Right to Information (Sec 7, Art III, 1987 Constitution)

MA. CARMEN G. AQUINO-SARMIENTO, petitioner,

vs.
MANUEL L. MORATO (in his capacity as Chairman of the MTRCB) and
the MOVIE & TELEVISION REVIEW AND CLASSIFICATION
BOARD, respondents.
Araullo, Zambrano, Gruba, Chua Law Firm for petitioner.
Francisco Ma. Chanco for respondents.

BIDIN, J.:p
At issue in this petition is the citizen's right of access to official records as
guaranteed by the constitution.
In February 1989, petitioner, herself a member of respondent Movie and
Television Review and Classification Board (MTRCB), wrote its records
officer requesting that she be allowed to examine the board's records
pertaining to the voting slips accomplished by the individual board members
after a review of the movies and television productions. It is on the basis of
said slips that films are either banned, cut or classified accordingly.
Acting on the said request, the records officer informed petitioner that she
has to secure prior clearance from respondent Manuel Morato, as chairman
of MTRCB, to gain access to the records sought to be examined.
Petitioner's request was eventually denied by respondent Morato on the
ground that whenever the members of the board sit in judgment over a film,
their decisions as reflected in the individual voting slips partake the nature of
conscience votes and as such, are purely and completely private and
personal. It is the submission of respondents that the individual voting slips
is the exclusive property of the member concerned and anybody who wants
access thereto must first secure his (the member's) consent, otherwise, a
request therefor may be legally denied.

Petitioner argues, on the other hand, that the records she wishes to examine
are public in character and other than providing for reasonable conditions
regulating the manner and hours of examination, respondents Morato and
the classification board have no authority to deny any citizen seeking
examination of the board's records.
On February 27, 1989, respondent Morato called an executive meeting of
the MTRCB to discuss, among others, the issue raised by petitioner. In said
meeting, seventeen (17) members of the board voted to declare their
individual voting records as classified documents which rendered the same
inaccessible to the public without clearance from the chairman. Thereafter,
respondent Morato denied petitioner's request to examine the voting slips.
However, it was only much later, i.e., on July 27, 1989, that respondent
Board issued Resolution No. 10-89 which declared as confidential, private
and personal, the decision of the reviewing committee and the voting slips of
the members.
Petitioner brought the matter to the attention of the Executive Secretary,
which in turn, referred the same to respondent Morato for appropriate
comment.
Another incident which gave rise to this petition occurred in a board meeting
held on June 22, 1989. In that meeting, respondent Morato told the board
that he has ordered some deletions on the movie "Mahirap ang Magmahal"
notwithstanding the fact that said movie was earlier approved for screening
by the Board with classification "R-18 without cuts". He explained that his
power to unilaterally change the decision of the Review Committee is
authorized by virtue of MTRCB Resolution No. 88-1-25 (dated June
22,1988) which allows the chairman of the board "to downgrade a film
(already) reviewed especially those which are controversial."
Petitioner informed the Board, however, that respondent Morato possesses
no authority to unilaterally reverse a decision of the review committee under
PD 1986 (Creating the Movie and Television Review and Classification
Board).
After the matter was referred by the Deputy Executive Secretary to the
Justice Secretary, the latter opined that PD 1896 does not vest respondent
Morato any authority to unilaterally reverse the decision of the review
committee but declined to comment on the constitutionality of Res. No. 10-

89 on the ground that the resolution thereof is a judicial prerogative (Rollo,

pp. 38-42).
The Justice Secretary's opinion to the contrary notwithstanding, respondent
Morato opted to ignore it.
Hence, this petition anchored on the following:
A. MORATO AND THE MTRCB BY APPROVING AND ENFORCING
RESOLUTION NO. 10-89 ACTED WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OF JURISDICTION BECAUSE THE SAME
VIOLATES ARTICLE III SECTION 7 OF THE 1987 CONSTITUTION.
B. MTRCB RESOLUTION NO. 88-1-25 HAS NO LEGAL BASIS AND
CONSTITUTES AN UNLAWFUL DELEGATION OF DISCRETIONARY
POWERS.
C. MORATO AND THE MTRCB BY REFUSING TO ABIDE BY OPINION
NO. 1 SERIES OF 1990 OF THE SECRETARY OF JUSTICE AND BY
INSISTING ON THE VALIDITY OF RESOLUTION NO. 88-1-25 ACTED
CAPRICIOUSLY, ARBITRARILY, IN BAD FAITH, IN EXCESS OF THEIR
JURISDICTION, AND WITH GRAVE ABUSE OF DISCRETION.
Petitioner therefore seeks the nullification of 1) MTRCB Resolution No. 88-125 which allows the Chairman of the Board to unilaterally downgrade a film
(already) reviewed especially those which are controversial and 2) MTRCB
RESOLUTION No. 10-89 (dated July 27, 1989) declaring as strictly
confidential, private and personal a) the decision of a reviewing committee
which previously reviewed a certain film and b) the individual voting slips of
the members of the committee that reviewed the film.
Respondents argue at the outset that the instant petition should be
dismissed outright for having failed to comply with the doctrine of exhaustion
of administrative remedies.
We disagree. The doctrine of exhaustion of administrate remedies simply
provides that before a party litigant is allowed resort to the courts, he is
required to comply with all administrative remedies available under the law
(Rosales v. Court of Appeals, 165 SCRA 344 [1988]). The rationale behind
this salutory principle is that for reasons of practical considerations, comity

