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G.R. No. 203302 April 11, 2013 MAYOR EMMANUEL L. MALIKSI, Petitioner, vs. COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents. BERSAMIN, J.: The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by petitioner Emmanuel L. Maliksi against the Court's decision promulgated on March 12, 2013, dismissing his petition for certiorari assailing the resolution dated September 14, 2012 of the Commission on Elections (COMELEC) En Bane that sustained the declaration of respondent Homer T. Saquilayan as the duly elected Mayor of Imus, Cavite. For clarity, we briefly restate the factual antecedents. During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan the winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who garnered the second highest number of votes, brought an election protest in the Regional Trial Court (RTC) in Imus, Cavite alleging that there were irregularities in the counting of votes in 209 clustered precincts. Subsequently, the RTC held a revision of the votes, and, based on the results of the revision, declared Maliksi as the duly elected Mayor of Imus commanding Saquilayan to cease and desist from performing the functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the RTC granted Maliksis motion for execution pending appeal, and Maliksi was then installed as Mayor. In resolving the appeal, the COMELEC First Division, without giving notice to the parties, decided to recount the ballots through the use of the printouts of the ballot images from the CF cards. Thus, it issued an order dated March 28, 2012 requiring Saquilayan to deposit the amount necessary to defray the expenses for the decryption and printing of the ballot images. Later, it issued another order dated April 17, 2012 for Saquilayan to augment his cash deposit. On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision and declaring Saquilayan as the duly elected Mayor.1 Maliksi filed a motion for reconsideration, alleging that he had been denied his right to due process because he had not been notified of the decryption proceedings. He argued that the resort to the printouts of the ballot images, which were secondary evidence, had been unwarranted because there was no proof that the integrity of the paper ballots had not been preserved. On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis motion for reconsideration.2 Maliksi then came to the Court via petition for certiorari, reiterating his objections to the decryption, printing, and examination of the ballot images without prior notice to him, and to the use of the printouts of the ballot images in the recount proceedings conducted by the First Division. 1wphi1 In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed Maliksis petition for certiorari. The Court concluded that Maliksi had not been denied due process because: (a) he had received notices of the decryption, printing, and examination of the ballot images by the First Division referring to the orders of the First Division directing Saquilayan to post and augment the cash deposits for the decryption and printing of the ballot images; and (b) he had been able to raise his objections to the decryption in his motion for reconsideration. The Court then pronounced that the First Division did not abuse its discretion in deciding to use the ballot images instead of the paper ballots, explaining that the printouts of the ballot images were not secondary images, but considered original documents with the same evidentiary value as the official ballots under the Rule on Electronic Evidence; and that the First Divisions finding that the ballots and the ballot boxes had been tampered had been fully established by the large number of cases of double-shading discovered during the revision. In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following arguments, to wit: I. WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR VIOLATION OF PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW CONSIDERING THAT DECRYPTION, PRINTING AND EXAMINATION OF THE DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14 SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE OF THE COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER, AND FOR THE FIRST TIME ON APPEAL. II. WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC GRAVELY ERRED IN UPHOLDING THE COMELEC FIRST DIVISIONS RULING TO DISPENSE WITH THE PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL IMAGES NOTWITHSTANDING THE FACT THAT THE BALLOTS ARE THE BEST AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS WILL, AND THAT BALLOT IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN THIS CASE, AND IN FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS CONTENTS WAS PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY BELATEDLY RAISED BY THE PRIVATE RESPONDENT AFTER THE REVISION RESULTS SHOWED THAT HE LOST. III. WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONER-MOVANT THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE SUPREME COURT EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF NO FORCE AND EFFECT, FOR HAVING BEEN PROMULGATED DESPITE THE ABSENCE OF HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ AT THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013 RESOLUTION IN THE INSTANT CASE. 3

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Maliksi insists: (a) that he had the right to be notified of every incident of the proceedings and to be present at every stage thereof; (b) that he was deprived of such rights when he was not informed of the decryption, printing, and examination of the ballot images by the First Division; (c) that the March 28, 2012 and April 17, 2012 orders of the First Division did not sufficiently give him notice inasmuch as the orders did not state the date, time, and venue of the decryption and printing of the ballot images; and (d) that he was thus completely deprived of the opportunity to participate in the decryption proceedings. Maliksi contends that the First Divisions motu proprio directive for the decryption, printing, and examination of the ballot images was highly irregular. In this regard, he asserts: (a) that the decryption, printing, and examination should have taken place during the revision before the trial court and after the revision committee had determined that the integrity of the official ballots had not been preserved; (b) that the trial court did not make such determination; (c) that, in fact, Saquilayan did not allege or present any proof in the RTC to show that the ballots or the ballot boxes had been tampered, and had, in fact, actively participated in the revision proceedings; (d) that the First Division should not have entertained the allegation of ballot tampering belatedly raised on appeal; (e) that the First Division should have limited itself to reviewing the evidence on record; and (f) that the First Division did not even explain how it had arrived at the conclusion that the integrity of the ballots had not been preserved. Maliksi submits that the decision promulgated on March 12, 2013 is null and void for having been promulgated despite the absence from the deliberations and lack of signature of Justice Jose Portugal Perez. The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and reverses the decision promulgated on March 12, 2013 on the ground that the First Division of the COMELEC denied to him the right to due process by failing to give due notice on the decryption and printing of the ballot images. Consequently, the Court annuls the recount proceedings conducted by the First Division with the use of the printouts of the ballot images. It bears stressing at the outset that the First Division should not have conducted the assailed recount proceedings because it was then exercising appellate jurisdiction as to which no existing rule of procedure allowed it to conduct a recount in the first instance. The recount proceedings authorized under Section 6, Rule 15 of COMELEC Resolution No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the exercise of their exclusive original jurisdiction over all election protests involving elective regional (the autonomous regions), provincial and city officials.4 As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount proceedings, contrary to the regular procedure of remanding the protest to the RTC and directing the reconstitution of the Revision Committee for the decryption and printing of the picture images and the revision of the ballots on the basis thereof. Quite unexpectedly, the COMELEC En Banc upheld the First Divisions unwarranted deviation from the standard procedures by invoking the COMELECs power to "take such measures as the Presiding Commissioner may deem proper," and even citing the Courts minute resolution in Alliance of Barangay Concerns (ABC) Party-List v. Commission on Elections 5 to the effect that the "COMELEC has the power to adopt procedures that will ensure the speedy resolution of its cases. The Court will not interfere with its exercise of this prerogative so long as the parties are amply heard on their opposing claims." Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission on Elections, the power of the COMELEC to adopt procedures that will ensure the speedy resolution of its cases should still be exercised only after giving to all the parties the opportunity to be heard on their opposing claims. The parties right to be heard upon adversarial issues and matters is never to be waived or sacrificed, or to be treated so lightly because of the possibility of the substantial prejudice to be thereby caused to the parties, or to any of them. Thus, the COMELEC En Banc should not have upheld the First Divisions deviation from the regular procedure in the guise of speedily resolving the election protest, in view of its failure to provide the parties with notice of its proceedings and an opportunity to be heard, the most basic requirements of due process. I. Due process requirements The picture images of the ballots are electronic documents that are regarded as the equivalents of the original official ballots themselves.6 In Vinzons-Chato v. House of Representatives Electoral Tribunal,7 the Court held that "the picture images of the ballots, as scanned and recorded by the PCOS, are likewise official ballots that faithfully capture in electronic form the votes cast by the voter, as defined by Section 2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest." That the two documentsthe official ballot and its picture imageare considered "original documents" simply means that both of them are given equal probative weight. In short, when either is presented as evidence, one is not considered as weightier than the other. But this juridical reality does not authorize the courts, the COMELEC, and the Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture images of the ballots in the proceedings had before them without notice to the parties. Despite the equal probative weight accorded to the official ballots and the printouts of their picture images, the rules for the revision of ballots adopted for their respective proceedings still consider the official ballots to be the primary or best evidence of the voters will. In that regard, the picture images of the ballots are to be used only when it is first shown that the official ballots are lost or their integrity has been compromised. For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 ( In Re: Comelec Rules of Procedure on Disputes In An Automated Election System in Connection with the May 10, 2010 Elections), as amended by COMELEC Resolution No. 9164, itself requires that "the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that (the ballots) cannot be recounted" before the printing of the image of the ballots should be made, to wit:

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x x x x (g) Only when the Recount Committee, through its chairman, determines that the integrity of the ballots has been preserved or that no signs of tampering of the ballots are present, will the recount proceed. In case there are signs that the ballots contained therein are tampered, compromised, wet or are otherwise in such a condition that it could not be recounted, the Recount Committee shall follow paragraph (l) of this rule. x x x x (l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. (Emphases supplied.) x x x x Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal Election Contests, which governs the proceedings in the Regional Trial Courts exercising original jurisdiction over election protests, provides: x x x x (m) In the event that the revision committee determines that the integrity of the ballots and the ballot box have not been preserved, as when proof of tampering or substitution exists, it shall proceed to instruct the printing of the picture image of the ballots stored in the data storage device for the precinct. The court shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Only after this determination can the printed picture image be used for the recount. (Emphases supplied.) x x x x A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to wit: Rule 43. Conduct of the revision. The revision of votes shall be done through the use of appropriate PCOS machines or manually and visually, as the Tribunal may determine, and according to the following procedures: x x x x (q) In the event that the RC determines that the integrity of the ballots and the ballot box was not preserved, as when there is proof of tampering or substitution, it shall proceed to instruct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal may avail itself of the assistance of the COMELEC for the service of a nonpartisan technical person who shall conduct the necessary authentication process to ensure that the data or images stored are genuine and not merely substitutes. It is only upon such determination that the printed picture image can be used for the revision of votes. (Emphases supplied.) x x x x Also, the House of Representative Electoral Tribunals Guidelines on the Revision of Ballots requires a preliminary hearing to be held for the purpose of determining whether the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, to wit: Section 10. Revision of Ballots x x x x (d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. It is only upon such determination that the printed picture image can be used for the revision. (As amended per Resolution of February 10, 2011; Emphases supplied.) x x x x All the foregoing rules on revision of ballots stipulate that the printing of the picture images of the ballots may be resorted to only after the proper Revision/Recount Committee has first determined that the integrity of the ballots and the ballot boxes was not preserved. The foregoing rules further require that the decryption of the images stored in the CF cards and the printing of the decrypted images take place during the revision or recount proceedings. There is a good reason for thus fixing where and by whom the decryption and the printing should be conducted. It is during the revision or recount conducted by the Revision/Recount Committee when the parties are allowed to be represented, with their representatives witnessing the proceedings and timely raising their objections in the course of the proceedings. Moreover, whenever the Revision/Recount Committee makes any determination that the ballots have been tampered and have become unreliable, the parties are immediately made aware of such determination. When, as in the present case, it was not the Revision/Recount Committee or the RTC exercising original jurisdiction over the protest that made the finding that the ballots had been tampered, but the First Division in the exercise of its appellate jurisdiction, the parties should have been given a formal notice thereof. Maliksi was not immediately made aware of that crucial finding because the First Division did not even issue any written resolution stating its reasons for ordering the printing of the picture images. The parties were formally notified that the First Division had found that the ballots had been tampered only when they received the resolution of August 15, 2012, whereby the First Division nullified the decision of the RTC and declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First Division to that effect was unusually mute about the factual bases for the finding of ballot box tampering, and did not also particularize how and why the First Division was concluding that the integrity of the ballots had been compromised. All that the First Division declared as justification was a simple generalization of the same being apparent from the allegations of ballot and ballot box tampering and upon inspection of the ballot boxes, viz: x x x x The Commission (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been

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compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital image of the appealed ballots.8(Emphasis supplied) x x x x It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on provided the explanation to justify the First Divisions resort to the picture images of the ballots, by observing that the "unprecedented number of double-votes" exclusively affecting the position of Mayor and the votes for Saquilayan had led to the belief that the ballots had been tampered. However, that explanation by the COMELEC En Banc did not cure the First Divisions lapse and did not erase the irregularity that had already invalidated the First Divisions proceedings. In his dissenting opinion, Justice Antonio T. Carpio advances the view that the COMELECs finding of ballot tampering was a mere surplusage because there was actually no need for such finding before the ballots digital counterparts could be used. He cites Section 3, Rule 16 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164, which states: Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may file a motion to be approved by the Division of the Commission requesting for the printing of ballot images in addition to those mentioned in the second paragraph of item (e). Parties concerned shall provide the necessary materials in the printing of images such as but not limited to copying papers, toners and printers. Parties may also secure, upon prior approval by the Division of the Commission, a soft copy of the ballot images contained in a secured/hashed disc on the condition that the ballot images be first printed, at the expense of the requesting party, and that the printed copies be signed by the parties respective revisors or representatives and by an ERSD IT-capable representative and deposited with the Commission. The Over-all chairman shall coordinate with the Director IV, Election Records and Statistics Department (ERSD), for the printing of images. Said director shall in turn designate a personnel who will be responsible in the printing of ballot images. Justice Carpio posits that when a party files a motion for the printing of the ballots that he or she deems necessary, there is actually no need for a finding of tampering of the ballots or the ballot boxes before the COMELEC Division may grant the motion. He states that a determination by the parties that the printing is necessary under Section 3 is a ground separate from Section 6(e), which in turn pertinently states that: Section 6. Conduct of the Recount x x x x (e) Before the opening of the ballot box, the Recount Committee shall note its condition as well as that of the locks or locking mechanism and record the condition in the recount report. From its observation, the Recount Committee must also make a determination as to whether the integrity of the ballot box has been preserved. In the event that there are signs of tampering or if the ballot box appears to have been compromised, the Recount Committee shall still proceed to open the ballot box and make a physical inventory of the contents thereof. The committee shall, however, record its general observation of the ballots and other documents found in the ballot box. The application of Section 3 to this case is inappropriate, considering that the First Division did not in any way suggest in its decision dated August 15, 2010 that it was resolving Saquilayans motion to print the ballot images. Instead, the First Division made therein a finding of tampering, thus: The COMELEC (First Division) took into consideration the allegations of ballot and ballot box tampering and upon inspecting the ballot boxes, it is apparent that the integrity of the ballots had been compromised so, to be able to best determine the true will of the electorate, we decided to go over the digital images of the appealed ballots. Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012 that the First Division merely resolved Saquilayans motion for the printing of the ballot images; instead, it reinforced the First Divisions finding that there was tampering of the ballots. The non-mention of Saquilayans motion was a clear indication of the COMELECs intention to act motu proprio; and also revealed its interpretation of its very own rules, that there must be justifiable reason, i.e. tampering, before the ballot images could be resorted to. The application of Section 3 would only highlight the First Divisions denial of Maliksis right to due process. For, if the First Division was really only acting on a motion to allow the printing of the ballot images, there was a greater reason for the First Division to have given the parties notice of its ruling thereon. But, as herein noted, the First Division did not issue such ruling. To interpret Section 3 as granting to any one of the parties the right to move for the printing of the ballot images should such party deem it necessary, and the COMELEC may grant such motion, is contrary to its clear wording. Section 3 explicitly states: "in case the parties deem it necessary, they may file a motion." The provision really envisions a situation in which both parties have agreed that the ballot images should be printed. Should only one of the parties move for the printing of the ballot images, it is not Section 3 that applies but Section 6(e), which then requires a finding that the integrity of the ballots has been compromised. The disregard of Maliksis right to be informed of the decision to print the picture images of the ballots and to conduct the recount proceedings during the appellate stage cannot be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a motion for reconsideration. To be exact, the motion for reconsideration was actually directed against the entire resolution of the First Division, while Maliksis claim of due process violation is directed only against the First Divisions recount proceedings that resulted in the prejudicial result rendered against him. Notably, the First Division did not issue any order directing the recount. Without the written order, Maliksi was deprived of the chance to seek any reconsideration or even to assail the irregularly-held recount through a seasonable petition

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for certiorari in this Court. In that context, he had no real opportunity to assail the conduct of the recount proceedings. The service of the First Division orders requiring Saquilayan to post and augment the cash deposits for the printing of the picture images did not sufficiently give Maliksi notice of the First Divisions decision to print the picture images. The said orders did not meet the requirements of due process because they did not specifically inform Maliksi that the ballots had been found to be tampered. Nor did the orders offer the factual bases for the finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for finding the need to print the picture images still violated the principles of fair play, because the responsibility and the obligation to lay down the factual bases and to inform Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of the First Division. Moreover, due process of law does not only require notice of the decryption, printing, and recount proceedings to the parties, but also demands an opportunity to be present at such proceedings or to be represented therein. Maliksi correctly contends that the orders of the First Division simply required Saquilayan to post and augment his cash deposit. The orders did not state the time, date, and venue of the decryption and recount proceedings. Clearly, the First Division had no intention of giving the parties the opportunity to witness its proceedings. Mendoza v. Commission on Elections 9 instructs that notice to the parties and their participation are required during the adversarial aspects of the proceedings. In that case, after the revision of the ballots and after the election protest case was submitted for decision, the ballots and ballot boxes were transferred to the Senate Electoral Tribunal (SET) in connection with a protest case pending in the SET. Mendoza later learned that the COMELEC, with the permission of the SET, had meanwhile conducted proceedings within the SETs premises. Mendoza then claimed that his right to due process was violated because he had not been given notice by the COMELEC that it would be conducting further proceedings within the SET premises. The Court did not sustain his claim, however, and pointed out: After consideration of the respondents Comments and the petitioners petition and Reply, we hold that the contested proceedings at the SET ("contested proceedings") are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioners Reply: "However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting "further proceedings" requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality." In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged. We find it significant that the private respondents Comment fully supported the COMELECs position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.1wphi1 To conclude, the rights to notice and to be heard are not material considerations in the COMELECs handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.10 (Emphasis supplied.) Here, the First Division denominated the proceedings it had conducted as an "appreciation of ballots" like in Mendoza. But unlike in Mendoza, the proceedings conducted by the First Division were adversarial, in that the proceedings included the decryption and printing of the picture images of the ballots and the recount of the votes were to be based on the printouts of the picture images. The First Division did not simply review the findings of the RTC and the Revision Committee, but actually conducted its own recount proceedings using the printouts of the picture image of the ballots. As such, the First Division was bound to notify the parties to enable them to participate in the proceedings. Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by COMELEC Resolution No. 9164, requires the parties presence during the printing of the images of the ballots, thus: x x x x (l) In the event the Recount Committee determines that the integrity of the ballots has been violated or has not been preserved, or are wet and otherwise in such a condition that it cannot be recounted, the Chairman of the Committee shall request from the Election Records and Statistics Department (ERSD), the printing of the image of the ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections in the presence of the parties. Printing of the ballot images shall proceed only upon prior authentication and certification by a duly authorized personnel of the Election Records and Statistics Department (ERSD) that the data or the images to be printed are genuine and not substitutes. x x x x We should not ignore that the parties participation during the revision and recount proceedings would not benefit only the parties, but was as vital and significant for the COMELEC as well, for only by their participation would the COMELECs proceedings attain credibility as to the result. The parties

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presence would have ensured that the requisite procedures have been followed, including the required authentication and certification that the images to be printed are genuine. In this regard, the COMELEC was less than candid, and was even cavalier in its conduct of the decryption and printing of the picture images of the ballots and the recount proceedings. The COMELEC was merely content with listing the guidelines that the First Division had followed in the appreciation of the ballots and the results of the recount. In short, there was vagueness as to what rule had been followed in the decryption and printing proceeding. II. Remand to the COMELEC We are mindful of the urgent need to speedily resolve the election protest because the term of the position involved is about to end. Thus, we overlook pro hac vice the lack of factual basis for the COMELECs decision to use the digital images of the ballots and sustain its decision thereon. Although a remand of the election protest to the RTC would have been the appropriate procedure, we direct the COMELEC En Banc instead to conduct the decryption and printing of the digital images of the ballots and to hold recount proceedings, with due notice to all the parties and opportunity for them to be present and to participate during such proceedings. Nothing less serves the ideal objective safeguarded by the Constitution. In the absence of particular rules to govern its proceedings in accordance with this disposition, the COMELEC is urged to follow and observe Rule 15 of COMELEC Resolution No. 8804, as amended by COMELEC Resolution No. 9164. The Court, by this resolution, does not intend to validate the victory of any of the parties in the 2010 Elections. That is not the concern of the Court as yet. The Court simply does not want to countenance a denial of the fundamental right to due process, a cornerstone of our legal system. 11 After all, it is the Courts primary duty to protect the basic rights of the people vis--vis government actions, thus: 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. The Court cannot just turn a blind eye and simply let it pass. It will continue to uphold the Constitution and its enshrined principles. 12 WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for Reconsideration of petitioner Emmanuel Maliksi; REVERSES the Court's decision promulgated on March 12, 2013; and DIRECTS the Commission on Elections En Bane to conduct proceedings for the decryption of the picture images of the ballots involved in the protest after due authentication, and for the recount of ballots by using the printouts of the ballot images, with notice to and in the presence of the parties or their representatives in accordance with the procedure laid down by Rule 15 of COMELEC Resolution No. 8804, as amended by Resolution No. 9164. No pronouncement on costs of suit. SO ORDERED.

[G.R. No. 199149 : November 29, 2011] LIWAYWAY VINZONS-CHATO VS. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND ELMER E. PANOTES Sirs/Mesdames: Please take notice that the Court en banc issued a Resolution dated NOVEMBER 29, 2011, which reads as follows:cralaw "G.R. No. 199149 (Liwayway Vinzons-Chato vs. House of Representatives Electoral Tribunal and Elmer E. Panotes).- Acting on the Special Civil Action for Certiorari and Prohibition with Prayer for a Temporary Restraining Order and/or Issuance of a Writ of Prohibitory Injunction, the Court Resolved, without giving due course to the petition, to require the respondents to COMMENT thereon within ten (10) days from notice hereof." Velasco, Jr., Brion, Peralta and Bersamin, JJ., no part. Very truly yours, (Sgd.) ENRIQUETA E. VIDAL Clerk of Court

G.R. No. 190147 MARCH 05, 2013 CIVIL SERVICE COMMISSION, Petitioner, v. PILILLA WATER DISTRICT, Respondent.

Assailed in this petition for review on certiorari under Rule 45 are the Decision 1 dated July 28, 2009 and Resolution2 dated November 9, 2009 of the Court of Appeals (CA) in CA-G.R. SP No. 106031 which annulled and set aside Resolution Nos. 0809423 and 0818464 of the Civil Service Commission (CSC). The factual background of this case is as follows: Paulino J. Rafanan was first appointed General Manager on a coterminous status under Resolution No. 12 issued on August 7, 1998 by the Board of Directors (BOD) of respondent Pililla Water District (PWD). His appointment was signed by the BOD Acting Chairman and attested by the CSC Field Office-Rizal.5 On October 4, 2001, petitioner issued Resolution No. 0116246 amending and clarifying Section 12, Rule XIII of CSC Memorandum Circular No. 15, s. 1999, as follows: Section 12. a) No person who has

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reached the compulsory retirement age of 65 years can be appointed to any position in the government, subject only to the exception provided under sub-section (b) hereof. However, in meritorious cases, the Commission may allow the extension of service of a person who has reached the compulsory retirement age of 65 years, for a period of six (6) months only unless otherwise stated. Provided, that, such extension may be for a maximum period of one (1) year for one who will complete the fifteen (15) years of service required under the GSIS Law. A request for extension shall be made by the head of office and shall be filed with the Commission not later than three (3) months prior to the date of the official/employees compulsory retirement. Henceforth, the only basis for Heads of Offices to allow an employee to continue rendering service after his/her 65th birthday is a Resolution of the Commission granting the request for extension. Absent such Resolution, the salaries of the said employee shall be for the personal account of the responsible official. x x x x b) A person who has already reached the compulsory retirement age of 65 can still be appointed to a coterminous/primarily confidential position in the government. A person appointed to a coterminous/primarily confidential position who reaches the age of 65 years is considered automatically extended in the service until the expiry date of his/her appointment or until his/her services are earlier terminated. (Emphasis supplied) On April 2, 2004, Republic Act (R.A.) No. 92867 was approved and signed into law, Section 2 of which provides: SEC. 2. Section 23 of Presidential Decree No. 198, as amended is hereby amended to read as follows: AN ACT FURTHER AMENDING PRESIDENTIAL DECREE NO. 198, OTHERWISE KNOWN AS THE PROVINCIAL WATER UTILITIES ACT OF 1973, AS AMENDED. Decision 3 G.R. No. 190147 SEC. 23. The General Manager.At the first meeting of the Board, or as soon thereafter as practicable, the Board shall appoint, by a majority vote, a general manager and shall define [his] duties and fix his compensation. Said officer shall not be removed from office, except for cause and after due process. (Emphasis supplied) On June 16, 2004, the BOD approved Resolution No. 19,8 Series of 2004, which reads: EXTENSION OF SERVICES OF MR. PAULINO J. RAFANAN AS GENERAL MANAGER OF PILILLA WATER DISTRICT WHEREAS[,] the General Manager, Mr. Paulino J. Rafanan[,] is reaching his age 65 this month of this year the Board, because of his good and honest performance in faithfully carrying out the policies of the Board resulting in the success of the Districts expansion program, unanimously agreed to retain his In the assailed Decision, the CA reversed the CSC and ruled that the position of General Manager in water districts remains primarily confidential in nature and hence respondents BOD may validly appoint Rafanan to the said position even beyond the compulsory retirement age. Petitioner filed a motion for reconsideration which the CA denied. Hence, this petition submitting the following issues: services as General Manager at least up to December 31, 2008 co-terminus with the term of the Director last appointed after which period he may stay at the pleasure of the other Board. THEREFORE[,] THE BOARD RESOLVED[,] AS IT HEREBY RESOLVED that the services of Mr. Paulino J. Rafanan as General Manager of Pililla Water District is extended up to December 31, 2008 as a reward for his honest and efficient services to the District. In its Resolution No. 04-1271 dated November 23, 2004, petitioner denied the request of BOD Chairman Valentin E. Paz for the extension of service of Rafanan and considered the latter separated from the service at the close of office hours on June 25, 2004, his 65th birthday. Petitioner also denied the motion for reconsideration filed by Chairman Paz under its Resolution No. 05-0118 dated February 1, 2005.9 On April 8, 2005, the BOD issued Resolution No. 09, Series of 2005 reappointing Rafanan as General Manager on coterminous status. Said reappointment was signed by Chairman Paz and attested by the CSC Field Office-Rizal.10 A year later, the BOD approved Resolution No. 20 declaring the appointment of General Manager Rafanan as permanent11 but this resolution was not implemented. In a letter dated November 19, 2007, Pililla Mayor Leandro V. Masikip, Sr. questioned Rafanans coterminous appointment as defective and void ab initio considering that he was appointed to a career position despite having reached the compulsory retirement age. Said letter-complaint was treated as an appeal from the appointment made by the BOD Chairman of respondent. On May 19, 2008, petitioner issued Resolution No. 080942 invalidating the coterminous appointment issued to Rafanan as General Manager on April 8, 2005 on the ground that it was made in violation of Section 2 of R.A. No. 9286. Petitioner further observed that the appointment was issued to circumvent the denial of the several requests for extension of service of Rafanan. Rafanan filed a motion for reconsideration which was denied by petitioner under its Resolution No. 081846 dated September 26, 2008. Respondent filed in the CA a petition for review with application for temporary restraining order and/or writ of preliminary injunction under Rule 43 of the 1997 Rules of Civil Procedure, as amended. Insisting that Rafanans coterminous appointment was based on CSC Resolution No. 011624, respondent contended that petitioner cannot usurp the power of appointment and removal of the appointing authority, and that petitioner failed to observe due process.

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I . WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE POSITION OF GENERAL MANAGER OF A LOCAL WATER DISTRICT IS PRIMARILY CONFIDENTIAL IN NATURE. II . WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT RULED THAT THE APRIL 8, 2005 APPOINTMENT OF RAFANAN IN A CO-TERMINOUS CAPACITY WAS VALID. Under Section 13, Rule V of the Omnibus Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil Service Laws and CSC Resolution No. 91-1631 issued on December 27, 1991, appointments in the civil service may either be of permanent or temporary status. A permanent appointment is issued to a person who meets all the requirements for the position to which he is being appointed/promoted, including the appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof, while a temporary appointment may be extended to a person who possesses all the requirements for the position except the appropriate civil service eligibility and for a limited period not exceeding twelve months or until a qualified civil service eligible becomes available. Section 14 of the same resolution provides for a coterminous appointment: Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds. The co-terminous status may be further classified into the following: (1) co-terminous with the project - when the appointment is coexistent with the duration of a particular project for which purpose employment was made or subject to the availability of funds for the same; (2) co-terminous with the appointing authority - when appointment is co-existent with the tenure of the appointing authority or at his pleasure; (3) co-terminous with the incumbent - when the appointment is coexistent with the appointee, in that after the resignation, separation or termination of the services of the incumbent the position shall be deemed automatically abolished; and (4) co-terminous with a specific period - appointment is for a specific period and upon expiration thereof, the position is deemed abolished. For the purpose of coverage or membership with the GSIS, or their right to security of tenure, coterminous appointees, except those who are co-terminous with the appointing authority, shall be considered permanent. (Emphasis supplied) Section 23 of Presidential Decree (P.D.) No. 198, otherwise known as The Provincial Water Utilities Act of 1973 reads: SEC. 23. Additional Officers.At the first meeting of the board, or as soon thereafter as practicable, the board shall appoint, by a majority vote, a general manager, an auditor, and an attorney, and shall define their duties and fix their compensation. Said officers shall serve at the pleasure of the board. (Emphasis supplied) The provision was subsequently amended by P.D. No. 76813: SEC. 23. The General Manager.At the first meeting of the board, or as soon thereafter as practicable, the board shall appoint, by a majority vote, a general manager and shall define his duties and fix his compensation. Said officer shall serve at the pleasure of the board. (Emphasis supplied) In the case of Paloma v. Mora, 14 we held that the nature of appointment of General Managers of Water Districts under Section 23 of P.D. No. 198 falls under Section 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, that is, the General Manager serves at the pleasure of the BOD. As mentioned, Section 23 of P.D. No. 198 was already amended by R.A. No. 9286 which now provides that the General Manager of a water district shall not be removed from office except for cause and after due process. Said law, however, cannot be retroactively applied as to preclude the BOD from terminating its General Manager at the time the governing law was still P.D. No. 198, thus: Unfortunately for petitioner, Rep. Act No. 9286 is silent as to the retroactivity of the law to pending cases and must, therefore, be taken to be of prospective application. The general rule is that in an amendatory act, every case of doubt must be resolved against its retroactive effect. Since the retroactive application of a law usually divests rights that have already become vested, the rule in statutory construction is that all statutes are to be construed as having only a prospective operation unless the purpose and intention of the legislature to give them a retrospective effect is expressly declared or is necessarily implied from the language used. First, there is nothing in Rep. Act No. 9286 which provides that it should retroact to the date of effectivity of P.D. No. 198, the original law. Next, neither is it necessarily implied from Rep. Act No. 9286 that it or any of its provisions should apply retroactively. Third, Rep. Act No. 9286 is a substantive amendment of P.D. No. 198 inasmuch as it has changed the grounds for termination of the General Manager of Water Districts who, under the then Section 23 of P.D. No. 198, shall serve at the pleasure of the Board. Under the new law, however, said General Manager shall not be removed from office, except for cause and after due process. To apply Rep. Act No. 9286 retroactively to pending cases, such as the case at bar, will rob the respondents as members of the Board of the Palompon, Leyte Water District of the right vested to them by P.D. No. 198 to terminate petitioner at their pleasure or discretion. Stated otherwise, the new law can not be applied to make respondents accountable for actions which were valid under the law prevailing at the time the questioned act was committed.

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Prescinding from the foregoing premises, at the time petitioner was terminated by the Board of Directors, the prevailing law was Section 23 of P.D. No. 198 prior to its amendment by Rep. Act No. 9286.15 (Italics in the original; emphasis supplied) In this case, respondents BOD reappointed Rafanan as General Manager on April 8, 2005 when R.A. No. 9286 was already in force and the BOD no longer had the authority to terminate the General Manager at its pleasure or discretion. Petitioner assails the CA in upholding the April 8, 2005 reappointment of Rafanan as General Manager on coterminous status, arguing that the change of phraseology of Section 23 under R.A. No. 9286 ipso facto reclassified said position from non-career to career position. Petitioner points out that it issued CSC Memorandum Circular No. 13, Series of 2006 entitled Considering the Position of General Manager Under the Career Service and Prescribing the Guidelines and Qualification Standards for the said Position Pursuant to R.A. No. 9286,16 which applies to respondent under local water district Medium Category: D (SG-24) - Medium Education : Masters degree Experience : 4 years in position/s involving management and supervision Training : 24 hours of training in management and supervision Eligibility : Career Service (Professional)/Second Level Eligibility17 Respondent contends that the amendment introduced by R.A. No. 9286 is not in conflict with the coterminous appointment of Rafanan since the latter can be removed for loss of confidence, which is cause for removal. As to the above-cited CSC Memorandum Circular No. 13, Series of 2006, the same should be applied only to appointments made after its issuance, and not to Rafanan who was already the incumbent General Manager before August 17, 2006. Respondent maintains that since the General Manager of a water district holds a primarily confidential position, Rafanan can be appointed to or remain in said position even beyond the compulsory retirement age of 65 years. The threshold issue is whether under Section 23 of P.D. No. 198 as amended by R.A. No. 9286, the position of General Manager of a water district remains as primarily confidential. In the 1950 case of De los Santos v. Mallare18 a position that is primarily confidential in nature is defined as follows: x x x. These positions [policy-determining, primarily confidential and highly technical positions], involve the highest degree of confidence, or are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that makes them. x x x x Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of [discussion, delegation and reporting] without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. x x x. From the above case the proximity rule was derived. A position is considered to be primarily confidential when there is a primarily close intimacy between the appointing authority and the appointee, which ensures the highest degree of trust and unfettered communication and discussion on the most confidential of matters.20 Moreover, in classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in character. A position is not necessarily confidential though the one in office may sometimes hold confidential matters or documents. The case of Piero v. Hechanova22 laid down the doctrine that it is the nature of the position that finally determines whether a position is primarily confidential, policy determining or highly technical and that executive pronouncements can be no more than initial determinations that are not conclusive in case of conflict. As reiterated in subsequent cases, such initial determination through executive declaration or legislative fiat does not foreclose judicial review.23 More recently, in Civil Service Commission v. Javier,24 we categorically declared that even petitioners classification of confidential positions in the government is not binding on this Court: At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily confidential positions in the civil service. Neither is there a law that gives an enumeration of positions classified as primarily confidential. What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which describe or give examples of confidential positions in government. Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already made by an agency or branch of government? Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by the legislative or executive branches, or even by a constitutional body like the petitioner. The Court is expected to make its own determination as to the nature of a particular position, such as whether it is a primarily confidential position or not, without being bound by prior classifications made by other bodies. The findings of the other branches of government are merely considered initial and not conclusive to the Court. Moreover, it is well-established that in case the findings of various agencies of government, such as the petitioner and the CA in the instant case, are in conflict, the Court must exercise its constitutional role as final arbiter of all justiciable controversies and disputes. (Emphasis supplied) Applying the proximity rule and considering the nature of the duties of the office of the Corporate Secretary of the Government Service Insurance System (GSIS), we held in the above-cited case that said position in the GSIS or any government-owned or controlled corporation (GOCC) for that matter, is a primarily confidential position.25 In holding that the position of General Manager of a water district is

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primarily confidential in nature, the CA said: x x x we rule that the position of general manager remains primarily confidential in nature despite the amendment of Section 23 of P.D. No. 198 by R.A. No. 9286, which gave the occupant of said position security of tenure, in that said officer could only be removed from office for cause and after due process. The nature of the duties and functions attached to the position points to its confidential character. First, the general manager is directly appointed by the board of directors. Second, the general manager directly reports to the board of directors. Third, the duties and responsibilities of a general manager are determined by the board of directors, which is a clear indication of a closely intimate relationship that exists between him and the board. Fourth, the duties and responsibilities of a general manager are not merely clerical and routinary in nature. His work involves policy and decision making. Fifth, the compensation of the general manager is fixed by the board of directors. And last, the general manager is directly accountable for his actions and omissions to the board of directors. Under this situation, the general manager is expected to possess the highest degree of honesty, integrity and loyalty, which is crucial to maintaining trust and confidence between him and the board of directors. The loss of such trust or confidence could easily result in the termination of the general managers services by the board of directors. To be sure, regardless of the security of tenure a general manager may now enjoy, his term may still be ended by the board of directors based on the ground of loss of confidence. We sustain the ruling of the CA. We stress that a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as well as the high degree of trust and confidence inherent in their relationship.27 The tenure of a confidential employee is coterminous with that of the appointing authority, or is at the latters pleasure. However, the confidential employee may be appointed or remain in the position even beyond the compulsory retirement age of 65 years.28 Among those positions judicially determined as primarily confidential positions are the following: Chief Legal Counsel of the Philippine National Bank; Confidential Agent of the Office of the Auditor, GSIS; Secretary of the Sangguniang Bayan; Secretary to the City Mayor; Senior Security and Security Guard in the Office of the Vice Mayor; Secretary to the Board of a government corporation; City Legal Counsel, City Legal Officer or City Attorney; Provincial Attorney; Private Secretary; and Board Secretary II of the Philippine State College of Aeronautics.29 The Court in these instances focused on the nature of the functions of the office characterized by such close intimacy between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state.30 In the case of the General Manager of a water district, Section 24 in relation to Section 23 of P.D. No. 198, as amended, reveals the close proximity of the positions of the General Manager and BOD. SEC. 24. Duties.The duties of the General Manager and other officers shall be determined and specified from time to time by the Board. The General Manager, who shall not be a director, shall have full supervision and control of the maintenance and operation of water district facilities, with power and authority to appoint all personnel of the district: Provided, That the appointment of personnel in the supervisory level shall be subject to approval by the Board. (As amended by Sec.10, PD 768) (Emphasis supplied) While the BOD appoints by a majority vote the General Manager and specifies from time to time the duties he shall perform, it is the General Manager who exercises full supervision and control of the maintenance and operation of water district facilities. The BOD is confined to policy-making and prescribing a system of business administration and accounting for the water district patterned upon and in conformity to the standards established by the Local Water Utilities Administration (LWUA), and it is the General Manager who implements the plans and policies approved by the BOD. And while the BOD may not engage in the detailed management of the water district, it is empowered to delegate to such officers or agents designated by it any executive, administrative or ministerial power,31 including entering into contracts under conditions and restrictions it may impose. Moreover, though the General Manager is vested with the power to appoint all personnel of the water district, the appointment of personnel in the supervisory level shall be subject to the approval of the BOD. It is likewise evident that the General Manager is directly accountable to the BOD which 29 Id. at 508-509, citing Besa v. Philippine National Bank, 144 Phil. 282 (1970) has disciplinary jurisdiction over him. The foregoing working relationship of the General Manager and BOD under the governing law of water districts clearly demands a high degree of trust and confidence between them. The CA therefore correctly concluded that the position of General Manager is primarily confidential in nature. Petitioner contends that the amendment introduced by R.A. No. 9286 in effect placed the position of General Manager of a water district in the category of career service. It posits that this can be inferred from the removal of the sentence Said officer shall serve at the pleasure of the Board, and replaced it with the sentence Said officer shall not be removed from office, except for cause and after due process. Accordingly, petitioner said it issued CSC MC No. 13, Series of 2006 prescribing guidelines for the implementation of the new law and qualification standards for the position of General Manager of a water district, whereby all incumbent general managers who hold appointments under coterminous status upon the effectivity of R.A. No. 9286 were given two years to meet all the requirements for permanent status. Such interpretation is incorrect. To our mind, the amendment introduced by R.A. No. 9286 merely tempered the broad discretion of the BOD. In Paloma v. Mora32 we noted the change brought about by the said law insofar as the grounds for terminating the General Manager of a water district. Whereas previously the General Manager may be removed at the pleasure or discretion of the BOD even without prior notice and due hearing, the amendatory law expressly demands that these be complied with. Such condition for the exercise of the power of removal implements the fundamental right of due process guaranteed by the Constitution. In De los Santos v. Mallare,33 the Court simply recognized as a necessity that confidential appointments be terminable at the will of the appointing authority.

