower-ranked officers to members of a collegial body or to
the head of that collegial body. Thus, the 1935 Constitution speaks of vesting the power
to appoint "in the courts, or in the heads of departments." Similarly, the 1973
Constitution speaks of "members of the Cabinet, courts, heads of agencies,
commissions, and boards."
Also, the 1987 Constitution speaks of vesting the power to appoint "in the courts, or in
the heads of departments, agencies, commissions, or boards." This is consistent with
Section 5(6), Article VIII of the 1987 Constitution which states that the "Supreme Court
shall x x x [a]ppoint all officials and employees of the Judiciary in accordance with the
Civil Service Law," making the Supreme Court en banc the appointing power. In sharp
contrast, when the 1987 Constitution speaks of the power to appoint lower-ranked
officers in the Executive branch, it vests the power "in the heads of departments,
agencies, commissions, or boards."
In addition, the 1987 Constitution expressly provides that in the case of the
constitutional commissions, the power to appoint lower-ranked officers is vested in the
commission as a body. Thus, Section 4, Article IX-A of the 1987 Constitution provides,
"The Constitutional Commissions shall appoint their officials and employees in
accordance with law."
Sixth, the last clause of the pertinent sentence in Section 16, Article VII of the 1987
Constitution is an enumeration of offices whose heads may be vested by law with the
power to appoint lower-ranked officers. This is clear from the framers' deliberations of
the 1987 Constitution, thus:
THE PRESIDENT: Commissioner Davide is recognized.
Page 33 of 35
MR. DAVIDE: On page 8, line 3, change the period (.) after "departments" to a comma (,)
and add AGENCIES, COMMISSIONS, OR BOARDS. This is just to complete the
enumeration in the 1935 Constitution from which this additional clause was taken.
THE PRESIDENT: Does the Committee accept?
xxxx
MR. SUMULONG: We accept the amendment.
MR. ROMULO: The Committee has accepted the amendment, Madam President.
THE PRESIDENT: Is there any objection to the addition of the words "AGENCIES,
COMMISSIONS, OR BOARDS" on line 3, page 8? (Silence) The Chair hears none; the
amendment is approved.34 (Italicization in the original; boldfacing supplied)
As an enumeration of offices, what applies to the first office in the enumeration also
applies to the succeeding offices mentioned in the enumeration. Since the words "in the
heads of" refer to "departments," the same words "in the heads of" also refer to the
other offices listed in the enumeration, namely, "agencies, commissions, or boards."
The Chairperson of the CCP Board is the Head of CCP
The head of the CCP is the Chairperson of its Board. PD 15 and its various amendments
constitute the Chairperson of the Board as the head of CCP. Thus, Section 8 of PD 15
provides:
Appointment of Personnel. — The Chairman, with the confirmation of the Board, shall
have the power to appoint all officers, staff and personnel of the Center with such
compensation as may be fixed by the Board, who shall be residents of the Philippines.
The Center may elect membership in the Government Service Insurance System and if
it so elects, its officers and employees who qualify shall have the same rights and
privileges as well as obligations as those enjoyed or borne by persons in the
government service. Officials and employees of the Center shall be exempt from the
coverage of the Civil Service Law and Rules.
Section 3 of the Revised Rules and Regulations of the CCP recognizes that the head of
the CCP is the Chairman of its Board when it provides:
CHAIRMAN OF THE BOARD. — The Board of Trustees shall elect a Chairman who must be
one of its members, and who shall be the presiding officer of the Board of Trustees, with
power among others, to appoint, within the compensation fixed by the Board, and
subject to confirmation of the Board, remove, discipline all officers and personnel of the
Center, and to do such other acts and exercise such other powers as may be
determined by the Board of Trustees. The Chairman shall perform his duties and
exercise his powers as such until such time as the Board of Trustees, by a majority vote,
shall elect another Chairman. The Chairman shall be concurrently President, unless the
Board otherwise elects another President.
Thus, the Chairman of the CCP Board is the "head" of the CCP who may be vested by
law, under Section 16, Article VII of the 1987 Constitution, with the power to appoint
lower-ranked officers of the CCP.
Under PD 15, the CCP is a public corporation governed by a Board of Trustees. Section 6
of PD 15, as amended, states:
Board of Trustees. — The governing powers and authority of the corporation shall be
vested in, and exercised by, a Board of eleven (11) Trustees who shall serve without
compensation.
The CCP, being governed by a board, is not an agency but a board for purposes of
Section 16, Article VII of the 1987 Constitution.
Section 6(b) and (c) of PD 15 Repugnant to
Section 16, Article VII of the 1987 Constitution
Section 6(b) and (c) of PD 15 is thus irreconcilably inconsistent with Section 16, Article
VII of the 1987 Constitution. Section 6(b) and (c) of PD 15 empowers the remaining
trustees of the CCP Board to fill vacancies in the CCP Board, allowing them to elect their
fellow trustees. On the other hand, Section 16, Article VII of the 1987 Constitution
allows heads of departments, agencies, commissions, or boards to appoint only "officers
lower in rank" than such "heads of departments, agencies, commissions, or boards."
This excludes a situation where the appointing officer appoints an officer equal in rank
as him. Thus, insofar as it authorizes the trustees of the CCP Board to elect their co-
trustees, Section 6(b) and (c) of PD 15 is unconstitutional because it violates Section 16,
Article VII of the 1987 Constitution.
It does not matter that Section 6(b) of PD 15 empowers the remaining trustees to
"elect" and not "appoint" their fellow trustees for the effect is the same, which is to fill
vacancies in the CCP Board. A statute cannot circumvent the constitutional limitations