and convenience, the courts of law will not entertain a case until all the
available administrative remedies provided by law have been resorted to and
the appropriate authorities have been given ample opportunity to act and to
correct the errors committed in the administrative level. If the error is
rectified, judicial intervention would then be unnecessary.
Nonetheless, the doctrine of exhaustion of administrative remedies is not
absolute. The applicability of the principle admits of certain exceptions, such
as: 1) when no administrative review is provided by law; 2) when the only
question involved is one of law (Valmonte v. Valmonte, 170 SCRA 256
[1989], citing Aguilar v. Valencia, 40 SCRA 210 [1971]; Malabanan v.
Ramento, 129 SCRA 359 [1984]; Bagatsing v. Ramirez, 74 SCRA 306; Del
Mar v. Philippine Veterans Administration, 51 SCRA 340 [1973]; Pascual v.
Provincial Board, 106 Phil. 466 [1959]; 3) where the party invoking the
doctrine is guilty of estoppel (Vda. de Tan v. Veterans' Backpay Commission
[1969]; 4) where the challenged administrative action is patently illegal,
arbitrary and oppressive (Azur v. Provincial Board, 27 SCRA 50 [1969];
National Development Co. v. Collector of Customs of Manila, 9 SCRA 429
[1963]; 5) where there is unreasonable delay or official inaction that would
greatly prejudice the complainant (Gravador v. Mamigo, 20 SCRA 742
[1967]; Azuelo v. Arnaldo, 108 Phil. 293 [1960]; 6) where to exhaust
administrative review is impractical and unreasonable (Cipriano v. Marcelino,
43 SCRA 291); and 7) where the rule of qualified political agency applies
(Demaisip v. Court of Appeals, 106 Phil. 237 [1906]).
The issue raised in the instant petition is one of law, hence the doctrine of
non-exhaustion of administrative remedy relied upon by respondents is
inapplicable and cannot be given any effect. At any rate, records are replete
with events pointing to the fact that petitioner adhered to the administrative
processes in the disposition of the assailed resolutions of public respondents
prior to filing the instant petition by, among others, writing the Executive
Secretary and bringing the matter to the attention of the Office of the
President (Rollo, pp. 145-147). Respondents' claim that petitioner failed to
exhaust administrative remedies must therefore fail.
Having disposed of the procedural objection raised by respondents, We now
proceed to resolve the issues raised by petitioner. In this regard, We find
respondents' refusal to allow petitioner to examine the records of respondent
MTRCB, pertaining to the decisions of the review committee as well as the
individual voting slips of its members, as violative of petitioner's

constitutional right of access to public records. More specifically, Sec. 7, Art.

III of the Constitution provides that:
The right of the people to information on matters of public
concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions, or decisions,as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law. (emphasis supplied)
As We held in Legaspi v. Civil Service Commission (150 SCRA 530 [1987]),
this constitutional provision is self-executory and supplies "the rules by
means of which the right to information may be enjoyed (Cooley, A Treatise
on Constitutional Limitations 167 [1927]) by guaranteeing the right and
mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon
the ratification of the constitution without need for any ancillary act of the
Legislature (Id. at 165). What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State Policy of full public
disclosure of all transactions involving public interest (Constitution, Art. II,
Sec. 28)." (See also Taada v. Tuvera, 136 SCRA 27 [1985]; Valmonte v.
Belmonte, Jr., 170 SCRA 256 [1989]).
Respondents contend, however, that what is rendered by the members of
the board in reviewing films and reflected in their individual voting slip is their
individual vote of conscience on the motion picture or television program and
as such, makes the individual voting slip purely private and personal; an
exclusive property of the member concerned.
The term private has been defined as "belonging to or concerning, an
individual person, company, or interest"; whereas, public means "pertaining
to, or belonging to, or affecting a nation, state, or community at large"
(People v. Powell, 274 NW 372 [1937]). May the decisions of respondent
Board and the individual members concerned, arrived at in an official
capacity, be considered private? Certainly not. As may be gleaned from the
decree (PD 1986) creating the respondent classification board, there is no
doubt that its very existence is public is character; it is an office created to
serve public interest. It being the case, respondents can lay no valid claim to
privacy. The right to privacy belongs to the individual acting in his private