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It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and coterminous in nature.34 Since the position of General Manager of a water district remains a primarily confidential position whose term still expires upon loss of trust and confidence by the BOD provided that prior notice and due hearing are observed, it cannot therefore be said that the phrase shall not be removed except for cause and after due process converted such position into a permanent appointment. Significantly, loss of confidence may be predicated on other causes for removal provided in the civil service rules and other existing laws. In Tanjay Water District v. Quinit, Jr.,35 we said: Indeed, no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. The phrase cause provided by law, however, includes loss of confidence. It is an established rule that the tenure of those holding primarily confidential positions ends upon loss of confidence, because their term of office lasts only as long as confidence in them endures. Their termination can be justified on the ground of loss of confidence, in which case, their cessation from office involves no removal but the expiration of their term of office. The Civil Service Law classifies the positions in the civil service into career and non-career service positions. Career positions are characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) security of tenure.36 The Career Service shall include37: (1) Open Career positions for appointment to which prior qualification in an appropriate examination is required; (2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleges and universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their own merit systems; (3) Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President; (4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the Department of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system; (6) Personnel of government-owned or controlled corporations whether performing governmental or proprietary functions, who do not fall under the non-career service; and (7) Permanent laborers, whether skilled, semi-skilled or unskilled. (Emphasis supplied) On the other hand, non-career positions are defined by the Administrative Code of 198738 as follows: SEC. 9. Non-Career Service. The Non-Career Service shall be characterized by (1) entrance on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. (Emphasis supplied) As can be gleaned, a coterminous employment falls under the noncareer service classification of positions in the Civil Service,39 its tenure being limited or specified by law, or coterminous with that of the appointing authority, or at the latters pleasure. Under R.A. No. 9286 in relation to Section 14 of the Omnibus Rules Implementing Book V of the Administrative Code of 1987, the coterminous appointment of the General Manager of a water district is based on the majority vote of the BOD and whose continuity in the service is based on the latters trust and confidence or co-existent with its tenure. The term of office of the BOD members of water districts is fixed by P.D. No. 198 as follows: SEC. 11. Term of Office. -- Of the five initial directors of each newly-formed district, two shall be appointed for a maximum term of two years, two for a maximum term of four years, and one for a maximum term of six years. Terms of office of all directors in a given district shall be such that the term of at least one director, but not more than two, shall expire on December 31 of each even-numbered year. Regular terms of office after the initial terms shall be for six years commencing on January 1 of odd-numbered years. Directors may be removed for cause only, subject to review and approval of the Administration. (As amended by Sec. 5, P.D. No. 768.) (Emphasis supplied)

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On the basis of the foregoing, the logical conclusion is that the General Manager of a water district who is appointed on coterminous status may serve or hold office for a maximum of six years, which is the tenure of the appointing authority, subject to reappointment for another six years unless sooner removed by the BOD for loss of trust and confidence, or for any cause provided by law and with due process. It may also be mentioned that under Section 3641 of P.D. No. 198, as amended, the L WUA is empowered to take over the operation and management of a water district which has defaulted on its loan obligations to L WUA. As the bondholder or creditor, and in fulfilment of its mandate to regulate water utilities in the country, LWUA may designate its employees or any person or organization to assume all powers or policy-decision and the powers of management and administration to undertake all such actions as may be necessary for the water district's efficient operation. This further reinforces the conclusion that the position of General Manager of a water district is a non-career position. In fine, since the position of General Manager of a water district remains a primarily confidential position, Rafanan was validly reappointed to said position by respondent's BOD on April 8, 2005 under coterminous status despite having reached the compulsory retirement age, which is allowed under Section 12 (b), Rule XIII of CSC Memorandum Circular No. 15, s. 1999, as amended by Resolution No. 011624 dated October 4, 2001. WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated July 28, 2009 and Resolution dated November 9, 2009 of the Court of Appeals in CA-G.R. SP No. 106031 are AFFIRMED and UPHELD. No costs. SO ORDERED. - versus CARPIO, J., Chairperson, PEREZ, SERENO, REYES, and PERLAS-BERNABE, JJ.* Promulgated: January 30, 2012

OFFICE OF THE PRESIDENT, ET AL., Respondents. x------------------------------------------------------------------------------------x REYES, J.:

The Case Before us is a petition for review[1] on certiorari under Rule 45 of the Rules of Court filed by Samuel B. Ong (Ong) to assail the Decision [2] rendered by the Court of Appeals (CA) on August 5, 2008 in CA-G.R. SP No. 88673, the dispositive portion of which reads: WHEREFORE, in view of the foregoing premises, the petition for quo warranto filed in this case is hereby DENIED. SO ORDERED.[3] Ong died on May 22, 2009 during the pendency of the instant petition. [4] Admittedly, Ong's death rendered the prayer for reinstatement in the petition for quo warranto as moot and academic. However, substitution[5] was sought because in the event that the Court would rule that Ong was indeed entitled to the position he claimed, backwages pertaining to him can still be paid to his legal heirs. Per Resolution[6]issued on January 10, 2011, we granted the motion for substitution. The deceased petitioner is now herein substituted by his wife Elizabeth, and children, Samuel Jr., Elizabeth and Carolyn, all surnamed Ong. Antecedents Facts The CA aptly summarized the facts of the case before the filing of the petition for quo warranto as follows: The petitioner [Ong] joined the National Bureau of Investigation (NBI) as a career employee in 1978. He held the position of NBI Director I from July 14, 1998 to February 23, 1999 and NBI Director II from February 24, 1998 to September 5, 2001. On September 6, 2001, petitioner was appointed Director III by the President. His appointment paper pertinently reads:

SAMUEL B. ONG, Petitioner,

G.R. No. 184219 Present:

x x x

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Pursuant to the provisions of existing laws, the following are hereby appointed to the NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF JUSTICE co-terminus with the appointing authority: xxx SAMUEL B. ONG (vice Carlos S. Caabay) x x x On June 3, 2004, the petitioner received from respondent Reynaldo Wycoco Memorandum Circular No. 02-S.2004 informing him that his appointment, being co-terminus with the appointing authority's tenure, would end effectively at midnight on June 30, 2004 and, unless a new appointment would be issued in his favor by the President consistent with her new tenure effective July 1, 2004, he would be occcupying his position in a de facto/hold[-]over status until his replacement would be appointed. On December 01, 2004, the President appointed respondent Victor A. Bessat as NBI Director III as replacement of the petitioner. Consequently, respondent Wycoco notified the petitioner that, effective on December 17, 2004, the latter should cease and desist from performing his functions as NBI Director III in view of the presidential appointment of respondent Bessat as petitioner's replacement. The petitioner received the aforementioned notice only on January 27, 2005.[7](underscoring supplied and citations omitted) On February 22, 2005, Ong filed before the CA a petition for quo warranto. He sought for the declaration as null and void of (a) his removal from the position of NBI Director III; and (b) his replacement by respondent Victor Bessat (Bessat). Ong likewise prayed for reinstatement and backwages. The CA denied Ong's petition on grounds: A petition for quo warranto is a proceeding to determine the right of a person to the use or exercise of a franchise or office and to oust the holder from its enjoyment, if his claim is not well-founded, or if he has forfeited his right to enjoy the privilege.[8] Where the action is filed by a private person, in his own name, he must prove that he is entitled to the controverted position, otherwise, respondent has a right to the undisturbed possession of the office.[9] Section 27 of the Administrative Code of 1987, as amended, classifies the appointment status of public officers and employees in the career service into DIRECTOR III [DEPUTY DIRECTOR] permanent and temporary. A permanent appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed, including appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. In the absence of appropriate eligibles and it becomes necessary in the public interest to fill a vacancy, a temporary appointment shall be issued to a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibility; provided, that such temporary appointment shall not exceed twelve months, but the appointee may be replaced sooner if a qualified civil service eligible becomes available. x x x In Cuadra v. Cordova,[10] temporary appointment is defined as one made in an acting capacity, the essence of which lies in its temporary character and its terminability at pleasure by the appointing power. Thus, the temporary appointee accepts the position with the condition that he shall surrender the office when called upon to do so by the appointing authority. The termination of a temporary appointment may be with or without a cause since the appointee serves merely at the pleasure of the appointing authority. In the career executive service, the acquisition of security of tenure presupposes a permanent appointment. As held in General v. Roco,[11] two requisites must concur in order that an employee in the career executive service may attain security of tenure, to wit: 1) CES eligibility[;] and 2) appointment to the appropriate CES rank. In the present case, it is undisputed that the petitioner is a non-CESO eligible. At best, therefore, his appointment could be regarded only as temporary and, hence, he has no security of tenure. Such being the case, his appointment can be withdrawn at will by the President, who is the appointing authority in this case, and at a moment's notice.[12] Moreover, a perusal of the petitioner's appointment will reveal that his appointment as NBI Director III is co-terminous with the appointing authority. Correlatively, his appointment falls under Section 14 of the Omnibus Rules Implementing Book V of the Revised Administrative Code of 1987 which provides that:[13] Sec. 14. An appointment may also be co-terminous which shall be issued to a person whose entrance and continuity in the service is based on the trust and confidence of the appointing authority or that which is subject to his pleasure, or co-existent with his tenure, or limited by the duration of project or subject to the availability of funds.

14
The co-terminous status may thus be classified as follows: xxxx (2) Co-terminous with the appointing authority when appointment is co-existent with the tenure of the appointing authority or at his pleasure; x x x xxxx Thus, although petitioner's appointment is co-terminous with the tenure of the President, he nevertheless serves at the pleasure of the President and his appointment may be recalled anytime. The case of Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc.[14] delineated the nature of an appointment held at the pleasure of the appointing power in this wise: An appointment held at the pleasure of the appointing power is in essence temporary in nature. It is co-extensive with the desire of the Board of Directors. Hence, when the Board opts to replace the incumbent, technically there is no removal but only an expiration of term and in an expiration of term, there is no need of prior notice, due hearing or sufficient grounds before the incumbent can be separated from office. The protection afforded by Section 7.04 of the Code of By-Laws on Removal [o]f Officers and Employees, therefore, cannot be claimed by petitioner. All told, petitioner's appointment as well as its consequent termination falls within the ambit of the discretion bestowed on the appointing authority, the President. Simply put, his appointment can be terminated at any time for any cause and without the need of prior notice or hearing since he can be removed from his office anytime. His termination cannot be said to be violative of Section 2(3), Article IX-B of the 1987 Constitution. When a temporary appointee is required to relinquish his office, he is being separated from office because his term has expired.[15] Starkly put, upon the appointment of respondent Bessat as his replacement, his term of office had already expired. Likewise, it is inconsequential that the petitioner was replaced by another non-CESO eligible, respondent Besat. In a quo warranto proceeding[,] the person suing must show that he has a clear right to the office allegedly held unlawfully by In sum, quo warranto is unavailing in the instant case, as the public office in question has not been usurped, intruded into or unlawfully held by respondent Bessat. The petitioner had no legal right over the disputed office and his cessation from office involves no removal but an expiration of his term of office.[18] Hence, the instant petition ascribing to the CA the following errors: I. THE CA ERRED WHEN IT SUSTAINED THE VALIDITY OF THE PETITIONER'S REMOVAL BY RESPONDENT WYCOCO AS NBI DIRECTOR III (DEPUTY DIRECTOR).[19] II. THE CA ERRED IN HOLDING THAT SINCE THE PETITIONER HELD A COTERMINOUS APPOINTMENT, HE IS TERMINABLE AT THE PLEASURE OF THE APPOINTING POWER.[20] Citing Ambas v. Buenaseda[21] and Decano v. Edu,[22] the instant petition emphasizes that the power of removal is lodged in the appointing authority. Wycoco, and not the President, issued Memorandum Circular (MC) No. 02-S.2004 informing Ong that his co-terminous appointment as Director III ended effectively on June 30, 2004. The issuance of MC No. 02-S.2004 was allegedly motivated by malice and revenge since Ong led the NBI employees in holding rallies in July 2003 to publicly denounce Wycoco. Hence, Bessat's assumption of the position was null and void since it was technically still occupied by Ong at the time of the former's appointment. It is further alleged that it was erroneous for the CA to equate an appointment co-terminous with the tenure of the appointing authority with one that is at the pleasure of such appointing authority.[23] Citing Alba, etc.. v. Evangelista, etcl.,[24] Ong's counsel distinguished a term as the time during which the officer may claim to hold office as of right from a tenure which represents the term during which the incumbent actually holds the office. Ong's appointment, from which he cannot be removed without just cause, was co-terminous with the President's tenure which ended not on June 30, 2004, but only on June 30, 2010. another. Absent that right, the lack of qualification or eligibility of the supposed usurper is immaterial.[16] Indeed, appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide.[17]

15
Section 2(b), Article IX-G of the 1987 Constitution and Jocom v. Regalado[25] are likewise cited to stress that government employees, holding both career and non-career service positions, are entitled to protection from arbitrary removal or suspension. In the case of Ong, who started his employment in 1978 and rose from the ranks, it is allegedly improper for the CA to impliedly infer that the President acted in bad faith by converting his supposed promotional appointment to one removable at the pleasure of the appointing authority. In its Comment[26] to the petition, the Office of the Solicitor General (OSG) maintains that the replacement of Ong by Bessat was fair, just and in accord with the doctrine enunciated in Aklan College v. Guarino,[27] and with Sections 13[28]and 14,[29] Rule V, Civil Service Commission (CSC) Resolution No. 91-1631 issued on December 27, 1991. Section 13 substantially provides that only a temporary appointment can be issued to a person who does not have the appropriate civil service eligibility. Section 14(2), on the other hand, defines a co-terminous appointment as one co-existent with the tenure of the appointing authority or at his pleasure. The last paragraph of Section 14 states that appointments which are co-terminous with the appointing authority shall not be considered as permanent. The OSG also points out that in issuing MC No. 02-S.2004, Wycoco did not remove Ong as Director III but merely reminded the latter that after June 30, 2004, his appointment shall lapse into a de facto/hold-over status unless he was re-appointed. Ong's colleagues applied for re-appointment. Bessat was in fact re-appointed as Director II on August 13, 2004. Subsequently, on December 1, 2004, the President appointed Bessat as Director III, effectively replacing Ong. Further, the OSG claims that when Ong accepted promotional appointments in the Career Executive Service (CES) for which he did not have the required eligibility, he became a temporary employee and had impliedly abandoned his right to security of tenure. Unless, therefore, a new appointment is extended to you by Her Excellency GLORIA MACAPAGAL-ARROYO, consistent with her new tenure effective 01 July 2004, your services shall lapse into a de facto/hold[-]over status, to ensure continuity of service, until your replacements are appointed in your stead.[31] On December 1, 2004, the President appointed Bessat as Ong's replacement. [32] Bessat was notified on December 17, 2004. Wycoco furnished Ong with a Notice,[33] dated December 20, 2004, informing the latter that he should cease from performing the functions of Director III, effective December 17, 2004. It is argued that in the hands of the appointing authority are lodged the power to remove. Hence, Wycoco allegedly acted beyond the scope of his authority when he issued MC No. 02-S.2004. This Court notes that MC No. 02-S.2004 did not in effect remove Ong from his post. It merely informed Ong that records of the NBI showed that his co-terminous appointment had lapsed into a de facto/hold-over status. It likewise apprised him of the consequences of the said status. Be that as it may, if we were to assume for argument's sake that Wycoco removed Ong from his position as Director III by virtue of the former's issuance of MC No. 02-S.2004, still, the defect was cured when the President herself issued Bessat's appointment on December 1, 2004. The appointing authority, who in this case was the President, had effectively revoked Ong's appointment.

Ong lacked the CES eligibility required for the position of Director III and his appointment was co-terminus with the appointing authority. His appointment being both temporary and coterminous in nature, it can be revoked by the President even without cause and at a short notice. This Court likewise finds no error in the CA's ruling that since Ong held a co-terminous appointment, he was removable at the pleasure of the appointing authority. It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. [34] However, this admits of exceptions for it is likewise settled that the right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature.[35] In the case at bar, Ong's appointment as Director III falls under the classifications provided in (a) Section 14(2) of the Omnibus Rules Implementing Book V of the Administrative Code, to wit, that which is co-existent with the tenure of the appointing authority or at his pleasure; and (b) Sections 13(b)[36] and 14(2)[37] of Rule V, CSC Resolution No. 91-1631, or that which is both a temporary and a

Our Ruling The petition is bereft of merit. MC No. 02-S.2004 did not remove Ong from the position of Director III. Assuming arguendo that it did, the defect was cured when the President, who was the appointing authority herself, in whose hands were lodged the power to remove, appointed Bessat, effectively revoking Ong's appointment. MC No. 02-S.2004, [30] addressed to Ong, Bessat, Deputy Director Nestor Mantaring, and Regional Director Edward Villarta, in part reads: Records indicate your appointment status as co-terminus with the appointing power's tenure which ends effectively at midnight of this day, 30 June 2004.

16
co-terminous appointment. The appointment is temporary as Ong did not have the required CES eligibility. The case of Amores v. Civil Service Commission, et al.[38]is instructive anent the nature of temporary appointments in the CES to which the position of Director III held by Ong belonged. The Court declared: An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility. xxxx x x x Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one. x x x Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government. But in all such cases, the appointment is at best merely temporary as it is said to be conditioned on the subsequent obtention of the required CES eligibility. x x x xxx Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board. x x x At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility and therefore had not held the subject office in a permanent capacity, there could not have been any violation of petitioners supposed right to security of tenure inasmuch as he had never been in possession of the said right at least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause and at a moments notice. Not even his own self-serving claim that he was competent to continue serving as Deputy Director may actually and legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed.[45] [39] (underscoring supplied and citations omitted) The Court is categorical in the Amores case that an appointee without the requisite CES eligibility cannot hold the position in a permanent capacity. Temporary appointments are made if only to prevent hiatus in the government's rendition of public service. However, a temporary appointee can be removed even without cause and at a moment's notice. As to those with eligibilities, their rights to security of tenure pertain to ranks but not to the positions to which they were appointed. Ong never alleged that at any time during which he held the Director III position, he had acquired the requisite eligibility. Thus, the right to security of tenure did not pertain to him at least relative to the Director III position. The next logical query to be resolved then is whether or not Ong, as an appointee holding a position co-terminus with the appointing authority, was entitled to remain as Director III until the end of the President's tenure on June 30, 2010. We likewise rule in the negative. Both Section 14 of the Omnibus Rules Rules Implementing Book V of the Administrative Code and Section 14 (2) of Rule V, CSC Resolution No. 91-1631 define a co-terminous appointment as one co-existent with the tenure of the appointing authority or at his pleasure. In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc. [40] cited by the CA in its decision, we sustained the replacement of an incumbent, who held an appointment at the pleasure of the appointing authority. Such appointment was in essence temporary in nature. We categorized the incumbent's replacement not as removal but rather as an expiration of term and no prior notice, due hearing or cause were necessary to effect the same. In Decano v. Edu,[41] we ruled that the acceptance of a temporary appointment divests an appointee of the right to security of tenure against removal without cause. Further, in Carillo vs. CA,[42] we stated that one who holds a temporary appointment has no fixed tenure of office; his employment can be terminated at the pleasure of the appointing authority, there being no need to show that the termination is for cause. In Ong's case, his appointment was temporary and co-terminous. The doctrines enunciated in the cases of Mita Pardo de Tavera, Decano, and Carillo apply. Hence, no legal challenge can be properly posed against the President's appointment of Bessat as Ong's replacement. The CA correctly ruled that in quo warrantoproceedings, the petitioner must show that he has a clear right to the office allegedly held unlawfully by another and in the absence of the said right, the lack of qualification or eligibility of the supposed usurper is immaterial. Stated differently, where a non-eligible holds a temporary appointment, his replacement by another non-eligible is not prohibited.[43]

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We note that Ong's counsel had painstakingly drawn distinctions between a term and a tenure. It is argued that since Ong's appointment was co-terminous with the appointing authority, it should not had lapsed into a de facto status but continued until the end of the President's tenure on June 30, 2010. Under the Omnibus Rules Implementing the Revised Administrative Code and CSC Resolution No. 91-1631, a co-terminous appointment is defined as one co-existing with the tenure of the appointing authority or at his pleasure. Neither law nor jurisprudence draws distinctions between appointments co-existing with the term of the appointing authority on one hand, and one co-existing with the appointing authority's tenure on the other. In the contrary, under the aforecited rules, tenure and term are used rather loosely and interchangeably. In Ong's case, the issues needed to be disposed of revolve around the concepts of temporary and co-terminous appointments. The distinctions between term and tenure find no materiality in the instant petition. Besides, whether or not the President's term ended on June 30, 2004 or her tenure ceased on June 30, 2010, the fact remains that she appointed Bessat as Director III, in effect revoking Ong's temporary and co-terminous appointment. This Court recognizes Ong's lengthy service rendered to the government and deeply commisserates with his earlier plight. However, we cannot grant Ong the reliefs he sought as law and jurisprudence clearly dictate that being a temporary and co-terminous appointee, he had no vested rights over the position of Director III. IN VIEW OF THE FOREGOING, the petition isDENIED. The Decision rendered by the Court of Appeals on August 5, 2008 in CA-G.R. SP No. 88673 is AFFIRMED. SO ORDERED. July 2005, directing petitioner SAT to submit the latters comment, to be treated as an answer.6 Additionally, the CA granted the prayer of GSIS for the issuance of a TRO effective sixty (60) days from notice. After requiring the submission of memoranda, CA issued the assailed Resolution dated 23 September 2005 in CA-G.R. SP No. 90484, granting the prayer for the issuance of a writ of preliminary injunction upon the posting of an injunction bond.7 The Office of the Solicitor General (OSG) filed a Motion for Reconsideration (MR) and a Comment on the petition dated 10 October 2005, after it was notified of the case, as the SAT had been represented in the interim by one of the team members instead of the OSG.8 The MR was denied through a Resolution of the CA on 9 August 2006. 9 The present Petition seeks to nullify both the 23 September 2005 and the 9 August 2006 CA Resolutions and to prohibit the CA from proceeding to decide the case. ANTECEDENT FACTS COA created the SAT under Legal and Adjudication Office (LAO) Order No. 2004-093, which was issued by COA Assistant Commissioner and General Counsel Raquel R. Ramirez-Habitan. Tasked to conduct a special audit of specific GSIS transactions, the SAT had the avowed purpose of conducting a special audit of those transactions for the years 2000 to 2004. 10 Accordingly, the SAT immediately initiated a conference with GSIS management and requested copies of pertinent auditable documents, which the latter initially agreed to furnish. 11 However, due to the objection of GSIS to the actions of SAT during the conference,12 the request went unheeded. This prompted the latter to issue a subpoena duces tecum.13 In response to the subpoena, the GSIS, through its President and General Manager Winston F. Garcia, replied that while it did recognize the authority of COA to constitute a team to conduct a special audit, that team should not be the SAT, whose members were biased, partial, and hostile. 14 The then-COA Chairperson Guillermo N. Carague denied the request of GSIS on account of the restructuring of the commission under COA Resolution 2002-005, which formed the basis for the SATs creation.15 However, through a subsequent letter of Atty. Claro B. Flores and Atty. Nelo B. Gellaco, the GSIS alleged that the SATs creation was not supported by COA Resolution 2002-005, which was without force and effect.16 The reasoning of both lawyers was based on the theory that the 1987 Constitution did not give COA the power to reorganize itself. 17 Allegedly, the commission only had the power to define the scope of its audit and examination, as well as to promulgate rules concerning pleading and practice. 18 Even if the COA were allowed to reorganize itself, the GSIS claimed that the subpoena required a case to have been brought to the commission for resolution.19 Thereafter, several GSIS officials sent COA Chairperson Carague a letter emphasizing that the special audit should be conducted by another team and detailing how the SAT, as then constituted, prejudged the legality of several key projects of the GSIS 20 while merely relying on hearsay and inapplicable legal standards.21

G.R. No. 174788 April 11, 2013 THE SPECIAL AUDIT TEAM, COMMISSION ON AUDIT, Petitioners, vs. COURT OF APPEALS and GOVERNMENT SERVICE INSURANCE SYSTEM, Respondents. SERENO, CJ.: This is a Petition for Certiorari and Prohibition 1 filed on 10 November 2006, seeking to set aside two Resolutions of the Court of Appeals (CA) of CA-G .R. SP No. 90484, dated 9 August 2006 2 and 23 September 2005,3respectively, and to prohibit the CA from proceeding with CA-G.R. SP No. 90484. Respondent Government Service Insurance System (GSIS) filed a Petition for Prohibition with the CA dated 18 July 2005 against petitioner Special Audit Team (SAT) of the Commission on Audit (COA) with a prayer for the issuance of a temporary restraining order (TRO), a writ of preliminary prohibitory injunction, and a writ of prohibition. 4 Subsequently, GSIS also submitted a Manifestation and Motion dated 21 July 2005 detailing the urgency of restraining the SAT. 5 The CA issued a Resolution on 22

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In its Petition, the SAT claimed that due to the continued refusal of GSIS to cooperate, the team was constrained to employ "alternative audit procedures" by gathering documents from the Office of the Auditor of GSIS, the House of Representatives, and others. 22 Meanwhile, some of the audit observations made by the SAT appeared in the newspaper Manila Times, 23 resulting in the refusal of GSIS management to attend the SATs exit conference.24 COURT INTERVENTION On 15 April 2005, GSIS filed with the COA itself a "Petition/Request to nullify Special Audit Report dated 29 March 2005 on selected transactions of the GSIS for CY 2000 to 2004." 25 The GSIS also filed a Petition for Prohibition dated 18 July 2005 26 before the CA, whose Resolutions therein led to this present Petition. PARTIES CLAIMS Petitioner SAT anchors its claims on the following grounds: First, the grant of the preliminary injunction was in grave abuse of discretion because of procedural infirmities in the Petition.27 Second, the CA had no jurisdiction to rule on the validity or correctness of the findings and recommendations of the SAT because of the doctrines of primary jurisdiction and exhaustion of administrative remedies. Additionally, judicial review over the COA is vested exclusively in the Supreme Court.28 Third, the SATs special audit has basis in law.29 Respondent GSIS, on the other hand, claims that the need for an injunction was urgent, since the SATs supervisor had said that notices for disallowance were available at the COAs Records Division.30 As to the procedural and substantial aspect, GSIS claims the following: First, the Petition for Prohibition satisfies the legal and procedural requirements. 31 Second, the CA has the power to prohibit the conduct of special audit and the issuance of notices of disallowance.32 Third, the special audit does not have statutory basis.33 In support of the prohibitory writ, GSIS claims that it is only the regular auditor who can conduct such audits and issue disallowances; that it is only the commissioner of COA who can delegate this power; and that GSIS would suffer grave and irreparable injury, should the SAT implement the latters report. ISSUES We categorize the arguments in the following manner: 1. Whether or not prohibition is the correct remedy 2. Whether or not the writ of preliminary injunction was properly issued 3. Whether or not the SAT was validly constituted RULING PROHIBITION IS NOT THE CORRECT REMEDY. There is an appeal or a plain, speedy, and adequate remedy available. A rule of thumb for every petition brought under Rule 65 is the unavailability of an appeal or any "plain, speedy, and adequate remedy."34 Certiorari, prohibition, and mandamus are extraordinary remedies that historically require extraordinary facts to be shown35 in order to correct errors of jurisdiction. 36 The law also dictates the necessary steps before an extraordinary remedy may be issued. 37 To be sure, the availability of other remedies does not always lend itself to the impropriety of a Rule 65 petition. 38 If, for instance, the remedy is insufficient or would be proven useless,39 then the petition will be given due course.40 COA itself has a mechanism for parties who are aggrieved by its actions and are seeking redress directly from the commission itself. Section 48 of Presidential Decree No. 1445 reads: Appeal from decision of auditors. Any person aggrieved by the decision of an auditor of any government agency in the settlement of an account or claim may within six months from receipt of a copy of the decision appeal in writing to the Commission. Additionally, Rule V, Section 1 of the 1997 COA Rules provides:An aggrieved party may appeal from an order or decision or ruling rendered by the Auditor embodied in a report, memorandum, letter, notice of disallowances and charges, Certificate of Settlement and Balances, to the Director who has jurisdiction over the agency under audit.41 Rule VI, Section 1, continues the linear procedure, to wit: The party aggrieved by a final order or decision of the Director may appeal to the Commission Proper.42 This discussion of the different procedures in place clearly shows that an administrative remedy was indeed available. To allow a premature invocation of Rule 65 would subvert these administrative provisions, unless they fall under the established exceptions to the general rule, some of which are as follows: 1) when the question raised is purely legal; 2) when the administrative body is in estoppel; 3) when the act complained of is patently illegal; 4) when there is urgent need for judicial intervention; 5) when the claim involved is small; 6) when irreparable damage will be suffered; 7) when there is no other plain, speedy and adequate remedy; 8) when strong public interest is involved; 9) when the subject of the controversy is private land; 10) in quo warranto proceedings.43

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GSIS claims that its case falls within the exceptions, because (a) the SAT supervisor has threatened to issue notices of disallowance;44 (b) GSIS did nothing to stop the threatened issuances or the public appearances of the SAT supervisor; 45 (c) the petition/request filed with the COA has not been acted upon as of date;46 (d) GSIS was denied due process because SAT had acted with partiality and bias;47 and (e) the special audit was illegal, arbitrary, or oppressive, having been done without or in excess or in grave abuse of discretion.48 All of these claims are baseless. First, a threat to issue a notice of disallowance is speculative, absent actual proof. Moreover, even if the threat were real, it would not fall under any of the exceptions, because the COA rules provide an adequate remedy to dispute a notice of disallowance: Who May Appeal. - An aggrieved party may appeal from an order or decision or ruling rendered by the Auditor embodied in a report, memorandum, letter, notice of disallowances and charges, Certificate of Settlement and Balances, to the Director who has jurisdiction over the agency under audit factual issues that require some form of proof in order that they may be considered. (Emphasis supplied) 49 Second, GSIS also mentions the fact that the COA has not acted on the formers petition/request both in the original Petition before the CA 50 and the pleadings before this Court. 51This inaction is, of course, explainable by the fact that the CA issued a TRO and a writ of preliminary injunction. Moreover, the cited two (2) month delay is not so unreasonable as to require the trampling of procedural rules. Third, the claim that there was a denial of due process runs counter to the claim that there is a pending petition/request before the COA. The fact that the petition/request was not denied or delayed for reasons within the control of the COA contradicts any claim that there was a due process violation involved. Fourth, allegations of partiality and bias are questions of fact already before the COA. As the Court has clarified, "[t]here is a question of law when the doubt or difference arises as to what the law is on a certain state of facts, and not as to the truth or the falsehood of alleged facts."52 A question of fact exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of witnesses, the existence and relevancy of specific surrounding circumstances as well as their relation to each other and to the whole, and the probability of the situation.53 True enough, questions of fact require evidentiary processes, the "calibration of the evidence, the credibility of the witnesses, the existence and the relevance of surrounding circumstances, and the probability of specific situations," 54 especially "if the query requires x x x the existence or relevance of surrounding circumstances and their relation to each other, the issue in that query is factual."55 Generally, these questions of fact cannot be decided by a petition for prohibition under Rule 65,56 because the rule applies to jurisdictional flaws brought about by lack, excess, or grave abuse of discretion.57 The Petition before the CA did not present anything to show that the remedies available to the GSIS were insufficient. If the Petition itself admitted to the existence of other remedies, 58 then the burden of proving that there was an exception was on the party seeking that exception; in the absence of proof the Petition must be denied.59 This burden of proof is "the duty of a party to present such amount of evidence on the facts in issue as the law deems necessary for the establishment of his claim." 60 The failure to fulfill the requirements of Rule 65 disallows the CA from taking due course of the Petition;61otherwise appeals and motions for reconsideration would be rendered meaningless, 62 as stated time and again by this Court: If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his or her jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. 1wphi1 The premature invocation of the intervention of the court is fatal to ones cause of action. The doctrine of exhaustion of administrative remedies is based on practical and legal reasons. The availment of administrative remedy entails lesser expenses and provides for a speedier disposition of controversies. Furthermore, the courts of justice, for reasons of comity and convenience, will shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. 63 x x x. Moreover, courts have accorded respect for the specialized ability of other agencies of government to deal with the issues within their respective specializations prior to any court intervention. 64 The Court has reasoned thus: We have consistently declared that the doctrine of exhaustion of administrative remedies is a cornerstone of our judicial system. The thrust of the rule is that courts must allow administrative agencies to carry out their functions and discharge their responsibilities within the specialized areas of their respective competence. The rationale for this doctrine is obvious. It entails lesser expenses and provides for the speedier resolution of controversies. Comity and convenience also impel courts of justice to shy away from a dispute until the system of administrative redress has been completed. 65 The 1987 Constitution created the constitutional commissions as independent constitutional bodies, tasked with specific roles in the system of governance that require expertise in certain fields. 66 For COA, this role involves. The power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, instrumentalities, including government-owned and controlled corporations with original charter. x x x.67 As one of the three (3) independent constitutional commissions, COA has been empowered to define the scope of its audit and examination and to establish the techniques and methods required therefor; and to promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures or uses of government funds and properties.68