on the power to appoint by filling vacancies in a public office through election by the co-
workers in that office. Such manner of filling vacancies in a public office has no
constitutional basis.
Further, Section 6(b) and (c) of PD 15 makes the CCP trustees the independent
appointing power of their fellow trustees. The creation of an independent appointing
power inherently conflicts with the President's power to appoint. This inherent conflict
has spawned recurring controversies in the appointment of CCP trustees every time a
new President assumes office.
In the present case, the incumbent President appointed the Endriga group as trustees,
while the remaining CCP trustees elected the same Endriga group to the same
positions. This has been the modus vivendi in filling vacancies in the CCP Board,
allowing the President to appoint and the CCP Board to elect the trustees. In effect,
there are two appointing powers over the same set of officers in the Executive branch.
Each appointing power insists on exercising its own power, even if the two powers are
irreconcilable. The Court must put an end to this recurring anomaly.
The President's Power of Control
There is another constitutional impediment to the implementation of Section 6(b) and
(c) of PD 15. Under our system of government, all Executive departments, bureaus, and
offices are under the control of the President of the Philippines. Section 17, Article VII of
the 1987 Constitution provides:
The President shall have control of all the executive departments, bureaus, and offices.
He shall ensure that the laws be faithfully executed. (Emphasis supplied)
The presidential power of control over the Executive branch of government extends to
all executive employees from the Department Secretary to the lowliest clerk.35 This
constitutional power of the President is self-executing and does not require any
implementing law. Congress cannot limit or curtail the President's power of control over
the Executive branch.36
Page 34 of 35
The 1987 Constitution has established three branches of government — the Executive,
Legislative and Judicial. In addition, there are the independent constitutional bodies —
like the Commission on Elections, Commission on Audit, Civil Service Commission, and
the Ombudsman. Then there are the hybrid or quasi-judicial agencies,37 exercising
jurisdiction in specialized areas, that are under the Executive branch for administrative
supervision purposes, but whose decisions are reviewable by the courts. Lastly, there
are the local government units, which under the Constitution enjoy local autonomy38
subject only to limitations Congress may impose by law.39 Local government units are
subject to general supervision by the President.40
Every government office, entity, or agency must fall under the Executive, Legislative, or
Judicial branches, or must belong to one of the independent constitutional bodies, or
must be a quasi-judicial body or local government unit. Otherwise, such government
office, entity, or agency has no legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The CCP
is also not one of the independent constitutional bodies. Neither is the CCP a quasi-
judicial body nor a local government unit. Thus, the CCP must fall under the Executive
branch. Under the Revised Administrative Code of 1987, any agency "not placed by law
or order creating them under any specific department" falls "under the Office of the
President."41
Since the President exercises control over "all the executive departments, bureaus, and
offices," the President necessarily exercises control over the CCP which is an office in
the Executive branch. In mandating that the President "shall have control of all
executive x x x offices," Section 17, Article VII of the 1987 Constitution does not exempt
any executive office — one performing executive functions outside of the independent
constitutional bodies — from the President's power of control. There is no dispute that
the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.
The President's power of control applies to the acts or decisions of all officers in the
Executive branch. This is true whether such officers are appointed by the President or
by heads of departments, agencies, commissions, or boards. The power of control
means the power to revise or reverse the acts or decisions of a subordinate officer
involving the exercise of discretion.42
In short, the President sits at the apex of the Executive branch, and exercises "control of
all the executive departments, bureaus, and offices." There can be no instance under
the Constitution where an officer of the Executive branch is outside the control of the
President. The Executive branch is unitary since there is only one President vested with
executive power exercising control over the entire Executive branch.43 Any office in the
Executive branch that is not under the control of the President is a lost command whose
existence is without any legal or constitutional basis.
The Legislature cannot validly enact a law that puts a government office in the
Executive branch outside the control of the President in the guise of insulating that
office from politics or making it independent. If the office is part of the Executive
branch, it must remain subject to the control of the President. Otherwise, the
Legislature can deprive the President of his constitutional power of control over "all the
executive x x x offices." If the Legislature can do this with the Executive branch, then
the Legislature can also deal a similar blow to the Judicial branch by enacting a law
putting decisions of certain lower courts beyond the review power of the Supreme
Court. This will destroy the system of checks and balances finely structured in the 1987
Constitution among the Executive, Legislative, and Judicial branches.
Of course, the President's power of control does not extend to quasi-judicial bodies
whose proceedings and decisions are judicial in nature and subject to judicial review,
even as such quasi-judicial bodies may be under the administrative supervision of the
President. It also does not extend to local government units, which are merely under the
general supervision of the President.