capacity and not to a governmental agency or officers tasked with, and

acting in, the discharge of public duties (See Valmonte v. Belmonte,
Jr., supra.) There can be no invasion of privacy in the case at bar since what
is sought to be divulged is a product of action undertaken in the course of
performing official functions. To declare otherwise would be to clothe every
public official with an impregnable mantle of protection against public
scrutiny for their official acts.
Further, the decisions of the Board and the individual voting slips
accomplished by the members concerned are acts made pursuant to their
official functions, and as such, are neither personal nor private in nature but
rather public in character. They are, therefore, public records access to
which is guaranteed to the citizenry by no less than the fundamental law of
the land. Being a public right, the exercise thereof cannot be made
contingent on the discretion, nay, whim and caprice, of the agency charged
with the custody of the official records sought to be examined. The
constitutional recognition of the citizen's right of access to official records
cannot be made dependent upon the consent of the members of the board
concerned, otherwise, the said right would be rendered nugatory. As stated
by this Court in Subido v. Ozaeta (80 Phil. 383 [1948]):
Except, perhaps when it is clear that the purpose of the
examinations is unlawful, or sheer, idle curiosity, we do not
believe it is the duty under the law of registration officers
to concern themselves with the motives, reasons, and
objects of the person seeking access to the records. It is
not their prerogative to see that the information which the
records contain is not flaunted before public gaze, or that
scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the
officials having custody thereof which is called upon to
devise a remedy.(emphasis supplied)
It is significant to point out that this Court in the 1948 case of Subido v.
Ozaeta, supra, upheld the right to information based on the statutory right
then provided in Sec. 56 of the Land Registration Act (Act 496, as
amended). Consequently, We see no cogent reason why said right, now
constitutionalized, should be given less efficacy and primacy than what the
fundament law mandates.

The Court is not unaware of RA 6713 (Code of Conduct and Ethical

Standards for Public Officials and Employees) which provides, among
others, certain exceptions as regards the availability of official records or
documents to the requesting public, e.g., closed door Cabinet sessions and
deliberations of this Court. Suffice it to state, however, that the exceptions
therein enumerated find no application in the case at bar. Petitioner request
is not concerned with the deliberations of respondent Board but with its
documents or records made after a decision or order has been rendered.
Neither will the examination involve disclosure of trade secrets or matters
pertaining to national security which would otherwise limit the right of access
to official records (See Legaspi v. Civil Service Commission, supra).
We are likewise not impressed with the proposition advanced by
respondents that respondent Morato is empowered by PD 1986 to
unilaterally downgrade or upgrade a film reviewed especially those which
are controversial. The pertinent provisions of said decree provides:
Sec 4. Decision. The decision of the BOARD either
approving or disapproving for exhibition in the Philippines
a motion picture, television program, still and other
pictorial advertisement submitted to it for examination and
preview must be rendered within a period of ten (10) days
which shall be counted from the date of receipt by the
BOARD of an application for the purpose . . .
For each review session, the Chairman of the Board shall
designate a sub-committee composed of at least three
BOARD members to undertake the work of review. Any
disapproval or deletion must be approved by a majority of
the sub-committee members so designated. After receipt
of the written decision of the sub-committee, a motion for
reconsideration in writing may be made, upon which the
Chairman of the Board shall designate a sub-committee of
five BOARD members to undertake a second review
session, whose decision on behalf of the Board shall be
rendered through a majority of the sub-committee
members so designated and present at the second review
session. This second review session shall be presided
over by the Chairman, or the Vice-Chairman. The decision
of the BOARD in the second review session shall be