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Thus, in the light of this constitutionally delegated task, the courts must exercise caution when intervening with disputes involving these independent bodies, for The general rule is that before a party may seek the intervention of the court, he should first avail of all the means afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to dispose of the same after due deliberation.69 COA was not exercising judicial, quasi-judicial, or ministerial functions when it issued LAO Order No. 2004-093. LAO Order No. 2004-093 reads as follows: SUBJECT: SPECIAL AUDIT/INVESTIGATION ON SELECTED TRANSACTION OF THE GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) FROM CY 2000 TO 2004. Pursuant to COA Memorandum No. 2002-053 dated August 26, 2002, a team is hereby constituted composed of the following personnel, namely: x x x x who shall conduct a special audit on selected transactions for the period 2000-2004 with particular attention on the creation of subsidiaries such as GSIS Properties, Inc., missing paintings, cash advances and allowances/benefits of the Officers and Members of the Board of Trustees of the GSIS within a period of ten (10) working days and shall submit the appropriate report thereon within five (5) days after completion of the audit to the Director, Legal and Adjudication Office Office of Legal Affairs who shall supervise the proper implementation of this order. Travel and other incidental expenses that may be incurred with this assignment shall be charged against the appropriate funds of this Commission and the Team Leaders are hereby authorized to draw a cash advance ofP1,900 to defray out of pocket expenses subject to the usual accounting and auditing rules and regulations. By virtue of Section 40 of Presidential Decree No. 1445 in relation to Item III.A.6 of COA Memorandum 2002-053, the team shall have the authority to administer oaths, take testimony, summon witnesses and compel the production of documents by compulsory processes in all matters relevant to this audit/investigation. x x x.70 This was obviously not an exercise of judicial power, which is constitutionally vested in the Supreme Court and such other courts as may be established by law. 71 Neither was it an exercise of quasi-judicial power, as administrative agencies exercise it "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 the law itself in enforcing and administering the same law."72 The Court has made this point clear: In carrying out their quasi-judicial functions, the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature. 73 Yet issuing the Order was not ministerial, because it required the exercise of discretion. Ministerial acts do not require discretion or the exercise of judgment, but only the performance of a duty pursuant to a given state of facts in the manner prescribed. 74 The Order obviously involved discretion, in both the choice of the personnel and the powers/functions to be given them. A Rule 65 petition for prohibition can only be aimed at judicial, quasi-judicial, and ministerial functions.75 Since the issuance of the LAO Order assailed was not characterized by any of the three functions, as shown supra, then it follows that the GSIS chose the wrong remedy. Moreover, "where it is the Government which is being enjoined from implementing an issuance which enjoys the presumption of validity, such discretion [to enjoin] must be exercised with utmost caution. 76 THE WRIT SHOULD NOT HAVE BEEN ISSUED. Writs of injunction do not perfunctorily issue from the courts. For the issuance of a writ of preliminary injunction to be proper, it must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage. In the absence of a clear legal right, the issuance of the injunctive writ constitutes grave abuse of discretion. In this case, respondents failed to show that they have a right to be protected and that the acts against which the writ is to be directed are violative of the said right. (Emphasis supplied) 77 The CA Resolution stated the following as its reason for issuing the writ of preliminary injunction: It should be noted that the instant petition precisely questions the creation of the respondent SAT, and consequently, the validity of its actions. In order to completely review and adjudicate the matters raised herein, the issuance of a preliminary injunction is warranted in the meantime in order to preserve the status quo and to avoid grave and irreparable injury should the recommendations in the AOM and special audit report regarding the notices of disallowance of certain GSIS transactions be enforced. Furthermore, such recourse is necessary in order not to render moot any pronouncement that this Court may render in this petition.78 From its ruling, it is clear that the CA erred in granting a TRO and writ of preliminary injunction. A preliminary injunction is proper only when the plaintiff appears to be clearly entitled to the relief sought and has substantial interest in the right sought to be defended. 79 Factually, there must exist "a right to be protected and that the acts against which the writ is to be directed are violative of the said right."80 As this Court has previously ruled, "while the existence of the right need not be conclusively established, it must be clear."81 Lacking a clear legal right,82 the provisional remedy should not have been issued, all the more because the factual support for issuing the writ had not been established. In giving injunctive relief, courts cannot reverse the burden of proof, for to do so "would assume the proposition which the petitioner is inceptively duty bound to prove."83 This concern is not a mere technicality, but lies at the heart of procedural law, for every case before a court of law requires a cause of action.84 Moreover, there was no urgency in the request of the GSIS for injunctive relief, because no notice of disallowance had been issued. The CA held that since there was a question on the validity of the SAT

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and a corresponding threat of a notice of disallowance, then the status quo must be preserved. 85 Its criteria falls short of the "clear legal right" standard. Even if there was a notice of disallowance,, the COAs rules for contesting the issuance would have been the proper remedy; otherwise, any administrative dispute settlement procedure would be rendered useless by the simple filing of an injunctive suit in court. THE SAT WAS VALIDLY CONSTITUTED. We come now to the crux of the dispute: the validity of the creation of the SAT. Much as the procedural discussion already leads this Court to a conclusion, in the interest of justice and in consideration of the manifest desire of both parties to have the matter dealt with in this forum, it shall rule on the validity of the SAT, notwithstanding the procedural infirmities of the original Petition in the CA. This power is vested in this Court when so required by the exigencies of the case. 86 The exercise of this power is especially important in this case, because the justification of GSIS for directly seeking court intervention is based on the alleged invalidity of the SATs creation. Considering that court intervention must be put to an end, and that the question has its roots in the powers of a constitutional commission, we rule on the merits of the case. As previously discussed, the COA has "the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, instrumentalities, including government-owned and controlled corporations with original charter. "87 The Constitution further provides as follows: The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties. 88 The Constitution grants the COA the exclusive authority to define the scope of its audit and examination, and establish the techniques and methods therefor. Pursuant to this authority, COA Memorandum No. 2002-053 was promulgated, giving the General Counsel the authority to deputize a special audit team, viz: In case the Director, Legal and Adjudication Office for the sector in the Central Office finds that the transaction/event is a proper subject of special or fraud audit, he shall recommend the creation of a special audit team for approval of the General Counsel who shall sign the office order for the purpose. This memorandum shall constitute authority for the General Counsel to deputize the team pursuant to the provisions of Section 40 of P.D. 1445.89 This Memorandum, in turn, draws its force from COA Resolution No. 2002-005, 90 the preamble of which states: WHEREAS, the Constitution (Article IX, D (2) ) invests the Commission on Audit with the exclusive authority to define the scope of its audit and examination as well as establish the techniques and methods required therefor; WHEREAS, inherent in this authority is the prerogative of COA to organize its manpower in such a manner that would be appropriate to cope with its defined scope of audit as well as the methods and techniques it prescribes or adopts; WHEREAS, since such scope of audit, methods and techniques vary from time to time as the exigencies of the situation may demand, COA is impelled to continually restructure its organization to keep abreast of the necessary changes; WHEREAS, invoking the independence and fiscal autonomy which the Constitution guarantees, COA has in the past successfully effected various changes in its organizational structure within the limits of its appropriations; x x x. The validity of the SAT, therefore, cannot be contested on the grounds claimed by GSIS. If ever it has a cause for complaint, it should refer to the conduct of the audit, and not to the validity of the auditing body. And since the COA itself provides for the procedure to contest such audit, the Court must not interfere. Simplifying it once and for all, The increasing pattern of law and legal development has been to entrust "special cases" to "special bodies" rather than the courts. As we have also held, the shift of emphasis is attributed to the need to slacken the encumbered dockets of the judiciary and so also, to leave "special cases" to specialists and persons trained therefor. (Emphasis supplied)91 CONCLUSION Once again, the Court must remind the parties to judicial disputes to adhere to the standards for litigation as set by procedural rules. These rules exist primarily for the benefit of litigants, in order to afford them both speedy and appropriate relief from a body duly authorized by law to dispense the remedy. If a litigant prematurely invokes the jurisdiction of a court, then the potential result might be a deafening silence. Although we recognize that justice delayed is justice denied, 92 we must also bear in mind that justice in haste is justice defiled. WHEREFORE, the Petition for Certiorari and Prohibition is GRANTED, the Resolutions dated 9 August 2006 and 23 September 2005 in CA-G.R. SP No. 90484 are hereby ANNULLED and SET ASIDE. The CA is directed to dismiss the Petition in CAG.R. SP No. 90484. SO ORDERED.

G.R. No. 199149 January 22, 2013 LIWAYWAY VINZONS-CHATO, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ELMER E. PANOTES, Respondents.

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x-----------------------x G.R. No. 201350 ELMER E. PANOTES, Petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and LIWAYWAYVINZONS-CHATO, Respondents. PERLAS -BERNABE, J.: Clustered Precinct Before us are consolidated cases involving the use of the picture images of ballots as the equivalent of the original paper ballots for purposes of determining the true will of the electorate in the Second Legislative District of Camarines Norte in the May 10, 2010 elections, which was "the maiden run for full automation,"1 as authorized by Republic Act (R.A.) No. 93692 amending R.A. No. 8436 that called for the adoption of an automated election system in national and local elections. The Factual Antecedents Liwayway Vinzons-Chato (Chato) renewed her bid in the May 10, 2010 elections as representative of the Second Legislative District of Camarines Norte, composed of the seven (7) Municipalities of Daet, Vinzons, Basud, Mercedes, Talisay, San Vicente, and San Lorenzo, with a total of 205 clustered precincts. She lost to Elmer E. Panotes (Panotes) who was proclaimed the winner on May 12, 2010 having garnered a total of 51,707 votes as against Chato's 47,822 votes, or a plurality of 3,885 votes,3 summarized in the petition4 as follows: Municipality Daet Vinzons Basud Mercedes Talisay San Vicente San Lorenzo TOTAL No. of Panotes 18,085 8,107 7,879 7,739 5,015 2,359 2,520 51,707 votes for No. of Chato 15,911 6,713 6,527 9,333 4,190 2,453 2,695 47,822 votes for Clustered Precinct substantial discrepancy between the votes of the parties per physical count vis-a-vis their votes per election returns in the following precincts of the Municipalities of Basud and Daet: 6 Based Votes for Chato Per Election Returns 166 119 70 87 148 233 263 Daet Votes for Chato Per Election Returns 269 243 183 281 223 202 258 On May 24, 2010, Chato filed an electoral protest before the House of Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 10-040, assailing the results in all the 160 clustered precincts in four (4) municipalities, namely: Daet, Vinzons, Basud and Mercedes. 5 No counter-protest was interposed by Panotes. Pursuant to Rule 37 of the 2011 Rules of the HRET, Chato designated forty (40) pilot clustered precincts, equivalent to 25% of the total number of protested clustered precincts, in which revision of ballots shall be conducted. The initial revision of ballots, conducted on March 21 - 24, 2011, showed a 243 259 226 294 287 Per Physical Count 295 275 202 318 261 229 284 267 293 260 313 309 Gain or -Loss 26 32 19 37 38 27 26 24 34 34 19 22 Votes for Panotes Per Election Returns 354 363 269 440 341 391 407 521 373 348 404 399 Per Physical Count 157 2 36 334 227 343 305 511 96 54 357 320 Gain or -Loss - 197 - 361 - 233 - 106 - 114 - 48 - 102 - 10 - 277 - 294 - 47 - 79 Per Physical Count 183 134 81 105 191 261 287 Gain or -Loss 17 15 11 18 43 28 24 Votes for Panotes Per Election Returns 268 206 239 193 239 399 366 Per Physical Count 164 85 133 100 138 251 214 Gain or -Loss - 104 - 121 - 106 - 93 - 101 - 148 - 152

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153 182 29 252 77 - 175 (d) When it has been shown, in a preliminary hearing set by the parties or by the Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not preserved, as when On March 24, 2011, Panotes lost no time in moving 7 for the suspension of the proceedings in the case, there is proof of tampering or substitutions, the Tribunal shall direct the printing of the picture images of and praying that a preliminary hearing be set in order to determine first the integrity of the ballots and the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal the ballot boxes used in the elections. He further urged that, should it be shown during such hearing shall provide a non-partisan technical person who shall conduct the necessary authentication process that the ballots and ballot boxes were not preserved, the HRET should direct the printing of the picture to ensure that the data or image stored is genuine and not a substitute. It is only upon such images of the ballots of the questioned precincts stored in the data storage device for said precincts. determination that the printed picture image can be used for the revision, (as amended per Resolution of February 10, 2011). 8 The motion was prompted by certain irregularities in the condition of the ballot boxes subject of the revision, which Panotes described as follows: Moreover, Chato alleged that the ballot images were taken from polluted Compact Flash (CF) cards. Atty. Anne A. Romero-Cortez (Atty. Cortez), the Camarines Norte Provincial Elections Supervisor, was Outer condition: said to have admitted during canvassing proceedings that the CF cards for the Municipalities of Labo, a. The top cover of the ballot box is loose and can be lifted, so the election documents e.g. Vinzons and Basud were defective and had to be replaced. The pertinent portion of the Transcript of ballots, minutes of voting, election returns can be taken out. Stenographic Notes (TSN) taken during the canvassing proceedings for President and Vice-President b. In some ballot boxes, when the key was inserted into the padlock, the upper portion of the held on June 2, 2010 is reproduced hereunder: lock disconnected from its body, which means that the lock had been previously tampered with. REP. VINZONS-CHATO: Yes, I requested the presence of the other two members because the c. In the municipalities where Petitioner (Panotes) was able to seal the ballot boxes with information that I gathered would be that there was a time log of about six hours where you would stop packing tape, this tape seal was broken/cut/sliced, which means that the ballot boxes had the canvassing, and the information that we got from our lawyers there was that there were certain been opened prior to the initial revision. cards that had no memory and had to be reconfigured from some precincts, and that, in the meantime, d. Some of the self-locking security seal was not properly attached. you stopped the canvassing and resumed after six hours. Inner condition: a. The contents of the ballot box e.g. ballots and the documents were in total disarray, which means that it was tampered with. b. Some of the Minutes of Voting and Election Returns were MISSING and only the ballots were found inside the ballot box. c. The ballots were unnecessarily folded and/or crumpled in the clustered precincts where the votes of (Panotes) were substantially reduced. Consequently, in its Resolution9 No. 11-208, the HRET directed the copying of the picture image files of ballots relative to the protest, which was scheduled to commence on April 25, 2011 and everyday thereafter until completion.10 Chato, however, moved11 for the cancellation of the decryption and copying of ballot images arguing inter alia that there was no legal basis therefor and that the HRET had not issued any guidelines governing the exercise thereof. Notwithstanding, the decryption and copying proceeded as scheduled. Chato then filed an Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case12 reiterating the lack of legal basis for the decryption and copying of ballot images inasmuch as no preliminary hearing had been conducted showing that the integrity of the ballots and ballot boxes was not preserved. She cited Section 10(d) of the HRET Guidelines on the Revision of Ballots, which reads: ATTY. ROMERO-CORTEZ: This is what happened. Because of the municipalities of Labo, Vinzons, and Basud, there were CF cards that had to be replaced because they were defective. REP. VINZONS-CHATO: But, that was after the voting had closed, right? The voting had closed and those cards were defective and you had to replace them. ATTY. ROMERO-CORTEZ: To my recollection, Your Honor, that was during May 10. 13 Panotes, on the other hand, stressed in his Opposition 14 to the foregoing motion that the decryption and copying of the ballot images was at the behest of the HRET itself, acting through Atty. Marie Grace T. Javier-Ibay, who formally requested on February 10, 2011 the copying of the picture image files of ballots and election returns in 13 election protests pending before it. Should he then decide to use the decrypted and copied ballot images, there is nothing in the HRET rules that prohibit the same. With respect to the allegation that certain defective CF cards were replaced, Panotes argued 15 that it was during the election day, May 10, 2010, that the CF cards were found to be not working so they had to be re-configured. Consequently, the voting in some precincts in the Municipalities of Labo, Vinzons and Basud started late, but the voting period was extended accordingly. For this reason, the canvassing before the Provincial Board of Canvassers was halted in order to wait for the transmission of the results from the Municipal Board of Canvassers, which could not be done until each and every clustered precinct was duly accounted for.

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The case was subsequently set for preliminary hearing on May 27, 2011 in order to determine the integrity of the CF cards used in the questioned elections. 16 In said hearing, Chato presented the following witnesses: (1) Oscar Villafuerte, Vice-Chairman of the Provincial Board of Canvassers of Camarines Norte; (2) Reynaldo Mago, a media practitioner; and (3) Angel Abria, an Information Technology (IT) expert.17 On June 8, 2011, the HRET issued the assailed Resolution 18 No. 11-321 denying Chato's Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case on the ground that she failed to show proof that the CF cards used in the twenty (20) precincts in the Municipalities of Basud and Daet with substantial variances were not preserved or were violated. The Tribunal stressed that, since Atty. Cortez was not presented in court to clarify the matter of the alleged replacement of CF cards, it remained unclear whether the replacement was done before or after the elections, and which precincts were involved. Moreover, the testimonies of the witnesses that were actually presented were found to be irrelevant and immaterial. Significantly, the HRET declared that, although the actual ballots used in the May 10, 2010 elections are the best evidence of the will of the voters, the picture images of the ballots are regarded as the equivalent of the original, citing Rule 4 of the Rules on Electronic Evidence, which reads: Sec. 1. Original of an electronic document. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to reflect the data accurately. Sec. 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the same time with identical contents, or is a counterpart produced by the same impression as the original, or from the same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original. Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if: (a) a genuine question is raised as to the authenticity of the original; or (b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original. Aggrieved, Chato filed a Motion for Reconsideration 19, which was denied in the Resolution 20 No. 11-487 dated September 15, 2011. The HRET categorically held that: x x x (T)he votes determined after the revision in the 20 precincts in Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. Hence, the Tribunal has to rely on what is reflected in the election returns and/or statement of votes by precinct the same being the best evidence of the results of the election in said precincts in lieu of the altered ballots. The Issues G.R. No. 199149 In this petition for certiorari and prohibition with prayer for a temporary restraining order and/or writ of prohibitory injunction, Chato claims that the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing Resolution No. 11-321 dated June 8, 2011 and Resolution No. 11-487 dated September 15, 2011. Her petition is anchored on the following grounds: I. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) DESPITE THE FACT THAT UNDER REPUBLIC ACT NO. 9369 THE PICTURE IMAGES OF THE BALLOTS ARE NOT THE "OFFICIAL BALLOTS" SINCE THE AUTOMATED ELECTION SYSTEM (AES) USED DURING THE MAY 2010 ELECTIONS WAS PAPER BASED. II. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF THE PICTURE IMAGES OF THE BALLOTS CANNOT BE REGARDED AS THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS UNDER THE RULES ON ELECTRONIC EVIDENCE. IN THE FIRST PLACE, THE RULES ON ELECTRONIC EVIDENCE DO NOT EVEN APPLY TO THE PICTURE IMAGES OF THE BALLOTS. III. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF UNDER THE ELECTRONIC COMMERCE ACT OF 2000, THE PICTURE IMAGES OF THE PAPER BALLOTS ARE NOT THE EQUIVALENT OF THE ORIGINAL PAPER BALLOTS. IV. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF PETITIONER HAS SHOWN BY SUBSTANTIAL EVIDENCE THAT THE CF CARDS USED IN THE MAY 2010 ELECTIONS WERE NOT PRESERVED OR WERE VIOLATED. V. THE HON. PUBLIC RESPONDENT HRET IN RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) REGARDED THE PICTURE IMAGES OF THE BALLOTS AS THE EQUIVALENT OF THE ORIGINAL, AND USED THE PICTURE IMAGES OF THE BALLOTS IN ITS SUBSEQUENT RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) EVEN IF THERE IS NO LEGAL BASIS FOR THE HONORABLE TRIBUNAL TO CONSIDER THE PICTURE IMAGE OF THE

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BALLOTS AS EVIDENCE, SINCE SUCH PICTURE IMAGES ARE NOT EVEN RECOGNIZED AND THEIR APPRECIATION ARE NOT PROVIDED FOR, UNDER THE OMNIBUS ELECTION CODE. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) DESPITE THE PENDENCY OF THE COMELEC INVESTIGATION ON THE MAIN CF CARD FOR CLUSTERED PRECINCT 44 OF THE MUNICIPALITY OF DAET. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) BASED ON VILLAFUERTE VS. JACOB (15 HRET REPORT 754), WHICH IS ONLY AN HRET CASE WHICH HAS NO PRECEDENTIAL VALUE. THE HON. PUBLIC RESPONDENT HRET ISSUED RESOLUTION NO. 11-321 (DATED 08 JUNE 2011) AND RESOLUTION NO. 11-487 (DATED 15 SEPTEMBER 2011) IN CONTRAVENTION OF CASE LAW THAT THERE SHOULD BE A FULL BLOWN TRIAL CONCERNING THE INTEGRITY OF THE BALLOTS.21 3.PURSUANT TO THE RULING OF THIS MOST HONORABLE COURT IN THE CASE OF VARIAS VS. COMELEC (G.R. NO. 189078 FEBRUARY 11, 2010), THE RESULTS OF THE REVISION OF QUESTIONABLE BALLOTS CANNOT PREVAIL OVER ELECTION RETURNS; 4.THE PICTURE IMAGE OF THE BALLOTS MAY BE USED AS PROOF OF THE INTEGRITY OF THE PAPER BALLOTS; 5.RESOLUTION NO. 12-079 HAS NO LEGAL AND FACTUAL BASES TO STAND ON BECAUSE PRIVATE RESPONDENT FAILED TO ESTABLISH THE MERIT OR LEGITIMARY [sic] OF HER PROTEST CONSIDERING THAT SHE FAILED TO MAKE A REASONABLE RECOVERY OR MUCH LESS, ANY RECOVERY AT ALL; 6.RESOLUTION NO. 12-079 IS CONTRADICTORY TO THE FINDINGS OF THE PUBLIC RESPONDENT HRET IN ITS RESOLUTION NO. 11-487; 7.THE PENDENCY OF THE PETITION FOR CERTIORARI FILED BY PRIVATE RESPONDENT BEFORE THE SUPREME COURT IS A PRELIMINARY MATTER THAT MUST BE RESOLVED FIRST BEFORE THE HONORABLE TRIBUNAL MAY ORDER THE REVISION OF THE REMAINING 75% OF THE PROTESTED PRECINCTS; 8.THE RELIABILITY OF THE COMPACT FLASH CARDS HAS NOT BEEN SHOWN TO BE QUESTIONABLE; 9.THE RESULT OF THE RECOUNT CANNOT BE USED TO OVERTURN THE RESULTS AS REFLECTED IN THE ELECTION RETURNS BECAUSE THE BALLOTS IN EP CASE NO. 10-040 HAVE BEEN TAMPERED.29 The Ruling of the Court "It is hornbook principle that our jurisdiction to review decisions and orders of electoral tribunals is exercised only upon showing of grave abuse of discretion committed by the tribunal;" otherwise, we shall not interfere with the electoral tribunals exercise of its discretion or jurisdiction. "Grave abuse of discretion has been defined as the capricious and whimsical exercise of judgment, or the exercise of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion of positive duty."30 The acts complained of in these cases pertain to the HRETs exercise of its discretion, an exercise which we find to be well within the bounds of its authority and, therefore, beyond our power to restrict or curtail. G.R. No. 199149 Chato assails in this petition the following issuances of the HRET: (1) Resolution No. 11-321 dated June 8, 2011 denying her Urgent Motion to Prohibit the Use by Protestee of the Decrypted and Copied Ballot Images in the Instant Case; and (2) Resolution No. 11-487 dated September 15, 2011 denying her Motion for Reconsideration of Resolution No. 11-321. The crucial issue posed by Chato is whether or not the picture images of the ballots may be considered as the "official ballots" or the equivalent of the original paper ballots which the voters filled out. She maintains that, since the automated election system (AES) used during the May 10, 2010 elections was

VI.

VII.

VIII.

G.R. No. 201350 After the initial revision of the pilot protested clustered precincts, Chato moved,22 as early as March 24, 2011, for the revision of ballots in all of the protested clustered precincts arguing that the results of the revision of twenty-five percent (25%) of said precincts indicate a reasonable recovery of votes in her favor. On May 12, 2011, she filed a second motion23 reiterating her prayer for the continuance of the revision. The HRET denied the motion "until the Tribunal shall have determined the merit or legitimacy of the protest, relative to the revised forty (40) pilot protested clustered precincts." 24 For the same reason, the HRET denied two (2) other similar motions25 filed by Chato. However, on March 22, 2012, the HRET issued the assailed Resolution 26 No. 12-079 directing the continuation of the revision of ballots in the remaining seventy-five percent (75%) protested clustered precincts, or a total of 120 precincts. Expectedly, Panotes moved 27 for reconsideration of Resolution No. 12-079, which was denied in the Order28 dated April 10, 2012 for lack of merit. The HRET further warned that any attempt on the part of the revisors to delay the revision proceedings or to destroy the integrity of the ballots and other election documents involved, including but not limited to, marking or tearing of ballots shall be sufficient ground(s) for immediate disqualification. Panotes is now before Us via the instant petition for certiorari and prohibition alleging grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the HRET in issuing Resolution No. 12-079 and Order dated April 10, 2012 considering that 1.THE HONORABLE TRIBUNAL ALREADY CATEGORICALLY RULED IN ITS OWN RESOLUTION NO. 11-487 THAT THE VOTES DETERMINED IN THE REVISION CANNOT BE RELIED UPON SINCE THEY ARE THE PRODUCT OF ALTERED BALLOTS; 2.THE ISSUES RESOLVED IN RESOLUTION NO. 11-487 DATED SEPTEMBER 8, 2011 AND THOSE IN RESOLUTION NO. 12-079 DATED MARCH 22, 2012 ARE INTERRELATED;

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paper-based,31 the "official ballot" is only the paper ballot that was printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas pursuant to Section 15 of R.A. No. 8436, as amended by R.A. No. 9369, which reads in part as follows: Sec.15. Official Ballot. x x x With respect to a paperbased election system, the official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable with that of private printers under proper security measures which the Commission shall adopt. The Commission may contact the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political parties and deputized citizen's arms of the Commission shall assign watchers in the printing, storage and distribution of official ballots. Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized as the "paper ballot, whether printed or generated by the technology applied, that faithfully captures or represents the votes cast by a voter recorded or to be recorded in electronic form." An automated election system, or AES, is a system using appropriate technology which has been demonstrated in the voting, counting, consolidating, canvassing, and transmission of election result, and other electoral process. 32There are two types of AES identified under R.A. No. 9369: (1) paperbased election system; and (2) direct recording electronic election system. A paper-based election system, such as the one adopted during the May 10, 2010 elections, is the type of AES that "use paper ballots, records and counts votes, tabulates, consolidates/canvasses and transmits electronically the results of the vote count." 33 On the other hand, direct recording electronic election system "uses electronic ballots, records, votes by means of a ballot display provided with mechanical or electrooptical component that can be activated by the voter, processes data by means of computer programs, record voting data and ballot images, and transmits voting results electronically."34 As earlier stated, the May 10, 2010 elections used a paper-based technology that allowed voters to fill out an official paper ballot by shading the oval opposite the names of their chosen candidates. Each voter was then required to personally feed his ballot into the Precinct Count Optical Scan (PCOS) machine which scanned both sides of the ballots simultaneously, 35 meaning, in just one pass.36 As established during the required demo tests, the system captured the images of the ballots in encrypted format which, when decrypted for verification, were found to be digitized representations of the ballots cast.37 We agree, therefore, with both the HRET and Panotes that the picture images of the ballots, as scanned and recorded by the PCOS, are likewise "official ballots" that faithfully captures in electronic form the votes cast by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the paper ballots filled out by the voters and, thus, may be used for purposes of revision of votes in an electoral protest. It bears stressing that the digital images of the ballots captured by the PCOS machine are stored in an encrypted format in the CF cards.38 "Encryption is the process of encoding messages (or information) in such a way that eavesdroppers or hackers cannot read it, but that authorized parties can. In an encryption scheme, the message or information (referred to as plaintext) is encrypted using an encryption algorithm, turning it into an unreadable ciphertext. This is usually done with the use of an encryption key, which specifies how the message is to be encoded. Any adversary that can see the ciphertext, should not be able to determine anything about the original message. An authorized party, however, is able to decode the ciphertext using a decryption algorithm, that usually requires a secret decryption key, that adversaries do not have access to."39 Despite this security feature, however, the possibility of tampering or substitution of the CF cards did not escape the HRET, which provided in its Guidelines on the Revision of Ballots that: Sec. 11. Printing of the picture images of the ballots in lieu of photocopying. Unless it has been shown, in a preliminary hearing set by the parties or motu propio, that the integrity of any of the Compact Flash (CF) Cards used in the May 10, 2010 elections was not preserved or the same was violated, as when there is proof of tampering or substitution, the Tribunal, in lieu of photocopying of ballots upon any motion of any of the parties, shall direct the printing of the picture image of the ballots of the subject precinct stored in the data storage device for the same precinct. The Tribunal shall provide a non-partisan technical person who shall conduct the necessary authentication process to ensure that the data or image stored is genuine and not a substitute. Accordingly, the HRET set the instant case for preliminary hearing on May 27, 2011, and directed Chato, the protestant, to present testimonial and/or documentary evidence to show proof that the integrity of the CF cards used in the May 10, 2010 elections was not preserved or was violated. 40 However, in the assailed Resolution No. 11-321, the HRET found Chato's evidence insufficient. The testimonies of the witnesses she presented were declared irrelevant and immaterial as they did not refer to the CF cards used in the 20 precincts in the Municipalities of Basud and Daet with substantial variances. Pertinent portions of the transcripts of stenographic notes during the May 27, 2011 preliminary hearing are quoted hereunder:41 REYNANTE B. MAGO: Q: Do you have any knowledge regarding the municipalities of Basud and Daet? A: Wala po kasi hindi naman yung ang aking bet [sic, should have been "beat", a journalistic jargon for the reporter's official place of assignment] Q: Wala kang nalalaman regarding the municipalities of Basud and Daet? A: Wala po. Q: Are you sure? A: Sure na sure po kasi hindi ko naman po yun bet [sic] noong mga panahon na yun. Wala po akong direct na knowledge o participation regarding that during the time of election period. PROVINCIAL PROSECUTOR OSCAR J. VILAFUERTE: Q: Before proceeding with your testimony, I would ask if you have any knowledge about the election regarding the municipalities of Basud and Daet? A: Well, as the Vice-Chairman of the Provincial Board of Canvassers, Your Honor, in the last May 10, 2010 elections, yes. Q: Regarding the last CF cards? A: No. We are just limited to the reception of the election results.

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Q: So, with regard to the CF cards in the municipalities of Basud and Daet, you do not have any knowledge at all? A: Personally, no, because it does not affect us, Your Honor. MR. ANGEL S. AVERIA, JR: Q: Will you be testifying regarding CF cards involving the municipalities of Daet and Basud? A: Not specific to those municipalities. Q: Sa Daet, wala? A: Wala. Q: Sa Basud, wala? A: Wala ho. The reports I wrote for CENPEG is on a national scale. To substitute our own judgment to the findings of the HRET will doubtless constitute an intrusion into its domain and a curtailment of its power to act of its own accord on its evaluation of the evidentiary weight42 of testimonies presented before it. Thus, for failure of Chato to discharge her burden of proving that the integrity of the questioned CF cards had not been preserved, no further protestations to the use of the picture images of the ballots as stored in the CF cards should be entertained. Moreover, after having participated and presented her evidence at the May 27, 2011 preliminary hearing, Chato cannot now be heard to complain that the proceedings therein did not amount to a full blown trial on the merits required in the case of Tolentino v. COMELEC 43 for weighing the integrity of ballots. Her allegation with respect to the pendency of the COMELEC investigation on the main CF card for Clustered Precinct 44 of the Municipality of Daet, which was previously ordered by the HRET itself when the election officer submitted only the back-up CF card that did not, however, contain picture images of the ballots,44 could not in the least bit affect the resolution of this case. As correctly pointed out by the HRET, the same concerns only one (1) precinct out of the 20 precincts with substantial variances.45 At any rate, the following explanation46 proferred by the HRET should put the issue to rest, viz: x x x On November 2, 2011, John Rex C. Laudiangco of the COMELEC Law Department, filed Comelec's Compliance with Manifestation and Motion to Admit the Attached Fact-Finding Investigation Report explaining the delay in the conduct of the investigation which was duly conducted on October 7, 2011, and submitting therewith a comprehensive Fact-Finding Investigation Report on the said investigation which was docketed in the Law Department as Case No. FF.INV. (LD) 11-46 entitled "In the Matter of Investigation on What Happened to the Main CF (Compact Flash) card for Clustered Precinct No. 44 for the Municipality of Daet, Camarines Norte." In sum, the investigation revealed that the main CF Card for CP No. 44 of the Municipality of Daet could possibly be located inside the ballot box of the Municipal Board of Canvassers (MBOC) of Daet, Camarines Norte (serial no. CE-07-166991), after having been allegedly submitted in an improvised envelope, by the Board of Election Inspectors (BEI) of said CP 44 to the MBOC. It was, therefore, recommended that said ballot box be opened to retrieve the said CF card. Accordingly, in her January 6, 2012 letter to public respondent, Atty. Anne A. Romero-Cortez submitted certain documents relative to the opening of the ballot box of the MBOC of Daet, Camarines Norte (serial no. CE-07-166991) so the main CF Card for CP 44 of Daet may be retrieved and its custody turned over to the Election Records and Statistics Department (ERSD), COMELEC. Likewise, in her January 6, 2012 letter to public respondent, ERSD Director Ester L. Villaflor-Roxas requested that a representative from public respondent be present on the day to witness the verification and backing-up of the contents of the main CF card for CP No. 44 of Daet, Camarines Norte. Verily, the case of the alleged missing CF Card for Clustered Precinct No. 44 is no mystery at all. G.R. No. 201350 In the main, Panotes ascribes grave abuse of discretion on the part of the HRET in ordering the continuation of the revision of ballots in the remaining 75% of the protested clustered precincts despite having previously ruled that the votes determined after the revision in the 20 precincts in the Municipalities of Basud and Daet, which yielded reversal of votes, cannot be relied upon, as they do not reflect the true will of the electorate. The Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and qualifications" of its members. By employing the word "sole", the Constitution is emphatic that the jurisdiction of the HRET in the adjudication of election contests involving its members is intended to be its own full, complete and unimpaired. 47 The Tribunal, thus, unequivocally asserted its exclusive control in Rule 7 of the 2011 HRET Rules, as follows: Rule 7. Exclusive Control of Functions. The Tribunal shall have exclusive control, direction, and supervision of all matters pertaining to its own functions and operation. There can be no challenge, therefore, to such exclusive control absent any clear showing, as in this case, of arbitrary and improvident use by the Tribunal of its power that constitutes a denial of due process of law, or upon a demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy therefor.48 Contrary to Panotes' posturing, there existed legal and factual bases for the revision of the remaining 75% of the protested clustered precincts. Rule 37 of the 2011 HRET Rules clearly provides that, after post-revision determination of the merit or legitimacy of the protest, the Tribunal may proceed with the revision of the ballots in the remaining contested precincts, thus: Rule 37. Post-Revision Determination of the Merit or Legitimacy of Protest Prior to Revision of CounterProtest; Pilot Precincts; Initial Revision. Any provision of these Rules to the contrary notwithstanding, as soon as the issues in any contest before the Tribunal have been joined, the Protestant, in case the protest involves more than 50% of the total number of precincts in the district, shall be required to state and designate in writing within a fixed period at most twenty five (25%) percent of the total number of precincts involved in the protest which said party deems as best exemplifying or demonstrating the

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electoral irregularities or fraud pleaded by him; and the revision of the ballots or the examination, verification or re-tabulation of election returns and/or reception of evidence shall begin with such pilot precincts designated. Otherwise, the revision of ballots or the examination, verification and retabulation of election returns and/or reception of evidence shall begin with all the protested precincts. The revision of ballots or the examination, verification and re-tabulation of election returns in the counter-protested precincts shall not be commenced until the Tribunal shall have determined through appreciation of ballots or election documents and/or reception of evidence, which reception shall not exceed ten (10) days, the merit or legitimacy of the protest, relative to the pilot protested precincts. Based on the results of such post-revision determination, the Tribunal may dismiss the protest without further proceedings, if and when no reasonable recovery was established from the pilot protested precincts, or proceed with the revision of the ballots or the examination, verification and re-tabulation of election returns in the remaining contested precincts. Panotes argues that Chato had not made a reasonable recovery in the initial revision of ballots in the 25% pilot protested clustered precincts and, as such, the HRET should have dismissed the protest in accordance with the aforequoted provision instead of ordering further the revision of the remaining 75% of the protested clustered precincts.1wphi1 It should be pointed out, however, that the provision in question is couched in the permissive term "may" instead of the mandatory word "shall." Therefore, it is merely directory, and the HRET is not without authority to opt to proceed with the revision of ballots in the remaining contested precincts even if there was no reasonable recovery made by the protestant in the initial revision. In the assailed Resolution49 No. 12-079, the HRET justified its action by its need "to re-examine what appears to be a peculiar design to impede the will of the electorate," and that a revision of all the protested clustered precincts will allow it "to see the whole picture of the controversy." Thus said the HRET: The evidence as presented by the parties involving the twenty-five percent (25%) pilot protested clustered precincts is still insufficient to justify an indubitable conclusion. There are still material issues that should be taken into account. The substantial increase in the number of ballots for protestant and the substantial decrease in the number of ballots for protestee after comparing the election returns with the physical counts of the ballots are prima facie findings that should not be trivialized. Also, the reliability of the compact flash cards including its admissibility was raised by the protestant as an area of concern which needs precise and definitive ruling by the Tribunal. A complete disavowal of the constitutional duty will be debased if the Tribunal is not going to see the whole picture of the controversy. After all, the revision proceedings will not unduly toll the precious time of the Tribunal. All of the ballot boxes involved in this protest are already in the custody of the Tribunal and will not require sizeable manpower to revise it. At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of election contests involving its members, we cannot substitute our own judgment for that of the HRET on the issues of whether the evidence presented during the initial revision could affect the officially proclaimed results and whether the continuation of the revision proceedings could lead to a determination of the true will of the electorate. 50 In any case, as pointed out by the HRET, the revision proceedings for the remaining 75% protested clustered precincts had already been conducted from May 2-9, 2012 thereby rendering the issue moot and academic. Having, thus, established the futility of Panotes' case, we need not belabor the other issues raised in this petition. WHEREFORE, the petitions are hereby DISMISSED for lack of merit. SO ORDERED.