Section 6(b) and (c) of PD 15, which authorizes the trustees of the CCP Board to fill
vacancies in the Board, runs afoul with the President's power of control under Section
17, Article VII of the 1987 Constitution. The intent of Section 6(b) and (c) of PD 15 is to
insulate the CCP from political influence and pressure, specifically from the President.44
Section 6(b) and (c) of PD 15 makes the CCP a self-perpetuating entity, virtually outside
the control of the President. Such a public office or board cannot legally exist under the
1987 Constitution.

Section 3 of PD 15, as amended, states that the CCP "shall enjoy autonomy of policy
and operation x x x."45 This provision does not free the CCP from the President's
control, for if it does, then it would be unconstitutional. This provision may give the CCP
Board a free hand in initiating and formulating policies and undertaking activities, but
ultimately these policies and activities are all subject to the President's power of
control.

The CCP is part of the Executive branch. No law can cut off the President's control over
the CCP in the guise of insulating the CCP from the President's influence. By stating that
the "President shall have control of all the executive x x x offices," the 1987
Constitution empowers the President not only to influence but even to control all offices
in the Executive branch, including the CCP. Control is far greater than, and subsumes,
influence.

WHEREFORE, we GRANT the petition in G.R. No. 139554. We declare

UNCONSTITUTIONAL Section 6(b) and (c) of Presidential Decree No. 15, as amended,
insofar as it authorizes the remaining trustees to fill by election vacancies in the Board
of Trustees of the Cultural Center of the Philippines. In view of this ruling in G.R. No.
139554, we find it unnecessary to rule on G.R. No. 139565.

SO ORDERED

Page 35 of 35