rendered within five (5) days from the date of receipt of the
motion for reconsideration.
Every decision of the BOARD disapproving a motion
picture, television program or publicity material for
exhibition in the Philippines must be in writing, and shall
state the reasons or grounds for such disapproval. No film
or motion picture intended for exhibition at the
moviehouses or theaters or on television shall be
disapproved by reason of its topic, theme or subject
matter, but upon the merits of each picture or program
considered in its entirety.
The second decision of the BOARD shall be final, with the
exception of a decision disapproving or prohibiting a
motion picture or television program in its entirety which
shall be appealable to the President of the Philippines,
who may himself decide the appeal, or be assisted either
by an ad hoe committee he may create or by the Appeals
Committee herein created.
An Appeals Committee in the Office of the President of the
Philippines is hereby created composed of a Chairman
and four (4) members to be appointed by the President of
the Philippines, which shall submit its recommendation to
the President. The Office of the Presidential Assistant for
Legal Affairs shall serve as the Secretariat of the Appeals
Committee.
The decision of the President of the Philippines on any
appealed matter shall be final.
Implementing Rules and Regulations
Sec 11. Review by Sub-Committee of Three. a) A
proper application having been filed, the Chairman of the
Board shall, as the exigencies of the service may permit,
designate a Sub-Committee of at least three Board
Members who shall meet, with notice to the applicant,
within ten days from receipt of the completed application.

The Sub-Committee shall then preview the motion picture

subject of the application.
b) Immediately after the preview, the applicant or his
representative shall withdraw to await the results of the
deliberation of the Sub-Committee. After reaching a
decision, the Sub-Committee shall summon the applicant
or his representative and inform him of its decision giving
him an opportunity either to request reconsideration or to
offer certain cuts or deletions in exchange for a better
classification. The decision shall be in writing, stating, in
case of disapproval of the film or denial of the
classification rating desired or both, the reason or reasons
for such disapproval or denial and the classification
considered by the Sub-Committee member dissenting
from the majority opinion may express his dissent in
writing.
c) The decision including the dissenting opinion, if any,
shall immediately be submitted to the Chairman of the
Board for transmission to the applicant.
Sec 12. Review by Sub-Committee of Five. Within five
days from receipt of a copy of the decision of the SubCommittee referred to in the preceding section, the
applicant may file a motion for reconsideration in writing of
that decision. On receipt of the motion, the Chairman of
the Board shall designate a Sub-Committee of Five Board
Members which shall consider the motion and, within five
days of receipt of such motion, conduct a second preview
of the film. The review shall, to the extent applicable,
follow the same procedure provided in the preceding
section.
Sec 13. Reclassification. An applicant desiring a
change in the classification rating given his film by either
the Sub-Committee of Three? or Committee of Five
mentioned in the immediately preceeding two sections
may re-edit such film and apply anew with the Board for its
review and reclassification.

Sec 14. Appeal. The decision of the Committee of Five

Board Members in the second review shall be final, with
the exception of a decision disapproving or prohibiting a
motion picture in its entirety which shall be appealable to
the President of the Philippines who may himself decide
the appeal or refer it to the Appeals Committee in the
Office of the President for adjudication.
On the other hand, the powers and functions of the MTRCB Chairman are
found in Section 5 of the same decree as follows:
Sec. 5. Executive Officer. The Chairman of the BOARD
shall be the Chief Executive Officer of the BOARD. He
shall exercise the following functions, powers and duties:
(a) Execute, implement and enforce the decisions, orders,
awards, rules and regulations issued by the BOARD;
(b) Direct and supervise the operations and the internal
affairs of the BOARD;
(c) Establish the internal organization and administrative
procedures of the BOARD, and recommend to the
BOARD the appointment of the necessary administrative
and subordinate personnel; and
(d) Exercise such other powers and functions and perform
such duties as are not specifically lodged in the BOARD.
It is at once apparent from a reading of the above provisions of PD 1986 that
respondent Morato, as Chairman of the MTRCB, is not vested with any
authority to reverse or overrule by himself alone a decision rendered by a
committee which conducted a review of motion pictures or television
programs.
The power to classify motion pictures into categories such as "General
Patronage" or "For Adults Only" is vested with the respondent Board itself
and not with the Chairman thereof (Sec. 3 [e], PD 1986). As Chief Executive
Officer, respondent Morato's function as Chairman of the Board calls for the
implementation and execution, not modification or reversal, of the decisions

or orders of the latter (Sec. 5 [a], Ibid.). The power of classification having
been reposed by law exclusively with the respondent Board, it has no choice
but to exercise the same as mandated by law, i.e., as a collegial body, and
not transfer it elsewhere or discharge said power through the intervening
mind of another. Delegata potestas non potest delegari a delegated
power cannot be delegated. And since the act of classification involves an
exercise of the Board's discretionary power with more reason the Board
cannot, by way of the assailed resolution, delegate said power for it is an
established rule in administrative law that discretionary authority cannot be a
subject of delegation.