G.R. No. 182249 March 5, 2013 TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE PHILIPPINES, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. BRION, J.: We resolve the petition for review on certiorari1 of Trade and Investment Development Corporation of the Philippines (TJDCORP) seeking the reversal of the decision 2 dated September 28, 2007 and the resolution3 dated March 17, 2008 of the Court of Appeals (CA) in CA-G.R. SP. No. 81058. The assailed CA rulings affirmed the resolutions, 4 dated January 31, 2003 and October 7, 2003, of the Civil Service Commission (CSC), invalidating Arsenio de Guzmans appointment as Financial Management Specialist IV in TIDCORP. The CA subsequently denied the motion for reconsideration that followed. Factual Antecedents On August 30, 2001, De Guzman was appointed on a permanent status as Financial Management Specialist IV of TIDCORP, a government-owned and controlled corporation (GOCC) created pursuant to Presidential Decree No. 1080. His appointment was included in TIDCORPs Report on Personnel Actions (ROPA) for August 2001, which was submitted to theCSC Department of Budget and Management (DBM) Field Office.5 In a letter6 dated September 28, 2001, Director Leticia M. Bugtong disallowed De Guzmans appointment because the position of Financial Management Specialist IV was not included in the DBMs Index of Occupational Service. TIDCORPs Executive Vice President Jane U. Tambanillo appealed 7 the invalidation of De Guzmans appointment to Director IV Agnes Padilla of the CSC-National Capital Region (NCR). According to Tambanillo, Republic Act No. (RA) 8494, which amended TIDCORPs charter, empowers its Board of Directors to create its own organizational structure and staffing pattern, and to approve its own

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compensation and position classification system and qualification standards. Specifically, Section 7 of RA 8494 provides: Section 7. The Board of Directors shall provide for an organizational structure and staffing pattern for officers and employees of the Trade and Investment Development Corporation of the Philippines (TIDCORP) and upon recommendation of its President, appoint and fix their remuneration, emoluments and fringe benefits: Provided, That the Board shall have exclusive and final authority to appoint, promote, transfer, assign and re-assign personnel of the TIDCORP, any provision of existing law to the contrary notwithstanding. All positions in TIDCORP shall be governed by a compensation and position classification system and qualification standards approved by TIDCORP's Board of Directors based on a comprehensive job analysis and audit of actual duties and responsibilities. The compensation plan shall be comparable with the prevailing compensation plans in the private sector and shall be subject to periodic review by the Board no more than once every four (4) years without prejudice to yearly merit reviews or increases based on productivity and profitability. TIDCORP shall be exempt from existing laws, rules and regulations on compensation, position classification and qualification standards. It shall, however, endeavor to make the system to conform as closely as possible to the principles and modes provided in Republic Act No. 6758. On the basis of Section 7 of RA 8494, Tambanillo argued that TIDCORP is authorized to adopt an organizational structure different from that set and prescribed by the CSC. Section 7 exempts TIDCORP from existing laws on compensation, position classification and qualification standards, and is thus not bound by the DBMs Index of Occupational Service. Pursuant to this authority, TIDCORPs Board of Directors issued Resolution No. 1185, s. 1998 approving the corporations re-organizational plan, under which De Guzman was appointed Financial Management Specialist IV. De Guzmans appointment was valid because the plan providing for his position followed the letter of the law. Tambanillo also noted that prior to De Guzmans appointment as Financial Management Specialist IV, the position had earlier been occupied by Ma. Loreto H. Mayor whose appointment was duly approved by Director Bugtong. Thus, Director Bugtongs invalidation of De Guzmans appointment is inconsistent with her earlier approval of Mayors appointment to the same position. List and with the Index of Occupational Service. Like TIDCORP, the DBPs charter exempts the DBP from existing laws, rules, and regulations on compensation, position classification and qualification standards. It also has a similar duty to "endeavor to make its system conform as closely as possible to the principles under the Compensation and Position Classification Act of 1989 (Republic Act No. 6758, as amended)."9 Lastly, Padilla stressed that the 1987 Administrative Code empowers 10 the CSC to formulate policies and regulations for the administration, maintenance and implementation of position, classification and compensation. TIDCORPs appeal to the CSC-CO In response to the CSC-NCRs ruling, TIDCORPs President and CEO Joel C. Valdes sent CSC Chairperson Karina Constantino-David a Letter11 appealing Director Padillas decision to the CSCCentral Office (CO). Valdes reiterated TIDCORPs argument that RA 8494 authorized its Board of Directors to determine its own organizational structure and staffing pattern, and exempted TIDCORP from all existing laws on compensation, position classification and qualification standards. Citing Javellana v. The Executive Secretary, et al.,12 Valdes asserted that the wisdom of Congress in granting TIDCORP this authority and exemption is a political question that cannot be the subject of judicial review. Given TIDCORPs functions as the governments export credit agency, its Board of Directors has been provided flexibility in administering its personnel so that it can hire qualified employees from the private sector, such as banks and other financial institutions. In addition, prior actions of the CSC show that it recognized TIDCORPs exemption from all laws regarding compensation, position classification and qualification standards of its employees. The CSC has approved prior appointments of TIDCORPs officers under its July 1, 1998 re-organization plan. It also approved Mayors previous appointment as Financial Management Specialist IV. Further, a memorandum dated October 29, 1998 issued by the CSC-NCR noted that "pursuant to Sec. 7 of RA 8494, TIDCORP is exempt from existing laws, rules and regulations on compensation, position classification and qualification standards."13 The CSC-COs ruling In its Resolution No. 030144, 14 the CSC-CO affirmed the CSC-NCRs decision that De Guzmans appointment should have complied with CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999. Rule III, Section 1(c) is explicit in requiring that the position title indicated in the appointment should conform with the Position Allocation List and found in the Index of Occupational Service. Otherwise, the appointment shall be disapproved. In disallowing De Guzmans appointment, the CSC-CO held that Director Bugtong was simply following the letter of the law. According to the CSC-CO, TIDCORP misconstrued the provisions of Section 7 of RA 8494 in its attempt to bypass the requirements of CSC Memorandum Circular No. 40, s. 1998. While RA 8494 gave TIDCORP staffing prerogatives, it would still have to comply with civil service rules because Section 7 did not expressly exempt TIDCORP from civil service laws.

The CSC-NCRs Ruling Director Padilla denied Tambanillos appeal because De Guzmans appointment failed to comply with Section 1, Rule III of CSC Memorandum Circular No. 40, s. 1998, which requires that the position title of an appointment submitted to the CSC must conform with the approved Position Allocation List and must be found in the Index of Occupational Service. Since the position of Financial Management Specialist IV is not included in the Index of Occupational Service, then De Guzmans appointment to this position must be invalid. 8 Director Padilla pointed out that the CSC had already decided upon an issue similar to De Guzmans case in CSC Resolution No. 011495 (Geronimo, Rolando S.C., Macapagal, Vivencio M. Tumangan, Panser E., Villar, Victor G., Ong, Elizabeth P., Re: Invalidated Appointments; Appeal) where it invalidated the appointments of several Development Bank of the Philippines (DBP) employees because their position titles did not conform with the Position Allocation

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The CSC-CO also supported the CSC-NCRs invocation of CSC Resolution No. 011495. Both the charters of the DBP and TIDCORP have similar provisions in the recruitment and administration of their human resources. Thus, the ruling in CSC Resolution No. 011495 has been correctly applied in TIDCORPs appeal. Lastly, the CSC-CO noted that the government is not bound by its public officers erroneous application and enforcement of the law. Granting that the CSC-NCR had erroneously approved an appointment to the same position as De Guzmans appointment, the CSC is not estopped from correcting its officers past mistakes. TIDCORP moved to reconsider 15 the CSC-COs decision, but this motion was denied, 16 prompting TIDCORP to file a Rule 65 petition for certiorari 17 with the CA. The petition asserted that the CSC-CO committed grave abuse of discretion in issuing Resolution No. 030144 and Resolution No. 031037. The Appellate Courts Ruling The CA denied18 TIDCORPs petition and upheld the ruling of the CSC-CO in Resolution No. 030144 and Resolution No. 031037. The CA noted that filing a petition for certiorari was an improper recourse; TIDCORP should have instead filed a petition for review under Section 1, Rule 43 of the Rules of Court. The CA, however, brushed aside the procedural defect, ruling that the assailed resolutions should still stand as they are consistent with law and jurisprudence. Citing Central Bank of the Philippines v. Civil Service Commission, 19 the CA stood by the CSC-COs ruling that it has authority to approve and review De Guzmans appointment. The CSC has the power to ascertain whether the appointing authority complied with the requirements of the law; otherwise, it may revoke the appointment. As TIDCORP is a government-owned corporation, it is covered by civil service laws and is therefore bound by the CSCs jurisdiction over all matters pertaining to personnel, including appointments. Further, the CA cited the CSCs mandate under the 1987 Constitution to approve or disapprove appointments and to determine whether an appointee possesses civil service eligibility. As TIDCORPs charter does not expressly or impliedly divest the CSC of administrative authority over personnel concerns at TIDCORP, the latter is still covered by the existing civil service laws on compensation, position classification and qualification standards. Its appointment of De Guzman as Financial Management Specialist IV should have complied with these rules. The CA thus concluded that the CSC was well-within its authority when it invalidated De Guzmans appointment. It held that an appointees title to the office does not permanently vest until the appointee complies with the legal requirements of his appointment. The requirements include the submission of the appointment to the CSC for the determination of whether the appointee qualifies to the position and whether the procedure for appointment has been properly followed. Until these requirements are complied with, his appointment may still be recalled or withdrawn by the appointing authority.20 TIDCORP moved for reconsideration 21 but the CA denied the motion in a resolution 22 dated March 17, 2008. The Present Petition In its present petition for review on certiorari,23 TIDCORP argued that the CSCs interpretation of the last sentence of Section 7 of RA 8494 (which mandates it to endeavor to make the system conform as closely as possible with the principles provided in RA 6758) is misplaced. This provision does not bar TIDCORP from adopting a position classification system and qualification standards different from those prescribed by the CSC. TIDCORP asserts that it is not also duty bound to comply with civil service rules on compensation and position classification, as it is exempt from all these rules. Instead, TIDCORP is only required to furnish the CSC with its compensation and position classification system and qualification standards so that the CSC can be properly guided in processing TIDCORPs appointments, promotion and personnel action. Insisting on its exemption from RA 6758 and CSC Memorandum Circular No. 40, s. 1998, TIDCORP emphasizes that the provisions of RA 6758, which the CSC applied to TIDCORP, is a general law, while TIDCORPs charter, RA 8494, is a special law. In interpreting conflicting provisions of a general law and a special law, the provisions of the two laws should be harmonized to give effect to both. But if these provisions cannot be reconciled, then the special law should prevail because it is a qualification to the general rule. Further, RA 8494 is a later expression of Congress intent as it was enacted nine years after RA 6758 was approved, and should therefore be construed in this light in its relation with the latter. A new statute should be interpreted in connection with those already existing in relation to the same subject matter and all should be made to harmonize and stand together interpretare et concordare legibus est optimus interpretandi. Under these principles, TIDCORP argued that Section 7 of RA 8494, the provision of a special law, should be interpreted as an exemption to RA 6758. Thus, CSC Memorandum Circular No. 40, s. 1998, which was issued pursuant to RA 6758, should not have been applied to limit TIDCORPs staffing prerogatives. In its comment,24 the CSC noted that CSC Memorandum Circular No. 40, series of 1998, as amended by CSC Memorandum Circular No. 15, s. 1999, was issued in accordance with its authority to prescribe rules and regulations to carry out the provisions of civil service laws and other pertinent laws (Administrative Code), and not pursuant to RA 6758. The CSC maintained that Section 2(1), Article IX-B of the Constitution includes government and controlled corporations as part of the civil service. TIDCORP, a GOCC, is therefore covered by the civil service rules and by the CSC. It should submit its Position Allocation List to the DBM, regardless of its exemption under RA 6758.

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Lastly, the CSC argued that RA 8494 should not prevail over RA 6758 because the latter also applies to GOCCs like TIDCORP; RA 8494 even makes a reference to RA 6758. Issues The parties arguments, properly joined, present to us the following issues: 1) Whether the Constitution empowers the CSC to prescribe and enforce civil service rules and regulations contrary to laws passed by Congress; 2) Whether the requirement in Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999, applies to appointments in TIDCORP; and 3) Whether De Guzmans appointment as Financial Management Specialist IV in TIDCORP is valid. The Courts Ruling We find the petition meritorious. Directly at issue is the application of Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, to appointments in TIDCORP. TIDCORP claims that its exemption, embodied in Section 7 of its charter, precludes the application of this requirement. The CSC, on the other hand, maintains its stance that appointments in a GOCC should follow the civil service laws on appointments, regardless of its exemption from the civil service rules on compensation, position classification and qualification standards. While the CSC has authority over personnel actions in GOCCs, the rules it formulates pursuant to this mandate should not contradict or amend the civil service laws it implements. At the outset, we clarify that the CSCs authority over personnel actions in TIDCORP is uncontested. Both parties acknowledge this relationship in the pleadings they filed before the Supreme Court. 25 But while TIDCORP asserts that its charter exempts it from rules on compensation, position classification and qualification standards, the CSC argues that this exemption is irrelevant to the denial of De Guzmans appointment because the CSCs authority over TIDCORPs personnel actions requires it to comply with the CSCs rules on appointments. The parties arguments reveal an apparent clash between TIDCORPs charter, enacted by Congress, and the CSC rules, issued pursuant to the CSCs rule-making power. Does the CSCs constitutional authority over the civil service divest the Legislature of the power to enact laws providing exemptions to civil service rules? We answer in the negative. The CSCs rule-making power, albeit constitutionally granted, is still limited to the implementation and interpretation of the laws it is tasked to enforce. The 1987 Constitution created the CSC as the central personnel agency of the government mandated to establish a career service and promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. 26 It is a constitutionally created administrative agency that possesses executive, quasi-judicial and quasi-legislative or rule-making powers. While not explicitly stated, the CSCs rule-making power is subsumed under its designation as the governments "central personnel agency" in Section 3, Article IX-B of the 1987 Constitution. The original draft of Section 3 empowered the CSC to "promulgate and enforce policies on personnel actions, classify positions, prescribe conditions of employment except as to compensation and other monetary benefits which shall be provided by law." This, however, was deleted during the constitutional commissions deliberations because it was redundant to the CSCs nature as an administrative agency:27 MR. REGALADO. This is more for clarification. The original Section 3 states, among others, the functions of the Civil Service Commission to promulgate and enforce policies on personnel actions. Will Commissioner Aquino kindly indicate to us the corresponding provisions and her proposed amendment which would encompass the powers to promulgate and enforce policies on personnel actions? MS. AQUINO. It is my submission that the same functions are already subsumed under the concept of a central personnel agency. MR. REGALADO. In other words, all those functions enumerated from line 35 on page 2 to line 1 of page 3, inclusive, are understood to be encompassed in the phrase "central personnel agency of the government." MS. AQUINO. Yes, Mr. Presiding Officer, except that on line 40 of page 2 and line 1 of the subsequent page, it was only subjected to a little modification. MR. REGALADO. May we, therefore, make it of record that the phrase ". . . promulgate and enforce policies on personnel actions, classify positions, prescribe conditions of employment except as to compensation and other monetary benefits which shall be provided by law" is understood to be subsumed under and included in the concept of a central personnel agency. MS. AQUINO. I would have no objection to that.28 The 1987 Administrative Code then spelled out the CSCs rule-making power in concrete terms in Section 12, Book V, Title I-A, which empowered the CSC to implement the civil service law and other pertinent laws, and to promulgate policies, standards and guidelines for the civil service.29 The CSCs rule-making power as a constitutional grant is an aspect of its independence as a constitutional commission. It places the grant of this power outside the reach of Congress, which cannot withdraw the power at any time. As we said in Gallardo v. Tabamo, Jr., 30 a case which upheld the validity of a resolution issued by the Commission on Elections (COMELEC), another constitutional commission: Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions. Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the present Constitution envisions a truly

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independent Commission on Elections committed to ensure free, orderly, honest, peaceful and credible elections, and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital weapon in effecting a peaceful change of government and in achieving and promoting political stability. [citation omitted] But while the grant of the CSCs rule-making power is untouchable by Congress, the laws that the CSC interprets and enforces fall within the prerogative of Congress. As an administrative agency, the CSCs quasi-legislative power is subject to the same limitations applicable to other administrative bodies. The rules that the CSC formulates must not override, but must be in harmony with, the law it seeks to apply and implement.31 For example, in Grego v. Commission on Elections,32 we held that it was improper for the COMELEC, a constitutional body bestowed with rule-making power by the Constitution, to use the word "shall" in the rules it formulated, when the law it sought to implement uses the word "may." While rules issued by administrative bodies are entitled to great respect, "the conclusive effect of administrative construction is not absolute. The function of promulgating rules and regulations may be legitimately exercised only for the purpose of carrying the provisions of the law into effect. x x x Administrative regulations cannot extend the law nor amend a legislative enactment; x x x administrative regulations must be in harmony with the provisions of the law," and in a conflict between the basic law and an implementing rule or regulation, the former must prevail.33 CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. 1999, which were issued pursuant to the CSCs rule-making power, involve rules on position classification Two questions logically follow our conclusion on the extent of the CSCs rule-making power. The first is whether Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, was issued pursuant to the CSCs rule-making power; the second is whether this provision involves compensation, position classification and/or qualification standards that TIDCORP claims to be exempt from. We answer both questions in the affirmative. We agree with the CSCs position that CSC Memorandum Circular No. 40, s. 1998, and CSC Resolution No. 15, s. 1999, were all issued pursuant to its rule-making power. No less than the introductory clause of CSC Memorandum Circular No. 40, s. 1998, confirms this: Pursuant to Paragraphs 2 and 3, Section 12, Book V of Administrative Code of 1987 otherwise known as Executive Order No. 292, the Civil Service Commission hereby prescribes the following rules to govern the preparation, submission of, and actions to be taken on appointments and other personnel actions.34 Both these memoranda govern appointments and personnel actions in the civil service. CSC Memorandum Circular No. 40, s. 1998, or the "Revised Omnibus Rules on Appointments and Other Personnel Actions," updated and consolidated the various issuances on appointments and other personnel actions and simplified their processing. This was subsequently amended by CSC Memorandum Circular No. 15, s. 1999. The assailed provisions in those memorandum circulars, however, involve position classification. Section 1(c), Rule III of CSC Memorandum Circular No. 40, 35 s. 1998, requires, as a condition sine qua non for the approval of an appointment, that the position title indicated therein conform with the approved Position Allocation List. The position title should also be found in the Index of Occupational Service. According to National Compensation Circular No. 58, the Position Allocation List is a list prepared by the DBM which reflects the allocation of existing positions to the new position titles in accordance with the Index of Occupational Service, Position Titles and Salary Grades issued under National Compensation Circular No. 57.36 Both circulars were published by the DBM pursuant to its mandate from RA 6758 to establish a position classification system in the government. 37 Further, the CSC admitted in its comment that RA 6758 was the basis for the issuance of CSC Memorandum Circular No. 40, s. 1998, as amended by CSC Memorandum Circular No. 15, s. 1999. The CSC said: The abovecited Sections 4 and 6 of R.A. No. 6758 are the bases for respondents issuance of CSC Memorandum Circular No. 40, series of 1998, as amended by CSC Memorandum Circular No. 15, series of 1999. To reiterate, the Circulars mandate that appointments should conform to the approved Position Allocation List (PAL) and at the same time be listed in the Index of Occupational Service (IOS).38 Section 7 of TIDCORPs charter exempts it from rules involving position classification To comply with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, TIDCORP must conform with the circulars on position classification issued by the DBM. Section 7 of its charter, however, expressly exempts TIDCORP from existing laws on position classification, among others. In its comment, the CSC would want us to disregard TIDCORPs exemption from laws involving position classification because RA 6758 applies to all GOCCs. It also noted that Section 7 of RA 8494, the provision TIDCORP invokes as the source of its exemption, also directs its Board of Directors to "endeavor to make its system conform as closely as possible with the principles [and modes provided in] Republic Act No. 6758."39 This reference of RA 6758 in Section 7 means that TIDCORP cannot simply disregard RA 6758 but must take its principles into account in providing for its own position classifications. This requirement, to be sure, does not run counter to Section 2(1), Article IX-B of the Constitution which provides that "the civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters." The CSC shall still enforce position classifications at TIDCORP, but must do this under the terms that TIDCORP has itself established, based on the principles of RA 6758. To further expound on these points, the CSCs authority over TIDCORP is undisputed. 1wphi1 The rules that the CSC formulates should implement and be in harmony with the law it seeks to enforce. In TIDCORPs case, the CSC should also consider TIDCORPs charter in addition to other civil service laws. Having said this, there remains the issue of how the CSC should apply the civil service law to TIDCORP, given the exemptions provided in the latters charter. Does the wording of Section 7 of RA

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8494 command TIDCORP to follow issued requirements pursuant to RA 6758 despite its exemption from laws involving position classification? We answer in the negative. "Under the principles of statutory construction, if a statute is clear, plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This plain-meaning rule or verba legis is derived from the maxim index animi sermo est (speech is the index of intention) and rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisedly, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure."40 The phrase "to endeavor" means to "to devote serious and sustained effort" and "to make an effort to do." It is synonymous with the words to strive, to struggle and to seek. 41 The use of "to endeavor" in the context of Section 7 of RA 8494 means that despite TIDCORPs exemption from laws involving compensation, position classification and qualification standards, it should still strive to conform as closely as possible with the principles and modes provided in RA 6758. The phrase "as closely as possible," which qualifies TIDCORPs duty "to endeavor to conform," recognizes that the law allows TIDCORP to deviate from RA 6758, but it should still try to hew closely with its principles and modes. Had the intent of Congress been to require TIDCORP to fully, exactly and strictly comply with RA 6758, it would have so stated in unequivocal terms. Instead, the mandate it gave TIDCORP was to endeavor to conform to the principles and modes of RA 6758, and not to the entirety of this law. These inter-relationships render it clear, as a plain reading of Section 7 of RA 8494 itself would confirm, that TIDCORP is exempt from existing laws on compensation, position classification and qualification standards, including compliance with Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998. De Guzmans appointment as Financial Management Specialist IV is valid. With TIDCORP exempt from Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998, there remains the issue of whether De Guzmans appointment as Financial Management Specialist IV is valid. Since Section 1(c), Rule III of CSC Memorandum Circular No. 40, s. 1998,is the only requirement that De Guzman failed to follow, his appointment actually complied with all the requisites for a valid appointment. The CSC, therefore, should have given due course to De Guzman's appointment. WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET ASIDE the decision dated September 28, 2007 and the resolution dated March 17, 2008 of the Court of Appeals in CA-G.R. SP. No. 81058, as well 'as Resolution No. 030144 and Resolution No. 031037 of the Civil Service Commission that the Court of Appeals rulings affirmed. No costs. SO ORDERED. G.R. No. 164987 Promulgated: April 24, 2012 LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP), represented by its Chairman and counsel, CEFERINOPADUA, Members, ALBERTO ABELEDA, JR., ELEAZAR ANGELES, GREGELYFULTON ACOSTA, VICTOR AVECILLA, GALILEO BRION, ANATALIA BUENAVENTURA, EFREN CARAG, PEDRO CASTILLO, NAPOLEON CORONADO, ROMEO ECHAUZ, ALFREDO DE GUZMAN, ROGELIO KARAGDAG, JR., MARIA LUZ ARZAGAMENDOZA, LEO LUIS MENDOZA, ANTONIO P. PAREDES, AQUILINO PIMENTEL III, MARIO REYES, EMMANUEL SANTOS, TERESITA SANTOS, RUDEGELIO TACORDA, SECRETARY GEN. ROLANDO ARZAGA, Board of Consultants, JUSTICE ABRAHAM SARMIENTO, SEN. AQUILINO PIMENTEL, JR., and BARTOLOME FERNANDEZ, JR., Petitioners, vs. THE SECRETARY OF BUDGET AND MANAGEMENT, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON AUDIT, and THE PRESIDENT OF THE SENATE and the SPEAKER OF THE HOUSE OF REPRESENTATIVES in representation of the Members of the Congress, Respondents. MENDOZA, J.: For consideration of the Court is an original action for certiorari assailing the constitutionality and legality of theimplementation of the Priority Development Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the General Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and Poverty (LAMP), a group of lawyers who have banded together with a mission of dismantling all forms of political, economic or social monopoly in the country, [1] also sought the issuance of a writ of preliminary injunction or temporary restraining order to enjoin respondent Secretary of the Department of Budget and Management (DBM) from making, and, thereafter, releasing budgetary allocations to individual members of Congress as pork barrel funds out of PDAF. LAMP likewise aimed to stop the National Treasurer and the Commission on Audit (COA) from enforcing the questioned provision. On September 14, 2004, the Court required respondents, including the President of the Senate and the Speaker of the House of Representatives, to comment on the petition. On April 7, 2005, petitioner filed a Reply thereto.[2] On April 26, 2005, both parties were required to submit their respective memoranda. The GAA of 2004 contains the following provision subject of this petition: PRIORITY DEVELOPMENT ASSISTANCE FUND For fund requirements of priority development programs and projects, as indicated hereunder 8,327,000,000.00 Special Provision

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1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to fund the required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be released directly to the implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein may be realigned to any expense class, if deemed necessary: PROVIDED FURTHERMORE, That a maximum of ten percent (10%) of the authorized allocations by district may be used for procurement of rice and other basic commodities which shall be purchased from the National Food Authority. Petitioners Position According to LAMP, the above provision is silent and, therefore, prohibits an automatic or direct allocation of lump sums to individual senators and congressmen for the funding of projects. It does not empower individual Members of Congress to propose, select and identify programs and projects to be funded out of PDAF. In previous GAAs, said allocation and identification of projects were the main features of the pork barrel system technically known as Countrywide Development Fund (CDF). Nothing of the sort is now seen in the present law (R.A. No. 9206 of CY 2004). [3] In its memorandum, LAMP insists that [t]he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the pork barrel system. [4] In other words, [t]he omission of the PDAF provision to specify sums as allocations to individual Members of Congress is a casus omissus signifying an omission intentionally made by Congress that this Court is forbidden to supply.[5] Hence, LAMP is of the conclusion that the pork barrel has become legally defunct under the present state of GAA 2004.[6] LAMP further decries the supposed flaws in the implementation of the provision, namely: 1) the DBM illegally made and directly released budgetary allocations out of PDAF in favor of individual Members of Congress; and 2) the latter do not possess the power to propose, select and identify which projects are to be actually funded by PDAF. For LAMP, this situation runs afoul against the principle of separation of powers because in receiving and, thereafter, spending funds for their chosen projects, the Members of Congress in effect intrude into an executive function. In other words, they cannot directly spend the funds, the appropriation for which was made by them. In their individual capacities, the Members of Congress cannot virtually tell or dictate upon the Executive Department how to spend taxpayers money. [7] Further, the authority to propose and select projects does not pertain to legislation. It is, in fact, a non-legislative function devoid of constitutional sanction, [8] and, therefore, impermissible and must be considered nothing less than malfeasance. The proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, which is the only function given to the Congress by the Constitution. Verily, the power of appropriation granted to Congress as a collegial body, does not include the power of the Members thereof to individually propose, select and identify which projects are to be actually implemented and funded - a function which essentially and exclusively pertains to the Executive Department. [9] By allowing the Members of Congress to receive direct allotment from the fund, to propose and identify projects to be funded and to perform the actual spending of the fund, the implementation of the PDAF provision becomes legally infirm and constitutionally repugnant. Respondents Position For their part, the respondents [10] contend that the petition miserably lacks legal and factual grounds. Although they admit that PDAF traced its roots to CDF, [11] they argue that the former should not be equated with pork barrel, which has gained a derogatory meaning referring to government projects affording political opportunism. [12] In the petition, no proof of this was offered. It cannot be gainsaid then that the petition cannot stand on inconclusive media reports, assumptions and conjectures alone. Without probative value, media reports cited by the petitioner deserve scant consideration especially the accusation that corrupt legislators have allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should decline the petitioners plea to take judicial notice of the supposed iniquity of PDAF because there is no concrete proof that PDAF, in the guise of pork barrel, is a source of dirty money for unscrupulous lawmakers and other officials who tend to misuse their allocations. These facts have no attributes of sufficient notoriety or general recognition accepted by the public without qualification, to be subjected to judicial notice. This applies, a fortiori, to the claim that Members of Congress are beneficiaries of commissions (kickbacks) taken out of the PDAF allocations and releases and preferred by favored contractors representing from 20% to 50% of the approved budget for a particular project. [13] Suffice it to say, the perceptions of LAMP on the implementation of PDAF must not be based on mere speculations circulated in the news media preaching the evils of pork barrel. Failing to present even an iota of proof that the DBM Secretary has been releasing lump sums from PDAF directly or indirectly to individual Members of Congress, the petition falls short of its cause. Likewise admitting that CDF and PDAF are appropriations for substantially similar, if not the same, beneficial purposes, [14]the respondents invoke Philconsa v. Enriquez,[15] where CDF was described as an imaginative and innovative process or mechanism of implementing priority programs/projects specified in the law. In Philconsa, the Court upheld the authority of individual Members of Congress to propose and identify priority projects because this was merely recommendatory in nature. In said case, it was also recognized that individual members of Congress far more than the President and their congressional colleagues were likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project. The Issues The respondents urge the Court to dismiss the petition for its failure to establish factual and legal basis to support its claims, thereby lacking an essential requisite of judicial reviewan actual case or controversy.

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The Courts Ruling To the Court, the case boils down to these issues: 1) whether or not the mandatory requisites for the exercise of judicial review are met in this case; and 2) whether or not the implementation of PDAF by the Members of Congress isunconstitutional and illegal. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[16] An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another concern is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.[17] In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers. According to LAMP, the practice of direct allocation and release of funds to the Members of Congress and the authority given to them to propose and select projects is the core of the laws flawed execution resulting in a serious constitutional transgression involving the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely affected by this. A finding of unconstitutionality would necessarily be tantamount to a misapplication of public funds which, in turn, cause injury or hardship to taxpayers. This affords ripeness to the present controversy. Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative or executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of legal rights susceptible of judicial resolution. For LAMP, this is the right to recover public funds possibly misapplied by no less than the Members of Congress. Hence, without prejudice to other recourse against erring public officials, allegations of illegal expenditure of public funds reflect a concrete injury that may have been committed by other branches of government before the court intervenes. The possibility that this injury was indeed committed cannot be discounted. The petition complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say that there indeed exists a definite, concrete, real or substantial controversy before the Court. Anent locus standi, the rule is 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 sustained, direct injury as a result of its enforcement. [18] The gist of the question of standing is whether a party alleges such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[19] In public suits, the plaintiff, representing the general public, asserts a public right in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and could be suing as a stranger, or as a citizen or taxpayer.[20] Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. [21] Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.[22] Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers suits is established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an invalid or unconstitutional law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works[23] is authority in support of the petitioner: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [11 Am. Jur. 761, Emphasis supplied.] Lastly, the Court is of the view that the petition poses issues impressed with paramount public interest. The ramification of issues involving the unconstitutional spending of PDAF deserves the consideration of the Court, warranting the assumption of jurisdiction over the petition. Now, on the substantive issue. The powers of government are generally divided into three branches: the Legislative, the Executive and the Judiciary. Each branch is supreme within its own sphere being independent from one another and it is this supremacy which enables the courts to determine whether a law is constitutional or unconstitutional.[24] The Judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.[25] With these long-established precepts in mind, the Court now goes to the crucial question: In allowing the direct allocation and release of PDAF funds to the Members of Congress based on their

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own list of proposed projects, did the implementation of the PDAF provision under the GAA of 2004 violate the Constitution or the laws? The Court rules in the negative. In determining whether or not a statute is unconstitutional, the Court does not lose sight of the presumption of validity accorded to statutory acts of Congress. In Farias v. The Executive Secretary,[26] the Court held that: Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law. Every presumption should be indulged in favor of the constitutionality and the burden of proof is on the party alleging that there is a clear and unequivocal breach of the Constitution. Hence, absent a clear showing that an offense to the principle of separation of powers was committed, much less tolerated by both the Legislative and Executive, the Court is constrained to hold that a lawful and regular government budgeting and appropriation process ensued during the enactment and all throughout the implementation of the GAA of 2004. The process was explained in this wise, in Guingona v. Carague:[31] 1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the estimation of government revenues, the determination of budgetary priorities and activities within the constraints imposed by available revenues and by borrowing limits, and the translation of desired priorities and activities into expenditure levels. Budget preparation starts with the budget call issued by the Department of Budget and Management. Each agency is required to submit agency budget estimates in line with the requirements consistent with the general ceilings set by the Development Budget Coordinating Council (DBCC). With regard to debt servicing, the DBCC staff, based on the macroeconomic projections of interest rates (e.g. LIBOR rate) and estimated sources of domestic and foreign financing, estimates debt service levels. Upon issuance of budget call, the Bureau of Treasury computes for the interest and principal payments for the year for all direct national government borrowings and other liabilities assumed by the same. 2. Legislative authorization. At this stage, Congress enters the picture and deliberates or acts on the budget proposals of the President, and Congress in the exercise of its own judgment and wisdom formulates an appropriation act precisely following the process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law. xxx 3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of work and financial plans for individual activities, the continuing review of government fiscal position, the regulation of funds releases, the implementation of cash payment schedules, and other related activities comprise this phase of the budget cycle. 4. Budget accountability. The fourth phase refers to the evaluation of actual performance and initially approved work targets, obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the agency budgets were approved. Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriation bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments. [32]While the budgetary process

To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because to invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it. [27] This presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.[28] The petition is miserably wanting in this regard. LAMP would have the Court declare the unconstitutionality of the PDAFs enforcement based on the absence of express provision in the GAA allocating PDAF funds to the Members of Congress and the latters encroachment on executive power in proposing and selecting projects to be funded by PDAF. Regrettably, these allegations lack substantiation. No convincing proof was presented showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them according to their sole discretion. Not even a documentation of the disbursement of funds by the DBM in favor of the Members of Congress was presented by the petitioner to convince the Court to probe into the truth of their claims. Devoid of any pertinentevidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous Members of Congress, the Court cannot indulge the petitioners request for rejection of a law which is outwardly legal and capable of lawful enforcement. In a case like this, the Courts hands are tied in deference to the presumption of constitutionality lest the Court commits unpardonable judicial legislation. The Court is not endowed with the power of clairvoyance to divine from scanty allegations in pleadings where justice and truth lie. [29] Again, newspaper or electronic reports showing the appalling effects of PDAF cannot be appreciated by the Court, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence.[30]

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commences from the proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any other piece of legislation, the appropriation act may then be susceptible to objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch which deals with the operational aspects of the cycle including the allocation and release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. The DBM lays down the guidelines for the disbursement of the fund. The Members of Congress are then requested by the President to recommend projects and programs which may be funded from the PDAF. The list submitted by the Members of Congress is endorsed by the Speaker of the House of Representatives to the DBM, which reviews and determines whether such list of projects submitted are consistent with the guidelines and the priorities set by the Executive. [33] This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per seof the budget. As applied to this case, the petition is seriously wanting in establishing that individual Members of Congress receive and thereafter spend funds out of PDAF. Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld in Philconsa. This remains as valid case law. The Court sees no need to review or reverse the standing pronouncements in the said case. So long as there is no showing of a direct participation of legislators in the actual spending of the budget, the constitutional boundaries between the Executive and the Legislative in the budgetary process remain intact. While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress. Again, all presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted.[34] There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately, the petition must fail based on the foregoing reasons. WHEREFORE, the petition is DISMISSED without pronouncement as to costs. SO ORDERED. G.R. Nos. 184379-80 April 24, 2012 RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and ARTURO LOZADA, Petitioners, vs. PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4 ROGER VALEROSO,* Respondents. SERENO, J.: What the Court decides today has nothing to do with the substance or merits surrounding the aborted deal of the Philippine government with the National Broadband Network and ZTE Corporation, or any allegation of petitioner Rodolfo Noel June Lozada, Jr., (Lozada) regarding the same. There is only one issue that we decide today whether circumstances are adequately alleged and proven by petitioner Lozada to entitle him to the protection of the writ of amparo. Before us is a Petition for Review on Certiorari of the Decision dated 12 September 2008 of the Court of Appeals (CA), dismissing the Petition for the Issuance of a Writ of Amparo.[1] Petitioner Lozada was the former President and Chief Executive Officer of the Philippine Forest Corporation (PFC), a government-owned- and -controlled corporation under the Department of Environment and Natural Resources (DENR).[2]Petitioner Violeta Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo) is his brother. At the time the Petition for the Writ of Amparo was filed, respondent former President Gloria Macapagal Arroyo (former President Arroyo) was the incumbent President of the Philippines. Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive Secretary; Avelino Razon (Razon), the Director General of the Philippine National Police (PNP); Angel Atutubo (Atutubo), the Assistant General Manager for Security and Emergency Services of the Manila International Airport Authority; and Rodolfo Valeroso (Valeroso), an agent of the Aviation Security Group (ASG) of the PNP. Antecedent Facts The instant Petition stems from the alleged corruption scandal precipitated by a transaction between the Philippine government, represented by the National Broadband Network (NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of telecommunications equipment. [3] Former National Economic Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of Lozada as an unofficial consultant in the ZTE-NBN deal. [4] The latter avers that during the course of his engagement, he discovered several anomalies in the said transaction involving certain public officials. [5] These events impelled the Senate of the Philippines Blue Ribbon Committee (Blue Ribbon Committee) to conduct an investigation thereon, [6]for which it issued a subpoena directing Lozada to appear and testify on 30 January 2008.[7] On that date, instead of appearing before the Blue Ribbon Committee, Lozada left the country for a purported official trip to London, as announced by then DENR Secretary Lito Atienza (Sec. Atienza).[8] In the Petition, Lozada alleged that his failure to appear at the scheduled hearing was upon the instructions of then Executive Assistant Undersecretary Manuel Gaite (Usec. Gaite). [9] Consequently, the Senate issued an Order dated 30 January 2008: (a) citing Lozada for contempt; (b) ordering his arrest and detention; and (c) directing the Senate Sergeant-at-Arms to implement the Order and make a return thereon.[10] While overseas, Lozada asked Sec. Atienza whether the former could be allowed to go back to the Philippines. [11] Upon the approval of Sec. Atienza, Lozada informed his family that he was

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returning from Hong Kong on 5 February 2008 on board Cathay Pacific Flight No. 919, bound to arrive in Manila at 4:40 p.m. on the same day.[12] In the Petition, Lozada claims that, upon disembarking from the aircraft, several men held his arms and took his bag. Although he allegedly insisted on meeting with his family, he later realized that it was wiser to just follow them, especially when he overheard from their handheld radio: [ H]wag kayong dumaan diyan sir nandyan ang mga taga senado.[13] Lozada asked if he could go to the comfort room, an opportunity he used to call up his brother, petitioner Arturo, and inform him of his situation. [14] The men thereafter led him through the departure area of the airport and into a car waiting for them. [15] They made him sit alone at the back of the vehicle, while a man, whom he later discovered to be respondent Valeroso, took the passenger seat and was always in contact with other individuals. [16] Lozada observed that other cars tailed their vehicle.[17] Sec. Atienza then phoned Lozada, assuring the latter that he was with people from the government, and that the former was going to confer with ES and Ma[a]m. Lozada surmised that these individuals referred to ES Ermita and former President Arroyo, respectively. [18] Sec. Atienza also purportedly instructed Lozada to pacify his wife, petitioner Violeta, who was making public statements asking for her husbands return.[19] The vehicle traversed the South Luzon Expressway and drove towards the direction of Laguna.[20] Along the way, the men asked Lozada to draft an antedated letter requesting police protection.[21] Lozada requested that he be brought home to Pasig, but the men were allegedly compelled to deny his request on account of unidentified security risks. [22] Eventually, however, the vehicle turned around and drove to Libis, Quezon City. The group stopped at The Outback restaurant to meet with certain individuals, who turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel Paul Mascarinas (Col. Mascarinas) of the Police Special Protection Office (PSPO). At the restaurant, Lozada claimed that he was made to fill in the blanks of a prepared affidavit.[23] After the meeting, the men informed Lozada that they were going to billet him in a hotel for a night, but he suggested that they take him to La Salle Green Hills instead. The men acquiesced. [24] Upon arriving in La Salle Green Hills, Lozada was met by Violeta and his sister, Carmen Lozada (Carmen).[25] He observed that the perimeter was guarded by policemen, purportedly restraining his liberty and threatening not only his security, but also that of his family and the De La Salle brothers.[26] On 6 February 2008, at around 10:00 a.m., Col. Mascarinas supposedly brought Lozada to the office of Atty. Bautista to finalize and sign an affidavit. [27] At about 1:00 p.m., Violeta filed before this Court a Petition for Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus case).[28] Arturo likewise filed before this Court a Petition for a Writ of Amparo, docketed as G.R. No. 181356 (theAmparo case), and prayed for the issuance of (a) the writ ofamparo; (b) a Temporary Protection Order (TPO); and (c) Inspection and Production Orders as regards documents related to the authority ordering custody over Lozada, as well as any other document that would show responsibility for his alleged abduction. [29] At around the same time that Arturo filed the Petition for a Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle Green Hills. [30] Lozada was then made to sign a typewritten, antedated letter requesting police protection.[31] Thereafter, former Presidential Spokesperson Michael Defensor (Sec. Defensor) supposedly came and requested Lozada to refute reports that the latter was kidnapped and to deny knowledge of alleged anomalies in the NBN-ZTE deal. Sec. Defensor then purportedly gave Lozada P50,000 for the latters expenses.[32] On 7 February 2008, Lozada decided to hold a press conference and contact the Senate Sergeant-at-Arms, who served the warrant of arrest on him. [33] Lozada claimed that after his press conference and testimony in the Senate, he and his family were since then harassed, stalked and threatened.[34] On the same day, this Court issued a Resolution (a) consolidating the Habeas Corpus case and the Amparo case; (b) requiring respondents in the Habeas Corpus case to comment on the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents in the Amparo case to file their verified Return; (e) referring the consolidated Petitions to the CA; and (f) directing the CA to set the cases for hearing on 14 February 2008. [35]Accordingly, the court a quo set both cases for hearing on 14 February 2008.[36] On 12 February 2008, respondents filed before the CA a Manifestation and Motion, praying for the dismissal of the Habeas Corpus case.[37] They asserted that Lozada was never illegally deprived of his liberty and was, at that time, no longer in their custody. They likewise averred that, beginning 8 February 2008, Lozada had already been under the supervision of the Senate and, from then on, had been testifying before it.[38] In their verified Return, respondents claimed that Sec. Atienza had arranged for the provision of a security team to be assigned to Lozada, who was then fearful for his safety. [39] In effect, respondents asserted that Lozada had knowledge and control of the events that took place on 5 February 2008, voluntarily entrusted himself to their company, and was never deprived of his liberty. Hence, respondents prayed for the denial of the interim reliefs and the dismissal of the Petition. [40] During the initial hearing on 14 February 2008, Lozada and Violeta ratified the Petition in the Amparo case[41] to comply with Section 2 of the Rule on the Writ of Amparo, [42] which imposes an order to be followed by those who can sue for the writ. [43] The CA also dismissed the Habeas Corpus case in open court for being moot and academic, as Lozada was physically present and was not confined or detained by any of the respondents. [44]Considering that petitioners failed to question the dismissal of theHabeas Corpus case, the said dismissal had lapsed into finality, leaving only the Amparo case open for disposition. Thereafter, Lozada filed a Motion for Temporary Protection Order and Production of Documents,[45] while Arturo filed a Motion for Production of Documents. [46] Additionally, Arturo also filed a Motion for the Issuance of Subpoena Ad Testificandum and Presentation of Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso, Jaime the Driver and Other Respondents. Respondents opposed these motions. [47] The CA denied the Motion for the Issuance ofSubpoena on the ground that the alleged acts and statements attributed to Sec. Neri and Benjamin Abalos (Abalos) were irrelevant to the Amparo case, and that to require them to testify would only result in a fishing expedition. [48] The CA likewise denied Arturos subsequent Motion for Reconsideration.[49] In its Resolution dated 5 March 2008, the CA dropped former President Arroyo as a respondent on the ground that at the time the Petition in the Amparo case was filed, she was still the incumbent President enjoying immunity from suit.[50] Arturo filed a Motion for Reconsideration, [51] which the CA denied in its Resolution dated 25 March 2008.[52]

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On 12 September 2008, the CA rendered its Decision denying petitioners the privilege of the Writ of Amparo and dismissing the Petition. [53] The CA found that petitioners were unable to prove through substantial evidence that respondents violated, or threatened with violation, the right to life, liberty and security of Lozada. Petitioners thus filed the instant Petition, praying for: (a) the reversal of the assailed CA Decision; (b) the issuance of the TPO; and (c) the accreditation of the Association of Major Religious Superiors of the Philippines and the De La Salle Brothers as the sanctuaries of Lozada and his family. [54] In the alternative, petitioners pray that this Court remand the case to the CA for further hearings and reverse the latters Orders: (a) denying the Motion to Issue a Subpoena Ad Testificandum and (b) dropping former President Arroyo as a respondent. Petitioners raise the following issues: (1) Whether the Court a [q]uo erred in ruling to dismiss the petition for a writ of amparo and deny Petitioners prayer for a Temporary Protection Order, inter alia, because there is no substantial evidence to prove that the right to life, liberty or security of Jun Lozada was violated or threatened with violation. This rule is not in accord with the rule on the writ of amparo and Supreme Court jurisprudence on substantial evidence[.] (2) Whether the Ponencia erred and gravely abused its discretion by prematurely ruling that the testimony of witnesses which Petitioners sought to present and who are subject of the Motion for Issuance of Subpoena ad testificandum were irrelevant to the Petition for a Writ of Amparo in a way not in accord with the Rules of Court and Supreme Court decisions. (3) Whether the Court a quo erred in using and considering the affidavits of respondents in coming up with the questioned decision when these were not offered as evidence and were not subjected to cross-examination. This ruling is not in accord with the Rules of Court and jurisprudence. (4) Whether the Court a [q]uo erred in dropping as respondent Pres. Gloria Arroyo despite her failure to submit a verified return and personally claim presidential immunity in a way not in accord with the Rule on the Writ of Amparo.[55] The Office of the Solicitor General (OSG) asserts that petitioners failed to adduce substantial evidence, as the allegations they propounded in support of their Petition were largely hearsay. [56] The OSG also maintains that it was proper for the CA to have dropped former President Arroyo as respondent on account of her presidential immunity from suit.[57] Respondent Atutubo also alleges, among others, that: (a) Lozada voluntarily asked for security and protection; (b) Lozada willingly submitted himself to the company of the police escorts; (c) Atutubo merely accompanied him to pass through the contingency route customarily provided to VIP passengers, public figures, foreign dignitaries, and the like; and (d) Atutubo only performed his job to ensure security and maintain order at the airport upon the arrival of Lozada.[58] In the face of these assertions by respondents, petitioners nevertheless insist that while they have sufficiently established that Lozada was taken against his will and was put under restraint, respondents have failed to discharge their own burden to prove that they exercised extraordinary diligence as public officials. [59]Petitioners also maintain that it was erroneous for the CA to have denied their motion for subpoena ad testificandum for being irrelevant, given that the relevancy of evidence must be examined after it is offered, and not before. [60] Finally, petitioners contend that the presidential immunity from suit cannot be invoked inamparo actions.[61]

Issues In ruling on whether the CA committed reversible error in issuing its assailed Decision, three issues must be discussed: I. Whether the CA committed an error in dropping former President Arroyo as a respondent in theAmparo case. II. Whether the CA committed an error in denying petitioners Motion for the Issuance of a Subpoena Ad Testificandum. III. Whether petitioners should be granted the privilege of the writ of amparo. Discussion The writ of amparo is an independent and summary remedy that provides rapid judicial relief to protect the peoples right to life, liberty and security. [62] Having been originally intended as a response to the alarming cases of extrajudicial killings and enforced disappearances in the country, it serves both preventive and curative roles to address the said human rights violations. It is preventive in that it breaks the expectation of impunity in the commission of these offenses, and it is curative in that it facilitates the subsequent punishment of perpetrators by inevitably leading to subsequent investigation and action.[63] As it stands, the writ of amparo is confined only to cases of extrajudicial killings and enforced disappearances, or to threats thereof.[64] Considering that this remedy is aimed at addressing these serious violations of or threats to the right to life, liberty and security, it cannot be issued on amorphous and uncertain grounds,[65] or in cases where the alleged threat has ceased and is no longer imminent or continuing.[66] Instead, it must be granted judiciously so as not to dilute the extraordinary and remedial character of the writ, thus: The privilege of the writ of amparo is envisioned basically to protect and guarantee the rights to life, liberty, and security of persons, free from fears and threats that vitiate the quality of this life. It is an extraordinary writ conceptualized and adopted in light of and in response to the prevalence of extralegal killings and enforced disappearances. Accordingly, the remedy ought to be resorted to and granted judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined by the indiscriminate filing of amparo petitions for purposes less than the desire to secure amparo reliefs and protection and/or on the basis of unsubstantiated allegations.[67] (Emphasis supplied.) Using this perspective as the working framework for evaluating the assailed CA decision and the evidence adduced by the parties, this Court denies the Petition.

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First issue: Presidential immunity from suit It is settled in jurisprudence that the President enjoys immunity from suit during his or her tenure of office or actual incumbency. [68] Conversely, this presidential privilege of immunity cannot be invoked by a non-sitting president even for acts committed during his or her tenure. [69] In the case at bar, the events that gave rise to the present action, as well as the filing of the original Petition and the issuance of the CA Decision, occurred during the incumbency of former President Arroyo. In that respect, it was proper for the court a quoto have dropped her as a respondent on account of her presidential immunity from suit. It must be underscored, however, that since her tenure of office has already ended, former President Arroyo can no longer invoke the privilege of presidential immunity as a defense to evade judicial determination of her responsibility or accountability for the alleged violation or threatened violation of the right to life, liberty and security of Lozada. Nonetheless, examining the merits of the case still results in the denial of the Petition on the issue of former President Arroyos alleged responsibility or accountability. A thorough examination of the allegations postulated and the evidence adduced by petitioners reveals their failure to sufficiently establish any unlawful act or omission on her part that violated, or threatened with violation, the right to life, liberty and security of Lozada. Except for the bare claims that: (a) Sec. Atienza mentioned a certain Ma[a]m,[70] whom Lozada speculated to have referred to her, and (b) Sec. Defensor told Lozada that the President was hurting from all the media frenzy,[71] there is nothing in the records that would sufficiently establish the link of former President Arroyo to the events that transpired on 5-6 February 2010, as well as to the subsequent threats that Lozada and his family purportedly received. Second issue: Denial of the issuance of a subpoena ad testificandum This Court, in Roco v. Contreras,[72] ruled that for a subpoena to issue, it must first appear that the person or documents sought to be presented are prima facie relevant to the issue subject of the controversy, to wit: A subpoena is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action or at any investigation conducted under the laws of the Philippines, or for the taking of his deposition. In this jurisdiction, there are two (2) kinds of subpoena, to wit: subpoena ad testificandum and subpoena duces tecum. The first is used to compel a person to testify, while the second is used to compel the production of books, records, things or documents therein specified. As characterized in H.C. Liebenow vs. The Philippine Vegetable Oil Company: The subpoena duces tecum is, in all respects, like the ordinary subpoena ad testificandum with the exception that it concludes with an injunction that the witness shall bring with him and produce at the examination the books, documents, or things described in the subpoena. Well-settled is the rule that before a subpoena duces tecum may issue, the court must first be satisfied that the following requisites are present: (1) the books, documents or other things requested must appear prima facie relevant to the issue subject of the controversy (test of relevancy) ; and (2) such books must be reasonably described by the parties to be readily identified (test of definiteness).[73] (Emphasis supplied.) In the present case, the CA correctly denied petitioners Motion for the Issuance of Subpoena Ad Testificandum on the ground that the testimonies of the witnesses sought to be presented during trial were prima facie irrelevant to the issues of the case. The court a quo aptly ruled in this manner: The alleged acts and statements attributed by the petitioner to Neri and Abalos are not relevant to the instantAmparo Petition where the issue involved is whether or not Lozadas right to life, liberty and security was threatened or continues to be threatened with violation by the unlawful act/s of the respondents. Evidence, to be relevant, must have such a relation to the fact in issue as to induce belief in its existence or nonexistence. Further, Neri, Abalos and a certain driver Jaime are not respondents in this Amparo Petition and the vague allegations averred in the Motion with respect to them do not pass the test of relevancy. To Our mind, petitioner appears to be embarking on a fishing expedition. Petitioner should present the aggrieved party [Lozada], who has been regularly attending the hearings, to prove the allegations in the Amparo Petition, instead of dragging the names of other people into the picture. We have repeatedly reminded the parties, in the course of the proceedings, that the instant Amparo Petition does not involve the investigation of the ZTE-[NBN] contract. Petitioner should focus on the fact in issue and not embroil this Court into said ZTE-NBN contract, which is now being investigated by the Senate Blue Ribbon Committee and the Office of the Ombudsman.[74] (Emphasis supplied.) All the references of petitioners to either Sec. Neri or Abalos were solely with respect to the ZTE-NBN deal, and not to the events that transpired on 5-6 February 2008, or to the ensuing threats that petitioners purportedly received. Although the present action is rooted from the involvement of Lozada in the said government transaction, the testimonies of Sec. Neri or Abalos are nevertheless not prima facie relevant to the main issue of whether there was an unlawful act or omission on the part of respondents that violated the right to life, liberty and security of Lozada. Thus, the CA did not commit any reversible error in denying the Motion for the Issuance of Subpoena Ad Testificandum. Third issue: Grant of the privilege of the writ ofamparo A. Alleged violation of or threat to the right to life, liberty and security of Lozada Sections 17 and 18 of the Rule on the Writ of Amparorequires the parties to establish their claims by substantial evidence,[75] or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[76] The use of this evidentiary threshold reveals the clear intent of the

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framers of the Rule on the Writ of Amparo to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing amparo situations.[77] In cases where the violation of the right to life, liberty or security has already ceased, it is necessary for the petitioner in anamparo action to prove the existence of a continuing threat. [78]Thus, this Court held in its Resolution in Razon v. Tagitis:[79] Manalo is different from Tagitis in terms of their factual settings, as enforced disappearance was no longer a problem in that case. The enforced disappearance of the brothers Raymond and Reynaldo Manalo effectively ended when they escaped from captivity and surfaced , while Tagitis is still nowhere to be found and remains missing more than two years after his reported disappearance. An Amparo situation subsisted in Manalo, however, because of the continuing threat to the brothers right to security ; the brothers claimed that since the persons responsible for their enforced disappearance were still at large and had not been held accountable, the former were still under the threat of being once again abducted, kept captive or even killed, which threat constituted a direct violation of their right to security of person. [80] (Emphasis supplied.) In the present case, the totality of the evidence adduced by petitioners failed to meet the threshold of substantial evidence. Sifting through all the evidence and allegations presented, the crux of the case boils down to assessing the veracity and credibility of the parties diverging claims as to what actually transpired on 5-6 February 2008. In this regard, this Court is in agreement with the factual findings of the CA to the extent that Lozada was not illegally deprived of his liberty from the point when he disembarked from the aircraft up to the time he was led to the departure area of the airport, [81] as he voluntarily submitted himself to the custody of respondents: [Lozada] was one of the first few passengers to get off the plane because he was instructed by Secretary Atienza, th[r]ough a phone call on the night of 04 February 2008, while he was still in Hong Kong, to proceed directly to the Bureau of Immigration so that few people would notice him and he could be facilitated in going out of the airport without any hassle from the people of the Senate Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get away from the Senate people. [Lozada] even went to the mens room of the airport, after he was allegedly grabbed, where he made a call to his brother Arturo, using his Globe phone, and he was not prevented from making said call, and was simply advised by the person who met him at the tube to (sic) sir, bilisan mo na. When they proceeded out of the tube and while walking, [Lozada] heard from the radio track down, wag kayo dyan, sir, nandyan yong mga taga Senado , so they took a detour and went up to the departure area, did not go out of the normal arrival area, and proceeded towards the elevator near the Duty Free Shop and then down towards the tarmac. Since [Lozada] was avoiding the people from the Office of the Senate Sergeant-at-Arms, said detour appears to explain why they did not get out at the arrival area, where [Lozada] could have passed through immigration so that his passport could be properly stamped. This Court does not find any evidence on record that [Lozada] struggled or made an outcry for help when he was allegedly grabbed or abducted at the airport. [Lozada] even testified that nobody held him, and they were not hostile to him nor shouted at him. With noon day clarity, this Court finds that the reason why [Lozada] was fetched at the airport was to help him avoid the Senate contingent, who would arrest and detain him at the Office of the Senate Sergeant-at-Arms, until such time that he would appear and give his testimony, pursuant to the Order of the Senate on the NBN-ZTE Project. [Lozada] clearly knew this because at that time, it was still his decision not to testify before the Senate. He agreed with that plan.[82] (Emphases supplied.) The foregoing statements show that Lozada personally sought the help of Sec. Atienza to avoid the Senate personnel, and thus knew that the men who met him at the airport were there to aid him in such objective. Surely, the actions of Lozada evinced knowledge and voluntariness, uncharacteristic of someone who claims to have been forcibly abducted. However, these mens subsequent acts of directing Lozada to board the vehicle and driving him around, without disclosing the exact purpose thereof, appear to be beyond what he had consented to and requested from Sec. Atienza. These men neither informed him of where he was being transported nor provided him complete liberty to contact his family members to assure them of his safety. These acts demonstrated that he lacked absolute control over the situation, as well as an effective capacity to challenge their instructions. Nevertheless, it must be emphasized that if Lozada had in fact been illegally restrained, so much so that his right to liberty and security had been violated, the acts that manifested this restraint had already ceased and has consequently rendered the grant of the privilege of the writ of amparo moot. Whether or not Lozada was deprived of his liberty from the point when he was led inside the vehicle waiting for him at the airport up to the time he was taken to La Salle Green Hills, petitioners assertions that Lozada and his family continue to suffer various threats from respondents remain unproven. The CA correctly found as follows: The supposed announcement of General Razon over the radio that [Lozada] was in the custody of the PNP can neither be construed as a threat to [Lozadas] life, liberty and security. Certainly, no person in his right mind would make that kind of media announcement if his intent was indeed to threaten somebodys life, liberty and security. xxx xxx xxx He claims that he is threatened by the alleged presence of armed men riding in motorcycle passing outside the De La Salle premises where he and his family are staying and by alleged threats of armed men around him at places where he went to. Again, these alleged threats were not proven by any evidence at all, as having originated from any of the respondents . [Lozada] also considers the installation of the surveillance camera at the De La Salle and at St. Scholastica as indirect threat to his right to life, liberty and security. He claims that these are spy cameras. However, save for [Lozadas] self-serving claim, he simply failed to prove that they were installed or ordered

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installed by the respondentsfor the purpose of threatening his right to life, liberty and security. [Lozada] further maintains that there is an alleged trend,i.e., wherever he goes, there is a bomb threat. There were bomb threats in the places where he went to like in [the Polytechnic University of the Philippines], Dagupan, Cebu and Bohol. However, [Lozada] himself testified that he did not try to ascertain where the bomb threats emanated. Plainly, there is no evidence on record that the bomb threats were made by the respondents or done upon their instigation . Moreover, [Lozada] views the pronouncement of the Secretary of Justice that he was put on the watch list of the Bureau of Immigration as a threat to his life, liberty and security. This alleged threat is again unsupported by evidence, as in fact, [Lozada] testified that he did not ascertain from the Bureau of Immigration whether his name was actually in the official watch list of the Bureau. At any rate, the Secretary of Justice is not one of the respondents in the amparo petition, and there is no showing in the record that it was the respondents who ordered the same for the purpose of threatening him. [Lozada] harps on the filing of alleged frivolous cases against him and his family as threat to his life, liberty and security. xxx However, [Lozada] himself testified that he does not know whether the respondents or any of the respondents ordered the filing of these cases against him. In any event, said purported cases are to be determined based on their own merits and are clearly beyond the realm of the instant amparo petition filed against the respondents.[83] (Emphasis supplied.) Finally, petitioners insist that while they were able to sufficiently establish their case by the required evidentiary standard, respondents failed to discharge their burden to prove their defenses by substantial evidence and to show that respondents exercised extraordinary diligence as required by the Rule on the Writ of Amparo.[84] This Court has squarely passed upon this contention in Yano v. Sanchez,[85] to wit: The failure to establish that the public official observed extraordinary diligence in the performance of duty does not result in the automatic grant of the privilege of the amparo writ. It does not relieve the petitioner from establishing his or her claim by substantial evidence. Thus, in amparo actions, petitioners must establish their claims by substantial evidence, and they cannot merely rely on the supposed failure of respondents to prove either their defenses or their exercise of extraordinary diligence. In this case, the totality of the evidence presented by petitioners fails to meet the requisite evidentiary threshold, and the privilege of the writ of amparo has already been rendered moot and academic by the cessation of the restraint to Lozadas liberty. B. Propriety of the privilege of the writ ofamparo and its interim reliefs As previously discussed, there is no basis to grant Lozada the privilege of the writ of amparo, considering that the illegal restraint alleged in this case had already ceased and there is no imminent or continuing restriction on his liberty. In Castillo v. Cruz,[86] this Court held as follows: Although respondents release from confinement does not necessarily hinder supplication for the writ of amparo,absent any evidence or even an allegation in the petition that there is undue and continuing restraint on their liberty, and/or that there exists threat or intimidation that destroys the efficacy of their right to be secure in their persons, the issuance of the writ cannot be justified. (Emphasis supplied.) Further, it appears that Lozada had already filed before the Department of Justice (DOJ) a Complaint charging respondents with kidnapping and attempted murder, docketed as I.S. No. 2008467.[87] In this regard, this Courts ruling in Rubrico v. Arroyo[88] is worth considering: First, a criminal complaint for kidnapping and, alternatively, for arbitrary detention rooted in the same acts and incidents leading to the filing of the subject amparopetition has been instituted with the OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to determine the existence of a prima facie case against the five (5) impleaded individuals suspected to be actually involved in the detention of Lourdes have been set in motion. It must be pointed out, though, that the filing of the OMB complaint came before the effectivity of the Amparo Rule on October 24, 2007. Second, Sec. 22 of the Amparo Rule proscribes the filing of an amparo petition should a criminal action have, in the meanwhile, been commenced. The succeeding Sec. 23, on the other hand, provides that when the criminal suit is filed subsequent to a petition for amparo, the petition shall be consolidated with the criminal action where the Amparo Rule shall nonetheless govern the disposition of the relief under the Rule. Under the terms of said Sec. 22, the present petition ought to have been dismissed at the outset. But as things stand, the outright dismissal of the petition by force of that section is no longer technically feasible in light of the interplay of the following factual mix: (1) the Court has, pursuant to Sec. 6 of the Rule, already issued ex parte the writ of amparo; (2) the CA, after a summary hearing, has dismissed the petition, but not on the basis of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as respondents only those believed to be the actual abductors of Lourdes, while the instant petition impleaded, in addition, those tasked to investigate the kidnapping and detention incidents and their superiors at the top. Yet, the acts and/or omissions subject of the criminal complaint and the amparo petition are so linked as to call for the consolidation of both proceedings to obviate the mischief inherent in a multiplicity-of-suits situation. Given the above perspective and to fully apply the beneficial nature of the writ of amparo as an inexpensive and effective tool to protect certain rights violated or threatened to be violated, the Court hereby adjusts to a degree the literal application of Secs. 22 and 23 of the Amparo Rule to fittingly address the situation obtaining under the premises. Towards this end, two things are at once indicated: (1) the consolidation of the probe and fact-finding aspects of the instant petition with the investigation of the criminal complaint before the OMB; and (2) the incorporation in the same criminal complaint of the allegations in this petition

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bearing on the threats to the right to security. Withal, the OMB should be furnished copies of the investigation reports to aid that body in its own investigation and eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB shall be given easy access to all pertinent documents and evidence, if any, adduced before the CA. Necessarily, Lourdes, as complainant in OMB-P-C-O7-0602-E, should be allowed, if so minded, to amend her basic criminal complaint if the consolidation of cases is to be fully effective. (Emphasis supplied.) Thus, if the Complaint filed before the DOJ had already progressed into a criminal case, then the latter action can more adequately dispose of the allegations made by petitioners. After all, one of the ultimate objectives of the writ of amparo as a curative remedy is to facilitate the subsequent punishment of perpetrators.[89] On the other hand, if there is no actual criminal case lodged before the courts, then the denial of the Petition is without prejudice to the filing of the appropriate administrative, civil or criminal case, if applicable, against those individuals whom Lozada deems to have unduly restrained his liberty. Finally, with respect to the interim reliefs sought by petitioners, this Court, in Yano v. Sanchez,[90] declined to grant the prayer for the issuance of a TPO, as well as Inspection and Production Orders, upon a finding that the implicated public officials were not accountable for the disappearance subject of that case. Analogously, it would be incongruous to grant herein petitioners prayer for a TPO and Inspection and Production Orders and at the same time rule that there no longer exists any imminent or continuing threat to Lozadas right to life, liberty and security. Thus, there is no basis on which a prayer for the issuance of these interim reliefs can be anchored. WHEREFORE, the instant petition is DENIED for being moot and academic. The Court of Appeals denial of the privilege of the writ of amparo is hereby AFFIRMED. SO ORDERED. On July 17, 2012, the Court handed down the assailed subject decision, disposing the same in the following manner: WHEREFORE, the petition is GRANTED. The current numerical composition of the Judicial and Bar Council is declared UNCONSTITUTIONAL. The Judicial and Bar Council is hereby enjoined to reconstitute itself so that only one (1) member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution. This disposition is immediately executory. SO ORDERED. On July 31, 2012, following respondents motion for reconsideration and with due regard to Senate Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court set the subject motion for oral arguments on August 2, 2012.7 On August 3, 2012, the Court discussed the merits of the arguments and agreed, in the meantime, to suspend the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision which decreed that it was immediately executory. The decretal portion of the August 3, 2012 Resolution8 reads: WHEREFORE, the parties are hereby directed to submit their respective MEMORANDA within ten (10) days from notice. Until further orders, the Court hereby SUSPENDS the effect of the second paragraph of the dispositive portion of the Courts July 17, 2012 Decision, which reads: "This disposition is immediately executory."9 Pursuant to the same resolution, petitioner and respondents filed their respective memoranda. 10 Brief Statement of the Antecedents In this disposition, it bears reiterating that from the birth of the Philippine Republic, the exercise of appointing members of the Judiciary has always been the exclusive prerogative of the executive and legislative branches of the government. Like their progenitor of American origins, both the Malolos Constitution11 and the 1935 Constitution12 vested the power to appoint the members of the Judiciary in the President, subject to confirmation by the Commission on Appointments. It was during these times that the country became witness to the deplorable practice of aspirants seeking confirmation of their appointment in the Judiciary to ingratiate themselves with the members of the legislative body. 13 Then, under the 1973 Constitution,14 with the fusion of the executive and legislative powers in one body, the appointment of judges and justices ceased to be subject of scrutiny by another body. The power became exclusive and absolute to the Executive, subject only to the condition that the appointees must have all the qualifications and none of the disqualifications. Prompted by the clamor to rid the process of appointments to the Judiciary of the evils of political pressure and partisan activities, 15 the members of the Constitutional Commission saw it wise to create a separate, competent and independent body to recommend nominees to the President.

G.R. No. 202242 April 16, 2013 FRANCISCO I. CHAVEZ, Petitioner, vs. JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents. MENDOZA, J.: This resolves the Motion for Reconsideration 1 filed by the Office of the Solicitor General (OSG) on behalf of the respondents, Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents), duly opposed2 by the petitioner, former Solicitor General Francisco I. Chavez (petitioner). By way of recapitulation, the present action stemmed from the unexpected departure of former Chief Justice Renato C. Corona on May 29, 2012, and the nomination of petitioner, as his potential successor. In his initiatory pleading, petitioner asked the Court to determine 1] whether the first paragraph of Section 8, Article VIII of the 1987 Constitution allows more than one (1) member of Congress to sit in the JBC; and 2] if the practice of having two (2) representatives from each House of Congress with one (1) vote each is sanctioned by the Constitution.