Petitioners in this special civil action for mandamus with preliminary

injunction invoke their right to information and pray that respondent be
directed:

(a) to furnish petitioners the list of the

names of the Batasang Pambansa
members belonging to the UNIDO and
PDP-Laban who were able to secure
clean loans immediately before the
February 7 election thru the
intercession/marginal note of the then
First Lady Imelda Marcos; and/or

WHEREFORE, the instant petition is GRANTED. Resolution Nos. 10-89 and

88-1-25 issued by the respondent Board are hereby declared null and void.
SO ORDERED.

(b) to furnish petitioners with certified

true copies of the documents evidencing
their respective loans; and/or

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,

Feliciano, Padilla, Medialdea, Regalado and Davide, Jr., JJ., concur.
Grio-Aquino and Romero, JJ., took no part.

(c) to allow petitioners access to the

public records for the subject
information. (Petition, pp. 4-5;
paragraphing supplied.]

G.R. No. 74930 February 13, 1989

RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO,
ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ,
REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID,
ROMMEL CORRO and ROLANDO FADUL, petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
The Solicitor General for respondent.

CORTES, J.:

The controversy arose when petitioner Valmonte wrote respondent Belmonte

the following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our
Republic, I am requesting that I be furnished with the list of
names of the opposition members of (the) Batasang
Pambansa who were able to secure a clean loan of P2

million each on guarranty (sic) of Mrs. Imelda Marcos. We

understand that OIC Mel Lopez of Manila was one of
those aforesaid MPs. Likewise, may we be furnished with
the certified true copies of the documents evidencing their
loan. Expenses in connection herewith shall be borne by
us.

Dear Compaero:
Possibly because he must have thought that it contained
serious legal implications, President & General Manager
Feliciano Belmonte, Jr. referred to me for study and reply
your letter to him of June 4, 1986 requesting a list of the
opposition members of Batasang Pambansa who were
able to secure a clean loan of P2 million each on guaranty
of Mrs. Imelda Marcos.

If we could not secure the above documents could we

have access to them?
We are premising the above request on the following
provision of the Freedom Constitution of the present
regime.

My opinion in this regard is that a confidential relationship

exists between the GSIS and all those who borrow from it,
whoever they may be; that the GSIS has a duty to its
customers to preserve this confidentiality; and that it would
not be proper for the GSIS to breach this confidentiality
unless so ordered by the courts.

The right of the people to information on

matters of public concern shall be
recognized. Access to official records,
and to documents and papers pertaining
to official acts, transactions or decisions,
shall be afforded the citizen subject to
such limitation as may be provided by
law. (Art. IV, Sec. 6).

As a violation of this confidentiality may mar the image of

the GSIS as a reputable financial institution, I regret very
much that at this time we cannot respond positively to your
request.
Very truly yours,

We trust that within five (5) days from receipt hereof we

will receive your favorable response on the matter.
Very truly yours,

[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City

(Sgd.) MEYNARDO A. TIRO

Deputy General Counsel
[Rollo, p. 40.]

(Sgd.) RICARDO
On JuneC.
20,VALMONTE
1986, apparently not having yet received the reply of the
Government Service and Insurance System (GSIS) Deputy General
Counsel, petitioner Valmonte wrote respondent another letter, saying that for
failure to receive a reply, "(W)e are now considering ourselves free to do
whatever action necessary within the premises to pursue our desired
objective in pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant
suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137
former members of the defunct interim and regular Batasang Pambansa,

including ten (10) opposition members, were granted housing loans by the
GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor
General. After petitioners filed a consolidated reply, the petition was given
due course and the parties were required to file their memoranda. The
parties having complied, the case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a
writ of mandamus, among which is that petitioners have failed to exhaust
administrative remedies.
Respondent claims that actions of the GSIS General Manager are
reviewable by the Board of Trustees of the GSIS. Petitioners, however, did
not seek relief from the GSIS Board of Trustees. It is therefore asserted that
since administrative remedies were not exhausted, then petitioners have no
cause of action.
To this objection, petitioners claim that they have raised a purely legal
issue, viz., whether or not they are entitled to the documents sought, by
virtue of their constitutional right to information. Hence, it is argued that this
case falls under one of the exceptions to the principle of exhaustion of
administrative remedies.
Among the settled principles in administrative law is that before a party can
be allowed to resort to the courts, he is expected to have exhausted all
means of administrative redress available under the law. The courts for
reasons of law, comity and convenience will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors
committed in the administrative forum. However, the principle of exhaustion
of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106
Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971,
40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129
SCRA 359.] The issue raised by petitioners, which requires the interpretation
of the scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS or its
Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion