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Thus, it conceived of a body, representative of all the stakeholders in the judicial appointment process, and called it the Judicial and Bar Council (JBC). The Framers carefully worded Section 8, Article VIII of the 1987 Constitution in this wise: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. From the moment of the creation of the JBC, Congress designated one (1) representative to sit in the JBC to act as one of the ex-officio members. 16 Pursuant to the constitutional provision that Congress is entitled to one (1) representative, each House sent a representative to the JBC, not together, but alternately or by rotation. In 1994, the seven-member composition of the JBC was substantially altered. 1wphi1 An eighth member was added to the JBC as the two (2) representatives from Congress began sitting simultaneously in the JBC, with each having one-half (1/2) of a vote.17 In 2001, the JBC En Banc decided to allow the representatives from the Senate and the House of Representatives one full vote each.18 It has been the situation since then. Grounds relied upon by Respondents Through the subject motion, respondents pray that the Court reconsider its decision and dismiss the petition on the following grounds: 1] that allowing only one representative from Congress in the JBC would lead to absurdity considering its bicameral nature; 2] that the failure of the Framers to make the proper adjustment when there was a shift from unilateralism to bicameralism was a plain oversight; 3] that two representatives from Congress would not subvert the intention of the Framers to insulate the JBC from political partisanship; and 4] that the rationale of the Court in declaring a seven-member composition would provide a solution should there be a stalemate is not exactly correct. While the Court may find some sense in the reasoning in amplification of the third and fourth grounds listed by respondents, still, it finds itself unable to reverse the assailed decision on the principal issues covered by the first and second grounds for lack of merit. Significantly, the conclusion arrived at, with respect to the first and second grounds, carries greater bearing in the final resolution of this case. As these two issues are interrelated, the Court shall discuss them jointly. Ruling of the Court The Constitution evinces the direct action of the Filipino people by which the fundamental powers of government are established, limited and defined and by which those powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic. 19 The Framers reposed their wisdom and vision on one suprema lex to be the ultimate expression of the principles and the framework upon which government and society were to operate. Thus, in the interpretation of the constitutional provisions, the Court firmly relies on the basic postulate that the Framers mean what they say. The language used in the Constitution must be taken to have been deliberately chosen for a definite purpose. Every word employed in the Constitution must be interpreted to exude its deliberate intent which must be maintained inviolate against disobedience and defiance. What the Constitution clearly says, according to its text, compels acceptance and bars modification even by the branch tasked to interpret it. For this reason, the Court cannot accede to the argument of plain oversight in order to justify constitutional construction. As stated in the July 17, 2012 Decision, in opting to use the singular letter "a" to describe "representative of Congress," the Filipino people through the Framers intended that Congress be entitled to only one (1) seat in the JBC. Had the intention been otherwise, the Constitution could have, in no uncertain terms, so provided, as can be read in its other provisions. A reading of the 1987 Constitution would reveal that several provisions were indeed adjusted as to be in tune with the shift to bicameralism. One example is Section 4, Article VII, which provides that a tie in the presidential election shall be broken "by a majority of all the Members of both Houses of the Congress, voting separately."20 Another is Section 8 thereof which requires the nominee to replace the Vice-President to be confirmed "by a majority of all the Members of both Houses of the Congress, voting separately."21 Similarly, under Section 18, the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus may be revoked or continued by the Congress, voting separately, by a vote of at least a majority of all its Members." 22 In all these provisions, the bicameral nature of Congress was recognized and, clearly, the corresponding adjustments were made as to how a matter would be handled and voted upon by its two Houses. Thus, to say that the Framers simply failed to adjust Section 8, Article VIII, by sheer inadvertence, to their decision to shift to a bicameral form of the legislature, is not persuasive enough. Respondents cannot just lean on plain oversight to justify a conclusion favorable to them. It is very clear that the Framers were not keen on adjusting the provision on congressional representation in the JBC because it was not in the exercise of its primary function to legislate. JBC was created to support the executive power to appoint, and Congress, as one whole body, was merely assigned a contributory nonlegislative function. The underlying reason for such a limited participation can easily be discerned. Congress has two (2) Houses. The need to recognize the existence and the role of each House is essential considering that the Constitution employs precise language in laying down the functions which particular House plays, regardless of whether the two Houses consummate an official act by voting jointly or separately. Whether in the exercise of its legislative23 or its non-legislative functions such as inter alia, the power of appropriation,24 the declaration of an existence of a state of war, 25 canvassing of electoral returns for the President and Vice-President,26 and impeachment,27 the dichotomy of each House must be acknowledged and recognized considering the interplay between these two Houses. In all these instances, each House is constitutionally granted with powers and functions peculiar to its nature and with keen consideration to 1) its relationship with the other chamber; and 2) in consonance with the principle of checks and balances, as to the other branches of government.

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In checkered contrast, there is essentially no interaction between the two Houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers. Rather, in the creation of the JBC, the Framers arrived at a unique system by adding to the four (4) regular members, three (3) representatives from the major branches of government - the Chief Justice as ex-officio Chairman (representing the Judicial Department), the Secretary of Justice (representing the Executive Department), and a representative of the Congress (representing the Legislative Department). The total is seven (7), not eight. In so providing, the Framers simply gave recognition to the Legislature, not because it was in the interest of a certain constituency, but in reverence to it as a major branch of government. On this score, a Member of Congress, Hon. Simeon A. Datumanong, from the Second District of Maguindanao, submitted his well-considered position28 to then Chief Justice Reynato S. Puno: I humbly reiterate my position that there should be only one representative of Congress in the JBC in accordance with Article VIII, Section 8 (1) of the 1987 Constitution x x x. The aforesaid provision is clear and unambiguous and does not need any further interpretation. Perhaps, it is apt to mention that the oft-repeated doctrine that "construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them." Further, to allow Congress to have two representatives in the Council, with one vote each, is to negate the principle of equality among the three branches of government which is enshrined in the Constitution. In view of the foregoing, I vote for the proposition that the Council should adopt the rule of single representation of Congress in the JBC in order to respect and give the right meaning to the abovequoted provision of the Constitution. (Emphases and underscoring supplied) On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC Chairman his opinion, 29 which reads: 8. Two things can be gleaned from the excerpts and citations above: the creation of the JBC is intended to curtail the influence of politics in Congress in the appointment of judges, and the understanding is that seven (7) persons will compose the JBC. As such, the interpretation of two votes for Congress runs counter to the intendment of the framers. Such interpretation actually gives Congress more influence in the appointment of judges. Also, two votes for Congress would increase the number of JBC members to eight, which could lead to voting deadlock by reason of even-numbered membership, and a clear violation of 7 enumerated members in the Constitution. (Emphases and underscoring supplied) In an undated position paper,30 then Secretary of Justice Agnes VST Devanadera opined: As can be gleaned from the above constitutional provision, the JBC is composed of seven (7) representatives coming from different sectors. From the enumeration it is patent that each category of members pertained to a single individual only. Thus, while we do not lose sight of the bicameral nature of our legislative department, it is beyond dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit and specific that "Congress" shall have only "xxx a representative." Thus, two (2) representatives from Congress would increase the number of JBC members to eight (8), a number beyond what the Constitution has contemplated. (Emphases and underscoring supplied) In this regard, the scholarly dissection on the matter by retired Justice Consuelo Ynares-Santiago, a former JBC consultant, is worth reiterating. 31 Thus: A perusal of the records of the Constitutional Commission reveals that the composition of the JBC reflects the Commissions desire "to have in the Council a representation for the major elements of the community." xxx The ex-officio members of the Council consist of representatives from the three main branches of government while the regular members are composed of various stakeholders in the judiciary. The unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-officio member as representing one co-equal branch of government. xxx Thus, the JBC was designed to have seven voting members with the three ex-officio members having equal say in the choice of judicial nominees. x x x No parallelism can be drawn between the representative of Congress in the JBC and the exercise by Congress of its legislative powers under Article VI and constituent powers under Article XVII of the Constitution. Congress, in relation to the executive and judicial branches of government, is constitutionally treated as another co-equal branch in the matter of its representative in the JBC. On the other hand, the exercise of legislative and constituent powers requires the Senate and the House of Representatives to coordinate and act as distinct bodies in furtherance of Congress role under our constitutional scheme. While the latter justifies and, in fact, necessitates the separateness of the two Houses of Congress as they relate inter se, no such dichotomy need be made when Congress interacts with the other two co-equal branches of government. It is more in keeping with the co-equal nature of the three governmental branches to assign the same weight to considerations that any of its representatives may have regarding aspiring nominees to the judiciary. The representatives of the Senate and the House of Representatives act as such for one branch and should not have any more quantitative influence as the other branches in the exercise of prerogatives evenly bestowed upon the three. Sound reason and principle of equality among the three branches support this conclusion. [Emphases and underscoring supplied] The argument that a senator cannot represent a member of the House of Representatives in the JBC and vice-versa is, thus, misplaced. In the JBC, any member of Congress, whether from the Senate or the House of Representatives, is constitutionally empowered to represent the entire Congress. It may be a constricted constitutional authority, but it is not an absurdity. From this score stems the conclusion that the lone representative of Congress is entitled to one full vote. This pronouncement effectively disallows the scheme of splitting the said vote into half (1/2), between two representatives of Congress. Not only can this unsanctioned practice cause disorder in

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the voting process, it is clearly against the essence of what the Constitution authorized. After all, basic and reasonable is the rule that what cannot be legally done directly cannot be done indirectly. To permit or tolerate the splitting of one vote into two or more is clearly a constitutional circumvention that cannot be countenanced by the Court. Succinctly put, when the Constitution envisioned one member of Congress sitting in the JBC, it is sensible to presume that this representation carries with him one full vote. It is also an error for respondents to argue that the President, in effect, has more influence over the JBC simply because all of the regular members of the JBC are his appointees. The principle of checks and balances is still safeguarded because the appointment of all the regular members of the JBC is subject to a stringent process of confirmation by the Commission on Appointments, which is composed of members of Congress. Respondents contention that the current irregular composition of the JBC should be accepted, simply because it was only questioned for the first time through the present action, deserves scant consideration. Well-settled is the rule that acts done in violation of the Constitution no matter how frequent, usual or notorious cannot develop or gain acceptance under the doctrine of estoppel or laches, because once an act is considered as an infringement of the Constitution it is void from the very beginning and cannot be the source of any power or authority. It would not be amiss to point out, however, that as a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all. This rule, however, is not absolute. Under the doctrine of operative facts, actions previous to the declaration of unconstitutionality are legally recognized. They are not nullified. This is essential in the interest of fair play. To reiterate the doctrine enunciated in Planters Products, Inc. v. Fertiphil Corporation:32 The doctrine of operative fact, as an exception to the general rule, only applies as a matter of equity and fair play. It nullifies the effects of an unconstitutional law by recognizing that the existence of a statute prior to a determination of unconstitutionality is an operative fact and may have consequences which cannot always be ignored. The past cannot always be erased by a new judicial declaration. The doctrine is applicable when a declaration of unconstitutionality will impose an undue burden on those who have relied on the invalid law. Thus, it was applied to a criminal case when a declaration of unconstitutionality would put the accused in double jeopardy or would put in limbo the acts done by a municipality in reliance upon a law creating it.33 Under the circumstances, the Court finds the exception applicable in this case and holds that notwithstanding its finding of unconstitutionality in the current composition of the JBC, all its prior official actions are nonetheless valid. Considering that the Court is duty bound to protect the Constitution which was ratified by the direct action of the Filipino people, it cannot correct what respondents perceive as a mistake in its mandate. Neither can the Court, in the exercise of its power to interpret the spirit of the Constitution, read into the law something that is contrary to its express provisions and justify the same as correcting a perceived inadvertence. To do so would otherwise sanction the Court action of making amendment to the Constitution through a judicial pronouncement. In other words, the Court cannot supply the legislative omission. According to the rule of casus omissus "a case omitted is to be held as intentionally omitted." 34 "The principle proceeds from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enumeration."35 Pursuant to this, "the Court cannot under its power of interpretation supply the omission even though the omission may have resulted from inadvertence or because the case in question was not foreseen or contemplated." 36 "The Court cannot supply what it thinks the legislature would have supplied had its attention been called to the omission, as that would be judicial legislation."37 Stated differently, the Court has no power to add another member by judicial construction. The call for judicial activism fails to stir the sensibilities of the Court tasked to guard the Constitution against usurpation. The Court remains steadfast in confining its powers in the sphere granted by the Constitution itself. Judicial activism should never be allowed to become judicial exuberance. 38 In cases like this, no amount of practical logic or convenience can convince the Court to perform either an excision or an insertion that will change the manifest intent of the Framers. To broaden the scope of congressional representation in the JBC is tantamount to the inclusion of a subject matter which was not included in the provision as enacted. True to its constitutional mandate, the Court cannot craft and tailor constitutional provisions in order to accommodate all of situations no matter how ideal or reasonable the proposed solution may sound. To the exercise of this intrusion, the Court declines. WHEREFORE, the Motion for Reconsideration filed by respondents is hereby DENIED. The suspension of the effects of the second paragraph of the dispositive portion of the July 17, 2012 Decision of the Court, which reads, "This disposition is immediately executory," is hereby LIFTED. SO ORDERED. DISSENTING OPINION ABAD, J.: On July 17, 2012, the Court rendered a Decision 1 granting the petition for declaration of unconstitutionality, prohibition, and injunction filed by petitioner Francisco I. Chavez, and declaring that the current numerical composition of the Judicial and Bar Council (JBC) is unconstitutional. The Court also enjoined the JBC to reconstitute itself so that only one member of Congress will sit as a representative in its proceedings, in accordance with Section 8(1), Article VIII of the 1987 Constitution. On July 24, 2012, respondents Senator Francis Joseph G. Escudero and Congressman Niel C. Tupas, Jr. moved for reconsideration. 2 The Court then conducted and heard the parties in oral arguments on the following Issues:

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1. Whether or not the current practice of the JBC to perform its functions with eight members, two of whom are members of Congress, runs counter to the letter and spirit of Section 8(1), Article VIII of the 1987 Constitution. A. Whether or not the JBC should be composed of seven members only. B. Whether or not Congress is entitled to more than one seat in the JBC. C. Assuming Congress is entitled to more than one seat, whether or not each representative of Congress should be entitled to exercise one whole vote. I maintain my dissent to the majority opinion now being reconsidered. To reiterate, the vital question that needs to be resolved is: whether or not the Senate and the House of Representatives are entitled to one representative each in the JBC, both with the right to cast one full vote in its deliberations. At the core of the present controversy is Section 8(1), Article VIII of the 1987 Constitution, which provides that: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. In interpreting Section 8(1) above, the majority opinion reiterated that in opting to use the singular letter "a" to describe "representative of the Congress," the Filipino people through the framers of the 1987 Constitution intended Congress to just have one representative in the JBC. The majority opinion added that there could not have been any plain oversight in the wordings of the provision since the other provisions of the 1987 Constitution were amended accordingly with the shift to a bicameral legislative body. The mere fact, however, that adjustments were made in some provisions should not mislead the Court into concluding that all provisions have been amended to recognize the bicameral nature of Congress. As I have previously noted in my dissenting opinion, Fr. Joaquin G. Bernas, a member of the Constitutional Commission himself, admitted that the committee charged with making adjustments in the previously passed provisions covering the JBC, failed to consider the impact of the changed character of the Legislature on the inclusion of "a representative of the Congress" in the membership of the JBC.3 Indeed, to insist that only one member of Congress from either the Senate or the House of Representatives should sit at any time in the JBC, is to ignore the fact that they are still separate and distinct from each other although they are both involved in law-making. Both legislators are elected differently, maintain separate administrative organizations, and deliberate on laws independently. In fact, neither the Senate nor the House of Representatives can by itself claim to represent the Congress. Again, that the framers of the 1987 Constitution did not intend to limit the term "Congress" to just either of the two Houses can be seen from the words that they used in crafting Section 8(1 ). While the provision provides for just "a representative of the Congress," it also provides that such representation is "ex officio" or "by virtue of one's office, or position."4 Under the Senate rules, the Chairperson of its Justice Committee is automatically the Senate representative to the JBC. In the same way, under the House of Representatives rules, the Chairperson of its Justice Committee is the House representative to the JBC. Consequently, there are actually two persons in Congress who hold separate offices or positions with the attached function of sitting in the JBC. If the Court adheres to a literal translation of Section 8(1 ), no representative from Congress will qualify as "ex officio" member of the JBC. This would deny Congress the representation that the framers of the 1987 Constitution intended it to have. Having said that the Senate and the House of Representatives should have one representative each in the JBC, it is logical to conclude that each should also have the right to cast one full vote in its deliberations. To split the vote between the two legislators would be an absurdity since it would diminish their standing and make them second class members of the JBC, something that the Constitution clearly does not contemplate. Indeed, the JBC abandoned the half-a-vote practice on January 12, 2000 and recognized the right of both legislators to cast one full vote each. Only by recognizing this right can the true spirit and reason of Section 8(1) be attained. For the above reasons, I vote to GRANT the motion for reconsideration.

DISSENTING OPINION LEONEN, J.: I dissent. Both the Senate and the House of Representatives must be represented in the Judicial and Bar Council. This is the Constitution's mandate read as a whole and in the light of the ordinary and contemporary understanding of our people of the structure of our government. Any other interpretation diminishes Congress and negates the effectivity of its representation in the Judicial and Bar Council. It is a Constitution we are interpreting. More than privileging a textual preposition, our duty is to ensure that the constitutional project ratified by our people is given full effect. At issue in this case is the interpretation of Article VIII, Section 8 of the Constitution which provides the following: Section 8. (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector. (Emphasis provided)

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Mainly deploying verba legis as its interpretative modality, the main opinion chooses to focus on the article "a." As correctly pointed out in the original dissent of Justice Robert A bad, the entire phrase includes the words "representative of Congress" and "ex officio Members." In the context of the constitutional plan involving a bicameral Congress, these words create ambiguity. A Bicameral Congress Our Constitution creates a Congress consisting of two chambers. Thus, in Article VI, Section 1, the Constitution provides the following: The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives x x x. (Emphasis provided) Senators are "elected at large by the qualified voters of the Philippines". 1 Members of the House of Representatives, on the other hand, are elected by legislative districts 2 or through the party list system.3 The term of a Senator 4 is different from that of a Member of the House of Representatives.5 Therefore, the Senate and the House of Representatives while component parts of the Congress are not the same in terms of their representation. The very rationale of a bicameral system is to have the Senators represent a national constituency. Representatives of the House of Representatives, on the other hand, are dominantly from legislative districts except for one fifth which are from the party list system. Each chamber is organized separately. 6 The Senate and the House each promulgates their own rules of procedure.7 Each chamber maintains separate Journals.8 They each have separate Records of their proceedings.9 The Senate and the House of Representatives discipline their own respective members.10 To belabor the point: There is no presiding officer for the Congress of the Philippines, but there is a Senate President and a Speaker of the House of Representatives. There is no single journal for the Congress of the Philippines, but there is a journal for the Senate and a journal for the House of Representatives. There is no record of proceedings for the entire Congress of the Philippines, but there is a Record of proceedings for the Senate and a Record of proceedings for the House of Representatives. The Congress of the Philippines does not discipline its members. It is the Senate that promulgates its own rules and disciplines its members. Likewise, it is the House that promulgates its own rules and disciplines its members. No Senator reports to the Congress of the Philippines. Rather, he or she reports to the Senate. No Member of the House of Representatives reports to the Congress of the Philippines. Rather, he or she reports to the House of Representatives. Congress, therefore, is the Senate and the House of Representatives. Congress does not exist separate from the Senate and the House of Representatives. Any Senator acting ex officio or as a representative of the Senate must get directions from the Senate. By constitutional design, he or she cannot get instructions from the House of Representatives. If a Senator represents the Congress rather than simply the Senate, then he or she must be open to amend or modify the instructions given to him or her by the Senate if the House of Representatives instructions are different. Yet, the Constitution vests disciplinary power only on the Senate for any Senator. The same argument applies to a Member of the House of Representatives. No Senator may carry instructions from the House of Representatives. No Member of the House of Representatives may carry instructions from the Senate. Neither Senator nor Member of the House of Representatives may therefore represent Congress as a whole. The difference between the Senate and the House of Representative was a subject of discussion in the Constitutional Commission. In the July 21, 1986 Records of the Constitutional Commission, Commissioner Jose F. S. Bengzon presented the following argument during the discussion on bicameralism, on the distinction between Congressmen and Senators, and the role of the Filipino people in making these officials accountable: I grant the proposition that the Members of the House of Representatives are closer to the people that they represent. I grant the proposition that the Members of the House of Representatives campaign on a one-to-one basis with the people in the barrios and their constituencies. I also grant the proposition that the candidates for Senator do not have as much time to mingle around with their constituencies in their respective home bases as the candidates for the House. I also grant the proposition that the candidates for the Senate go around the country in their efforts to win the votes of all the members of the electorate at a lesser time than that given to the candidates for the House of Representatives. But then the lesson of the last 14 years has made us mature in our political thinking and has given us political will and self-determination. We really cannot disassociate the fact that the Congressman, the Member of the House of Representatives, no matter how national he would like to think, is very much strongly drawn into the problems of his local constituents in his own district. Due to the maturity of the Filipinos for the last 14 years and because of the emergence of people power, I believe that this so-called people power can be used to monitor not only the Members of the House of Representatives but also the Members of the Senate. As I said we may have probably adopted the American formula in the beginning but over these years, I think we have developed that kind of a system and adopted it to our own needs. So at this point in time, with people power working, it is not only the Members of the House who can be subjected to people power but also the Members of the Senate because they can also be picketed and criticized through written articles and talk shows. And even the people not only from their constituencies in their respective regions and districts but from the whole country can exercise people power against the Members of the Senate because they are supposed to represent the entire country. So while the Members of Congress become unconsciously parochial in their desire to help their constituencies, the Members of the Senate are there to take a look at all of these parochial proposals and coordinate them with the national problems. They may be detached in that sense but they are not detached from the people because they themselves know and realize that they owe their position not only to the people from their respective provinces but also to the

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people from the whole country. So, I say that people power now will be able to monitor the activities of the Members of the House of Representatives and that very same people power can be also used to monitor the activities of the Members of the Senate.11 Commissioner Bengzon provided an illustration of the fundamental distinction between the House of Representatives and the Senate, particularly regarding their respective constituencies and electorate. These differences, however, only illustrate that the work of the Senate and the House of Representatives taken together results in a Congress functioning as one branch of government. Article VI, Section 1, as approved by the Commission, spoke of one Congress whose powers are vested in both the House of Representatives and the Senate. Thus, when the Constitution provides that a "representative of Congress" should participate in the Judicial and Bar Council, it cannot mean a Senator carrying out the instructions of the House or a Member of the House of Representative carrying out instructions from the Senate. It is not the kind of a single Congress contemplated by our Constitution. The opinion therefore that a Senator or a Member of the House of Representative may represent the Congress as a whole is contrary to the intent of the Constitution. It is unworkable. One mechanism used in the past to work out the consequence of the majoritys opinion is to allow a Senator and a Member of the House of Representative to sit in the Judicial and Bar Council but to each allow them only half a vote. Within the Judicial and Bar Council, the Chief Justice is entitled to one vote. The Secretary of Justice is also entitled to one whole vote and so are the Integrated Bar of the Philippines, the private sector, legal academia, and retired justices. Each of these sectors are given equal importance and rewarded with one whole vote. However, in this view, the Senate is only worth fifty percent of the wisdom of these sectors. Likewise, the wisdom of the House of Representatives is only worth fifty percent of these institutions. This is constitutionally abominable. It is inconceivable that our people, in ratifying the Constitution granting awesome powers to Congress, intended to diminish its component parts. After all, they are institutions composed of people who have submitted themselves to the electorate. In creating shortlists of possible candidates to the judiciary, we can safely suppose that their input is not less than the input of the professor of law or the member of the Integrated Bar of the Philippines or the member from the private sector. The other solution done in the past was to alternate the seat between a Senator and a Member of the House of Representatives. To alternate the seat given to Congress between the Senate and the House of Representatives would mean not giving a seat to the Congress at all. Again, when a Senator is seated, he or she represents the Senate and not Congress as a whole. When a Member of the House of Representative is seated, he or she can only represent Congress as a whole. Thus, alternating the seat not only diminishes congressional representation; it negates it. Constitutional Interpretation The argument that swayed the majority in this cases original decision was that if those who crafted our Constitution intended that there be two representatives from Congress, it would not have used the preposition "a" in Article VIII, Section 8 (1). However, beyond the number of representatives, the Constitution intends that in the Judicial and Bar Council, there will be representation from Congress and that it will be "ex officio", i.e., by virtue of their positions or offices. We note that the provision did not provide for a number of members to the Judicial and Bar Council. This is unlike the provisions creating many other bodies in the Constitution.12 In other words, we could privilege or start our interpretation only from the preposition "a" and from there provide a meaning that ensures a difficult and unworkable result -- one which undermines the concept of a bicameral congress implied in all the other 114 other places in the Constitution that uses the word "Congress". Or, we could give the provision a reasonable interpretation that is within the expectations of the people who ratified the Constitution by also seeing and reading the words "representative of Congress" and "ex officio." This proposed interpretation does not violate the basic tenet regarding the authoritativeness of the text of the Constitution. It does not detract from the text. It follows the canonical requirement of verba legis. But in doing so, we encounter an ambiguity. In Macalintal v. Presidential Electoral Tribunal, 13 we said: As the Constitution is not primarily a lawyers document, it being essential for the rule of law to obtain that it should ever be present in the peoples consciousness, its language as much as possible should be understood in the sense they have in common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on the postulate that the framers and the people mean what they say. Thus these are cases where the need for construction is reduced to a minimum. However, where there is ambiguity or doubt, the words of the Constitution should be interpreted in accordance with the intent of its framers or ratio legis et anima. A doubtful provision must be examined in light of the history of the times, and the condition and circumstances surrounding the framing of the Constitution. In following this guideline, courts should bear in mind the object sought to be accomplished in adopting a doubtful constitutional provision, and the evils sought to be prevented or remedied. Consequently, the intent of the framers and the people ratifying the constitution, and not the panderings of self-indulgent men, should be given effect. Last, ut magis valeat quam pereat the Constitution is to be interpreted as a whole. We intoned thus in the landmark case of Civil Liberties Union v. Executive Secretary:

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It is a well-established rule in constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together. In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every word operative, rather than one which may make the words idle and nugatory . And in Civil Liberties Union v. Executive Secretary,13 we said: A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. The authoritativeness of text is no excuse to provide an unworkable result or one which undermines the intended structure of government provided in the Constitution. Text is authoritative, but it is not exhaustive of the entire universe of meaning. There is no compelling reason why we should blind ourselves as to the meaning of "representative of Congress" and "ex officio." There is no compelling reason why there should only be one representative of a bicameral Congress. Proposed Reasons for Only One Representative of Congress The first reason to support the need for only one representative of Congress is the belief that there needs to be an odd number in the Judicial and Bar Council. This is true only if the decision of the constitutional organ in question is a dichotomous one, i.e., a yes or a no. It is in this sense that a tie-breaker will be necessary. However, the Judicial and Bar Council is not that sort of a constitutional organ. Its duty is to provide the President with a shortlist of candidates to every judicial position. We take judicial notice that for vacancies, each member of the Judicial and Bar Council is asked to list at least three (3) names. All these votes are tallied and those who garner a specific plurality are thus put on the list and transmitted to the President. There had been no occasion when the Judicial and Bar Council ever needed to break a tie. The Judicial and Bar Councils functions proceed regardless of whether they have seven or eight members. The second reason that the main opinion accepted as persuasive was the opinion that Congress does not discharge its function to check and balance the power of both the Judiciary and the Executive in the Judicial and Bar Council. From this premise, it then proceeds to argue that the Representative of Congress, who is ex officio, does not need to consult with Congress as a whole. This is very perplexing and difficult to accept. By virtue of the fundamental premise of separation of powers, the appointing power in the judiciary should be done by the Supreme Court. However, for judicial positions, this is vested in the Executive. Furthermore, because of the importance of these appointments, the Presidents discretion is limited to a shortlist submitted to him by the Judicial and Bar Council which is under the supervision of the Supreme Court but composed of several components. The Judicial and Bar Council represents the constituents affected by judicial appointments and by extension, judicial decisions. It provides for those who have some function vis a vis the law that should be applied and interpreted by our courts. Hence, represented are practicing lawyers (Integrated Bar of the Philippines), prosecutors (Secretary of the Department of Justice), legal academia (professor of law), and judges or justices (retired justice and the Chief Justice). Also represented in some way are those that will be affected by the interpretation directly (private sector representative). Congress is represented for many reasons. One, it crafts statutes and to that extent may want to ensure that those who are appointed to the judiciary are familiar with these statutes and will have the competence, integrity, and independence to read its meaning. Two, the power of judicial review vests our courts with the ability to nullify their acts. Congress, therefore, has an interest in the judicial philosophy of those considered for appointment into our judiciary. Three, Congress is a political organ. As such, it is familiar with the biases of our political leaders including that of the President. Thus, it will have greater sensitivity to the necessity for political accommodations if there be any. Keeping in mind the independence required of our judges and justices, the Members of Congress may be able to appreciate the kind of balance that will be necessary -- the same balance that the President might be able to likewise appreciate -- when putting a person in the shortlist of judicial candidates. Not only do they appreciate this balance, they embody it. Senators and Members of the House of Representatives (unlike any of the other members of the Judicial and Bar Council), periodically submit themselves to the electorate. It is for these reasons that the Congressional representatives in the Judicial and Bar Council may be instructed by their respective chambers to consider some principles and directions. Through resolutions or actions by the Congressional Committees they represent, the JBC Congressional representatives

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choices may be constrained. Therefore, they do not sit there just to represent themselves. Again, they are "representatives of Congress" "ex officio". The third reason to support only one representative of Congress is the belief that there is the "unmistakable tenor" in the provision in question that one co-equal branch should be represented only by one Representative.14 It may be true that the Secretary of Justice is the political alter ego of the President or the Executive. However, Congress as a whole does not have a political alter ego. In other words, while the Executive may be represented by a single individual, Congress cannot be represented by an individual. Congress, as stated earlier, operates through the Senate and the House of Representatives. Unlike the Executive, the Legislative branch cannot be represented by only one individual. A Note on the Work of the Constitutional Commission Time and again, we have clarified the interpretative value to Us of the deliberations of the Constitutional Commission. Thus in Civil Liberties Union v. Executive Secretary, we emphasized: While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the constitutional convention are of value as showing the views of the individual members, and as indicating the reason for their votes, but they give Us no light as to the views of the large majority who did not talk, much less of the mass or our fellow citizens whose votes at the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears upon its face. The proper interpretation therefore depends more on how it was understood by the people adopting it than in the framers understanding thereof.15 (Emphasis provided) Also worth Our recall is the celebrated comment of Charles P. Curtis, Jr. on the role of history in constitutional exegesis:16 The intention of the framers of the Constitution, even assuming we could discover what it was, when it is not adequately expressed in the Constitution, that is to say, what they meant when they did not say it, surely that has no binding force upon us . If we look behind or beyond what they set down in the document, prying into what else they wrote and what they said, anything we may find is only advisory. They may sit in at our councils. There is no reason why we should eavesdrop on theirs.17 (Emphasis provided) In addition to the interpretative value of the discussion in the Constitutional Commission, we should always be careful when we quote from their records without understanding their context. The Committees of the Constitutional Commission were all tasked to finish their reports not later than July 7, 1986.18 The Second and Third Readings were scheduled to finish not later than August 15, 1986.19 The members of the Sponsorship and Style Committee were tasked to finish their work of formulating and polishing the style of the final draft of the new Constitution scheduled for submission to the entire membership of the Commission not later than August 25, 1986. 20 The Rules of the Constitutional Commission also provided for a process of approving resolutions and amendments. Constitutional proposals were embodied in resolutions signed by the author.21 If they emanated from a committee, the resolution was signed by its chairman. 22 Resolutions were filed with the SecretaryGeneral.23 The First Reading took place when the titles of the resolutions were read and referred to the appropriate committee.24 The Committees then submitted a Report on each resolution. 25 The Steering Committee took charge of including the committee report in the Calendar for Second Reading. 26 The Second Reading took place on the day set for the consideration of a resolution. 27 The provisions were read in full with the amendments proposed by the committee, if there were any.28 A motion to close debate took place after three speeches for and two against, or if only one speech has been raised and none against it. 29 The President of the Constitutional Commission had the prerogative to allow debates among those who had indicated that they intended to be heard on certain matters.30 After the close of the debate, the Constitutional Commission proceeded to consider the Committee amendments.31 After a resolution was approved on Second Reading, it was included in the Calendar for Third Reading.32 Neither further debate nor amendment shall be made on the resolution on its Third Reading.33 All constitutional proposals approved by the Commission after Third Reading were referred to the Committees on Sponsorship and Style for collation, organization, and consolidation into a complete and final draft of the Constitution. 34 The final draft was submitted to the Commission for the sole purpose of determining whether it reflects faithfully and accurately the proposals as approved on Second Reading.35 With respect to the provision which is now Article VIII, Section 8 (1), the timetable was as follows: On July 10, 1986, the Committee on the Judiciary presented its Report to the Commission. 36 Deliberations then took place on the same day; on July 11, 1986; and on July 14, 1986. It was on July 10 that Commissioner Rodrigo raised points regarding the Judicial and Bar Council. 37 The discussion spoke of the Judicial and Bar Council having seven members. Numerous mentions of the Judicial and Bar Council being comprised of seven members were also made by Commissioners on July 14, 1986. On the same day, the amended article was approved by unanimous voting.38 On July 19, 1986, the vote on Third Reading on the Article on the Judiciary took place. 39 The vote was 43 and none against.40

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Committee Report No. 22 proposing an article on a National Assembly was reported out by July 21, 1986.41 It provided for a unicameral assembly. Commissioner Hilario Davide, Jr., made the presentation and stated that they had a very difficult decision to make regarding bicameralism and unicameralism.42 The debate occupied the Commission for the whole day. Then, a vote on the structure of Congress took place. 43 Forty four (44) commissioners cast their votes during the roll call.44 The vote was 23 to 22.45 On October 8, 1986, the Article on the Judiciary was reopened for purposes of introducing amendments to the proposed Sections 3, 7, 10, 11, 13, and 14.46 On October 9, 1986, the entire Article on the Legislature was approved on Third Reading. 47 By October 10, 1986, changes in style on the Article on the Legislature were introduced. 48 On October 15, 1986, Commissioner Guingona presented the 1986 Constitution to the President of the Constitutional Commission, Cecilia Munoz-Palma.49 It is apparent that the Constitutional Commission either through the Style and Sponsorship Committee or the Committees on the Legislature and the Judiciary was not able to amend the provision concerning the Judicial and Bar Council after the Commission had decided to propose a bicameral Congress. We can take judicial notice of the chronology of events during the deliberations of the Constitutional Commission. The chronology should be taken as much as the substance of discussions exchanged between the Commissioners. The quotations from the Commissioners mentioned in the main opinion and in the proposed resolution of the present Motion for Reconsideration should thus be appreciated in its proper context. The interpellation involving Commissioners Rodrigo and Concepcion took place on July 10, 1986 and on July 14, 1986.50 These discussions were about Committee Report No. 18 on the Judiciary. Thus: MR. RODRIGO: Let me go to another point then. On page 2, Section 5, there is a novel provision about appointments of members of the Supreme Court and of judges of lower courts. At present it is the President who appoints them. If there is a Commission on Appointments, then it is the President with the confirmation of the Commission on Appointments. In this proposal, we would like to establish a new office, a sort of a board composed of seven members, called the Judicial and Bar Council. And while the President will still appoint the members of the judiciary, he will be limited to the recommendees of this Council. MR. RODRIGO: Of the seven members of the Judicial and Bar Council, the President appoints four of them who are the regular members. x x x x MR. CONCEPCION: The only purpose of the Committee is to eliminate partisan politics. 51 x x x x On July 14, 1986, the Commission proceeded with the Period of Amendments. This was when the exchange noted in the main opinion took place. Thus: MR. RODRIGO: If my amendment is approved, then the provision will be exactly the same as the provision in the 1935 Constitution, Article VIII, Section 5. x x x x If we do not remove the proposed amendment on the creation of the Judicial and Bar Council, this will be a diminution of the appointing power of the highest magistrate of the land, of the President of the Philippines elected by all the Filipino people. The appointing power will be limited by a group of seven people who are not elected by the people but only appointed. Mr. Presiding Officer, if this Council is created, there will be no uniformity in our constitutional provisions on appointments. The members of the Judiciary will be segregated from the rest of the government. Even a municipal judge cannot be appointed by the President except upon recommendation or nomination of three names by this committee of seven people, commissioners of the Commission on Elections, the COA and Commission on Civil Service x x x even ambassadors, generals of the Army will not come under this restriction. Why are we going to segregate the Judiciary from the rest of our government in the appointment of the high-ranking officials? Another reason is that this Council will be ineffective. It will just besmirch the honor of our President without being effective at all because this Council will be under the influence of the President. Four out of seven are appointees of the President, and they can be reappointed when their term ends. Therefore, they would kowtow to the President. A fifth member is the Minister of Justice, an alter ego of the President. Another member represents the legislature. In all probability, the controlling party in the legislature belongs to the President and, therefore, this representative from the National Assembly is also under the influence of the President. And may I say, Mr. Presiding Officer, that even the Chief Justice of the Supreme Court is an appointee of the President. So, it is futile; he will be influenced anyway by the President.53 It must also be noted that during the same day and in the same discussion, both Commissioners Rodrigo and Concepcion later on referred to a National Assembly and not a Congress, as can be seen here: MR. RODRIGO: Another point. Under our present Constitution, the National Assembly may enact rules of court, is that right? On page 4, the proviso on lines 17 to 19 of the Article on the Judiciary provides: The National Assembly may repeal, alter, or supplement the said rules with the advice and concurrence of the Supreme Court. MR. CONCEPCION: Yes. MR. RODRIGO: So, two things are required of the National Assembly before it can repeal, alter or supplement the rules concerning the protection and enforcement of constitutional rights, pleading, etc. it must have the advice and concurrence of the Supreme Court. MR. CONCEPCION: That is correct.52

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It must again be noted that during this day and period of amendments after the quoted passage in the Decision, the Commission later on made use of the term National Assembly and not Congress again: MR. MAAMBONG: Presiding Officer and members of the Committee, I propose to delete the last sentence on Section 16, lines 28 to 30 which reads: "The Chief Justice shall address the National Assembly at the opening of each regular session." May I explain that I have gone over the operations of other deliberative assemblies in some parts of the world, and I noticed that it is only the Chief Executive or head of state who addresses the National Assembly at its opening. When we say "opening," we are referring to the first convening of any national assembly. Hence, when the Chief Executive or head of state addresses the National Assembly on that occasion, no other speaker is allowed to address the body. So I move for the deletion of this last sentence.54 Based on the chronology of events, the discussions cited by the main ponencia took place when the commissioners were still contemplating a unicameral legislature in the course of this discussion. Necessarily, only one Representative would be needed to fully effect the participation of a unicameral legislature. Therefore, any mention of the composition of the JBC having seven members in the records of the Constitutional Commission, particularly during the dates cited, was obviously within the context that the Commission had not yet voted and agreed upon a bicameral legislature. The composition of the Congress as a bilateral legislature became final only after the JBC discussions as a seven-member Council indicated in the Records of the Constitutional Commission took place. This puts into the proper context the recognition by Commissioner Christian Monsod on July 30, 1986, which runs as follows: Last week, we voted for a bicameral legislature. Perhaps it is symptomatic of what the thinking of this group is, that all the provisions that were being drafted up to that time assumed a unicameral government.55 The repeated mentions of the JBC having seven members as indicated in the Records of the Constitutional Commission do not justify the points raised by petitioner. This is a situation where the records of the Constitutional Commission do not serve even as persuasive means to ascertain intent at least in so far as the intended numbers for the Judicial and Bar Council. Certainly they are not relevant even to advise us on how Congress is to be represented in that constitutional organ. We should never forget that when we interpret the Constitution, we do so with full appreciation of every part of the text within an entire document understood by the people as they ratified it and with all its contemporary consequences. As an eminent author in constitutional theory has observed while going through the various interpretative modes presented in jurisprudence: "x x x all of the methodologies that will be discussed, properly understood, figure in constitutional analysis as opportunities: as starting points, constituent parts of complex arguments, or concluding evocations." 56 Discerning that there should be a Senator and a Member of the House of Representatives that sit in the Judicial and Bar Council so that Congress can be fully represented ex officio is not judicial activism. It is in keeping with the constitutional project of a bicameral Congress that is effective whenever and wherever it is represented. It is in tune with how our people understand Congress as described in the fundamental law. It is consistent with our duty to read the authoritative text of the Constitution so that ordinary people who seek to understand this most basic law through Our decisions would understand that beyond a single isolated text -- even beyond a prepos1t10n in Article VIII, Section 8 (1 ), our primordial values and principles are framed, congealed and will be given full effect. In a sense, we do not just read words in a legal document; we give meaning to a Constitution. For these reasons, I vote to grant the Motion for Reconsideration and deny the Petition for lack of merit.

G.R. No. 200242 JULY 17, 2012 CHIEF JUSTICE RENA TO C. CORONA, Petitioner, vs. SENATE OF THE PHILIPPINES sitting as an IMPEACHMENT COURT, BANK OF THE PHILIPPINE ISLANDS, PHILIPPINE SAVINGS BANK, ARLENE "KAKA" BAG-AO, GIORGIDI AGGABAO, MARILYN PRIMICIASAGABAS, NIEL TUPAS, RODOLFO FARINAS, SHERWIN TUGNA, RAUL DAZA, ELPIDIO BARZAGA, REYNALDO UMALI, NERI COLMENARES (ALSO KNOWN AS THE PROSECUTORS FROM THE HOUSE OF REPRESENTATIVES), Respondents. VILLARAMA, JR., J.: Before this Court is a petition for certiorari and prohibition with prayer for immediate issuance of temporary restraining order (TRO) and writ of preliminary injunction filed by the former Chief Justice of this Court, Renato C. Corona, assailing the impeachment case initiated by the respondent Members of the House of Representatives (HOR) and trial being conducted by respondent Senate of the Philippines. On December 12, 2011, a caucus was held by the majority bloc of the HOR during which a verified complaint for impeachment against petitioner was submitted by the leadership of the Committee on Justice. After a brief presentation, on the same day, the complaint was voted in session and 188 Members signed and endorsed it, way above the one-third vote required by the Constitution. On December 13, 2011, the complaint was transmitted to the Senate which convened as an impeachment court the following day, December 14, 2011. On December 15, 2011, petitioner received a copy of the complaint charging him with culpable violation of the Constitution, betrayal of public trust and graft and corruption, allegedly committed as follows: ARTICLE I RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS TRACK RECORD MARKED BY PARTIALITY AND SUBSERVIENCE IN CASES INVOLVING THE ARROYO ADMINISTRATION

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FROM THE TIME OF HIS APPOINTMENT AS SUPREME COURT JUSTICE AND UNTIL HIS DUBIOUS APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE TO THE PRESENT. ARTICLE II RESPONDENT COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS STATEMENT OF Resolution 3 G.R. No. 200242 ASSETS, LIABILITIES AND NET WORTH AS REQUIRED UNDER SEC. 17, ART. XI OF THE 1987 CONSTITUTION. 2.1. It is provided for in Art. XI, Section 17 of the 1987 Constitution that a public officer or employee shall, upon assumption of office and as often thereafter as may be required by law, submit a declaration under oath of his assets, liabilities, and net worth. In the case of the President, the VicePresident, the Members of the Cabinet, and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law. 2.2. Respondent failed to disclose to the public his statement of assets, liabilities, and net worth as required by the Constitution. 2.3. It is also reported that some of the properties of Respondent are not included in his declaration of his assets, liabilities, and net worth, in violation of the anti-graft and corrupt practices act. 2.4. Respondent is likewise suspected and accused of having accumulated ill-gotten wealth, acquiring assets of high values and keeping bank accounts with huge deposits. It has been reported that Respondent has, among others, a 300-sq. meter apartment in a posh Mega World Property development at the Fort in Taguig. Has he reported this, as he is constitutionally-required under Art. XI, Sec. 17 of the Constitution in his Statement of Assets and Liabilities and Net Worth (SALN)? Is this acquisition sustained and duly supported by his income as a public official? Since his assumption as Associate and subsequently, Chief Justice, has he complied with this duty of public disclosure? ARTICLE III RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST BY FAILING TO MEET AND OBSERVE THE STRINGENT STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE CONSTITUTION THAT PROVIDES THAT [A] MEMBER OF THE JUDICIARY MUST BE A PERSON OF PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE IN ALLOWING THE SUPREME COURT TO ACT ON MERE LETTERS FILED BY A COUNSEL WHICH CAUSED THE ISSUANCE OF FLIP-FLOPPING DECISIONS IN FINAL AND EXECUTORY CASES; IN CREATING AN EXCESSIVE ENTANGLEMENT WITH MRS. ARROYO THROUGH HER APPOINTMENT OF HIS WIFE TO OFFICE; AND IN DISCUSSING WITH LITIGANTS REGARDING CASES PENDING BEFORE THE SUPREME COURT. ARTICLE IV RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION WHEN HE BLATANTLY DISREGARDED THE PRINCIPLE OF SEPARATION OF POWERS BY ISSUING A STATUS QUO ANTE ORDER AGAINST THE HOUSE OF REPRESENTATIVES IN THE CASE CONCERNING THE IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS NAVARRO-GUTIERREZ. Resolution 4 G.R. No. 200242 ARTICLE V RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH WANTON ARBITRARINESS AND PARTIALITY IN CONSISTENTLY DISREGARDING THE PRINCIPLE OF RES JUDICATA IN THE CASES INVOLVING THE 16 NEWLY-CREATED CITIES, AND THE PROMOTION OF DINAGAT ISLAND INTO A PROVINCE. ARTICLE VI RESPONDENT BETRAYED THE PUBLIC TRUST BY ARROGATING UNTO HIMSELF, AND TO A COMMITTEE HE CREATED, THE AUTHORITY AND JURISDICTION TO IMPROPERLY INVESTIGATE A JUSTICE OF THE SUPREME COURT FOR THE PURPOSE OF EXCULPATING HIM. SUCH AUTHORITY AND JURISDICTION IS PROPERLY REPOSED BY THE CONSTITUTION IN THE HOUSE OF REPRESENTATIVES VIA IMPEACHMENT. ARTICLE VII RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING ORDER (TRO) IN FAVOR OF FORMER PRESIDENT GLORIA MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL ARROYO IN ORDER TO GIVE THEM AN OPPORTUNITY TO ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF JUSTICE, AND IN DISTORTING THE SUPREME COURT DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF THE SUPREME COURTS OWN TRO. ARTICLE VIII RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED AND REFUSED TO ACCOUNT FOR THE JUDICIARY DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE FOR THE JUDICIARY (SAJ) COLLECTIONS.1 On December 26, 2011, petitioner filed his Answer2 assailing the blitzkrieg fashion by which the impeachment complaint was signed by the Members of the HOR and immediately transmitted to the Senate. Citing previous instances when President Aquino openly expressed his rejection of petitioners appointment as Chief Justice and publicly attacked this Court under the leadership of petitioner for derailing his administrations mandate, petitioner concluded that the move to impeach him was the handiwork of President Aquinos party mates and supporters, including hidden forces who will be benefited by his ouster. As to the charges against him, petitioner denied the same but admitted having once served the Offices of the President and Vice-President during the term of former President Gloria Macapagal-Arroyo and granted the request for courtesy call only to Mr. Dante Jimenez of the

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Volunteers Against Crime and Corruption (VACC) while Mr. Lauro Vizconde appeared with Mr. Jimenez without prior permission or invitation. Petitioner argued at length that the acts, misdeeds or offenses imputed to him were either false or baseless, and otherwise not illegal nor improper. He prayed for the outright dismissal of the complaint for failing to meet the requirements of the Constitution or that the Impeachment Court enter a judgment of acquittal for all the articles of impeachment. Meanwhile, the prosecution panel composed of respondent Representatives held a press conference revealing evidence which supposedly support their accusations against petitioner. The following day, newspapers carried front page reports of high-priced condominium units and other real properties in Fort Bonifacio, Taguig and Quezon City allegedly owned by petitioner, as disclosed by prosecutors led by respondent Rep. Niel C. Tupas, Jr. The prosecution told the media that it is possible that these properties were not included by petitioner in his Statement of Assets, Liabilities and Net Worth (SALN) which had not been made available to the public. Reacting to this media campaign, Senators scolded the prosecutors reminding them that under the Senate Rules of Procedure on Impeachment Trials3 they are not allowed to make any public disclosure or comment regarding the merits of a pending impeachment case.4 By this time, five petitions have already been filed with this Court by different individuals seeking to enjoin the impeachment trial on grounds of improperly verified complaint and lack of due process. On January 16, 2012, respondent Senate of the Philippines acting as an Impeachment Court, commenced trial proceedings against the petitioner. Rule XVIII. Philippine Daily Inquirer, January 5, 2012, Vol. 27, No. 28. Resolution 6 G.R. No. 200242 Petitioners motion for a preliminary hearing was denied. On January 18, 2012, Atty. Enriqueta E. Vidal, Clerk of Court of this Court, in compliance with a subpoena issued by the Impeachment Court, took the witness stand and submitted the SALNs of petitioner for the years 2002 to 2010. Other prosecution witnesses also testified regarding petitioners SALNs for the previous years (Marianito Dimaandal, Records Custodian of Malacaang Palace, Atty. Randy A. Rutaquio, Register of Deeds of Taguig and Atty. Carlo V. Alcantara, Acting Register of Deeds of Quezon City). In compliance with the directive of the Impeachment Court, the prosecution and defense submitted their respective memoranda on the question of whether the prosecution may present evidence to prove the allegations in paragraphs 2.3 (failure to report some properties in SALN) and 2.4 (acquisition of illgotten wealth and failure to disclose in SALN such bank accounts with huge deposits and 300-sq.m. Megaworld property at the Fort in Taguig) under Article II (par. 2.2. refers to petitioners alleged failure to disclose to the public his SALN as required by the Constitution). On January 27, 2012, the Impeachment Court issued a Resolution5 which states: IN SUM, THEREFORE, this Court resolves and accordingly rules: 1. To allow the Prosecution to introduce evidence in support of Paragraphs 2.2 and 2.3 of Article II of the Articles of Impeachment; 2. To disallow the introduction of evidence in support of Par. 2.4 of the Articles of Impeachment, with respect to which, this Court shall be guided by and shall rely upon the legal presumptions on the nature of any property or asset which may be proven to belong to the Respondent Chief Justice as provided under Section 8 of Republic Act No. 3019 and Section 2 of Republic Act No. 1379. SO ORDERED.6 In a subsequent Resolution7 dated February 6, 2012, the Impeachment Court granted the prosecutions request for subpoena directed to the officers of two private banks where petitioner allegedly deposited millions in peso and dollar currencies, as follows: WHEREFORE, IN VIEW OF THE FOREGOING, the majority votes to grant the Prosecutions Requests for Subpoenae to the responsible officers of Philippine Savings Bank (PSBank) and Bank of the Philippine Island (BPI), for them to testify and bring and/or produce before the Court documents on the alleged bank accounts of Chief Justice Corona, only for the purpose of the instant impeachment proceedings, as follows: a) The Branch Manager of the Bank of Philippine Islands, Ayala Avenue Branch, 6th Floor, SGV Building, 6758 Ayala Avenue, Makati City, is commanded to bring before the Senate at 2:00 p.m. on February 8, 2012, the original and certified true copies of the account opening forms/documents for Bank Account no. 1445-8030-61 in the name of Renato C. Corona and the bank statements showing the balances of the said account as of December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010. b) The Branch Manager (and/or authorized representative) of Philippine Savings Bank, Katipunan Branch, Katipunan Avenue, Loyola Heights, Quezon City, is commanded to bring before the Senate at 2:00 p.m. on February 8, 2012, the original and certified true copies of the account opening forms/documents for the following bank accounts allegedly in the name of Renato C. Corona, and the documents showing the balances of the said accounts as of December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010: 089-19100037-3 089-13100282-6 089-121017358 089-121019593 089-121020122 089-121021681 089-141-00712-9 089-141-00746-9 089-14100814-5 089-121-01195-7 SO ORDERED.8

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On February 8, 2012, PSBank filed a petition for certiorari and prohibition (G.R. No. 200238) seeking to enjoin the Impeachment Court and the HOR prosecutors from implementing the aforesaid subpoena requiring PSBank thru its authorized representative to testify and to bring the original and certified true copies of the opening documents for petitioners alleged foreign currency accounts, and thereafter to render judgment nullifying the subpoenas including the bank statements showing the year-end balances for the said accounts. On the same day, the present petition was filed arguing that the Impeachment Court committed grave abuse of discretion amounting to lack or excess of jurisdiction when it: (1) proceeded to trial on the basis of the complaint filed by respondent Representatives which complaint is constitutionally infirm and defective for lack of probable cause; (2) did not strike out the charges discussed in Art. II of the complaint which, aside from being a hodge-podge of multiple charges, do not constitute allegations in law, much less ultimate facts, being all premised on suspicion and/or hearsay; assuming arguendo that the retention of Par. 2.3 is correct, the ruling of the Impeachment Court to retain Par. 2.3 effectively allows the introduction of evidence under Par. 2.3, as vehicle to prove Par. 2.4 and therefore its earlier resolution was nothing more than a hollow relief, bringing no real protection to petitioner; (3) allowed the presentation of evidence on charges of alleged corruption and unexplained wealth which violates petitioners right to due process because first, Art. II does not mention graft and corruption or unlawfully acquired wealth as grounds for impeachment, and second, it is clear under Sec. 2, Art. XI of the Constitution that graft and corruption is a separate and distinct ground from culpable violation of the Constitution and betrayal of public trust; and (4) issued the subpoena for the production of petitioners alleged bank accounts as requested by the prosecution despite the same being the result of an illegal act (fruit of the poisonous tree) considering that those documents submitted by the prosecution violates the absolute confidentiality of such accounts under Sec. 8 of R.A. No. 6426 (Foreign Currency Deposits Act) which is also penalized under Sec. 10 thereof. Petitioner thus prayed for the following reliefs: (a) Immediately upon filing of this Petition, issue a temporary restraining order or a writ of preliminary injunction enjoining: (i) the proceedings before the Impeachment Court; (ii) implementation of Resolution 9 G.R. No. 200242 Resolution dated 6 February 2012; (iii) the officers or representatives of BPI and PSBank from testifying and submitting documents on petitioners or his familys bank accounts; and (iv) the presentation, reception and admission of evidence on paragraphs 2.3 and 2.4 of the Impeachment Complaint; (b) After giving due course to the Petition, render judgment: (i) Declaring the Impeachment Complaint null and void ab initio; (ii) Prohibiting the presentation, reception and admission of evidence on paragraphs 2.3 and 2.4 of the Impeachment Complaint; (iii) Annulling the Impeachment Courts Resolution dated 27 January 2012 and 6 February 2011 [sic], as well as any Subpoenae issued pursuant thereto; and (iv) Making the TRO and/or writ of preliminary injunction permanent. Other reliefs, just or equitable, are likewise prayed for.9 Petitioner also sought the inhibition of Justices Antonio T. Carpio and Maria Lourdes P. A. Sereno on the ground of partiality, citing their publicly known animosity towards petitioner aside from the fact that they have been openly touted as the likely replacements in the event that petitioner is removed from office.10 On February 9, 2012, this Court issued a TRO in G.R. No. 200238 enjoining the Senate from implementing the Resolution and subpoena ad testificandum et duces tecum issued by the Senate sitting as an Impeachment Court, both dated February 6, 2012. The Court further resolved to deny petitioners motion for the inhibition of Justices Carpio and Sereno in the absence of any applicable compulsory ground and of any voluntary inhibition from the Justices concerned. On February 13, 2012, petitioner filed a Supplemental Petition11claiming that his right to due process is being violated in the ongoing impeachment proceedings because certain Senator-Judges have lost the cold neutrality of impartial judges by acting as prosecutors. Petitioner particularly mentioned Senator-Judge Franklin S. Drilon, whose inhibition he had sought from the Impeachment Court, to no avail. He further called attention to the fact that despite the Impeachment Courts January 27, 2012 Resolution which disallowed the introduction of evidence in support of paragraph 2.4 of Article II, from which no motion for reconsideration would be entertained, the allies of President Aquino in the Senate abused their authority and continued their presentation of evidence for the prosecution, without fear of objection. In view of the persistent efforts of President Aquinos Senator-allies to overturn the ruling of Presiding Officer Juan Ponce Enrile that the prosecution could not present evidence on paragraph 2.4 of Article II -- for which President Aquino even thanked his senator allies in delivering what the prosecution could not-- petitioner reiterates the reliefs prayed for in his petition before this Court. In the Comment Ad Cautelam Ex Superabundanti12 filed on behalf of the respondents, the Solicitor General argues that the instant petition raises matters purely political in character which may be decided or resolved only by the Senate and HOR, with the manifestation that the comment is being filed by the respondents without submitting themselves to the jurisdiction of the Honorable Supreme Court and without conceding the constitutional and exclusive power of the House to initiate all cases of impeachment and of the Senate to try and decide all cases of impeachment. Citing the case of Nixon v. United States, respondents contend that to allow a public official being impeached to raise before this Court any and all issues relative to the substance of the impeachment complaint would result in an unnecessarily long and tedious process that may even go beyond the terms of the SenatorJudges hearing the impeachment case. Such scenario is clearly not what the Constitution intended. Traversing the allegations of the petition, respondents assert that the Impeachment Court did not commit any grave abuse of discretion; it has, in fact, been conducting the proceedings judiciously. Respondents maintain that subjecting the ongoing impeachment trial to judicial review defeats the very essence of impeachment. They contend that the constitutional command of public accountability to petitioner and his obligation to fully disclose his assets, liabilities and net worth prevail over his claim of confidentiality of deposits; hence, the subpoena subject of this case were correctly and judiciously issued. Considering that the ongoing impeachment proceedings, which was initiated and is being conducted in accordance with the Constitution, simply aims to enforce the principle of public

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accountability and ensure that the transgressions of impeachable public officials are corrected, the injury being claimed by petitioner allegedly resulting from the impeachment trial has no factual and legal basis. It is thus prayed that the present petition, as well as petitioners prayer for issuance of a TRO/preliminary injunction, be dismissed. The core issue presented is whether the certiorari jurisdiction of this Court may be invoked to assail matters or incidents arising from impeachment proceedings, and to obtain injunctive relief for alleged violations of right to due process of the person being tried by the Senate sitting as Impeachment Court. Impeachment and Judicial Review Impeachment, described as the most formidable weapon in the arsenal of democracy,14 was foreseen as creating divisions, partialities and enmities, or highlighting pre-existing factions with the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.15 Given their concededly political character, the precise role of the judiciary in impeachment cases is a matter of utmost importance to ensure the effective functioning of the separate branches while preserving the structure of checks and balance in our government. Moreover, in this jurisdiction, the acts of any branch or instrumentality of the government, including those traditionally entrusted to the political departments, are proper subjects of judicial review if tainted with grave abuse or arbitrariness. Impeachment refers to the power of Congress to remove a public official for serious crimes or misconduct as provided in the Constitution. A mechanism designed to check abuse of power, impeachment has its roots in Athens and was adopted in the United States (US) through the influence of English common law on the Framers of the US Constitution. Our own Constitutions provisions on impeachment were adopted from the US Constitution. Petitioner was impeached through the mode provided under Art. XI, par. 4, Sec. 3, in a manner that he claims was accomplished with undue haste and under a complaint which is defective for lack of probable cause. Petitioner likewise assails the Senate in proceeding with the trial under the said complaint, and in the alleged partiality exhibited by some Senator-Judges who were apparently aiding the prosecution during the hearings. On the other hand, respondents contend that the issues raised in the Supplemental Petition regarding the behavior of certain Senator-Judges in the course of the impeachment trial are issues that do not concern, or allege any violation of, the three express and exclusive constitutional limitations on the Senates sole power to try and decide impeachment cases. They argue that unless there is a clear transgression of these constitutional limitations, this Court may not exercise its power of expanded judicial review over the actions of Senator-Judges during the proceedings. By the nature of the functions they discharge when sitting as an Impeachment Court, SenatorJudges are clearly entitled to propound questions on the witnesses, prosecutors and counsel during the trial. Petitioner thus failed to prove any semblance of partiality on the part of any Senator-Judges. But whether the Resolution 13 G.R. No. 200242 Senate Impeachment Rules were followed or not, is a political question that is not within this Courts power of expanded judicial review. In the first impeachment case decided by this Court, Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.16 we ruled that the power of judicial review in this jurisdiction includes the power of review over justiciable issues in impeachment proceedings. Subsequently, in Gutierrez v. House of Representatives Committee on Justice,17 the Court resolved the question of the validity of the simultaneous referral of two impeachment complaints against petitioner Ombudsman which was allegedly a violation of the due process clause and of the one year bar provision. On the basis of these precedents, petitioner asks this Court to determine whether respondents committed a violation of the Constitution or gravely abused its discretion in the exercise of their functions and prerogatives that could translate as lack or excess of jurisdiction, which would require corrective measures from the Court. Mootness In the meantime, the impeachment trial had been concluded with the conviction of petitioner by more than the required majority vote of the Senator-Judges. Petitioner immediately accepted the verdict and without any protest vacated his office. In fact, the Judicial and Bar Council is already in the process of screening applicants and nominees, and the President of the Philippines is expected to appoint a new Chief Justice within the prescribed 90-day period from among those candidates shortlisted by the JBC. Unarguably, the constitutional issue raised by petitioner had been mooted by supervening events and his own acts. An issue or a case becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and value. 18 In such cases, there is no actual substantial relief to which the petitioner would be entitled to and which would be negated by the dismissal of the petition.19 WHEREFORE, the present petition for certiorari and prohibition with prayer for injunctive relief/s is DISMISSED on the ground of MOOTNESS. No pronouncement as to costs. SO ORDERED. G.R. No. 198554 July 30, 2012 MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), Petitioner, vs. THE EXECUTIVE SECRETARY, representing the OFFICE OF THE PRESIDENT; THE SECRETARY OF NATIONAL DEFENSE VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., and LT. GEN. GAUDENCIO S. PANGILINAN, AFP (RET.), DIRECTOR, BUREAU OF CORRECTIONS, Respondents. PERALTA, J.: For resolution of this Court is the Petition for Certiorari dated September 29, 2011 under Rule 65, Section 1 of the Revised Rules of Civil Procedure which seeks to annul and set aside the Confirmation of Sentence dated September 9, 2011, promulgated by the Office of the President. The facts, as culled from the records, are the following:

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On October 13, 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col. Henry A. Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to Quarters1 containing the following: 1. Pursuant to Article of War 70 and the directive of the Acting Chief of Staff, AFP to the undersigned dtd 12 October 2004, you are hereby placed under Restriction to Quarters under guard pending investigation of your case. 2. You are further advised that you are not allowed to leave your quarters without the expressed permission from the Acting Chief of Staff, AFP. 3. In case you need immediate medical attention or required by the circumstance to be confined in a hospital, you shall likewise be under guard. Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court Martial NR 2 presided by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the following violations allegedly committed by petitioner: CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN). SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004, knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net Worth for the year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the following: cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received from AFPSLAI from June 2003 to December 2003 in the amount of one million three hundred sixty-five thousand pesos (P1,365,000.00); dollar peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal Bank, Bank of Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor vehicles registered under his and his wifes names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman. SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003, knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the following: his cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received form AFPSLAI in June 2002 and December 2002 in the total amount of one million four hundred thirty-five thousand pesos (1,435,000.00), dollar and peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor vehicles registered under his and his wifes names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman. SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, while in the active military service of the Armed Forces of the Philippines, knowingly, wrongfully and unlawfully violate his solemn oath as a military officer to uphold the Constitution and serve the people with utmost loyalty by acquiring and holding the status of an immigrant/permanent residence of the UnitedStates of America in violation of the State policy governing public officers, thereby causing dishonor and disrespect to the military professional and seriously compromises his position as an officer and exhibits him as morally unworthy to remain in the honorable profession of arms. CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE). SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004, knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assets in his Statement of Assets and Liabilities and Net worth for the year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military discipline. SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003, knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assts in his Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military discipline. Petitioner, upon arraignment on November 16, 2004, pleaded not guilty on all the charges. The Office of the Chief of Staff, through a Memorandum 2 dated November 18, 2004, directed the transfer of confinement of petitioner from his quarters at Camp General Emilio Aguinaldo to the ISAFP Detention Center. On the same day, petitioner, having reached the age of fifty-six (56), compulsorily retired from military service after availing of the provisions of Presidential Decree (P.D.) No. 1650,3 amending Sections 3 and 5 of P.D. 1638, which establishes a system of retirement for military personnel of the Armed Forces of the Philippines. Pursuant to a Resolution 4 dated June 1, 2005 of the Second Division of the Sandiganbayan, petitioner was transferred from the ISAFP Detention Center to the Camp Crame Custodial Detention Center.

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After trial, at the Special General Court Martial No. 2, on December 2, 2005, the findings or the AfterTrial Report5of the same court was read to the petitioner. The report contains the following verdict and sentence: MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed session upon secret written ballot 2/3 of all the members present at the time the voting was taken concurring the following findings. Finds you: On Specification 1 of Charge 1 Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters Bank and Planters Development Bank. On Specification 2 of Charge 1 Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters Bank and Planters Development Bank. On Specification 3 of Charge 1 Guilty On Specification 1 of Charge 2 Guilty On Specification 2 of Charge 2 Guilty And again in closed session upon secret written ballot 2/3 all the members are present at the time the votes was taken concurrently sentences you to be dishonorably [discharged] from the service, to forfeit all pay and allowances due and to become due and to be confined at hard labor at such place the reviewing authority may direct for a period of two (2) years. So ordered. (Emphases supplied) Afterwards, in a document 6 dated March 27, 2006, the Staff Judge Advocate stated the following recommended action: IV. RECOMMENDED ACTION: The court, after evaluating the evidence, found accused: GUILTY on Charge 1, GUILTY on Specification 1 on Charge 1 except the words dollar deposits with Land Bank of the Philippines, dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; GUILTY on Charge 1, Specification 2 except the words dollar deposits with Land Bank of the Philippines, dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planters Bank and Planter's Development Bank; GUILTY on Specification 3 of Charge 1; GUILTY on Charge 2 and all its specifications. The sentence imposed by the Special GCM is to be dishonorably discharged from the service, to forfeit all pay and allowances due and to become due; and to be confined at hard labor at such place the reviewing authority may direct for a period of two (2) years. As it is, the sentence is proper and legal. Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall be credited in his favor and deducted from the two (2) years to which the accused was sentenced. Thus, confinement will expire on 18 October 2006. Considering that the period left not served is less than one (1) year, confinement at the National Penitentiary is no longer appropriate. 4. To carry this recommendation into effect, a draft "ACTION OF THE REVIEWING AUTHORITY" is hereto attached. In an undated document,7 the AFP Board of Military Review recommended the following action: 8. RECOMMENDED ACTION: A. Only so much of the sentence as provides for the mandatory penalty of dismissal from the military service and forfeiture of pay and allowances due and to become due for the offenses of violation of AW 96 (Conduct Unbecoming an Officer and a Gentleman) and for violation of AW 97 (Conduct Prejudicial to Good Order and Military Discipline) be imposed upon the Accused. B. The records of the instant case should be forwarded to the President thru the Chief of Staff and the Secretary of National Defense, for final review pursuant to AW 47, the Accused herein being a General Officer whose case needs confirmation by the President. C. To effectuate the foregoing, attached for CSAFP's signature/approval is a proposed 1st Indorsement to the President, thru the Secretary of National Defense, recommending approval of the attached prepared "ACTION OF THE PRESIDENT." After six (6) years and two (2) months of preventive confinement, on December 16, 2010, petitioner was released from the Camp Crame Detention Center.8 The Office of the President, or the President as Commander-in-Chief of the AFP and acting as the Confirming Authority under the Articles of War, confirmed the sentence imposed by the Court Martial against petitioner. The Confirmation of Sentence,9 reads in part: NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as Commander-in-Chief of the Armed Forces of the Philippines, do hereby confirm the sentence imposed by the Court Martial in the case of People of the Philippines versus Major General Carlos Flores Garcia AFP: a) To be dishonorable discharged from the service; b) To forfeit all pay and allowances due and to become due; and c) To be confined for a period of two (2) years in a penitentiary. FURTHER, pursuant to the 48th and 49th Articles of War, the sentence on Major General Carlos Flores Garcia AFP shall not be remitted/mitigated by any previous confinement. Major General Carlos Flores Garcia AFP shall serve the foregoing sentence effective on this date. DONE, in the City of Manila, this 9th day of September, in the year of our Lord, Two Thousand and Eleven. Consequently, on September 15, 2011, respondent Secretary of National Defense Voltaire T. Gazmin, issued a Memorandum10 to the Chief of Staff, AFP for strict implementation, the Confirmation of

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Sentence in the Court Martial Case of People of the Philippines Versus Major General Carlos Flores Garcia AFP. On September 16, 2011, petitioner was arrested and detained, and continues to be detained at the National Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City.11 Aggrieved, petitioner filed with this Court the present petition for certiorari and petition for habeas corpus, alternatively. However, this Court, in its Resolution 12 dated October 10, 2011, denied the petition for habeas corpus. Petitioner filed a motion for reconsideration 13 dated November 15, 2011, but was denied14 by this Court on December 12, 2011. Petitioner enumerates the following grounds to support his petition: GROUNDS A. THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED IPSO FACTO UPON THE RETIREMENT OF PETITIONER, FOR WHICH REASON THE OFFICE OF THE PRESIDENT ACTED WITHOUT JURISDICTION IN ISSUING THE CONFIRMATION OF SENTENCE, AND PETITIONER'S ARREST AND CONFINEMENT PURSUANT THERETO IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS. B. EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER REMAINED AMENABLE TO COURT MARTIAL JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF TWO (2) YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS. C. EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE PENALTY OF TWO (2) YEARS CONFINEMENT MAY BE IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL AND FORFEITURE, THE SENTENCE HAD BEEN FULLY SERVED IN VIEW OF PETITIONER'S PREVENTIVE CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE, AND THE OFFICE OF THE PRESIDENT HAS NO AUTHORITY TO REPUDIATE SAID SERVICE OF SENTENCE, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS. 15 In view of the earlier resolution of this Court denying petitioner's petition for habeas corpus, the above grounds are rendered moot and academic. Thus, the only issue in this petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure, which was properly filed with thisCourt, is whether the Office of the President acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in issuing the Confirmation of Sentence dated September 9, 2011. In its Comment16 dated October 27, 2011, the Office of the Solicitor General (OSG) lists the following counter-arguments: IV. V. I. PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT VIOLATES THE DOCTRINE OF HIERARCHY OF COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY DISMISSED. THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER PETITIONER DESPITE HIS RETIREMENT DURING THE PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE SAID TRIBUNAL'S JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO PETITIONER'S RETIREMENT. THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT DIRECTING PETITIONER TO BE CONFINED FOR TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A. NO. 408 AND EXECUTIVE ORDER NO. 178, PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL AUTHORITY AS THE COMMANDER-INCHIEF OF THE AFP. PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE WAS NOT VIOLATED IN THIS CASE. THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS CONFINEMENT ON PETITIONER BY THE GCM, AND AS CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS VALID. ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN ISSUING AND IMPLEMENTING THE CONFIRMATION OF SENTENCE.17

II.

III.

VI.