of administrative remedies is warranted. Having disposed of this procedural

issue, We now address ourselves to the issue of whether or not mandamus
hes to compel respondent to perform the acts sought by petitioners to be
done, in pursuance of their right to information.
We shall deal first with the second and third alternative acts sought to be
done, both of which involve the issue of whether or not petitioners are
entitled to access to the documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy
directly involving the constitutional right to information. In Taada v.
Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case
of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150
SCRA 530, the Court upheld the people's constitutional right to be informed
of matters of public interest and ordered the government agencies
concerned to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which
states:
The right of the people to information on matters of public
concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters of public
concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, shall be afforded the citizen
subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral
and artistic thought and data relative to them, and the free exchange of
ideas and discussion of issues thereon, is vital to the democratic

government envisioned under our Constitution. The cornerstone of this

republican system of government is delegation of power by the people to the
State. In this system, governmental agencies and institutions operate within
the limits of the authority conferred by the people. Denied access to
information on the inner workings of government, the citizenry can become
prey to the whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust, institutionalized in
the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of
governmental power, would certainly be were empty words if access to such
information of public concern is denied, except under limitations prescribed
by implementing legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to
gather and the obligation to check the accuracy of information the
disseminate. For them, the freedom of the press and of speech is not only
critical, but vital to the exercise of their professions. The right of access to
information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an essential element
of these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest
of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information is
merely an adjunct of and therefore restricted in application by the exercise of
the freedoms of speech and of the press. Far from it. The right to information
goes hand-in-hand with the constitutional policies of full public disclosure * and
honesty in the public service. ** It is meant to enhance the widening role of the citizenry in governmental decision-making as
well as in checking abuse in government.

Yet, like all the constitutional guarantees, the right to information is not
absolute. As stated in Legaspi, the people's right to information is limited to
"matters of public concern," and is further "subject to such limitations as may
be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."

Hence, before mandamus may issue, it must be clear that the information
sought is of "public interest" or "public concern," and is not exempted by law
from the operation of the constitutional guarantee [Legazpi v. Civil Service
Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public
interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular information is of
public concern there is no rigid test which can be applied.
"Public concern" like "public interest" is a term that eludes
exact definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either
because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary
citezen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or affects
the public. [Ibid. at p. 541]
In the Taada case the public concern deemed covered by the constitutional
right to information was the need for adequate notice to the public of the
various laws which are to regulate the actions and conduct of citezens.
InLegaspi, it was the "legitimate concern of citezensof ensure that
government positions requiring civil service eligibility are occupied only by
persons who are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that
certain Members of the Batasang Pambansa belonging to the opposition
were able to secure "clean" loans from the GSIS immediately before the
February 7, 1986 election through the intercession of th eformer First Lady,
Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programs for the
benefit of the latter. Undeniably, its funds assume a public character. More
particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised
Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the

obligations which the Republic of the Philippines assumes or guarantees to

pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent
laws or rules and regulations. Thus, one of the reasons that prompted the
revision of the old GSIS law (C.A. No. 186, as amended) was the necessity
"to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'"
[Comment, p. 8.] It is therefore the legitimate concern of the public to ensure
that these funds are managed properly with the end in view of maximizing
the benefits that accrue to the insured government employees. Moreover,
the supposed borrowers were Members of the defunct Batasang Pambansa
who themselves appropriated funds for the GSIS and were therefore
expected to be the first to see to it that the GSIS performed its tasks with the
greatest degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers make the information sought clearly a
matter of public interest and concern.
A second requisite must be met before the right to information may be
enforced through mandamus proceedings,viz., that the information sought
must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the
GSIS and its borrowers. It is argued that a policy of confidentiality restricts
the indiscriminate dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position
is apparently based merely on considerations of policy. The judiciary does
not settle policy issues. The Court can only declare what the law is, and not
what the law should be. Under our system of government, policy issues are
within the domain of the political branches of the government, and of the
people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is
equally protected by the Constitution and by existing laws, the documents
evidencing loan transactions of the GSIS must be deemed outside the ambit
of the right to information.