Petitioner, in his Reply18 dated January 20, 2012, disagreed with the arguments raised by the OSG due to the following: (A) THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN ACT BY THE PRESIDENT, AS THE COMMANDER-IN-CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE BRANCH. THEREFORE, THE HONORABLE COURT IS THE ONLY APPROPRIATE COURT WHERE HIS ACT MAY BE IMPUGNED, AND NOT IN THE LOWER COURTS, I.E., REGIONAL TRIAL COURT ("RTC") OR THE COURT OF APPEALS ("CA"), AS THE OSG ERRONEOUSLY POSTULATES. (B) ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED JURISDICTION "OVER THE PERSON" OF PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED FORCES OF THE PHILIPPINES ('AFP"), HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND OF THE OSG, SEVERED HIS "JURAL RELATIONSHIP" WITH THE MILITARY, THEREBY PLACING HIM BEYOND THE SUBSTANTIVE REACH OF THE AFP'S COURT MARTIAL JURISDICTION. (C) UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S COURT MARTIAL SENTENCE OF TWO (2) YEARS IN CARCERATION HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD ALREADY SUFFERED PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE THE SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT THE PRESIDENT HAD NO MORE JURISDICTION WHEN HE CONFIRMED IT, THEREBY RENDERING THE "CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND, CONSEQUENTLY,

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INVALIDATING THE OSG'S POSITION THAT THE PRESIDENT STILL HAD JURISDICTION WHEN HE CONFIRMED THE SENTENCE.19 Petitioner raises the issue of the jurisdiction of the General Court Martial to try his case. According to him, the said jurisdiction ceased ipso facto upon his compulsory retirement. Thus, he insists that the Office of the President had acted without jurisdiction in issuing the confirmation of his sentence. This Court finds the above argument bereft of merit. Article 2 of the Articles of War20 circumscribes the jurisdiction of military law over persons subject thereto, to wit: Art. 2. Persons Subject to Military Law. - The following persons are subject to these articles and shall be understood as included in the term "any person subject to military law" or "persons subject to military law," whenever used in these articles: (a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine Constabulary; all members of the reserve force, from the dates of their call to active duty and while on such active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of the call, draft, or order to obey the same; (b) Cadets, flying cadets, and probationary second lieutenants; (c) All retainers to the camp and all persons accompanying or serving with the Armed Forces of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles; (d) All persons under sentence adjudged by courts-martial. (As amended by Republic Acts 242 and 516). It is indisputable that petitioner was an officer in the active service of the AFP in March 2003 and 2004, when the alleged violations were committed. The charges were filed on October 27, 2004 and he was arraigned on November 16, 2004. Clearly, from the time the violations were committed until the time petitioner was arraigned, the General Court Martial had jurisdiction over the case. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.21 Therefore, petitioner's retirement on November 18, 2004 did not divest the General Court Martial of its jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani, et al. v. Lt./Gen. Generoso Senga, et al.,22 this Court ruled that: This point was settled against Gen. Gudani's position in Abadilla v. Ramos, where the Court declared that an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held: The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. Citing Colonel Winthrop's treatise on Military Law, the Court further stated: We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the contention of the petitioners, viz. 3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day on which his service legally terminates and his right to a discharge is complete, proceedings with a view to trial are commenced against him as by arrest or the service of charges, the military jurisdiction will fully attach and once attached may be continued by a trial by courtmartial ordered and held after the end of the term of the enlistment of the accused x x x Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638, as amended, "an officer or enlisted man carried in the retired list of the Armed Forces of the Philippines shall be subject to the Articles of War x x x" To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudani's retirement as an issue in their subsequent memorandum.23 It is also apt to mention that under Executive Order No. 178, or the Manual for Courts-Martial, AFP, the jurisdiction of courts-martial over officers, cadets, soldiers, and other military personnel in the event of discharge or other separation from the service, and the exceptions thereto, is defined thus: 10. COURT-MARTIAL Jurisdiction in general Termination General Rules The general rule is that court-martial jurisdiction over officers, cadets, soldiers and others in the military service of the Philippines ceases on discharge or other separation from such service, and that jurisdiction as to any offense committed during a period of service thus terminated is not revived by a reentry into the military service. Exceptions To this general rule there are, however, some exceptions, among them the following: x x In certain case, where the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to military law, court-martial jurisdiction does not terminate. Thus, where an officer holding a reserve commission is discharged from said commission by reason of acceptance of a commission in the Regular Force, there being no interval

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between services under the respective commissions, there is no terminating of the officer's military status, but merely the accomplishment of a change in his status from that of a reserve to that of a regular officer, and that court-martial jurisdiction to try him for an offense (striking enlisted men for example) committed prior to the discharge is not terminated by the discharge. So also, where a dishonorable discharged general prisoner is tried for an offense committed while a soldier and prior to his dishonorable discharge, such discharge does not terminate his amenability to trial for the offense. Petitioner also asserts that the General Court Martial's continuing jurisdiction over him despite his retirement holds true only if the charge against him involves fraud, embezzlement or misappropriation of public funds citing this Court's ruling in De la Paz v. Alcaraz,et al. 24 and Martin v. Ve r.25 However, this is not true. The OSG is correct in stating that in De la Paz,26 military jurisdiction over the officer who reverted to inactive status was sustained by this Court because the violation involved misappropriation of public funds committed while he was still in the active military service, while in Martin, 27 military jurisdiction was affirmed because the violation pertained to illegal disposal of military property. Both cited cases centered on the nature of the offenses committed by the military personnel involved, justifying the exercise of jurisdiction by the courts-martial. On the other hand, in the present case, the continuing military jurisdiction is based on prior attachment of jurisdiction on the military court before petitioner's compulsory retirement. This continuing jurisdiction is provided under Section 1 of P.D. 1850,28 as amended, thus: Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. - Any provision of law to the contrary notwithstanding (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courtsmartial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: Provided further, that the President may, in the interest of justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. Having established the jurisdiction of the General Court Martial over the case and the person of the petitioner, the President, as Commander-in-Chief, therefore acquired the jurisdiction to confirm petitioner's sentence as mandated under Article 47 of the Articles of War, which states: Article 47. Confirmation When Required. - In addition to the approval required by article forty-five, confirmation by the President is required in the following cases before the sentence of a court-martial is carried into execution, namely: (a) Any sentence respecting a general officer; (b) Any sentence extending to the dismissal of an officer except that in time of war a sentence extending to the dismissal of an officer below the grade of brigadier general may be carried into execution upon confirmation by the commanding general of the Army in the field; (c) Any sentence extending to the suspension or dismissal of a cadet, probationary second lieutenant; and (d) Any sentence of death, except in the case of persons convicted in time of war, of murder, mutiny, desertion, or as spies, and in such excepted cases of sentence of death may be carried into execution, subject to the provisions of Article 50, upon confirmation by the commanding general of the Army in the said field. When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him is necessary. (As amended by Republic Act No. 242). In connection therewith, petitioner argues that the confirmation issued by the Office of the President directing him to be confined for two (2) years in the penitentiary had already been fully served in view of his preventive confinement which had exceeded two (2) years. Therefore, according to him, the Office of the President no longer has the authority to order his confinement in a penitentiary. On the other hand, the OSG opines that petitioner cannot legally demand the deduction of his preventive confinement in the service of his imposed two-year confinement in a penitentiary, because unlike our Revised Penal Code29 which specifically mandates that the period of preventive imprisonment of the accused shall be deducted from the term of his imprisonment, the Articles of War and/or the Manual for Courts-Martial do not provide for the same deduction in the execution of the sentence imposed by the General Court Martial as confirmed by the President in appropriate cases. On the above matter, this Court finds the argument raised by the OSG unmeritorious and finds logic in the assertion of petitioner that Article 29 of the Revised Penal Code can be made applicable in the present case. The OSG maintains that military commissions or tribunals are not courts within the Philippine judicial system, citing Olaguer, et al. v. Military Commission No. 4, 30 hence, they are not expected to apply criminal law concepts in their implementation and execution of decisions involving the discipline of military personnel. This is misleading. In Olaguer, the courts referred to were military commissions created under martial law during the term of former President Ferdinand Marcos and was declared unconstitutional by this Court, while in the present case, the General Court Martial which tried it, was created under Commonwealth Act No. 408, as amended, and remains a valid entity. In Marcos v. Chief of Staff, Armed Forces of the Philippines, 31 this Court ruled that a court-martial case is a criminal case and the General Court Martial is a "court" akin to any other courts. In the same case, this Court clarified as to what constitutes the words "any court" used in Section 17 32 of the 1935 Constitution prohibiting members of Congress to appear as counsel in any criminal case in which an officer or employee of the Government is accused of an offense committed in relation to his office. This Court held:

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We are of the opinion and therefore hold that it is applicable, because the words "any court" includes the General Court-Martial, and a court-martial case is a criminal case within the meaning of the above quoted provisions of our Constitution. It is obvious that the words "any court," used in prohibiting members of Congress to appear as counsel "in any criminal case in which an officer or employee of the Government is accused of an offense committed in relation to his office," refers, not only to a civil, but also to a military court or a CourtMartial. Because, in construing a Constitution, "it must be taken as established that where words are used which have both a restricted and a general meaning, the general must prevail over the restricted unless the nature of the subject matter of the context clearly indicates that the limited sense is intended." (11 American Jurisprudence, pp. 680-682). In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,* 43 Off. Gaz., 855, we did not hold that the word "court" in general used in our Constitution does not include a Court-Martial; what we held is that the words "inferior courts" used in connection with the appellate jurisdiction of the Supreme Court to "review on appeal certiorari or writ of error, as the law or rules of court may provide, final judgments of inferior courts in all criminal cases in which the penalty imposed is death or life imprisonment," as provided for in section 2, Article VIII, of the Constitution, do not refer to CourtsMartial or Military Courts. Winthrop's Military Law and Precedents, quoted by the petitioners and by this Court in the case of Ramon Ruffy et al vs. Chief of Staff of the Philippine Army, supra, has to say in this connection the following: Notwithstanding that the court-martial is only an instrumentality of the executive power having no relation or connection, in law, with the judicial establishments of the country, it is yet, so far as it is a court at all, and within its field of action, as fully a court of law and justice as is any civil tribunal. As a court of law, it is bound, like any court, by the fundamental principles of law, and, in the absence of special provision of the subject in the military code, it observes in general the rules of evidence as adopted in the common-law courts. As a court of justice, it is required by the terms of its statutory oath, (art. 84.) to adjudicate between the U.S. and the accused "without partiality, favor, or affection," and according, not only to the laws and customs of the service, but to its "conscience," i.e. its sense of substantial right and justice unaffected by technicalities. In the words of the Attorney General, courtmartial are thus, "in the strictest sense courts of justice. (Winthrop's Military Law and Precedents, Vol. 1 and 2, 2nd Ed., p. 54.) In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with approval, the court said: In the language of Attorney General Cushing, a court-martial is a lawful tribunal existing by the same authority that any other exists by, and the law military is a branch of law as valid as any other, and it differs from the general law of the land in authority only in this: that it applies to officers and soldiers of the army but not to other members of the body politic, and that it is limited to breaches of military duty. And in re Davison, 21 F. 618, 620, it was held: That court-martial are lawful tribunals existing by the same authority as civil courts of the United States, have the same plenary jurisdiction in offenses by the law military as the latter courts have in controversies within their cognizance, and in their special and more limited sphere are entitled to as untrammelled an exercise of their powers. And lastly, American Jurisprudence says: SEC. 99. Representation by Counsel. It is the general rule that one accused of the crime has the right to be represented before the court by counsel, and this is expressly so declared by the statues controlling the procedure in court-martial. It has been held that a constitutional provision extending that right to one accused in any trial in any court whatever applies to a court-martial and gives the accused the undeniable right to defend by counsel, and that a court-martial has no power to refuse an attorney the right to appear before it if he is properly licensed to practice in the courts of the state. (Citing the case of State ex rel Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American Jurisprudence 253) The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must be approved by the reviewing authority before it can be executed (Article of War 46), does not change or affect the character of a court-martial as a court. A judgment of the Court of First Instance imposing death penalty must also be approved by the Supreme Court before it can be executed. That court-martial cases are criminal cases within the meaning of Section 17, Article VI, of the Constitution is also evident, because the crimes and misdemeanors forbidden or punished by the Articles of War are offenses against the Republic of the Philippines. According to section 1, Rule 106, of the Rules of Court, a criminal action or case is one which involves a wrong or injury done to the Republic, for the punishment of which the offender is prosecuted in the name of the People of the Philippines; and pursuant to Article of War 17, "the trial advocate of a general or special court-martial shall prosecute (the accused) in the name of the People of the Philippines." Winthtrop, in his well known work "Military Law and Precedents' says the following: In regard to the class of courts to which it belongs, it is lastly to be noted that the court-martial is strictly a criminal court. It has no civil jurisdiction whatever; cannot enforce a contract, collect a debt, or award damages in favor of an individual. . . . Its judgment is a criminal sentence not a civil verdict; its proper function is to award punishment upon the ascertainment of guilt. In N. Y. it was held that the term "criminal case," used in the clause, must be allowed some meaning, and none can be conceived, other than a prosecution for a criminal offense. Ex parte Carter. 66 S. W. 540, 544, 166 No. 604, 57 L.R.A. 654, quoting People vs. Kelly, 24 N.Y. 74; Counselman vs. Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed. 111o. (Words and Phrases, Vol. 10, p. 485.) Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and not an administrative case, and therefore it would be, under certain conditions, a bar to another prosecution of the defendant for the same offense, because the latter would place the accused in jeopardy, is shown by the decision of the Supreme Court of the United States in the case of Grafton vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following was held:

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If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally take cognizance; x x x and restricting our decision to the above question of double jeopardy, we judge that, consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for the same offense in a civil court exercising authority in that territory.33 (Emphasis supplied.) Hence, as extensively discussed above, the General Court Martial is a court within the strictest sense of the word and acts as a criminal court. On that premise, certain provisions of the Revised Penal Code, insofar as those that are not provided in the Articles of War and the Manual for Courts-Martial, can be supplementary. Under Article 10 of the Revised Penal Code: Art. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may be punishable under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws, unless the latter should specially provide the contrary. A special law is defined as a penal law which punishes acts not defined and penalized by the Revised Penal Code.34 In the present case, petitioner was charged with and convicted of Conduct Unbecoming an Officer and Gentleman (96th Article of War) and Violation of the 97th Article of War, or Conduct Prejudicial to Good Order and Military Discipline, both of which are not defined and penalized under the Revised Penal Code. The corresponding penalty imposed by the General Court Martial, which is two (2) years of confinement at hard labor is penal in nature. Therefore, absent any provision as to the application of a criminal concept in the implementation and execution of the General Court Martial's decision, the provisions of the Revised Penal Code, specifically Article 29 should be applied. In fact, the deduction of petitioner's period of confinement to his sentence has been recommended in the Staff Judge Advocate Review, thus: x x x Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall be credited in his favor and deducted from the two (2) years to which the accused was sentenced. Thus, confinement will expire on 18 October 2006. Considering that the period left not served is less than one (1) year, confinement at the National Penitentiary is no longer appropriate.35 (Emphasis supplied.) The above was reiterated in the Action of the Reviewing Authority, thus: In the foregoing General Court-Martial case of People of the Philippines versus MGEN. CARLOS F. GARCIA 0-5820 AFP (now Retired), the verdict of GUILTY is hereby approved. The sentence to be dishonorably discharged from the service; to forfeit all pay and allowances due and to become due; and to be confined at hard labor at such place as the reviewing authority may direct for a period of two (2) years is also approved. Considering that the Accused has been in confinement since 18 October 2004, the entire period of his confinement since 18 October 2004 will be credited in his favor. Consequently, his two (2) year sentence of confinement will expire on 18 October 2006. The proper place of confinement during the remaining unserved portion of his sentence is an official military detention facility.1wphi1 However, the Accused is presently undergoing trial before the Sandiganbayan which has directed that custody over him be turned over to the civilian authority and that he be confined in a civilian jail or detention facility pending the disposition of the case(s) before said Court. For this reason, the Accused shall remain confined at the PNP's detention facility in Camp Crame, Quezon City. The Armed Forces of the Philippines defers to the civilian authority on this matter. Should the Accused be released from confinement upon lawful orders by the Sandiganbayan before the expiration of his sentence adjudged by the military court, the Provost Marshal General shall immediately take custody over the Accused, who shall be transferred to and serve the remaining unserved portion thereof at the ISAFP detention facility in Camp General Emilio Aguinaldo, Quezon City.36 (Emphasis supplied.) Nevertheless, the application of Article 29 of the Revised Penal Code in the Articles of War is in accordance with the Equal Protection Clause of the 1987 Constitution. 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. 37 It requires public bodies and institutions to treat similarly situated individuals in a similar manner. 38 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 statute or by its improper execution through the state's duly-constituted authorities. 39 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. 40 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. 41 "Superficial differences do not make for a valid classification."42 In the present case, petitioner belongs to the class of those who have been convicted by any court, thus, he is entitled to the rights accorded to them. Clearly, there is no substantial distinction between those who are convicted of offenses which are criminal in nature under military courts and the civil courts. Furthermore, following the same reasoning, petitioner is also entitled to the basic and time-honored principle that penal statutes are construed strictly against the State and liberally in favor of the accused. 43 It must be remembered that the provisions of the Articles of War which the petitioner violated are penal in nature.

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The OSG is correct when it argued that the power to confirm a sentence of the President, as Commander-in-Chief, includes the power to approve or disapprove the entire or any part of the sentence given by the court martial. As provided in Article 48 of the Articles of War: Article 48. Power Incident to Power to Confirm. - The power to confirm the sentence of a court-martial shall be held to include: (a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt; (b) The power to confirm or disapprove the whole or any part of the sentence; and (c) The power to remand a case for rehearing, under the provisions of Article 50. (Emphasis supplied.) In addition, the President also has the power to mitigate or remit a sentence. Under Article 49 of the Articles of War: Article 49. Mitigation or Remission of Sentence. - The power to order the execution of the sentence adjudged by a court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence. Any unexpected portion of a sentence adjudged by a court-martial may be mitigated or remitted by the military authority competent to appoint, for the command, exclusive of penitentiaries and Disciplinary Barracks of the Armed Forces of the Philippines or Philippine Constabulary, in which the person under sentence is held, a court of the kind that imposed the sentence, and the same power may be exercised by superior military authority; but no sentence approved or confirmed by the President shall be remitted or mitigated by any other authority, and no approved sentence of loss of files by an officer shall be remitted or mitigated by any authority inferior to the President, except as provided in Article 52. When empowered by the President to do so, the commanding general of the Army in the field or the area commander may approve or confirm and commute (but not approve or confirm without commuting), mitigate, or remit and then order executed as commuted, mitigated, or remitted any sentence which under those Articles requires the confirmation of the President before the same may be executed. (As amended by Republic Act No. 242). Thus, the power of the President to confirm, mitigate and remit a sentence of erring military personnel is a clear recognition of the superiority of civilian authority over the military. However, although the law (Articles of War) which conferred those powers to the President is silent as to the deduction of the period of preventive confinement to the penalty imposed, as discussed earlier, such is also the right of an accused provided for by Article 29 of the RPC. As to petitioner's contention that his right to a speedy disposition of his case was violated, this Court finds the same to be without merit. No less than our Constitution guarantees the right not just to a speedy trial but to the speedy disposition of cases.44 However, it needs to be underscored that speedy disposition is a relative and flexible concept. A mere mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and circumstances peculiar to each case. 45 In determining whether or not the right to the speedy disposition of cases has been violated, this Court has laid down the following guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.46 In this case, there was no allegation, whatsoever of any delay during the trial. What is being questioned by petitioner is the delay in the confirmation of sentence by the President. Basically, the case has already been decided by the General Court Martial and has also been reviewed by the proper reviewing authorities without any delay. The only thing missing then was the confirmation of sentence by the President. The records do not show that, in those six (6) years from the time the decision of the General Court Martial was promulgated until the sentence was finally confirmed by the President, petitioner took any positive action to assert his right to a speedy disposition of his case. This is akin to what happened in Guerrero v. Court of Appeals, 47 where, in spite of the lapse of more than ten years of delay, the Court still held that the petitioner could not rightfully complain of delay violative of his right to speedy trial or disposition of his case, since he was part of the reason for the failure of his case to move on towards its ultimate resolution. The Court held, inter alia: In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It was only in 1989 when the case below was reraffled from the RTC of Caloocan City to the RTC of Navotas-Malabon and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case. More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990 because of petitioner's absence during the original setting on October 24, 1990 that the accused suddenly became zealous of safeguarding his right to speedy trial and disposition. x x x x In the present case, there is no question that petitioner raised the violation against his own right to speedy disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have just continued to sleep on his right a situation amounting to laches had the respondent judge not taken the initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose of the case. The matter could have taken a different dimension if during all those ten years between 1979 when accused filed his memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his right which was granted him in 1987 when the new constitution took effect, or at least made some overt act (like a motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was not waiving it. As it is, his silence would have to be interpreted as a waiver of such right. While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and although this Court has always zealously espoused protection from oppressive and vexatious

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delays not attributable to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude the people's equally important right to public justice. In the instant case, three people died as a result of the crash of the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense) substantial justice in the premises.48 Time runs against the slothful and those who neglect their rights. In fact, the delay in the confirmation of his sentence was to his own advantage, because without the confirmation from the President, his sentence cannot be served. Anent petitioner's other arguments, the same are already rendered moot and academic due to the above discussions. Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. 50 Thus, applying, the earlier disquisitions, this Court finds that the Office of the President did not commit any grave abuse of discretion in issuing the Confirmation of Sentence in question. WHEREFORE, the Petition for Certiorari dated September 29, 2011 of Major General Carlos F. Garcia, AFP (Ret.) is hereby DISMISSED. However, applying the provisions of Article 29 of the Revised Penal Code, the time within which the petitioner was under preventive confinement should be credited to the sentence confirmed by the Office of the President, subject to the conditions set forth by the same law. SO ORDERED.
49

THE FACTUAL ANTECEDENTS This issue has its roots in the June 8, 2010 Opinion 1 issued by the Legal Services Sector, Office of the General Counsel of the Commission on Audit (COA), which found that an underpayment amounting to P221,021.50 resulted when five (5) retired Supreme Court justices purchased from the Supreme Court the personal properties assigned to them during their incumbency in the Court, to wit: Valuation under COA Difference Memorandum (in pesos) No. 98-569A (in pesos) 365,000.00 151,000.00 156,000.00 580,600.00 181,200.00 150,600.00 23,758.90 14,500.00 40,200.00 1,067.50 63,900.00 34,800.00

Name of Justice

Items Purchased

Valuation under CFAG (in pesos)

Artemio Panganiban Toyota Camry, 341,241.10 (Chief Justice) 2003 model Toyota Grandia, 136,500.00 2002 model Toyota Camry, 115,800.00 2001 model Ruben T. Reyes Toyota Camry, 579,532.50 (Associate Justice) 2005 model Toyota Grandia, 117,300.00 2003 model Angelina S. Toyota Grandia, 115,800.00 Gutierrez 2002 model (Associate Justice) Adolfo S. Azcuna Toyota Camry, 536,105.00 (Associate Justice) 2005 model Toyota Grandia, 117,300.00 2002 model Sony TV Set Ma. Alicia 2,399.90

A.M. No. 11-7-10-SC July 31, 2012 Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the Retired Chief/Associate Justices of the Supreme Court. PER CURIAM: The present administrative matter stems from the two Memoranda, dated July 14, 2011 and August 10, 2010, submitted by Atty. Eden T. Candelaria, Deputy Clerk of Court and Chief Administrative Officer, Office of Administrative Services, to the Office of the Chief Justice. These Memoranda essentially ask the Court to determine the proper formula to be used in computing the appraisal value that a retired Chief Justice and several Associate Justices of the Supreme Court have to pay to acquire the government properties they used during their tenure.

543,300.00 145,000.00 2,500.00

9,195.00 27,700.00 100.10 5,800.002

The COA attributed this underpayment to the use by the Property Division of the Supreme Court of the wrong formula in computing the appraisal value of the purchased vehicles. According to the COA, the

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Property Division erroneously appraised the subject motor vehicles by applying Constitutional Fiscal Autonomy Group (CFAG) Joint Resolution No. 35 dated April 23, 1997 and its guidelines, in compliance with the Resolution of the Court En Banc dated March 23, 2004 in A.M. No. 03-1201,3 when it should have applied the formula found in COA Memorandum No. 98-569-A4 dated August 5, 1998. Recommendations of the Office of Administrative Services In her Memorandum dated August 10, 2010, Atty. Candelaria recommended that the Court advise the COA to respect the in-house computation based on the CFAG formula, noting that this was the first time that the COA questioned the authority of the Court in using CFAG Joint Resolution No. 35 and its guidelines in the appraisal and disposal of government property since these were issued in 1997. As a matter of fact, in two previous instances involving two (2) retired Court of Appeals Associate Justices, 5 the COA upheld the in-house appraisal of government property using the formula found in the CFAG guidelines. More importantly, the Constitution itself grants the Judiciary fiscal autonomy in the handling of its budget and resources. Full autonomy, among others,6 contemplates the guarantee of full flexibility in the allocation and utilization of the Judiciarys resources, based on its own determination of what it needs. The Court thus has the recognized authority to allocate and disburse such sums as may be provided or required by law in the course of the discharge of its functions.7 To allow the COA to substitute the Courts policy in the disposal of its property would be tantamount to an encroachment into this judicial prerogative. OUR RULING We find Atty. Candelarias recommendation to be well-taken. The COAs authority to conduct post-audit examinations on constitutional bodies granted fiscal autonomy is provided under Section 2(1), Article IX-D of the 1987 Constitution, which states: Section 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution. emphasis ours. This authority, however, must be read not only in light of the Courts fiscal autonomy, but also in relation with the constitutional provisions on judicial independence and the existing jurisprudence and Court rulings on these matters. not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. x x x And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. 9 The concept of the independence of the three branches of government, on the other hand, extends from the notion that the powers of government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or the citizenry.10 To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally capable of independent action in exercising their respective mandates; lack of independence would result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or others.11 Under the Judiciarys unique circumstances, independence encompasses the idea that individual judges can freely exercise their mandate to resolve justiciable disputes, while the judicial branch, as a whole, should work in the discharge of its constitutional functions free of restraints and influence from the other branches, save only for those imposed by the Constitution itself. 12 Thus, judicial independence can be "broken down into two distinct concepts: decisional independence and institutional independence."13 Decisional independence "refers to a judges ability to render decisions free from political or popular influence based solely on the individual facts and applicable law." 14 On the other hand, institutional independence "describes the separation of the judicial branch from the executive and legislative branches of government."15 Simply put, institutional independence refers to the "collective independence of the judiciary as a body."16 In the case In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20 and 21, 2007, 17 the Court delineated the distinctions between the two concepts of judicial independence in the following manner: One concept is individual judicial independence, which focuses on each particular judge and seeks to insure his or her ability to decide cases with autonomy within the constraints of the law. A judge has this kind of independence when he can do his job without having to hear or at least without having to take it seriously if he does hear criticisms of his personal morality and fitness for judicial office. The second concept is institutional judicial independence. It focuses on the independence of the judiciary as a branch of government and protects judges as a class. A truly independent judiciary is possible only when both concepts of independence are preserved wherein public confidence in the competence and integrity of the judiciary is maintained, and the public accepts the legitimacy of judicial authority. An erosion of this confidence threatens the maintenance of an independent Third Estate. italics and emphases ours Recognizing the vital role that the Judiciary plays in our system of government as the sole repository of judicial power, with the power to determine whether any act of any branch or instrumentality of the government is attended with grave abuse of

Separation of Powers and Judicial Independence In Angara v. Electoral Commission,8 we explained the principle of separation of powers, as follows: The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does

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discretion,18 no less than the Constitution provides a number of safeguards to ensure that judicial independence is protected and maintained. The Constitution expressly prohibits Congress from depriving the Supreme Court of its jurisdiction, as enumerated in Section 5, Article VII of the Constitution, or from passing a law that undermines the security of tenure of the members of the judiciary. 19 The Constitution also mandates that the judiciary shall enjoy fiscal autonomy,20 and grants the Supreme Court administrative supervision over all courts and judicial personnel. Jurisprudence21 has characterized administrative supervision as exclusive, noting that only the Supreme Court can oversee the judges and court personnel's compliance with all laws, rules and regulations. No other branch of government may intrude into this power, without running afoul of the doctrine of separation of powers.22 The Constitution protects as well the salaries of the Justices and judges by prohibiting any decrease in their salary during their continuance in office,23 and ensures their security of tenure by providing that "Members of the Supreme Court and judges of lower courts shall hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office."24 With these guarantees, justices and judges can administer justice undeterred by any fear of reprisals brought on by their judicial action. They can act inspired solely by their knowledge of the law and by the dictates of their conscience, free from the corrupting influence of base or unworthy motives.25 All of these constitutional provisions were put in place to strengthen judicial independence, not only by clearly stating the Courts powers, but also by providing express limits on the power of the two other branches of government to interfere with the Courts affairs. Fiscal Autonomy One of the most important aspects of judicial independence is the constitutional grant of fiscal autonomy. Just as the Executive may not prevent a judge from discharging his or her judicial duty (for example, by physically preventing a court from holding its hearings) and just as the Legislature may not enact laws removing all jurisdiction from courts,26 the courts may not be obstructed from their freedom to use or dispose of their funds for purposes germane to judicial functions. While, as a general proposition, the authority of legislatures to control the purse in the first instance is unquestioned, any form of interference by the Legislative or the Executive on the Judiciarys fiscal autonomy amounts to an improper check on a co-equal branch of government. If the judicial branch is to perform its primary function of adjudication, it must be able to command adequate resources for that purpose. This authority to exercise (or to compel the exercise of) legislative power over the national purse (which at first blush appears to be a violation of concepts of separateness and an invasion of legislative autonomy) is necessary to maintain judicial independence 27 and is expressly provided for by the Constitution through the grant of fiscal autonomy under Section 3, Article VIII. This provision states: Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. In Bengzon v. Drilon,28 we had the opportunity to define the scope and extent of fiscal autonomy in the following manner: As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil Service Commission, the Commission on Audit, the Commission on Elections, and the Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and utilize their resources with the wisdom and dispatch that their needs require. It recognizes the power and authority to levy, assess and collect fees, fix rates of compensation not exceeding the highest rates authorized by law for compensation and pay plans of the government and allocate and disburse such sums as may be provided by law or prescribed by them in the course of the discharge of their functions. Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules we need only 10 typewriters and sends its recommendations to Congress without even informing us, the autonomy given by the Constitution becomes an empty and illusory platitude. The Judiciary, the Constitutional Commissions, and the Ombudsman must have the independence and flexibility needed in the discharge of their constitutional duties. The imposition of restrictions and constraints on the manner the independent constitutional offices allocate and utilize the funds appropriated for their operations is anathema to fiscal autonomy and violative not only of the express mandate of the Constitution but especially as regards the Supreme Court, of the independence and separation of powers upon which the entire fabric of our constitutional system is based. In the interest of comity and cooperation, the Supreme Court, Constitutional Commissions, and the Ombudsman have so far limited their objections to constant reminders. We now agree with the petitioners that this grant of autonomy should cease to be a meaningless provision. 29 (emphases ours) In this cited case, the Court set aside President Corazon Aquinos veto of particular provisions of the General Appropriations Act for the Fiscal Year 1992 relating to the payment of the adjusted pensions of retired justices of the Supreme Court and the Court of Appeals, on the basis of the Judiciarys constitutionally guaranteed independence and fiscal autonomy. The Court ruled: In the case at bar, the veto of these specific provisions in the General Appropriations Act is tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in the utilization of the funds appropriated from the expenditures of the judiciary, including the use of any savings from any particular item to cover deficits or shortages in other items of the Judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice must be given a free hand on how to augment appropriations where augmentation is needed. 30 The Courts declarations in Bengzon make it clear that the grant of fiscal autonomy to the Judiciary is more extensive than the mere automatic and regular release of its approved annual

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appropriations;31 real fiscal autonomy covers the grant to the Judiciary of the authority to use and dispose of its funds and properties at will, free from any outside control or interference. Application to the Present Case The Judiciarys fiscal autonomy is realized through the actions of the Chief Justice, as its head, and of the Supreme Court En Banc, in the exercise of administrative control and supervision of the courts and its personnel. As the Court En Bancs Resolution (dated March 23, 2004) in A.M. No. 03-12-01 reflects, the fiscal autonomy of the Judiciary serves as the basis in allowing the sale of the Judiciarys properties to retiring Justices of the Supreme Court and the appellate courts: WHEREAS, by the constitutional mandate of fiscal autonomy as defined in Bengzon v. Drilon (G.R. No. 103524, 15 April 1992, 208 SCRA 133, 150) the Judiciary has "full flexibility to allocate and utilize (its) resources with the wisdom and dispatch that (its) needs require"; WHEREAS, the long-established tradition and practice of Justices or Members of appellate courts of purchasing for sentimental reasons at retirement government properties they used during their tenure has been recognized as a privilege enjoyed only by such government officials; and WHEREAS, the exercise of such privilege needs regulation to the end that respect for sentiments that a retiring Justice attaches to properties he or she officially used during his or her tenure should be in consonance with the need for restraint in the utilization and disposition of government resources. By way of a long standing tradition, partly based on the intention to reward long and faithful service, the sale to the retired Justices of specifically designated properties that they used during their incumbency has been recognized both as a privilege and a benefit. This has become an established practice within the Judiciary that even the COA has previously recognized. 32 The En Banc Resolution also deems the grant of the privilege as a form of additional retirement benefit that the Court can grant its officials and employees in the exercise of its power of administrative supervision. Under this administrative authority, the Court has the power to administer the Judiciarys internal affairs, and this includes the authority to handle and manage the retirement applications and entitlements of its personnel as provided by law and by its own grants.33 Thus, under the guarantees of the Judiciarys fiscal autonomy and its independence, the Chief Justice and the Court En Banc determine and decide the who, what, where, when and how of the privileges and benefits they extend to justices, judges, court officials and court personnel within the parameters of the Courts granted power; they determine the terms, conditions and restrictions of the grant as grantor. In the context of the grant now in issue, the use of the formula provided in CFAG Joint Resolution No. 35 is a part of the Courts exercise of its discretionary authority to determine the manner the granted retirement privileges and benefits can be availed of. Any kind of interference on how these retirement privileges and benefits are exercised and availed of, not only violates the fiscal autonomy and independence of the Judiciary, but also encroaches upon the constitutional duty and privilege of the Chief Justice and the Supreme Court En Banc to manage the Judiciarys own affairs. As a final point, we add that this view finds full support in the Government Accounting and Auditing Manual (GAAM), Volume 1, particularly, Section 501 of Title 7, Chapter 3, which states: Section 501. Authority or responsibility for property disposal/divestment. The full and sole authority and responsibility for the divestment and disposal of property and other assets owned by the national government agencies or instrumentalities, local government units and government-owned and/or controlled corporations and their subsidiaries shall be lodged in the heads of the departments, bureaus, and offices of the national government, the local government units and the governing bodies or managing heads of government-owned or controlled corporations and their subsidiaries conformably to their respective corporate charters or articles of incorporation, who shall constitute the appropriate committee or body to undertake the same. italics supplied; emphases ours This provision clearly recognizes that the Chief Justice, as the head of the Judiciary, possesses the full and sole authority and responsibility to divest and dispose of the properties and assets of the Judiciary; as Head of Office, he determines the manner and the conditions of disposition, which in this case relate to a benefit. As the usual practice of the Court, this authority is exercised by the Chief Justice in consultation with the Court En Banc. However, whether exercised by the Chief Justice or by the Supreme Court En Banc, the grant of such authority and discretion is unequivocal and leaves no room for interpretations and insertions. ACCORDINGLY, premises considered, the in-house computation of the appraisal value made by the Property Division, Office of `Administrative Services, of the properties purchased by the retired Chief Justice and Associate Justices of the Supreme Court, based on CFAG Joint Resolution No. 35 dated April 23, 1997, as directed under the Court Resolution dated March 23, 2004 in A.M. No. 03-12-01, is CONFIRMED to be legal and valid. Let the Commission on Audit be accordingly advised of this Resolution for its guidance. SO ORDERED.