There can be no doubt that right to privacy is constitutionally protected. In

the landmark case of Morfe v. Mutuc[130 Phil. 415 (1968), 22 SCRA 424],
this Court, speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is
fully deserving of constitutional protection. The language
of Prof. Emerson is particularly apt: "The concept of limited
government has always included the idea that
governmental powers stop short of certain intrusions into
the personal life of the citizen. This is indeed one of the
basic distinctions between absolute and limited
government. UItimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the
absolute. state, In contrast, a system of limited
government safeguards a private sector, which belongs to
the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private
sector protection, in other words, of the dignity and
integrity of the individual has become increasingly
important as modem society has developed. All the forces
of technological age industrialization, urbanization, and
organization operate to narrow the area of privacy and
facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian
society." [at pp. 444-445.]
When the information requested from the government intrudes into the
privacy of a citizen, a potential conflict between the rights to information and
to privacy may arise. However, the competing interests of these rights need
not be resolved in this case. Apparent from the above-quoted statement of
the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS.
Moreover, the right cannot be invoked by juridical entities like the GSIS. As
held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982
(1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.

Neither can the GSIS through its General Manager, the respondent, invoke
the right to privacy of its borrowers. The right is purely personal in nature
[Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA.
219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286
(1895)), and hence may be invoked only by the person whose privacy is
claimed to be violated.
It may be observed, however, that in the instant case, the concerned
borrowers themselves may not succeed if they choose to invoke their right to
privacy, considering the public offices they were holding at the time the loans
were alleged to have been granted. It cannot be denied that because of the
interest they generate and their newsworthiness, public figures, most
especially those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their actions
being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v.
Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not covered by
the Constitutional right to information on matters of public concern which
guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the people's
right of access to official records.
It is further contended that since the loan function of the GSIS is merely
incidental to its insurance function, then its loan transactions are not covered
by the constitutional policy of full public disclosure and the right to
information which is applicable only to "official" transactions.
First of all, the "constituent ministrant" dichotomy characterizing
government function has long been repudiated. In ACCFA v. Confederation
of Unions and Government Corporations and Offices (G.R. Nos. L-21484
and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or running some
business, discharges the same function of service to the people.

Consequently, that the GSIS, in granting the loans, was exercising a

proprietary function would not justify the exclusion of the transactions from
the coverage and scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of
1986, to include government-owned and controlled corporations and
transactions entered into by them within the coverage of the State policy of
fun public disclosure is manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few
question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public
disclosure of all its transactions"
referring to the transactions of the State
and when we say the "State" which I
suppose would include all of the various
agencies, departments, ministries and
instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr.
Presiding Officer.
MR. SUAREZ. Including government-owned and
controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.

MR. SUAREZ. And

when we say
"transactions" which
should be
distinguished from
contracts,
agreements, or
treaties or whatever,
does the Gentleman
refer to the steps
leading to the
consummation of the
contract, or does he
refer to the contract
itself?
MR. OPLE. The
"transactions" used
here I suppose is
generic and,
therefore, it can cover
both steps leading to
a contract, and
already a
consummated
contract, Mr.
Presiding Officer.
MR. SUAREZ. This
contemplates
inclusion of
negotiations leading
to the consummation
of the transaction.
MR. OPLE. Yes,
subject only to
reasonable
safeguards on the
national interest.

MR. SUAREZ. Thank

you. [V Record of the
Constitutional
Commission 24-25.]
(Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not
binding upon the Court, are nevertheless persuasive, and considering further
that government-owned and controlled corporations, whether performing
proprietary or governmental functions are accountable to the people, the
Court is convinced that transactions entered into by the GSIS, a
government-controlled corporation created by special legislation are within
the ambit of the people's right to be informed pursuant to the constitutional
policy of transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans
granted by the GSIS, subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of examination, to the end that
damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the
right of other persons entitled to inspect the records may be insured [Legaspi
v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80
Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by
petitioners, i.e., "to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru
the intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord
them a right to compel custodians of official records to prepare lists,
abstracts, summaries and the like in their desire to acquire information on
matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that
the applicant has a well-defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act

required. The corresponding duty of the respondent to perform the required

act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768,
November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet
this standard, there being no duty on the part of respondent to prepare the
list requested.
WHEREFORE, the instant petition is hereby granted and respondent
General Manager of the Government Service Insurance System is
ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners
may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem
necessary.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and
Regalado, JJ., concur.

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

Agas, had allegedly represented themselves as civil service eligibles

who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian
Sibonghanoy and Mariano Agas, is guaranteed by the Constitution,
and that he has no other plain, speedy and adequate remedy to
acquire the information, petitioner prays for the issuance of the
extraordinary writ of mandamus to compel the respondent
Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to
enforce the fundamental right to information. The same remedy was
resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No.
L-63915, April 24,1985,136 SCRA 27) wherein the people's right to
be informed under the 1973 Constitution (Article IV, Section 6) was
invoked in order to compel the publication in the Official Gazette of
various presidential decrees, letters of instructions and other
presidential issuances. Prior to the recognition of the right in said
Constitution the statutory right to information provided for in the Land
Registration Act (Section 56, Act 496, as amended) was claimed by a
newspaper editor in another mandamus proceeding, this time to
demand access to the records of the Register of Deeds for the
purpose of gathering data on real estate transactions involving aliens
(Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern
first gained recognition in the Bill of Rights, Article IV, of the 1973
Constitution, which states:

CORTES, J.:
The fundamental right of the people to information on matters of
public concern is invoked in this special civil action for mandamus
instituted by petitioner Valentin L. Legaspi against the Civil Service
Commission. The respondent had earlier denied Legaspi's request
for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City.
These government employees, Julian Sibonghanoy and Mariano

Sec. 6. The right of the people to information on

matters of public concern shall be recognized.
Access to official records, and to documents and
papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to
such limitations as may be provided by law.

The foregoing provision has been retained and the right therein
provided amplified in Article III, Sec. 7 of the 1987 Constitution with
the addition of the phrase, "as well as to government research data
used as basis for policy development." The new provision reads:
The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis. for policy
development, shall be afforded the citizen, subject to
such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the
rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of
the constitution without need for any ancillary act of the Legislature.
(Id. at, p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared State policy
of full public disclosure of all transactions involving public interest
(Constitution, Art. 11, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the
Legislature, the right and the duty under Art. III Sec. 7 have become
operative and enforceable by virtue of the adoption of the New
Charter. Therefore, the right may be properly invoked in a mandamus
proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving
due course to this Petition. He challenges the petitioner's standing to
sue upon the ground that the latter does not possess any clear legal
right to be informed of the civil service eligibilities of the government
employees concerned. He calls attention to the alleged failure of the
petitioner to show his actual interest in securing this particular

information. He further argues that there is no ministerial duty on the

part of the Commission to furnish the petitioner with the information
he seeks.
1. To be given due course, a Petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party
from the enjoyment of a legal right. (Ant;-Chinese League of the
Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in every
case must therefore be an "aggrieved party" in the sense that he
possesses a clear legal right to be enforced and a direct interest in
the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality
of the petitioner to bring this suit. It is asserted that, the instant
Petition is bereft of any allegation of Legaspi's actual interest in the
civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At
most there is a vague reference to an unnamed client in whose
behalf he had allegedly acted when he made inquiries on the subject
(Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner
has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature, is
a public right. It has been held that:
* * * when the question is one of public right and the
object of the mandamus is to procure the
enforcement of a public duty, the people are
regarded as the real party in interest and the relator
at whose instigation the proceedings are instituted
need not show that he has any legal or special
interest in the result, it being sufficient to show that
he is a citizen and as such interested in the
execution of the laws * * * (Tanada et. al. vs. Tuvera,
et. al., G.R. No. L- 63915, April 24, 1985, 136 SCRA
27, 36).

From the foregoing, it becomes apparent that when a mandamus

proceeding involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general "public" which possesses
the right.
The Court had opportunity to define the word "public" in
the Subido case, supra, when it held that even those who have no
direct or tangible interest in any real estate transaction are part of the
"public" to whom "(a)ll records relating to registered lands in the
Office of the Register of Deeds shall be open * * *" (Sec. 56, Act No.
496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term.
Properly construed, it embraces every person. To
say that only those who have a present and existing
interest of a pecuniary character in the particular
information sought are given the right of inspection is
to make an unwarranted distinction. *** (Subido vs.
Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with
personality to seek redress for the alleged obstruction of the exercise
of the public right. We find no cogent reason to deny his standing to
bring the present suit.
2. For every right of the people recognized as fundamental, there lies
a corresponding duty on the part of those who govern, to respect and
protect that right. That is the very essence of the Bill of Rights in a
constitutional regime. Only governments operating under
fundamental rules defining the limits of their power so as to shield
individual rights against its arbitrary exercise can properly claim to be
constitutional (Cooley, supra, at p. 5). Without a government's
acceptance of the limitations imposed upon it by the Constitution in
order to uphold individual liberties, without an acknowledgment on its
part of those duties exacted by the rights pertaining to the citizens,

the Bill of Rights becomes a sophistry, and liberty, the ultimate

illusion.
In recognizing the people's right to be informed, both the 1973
Constitution and the New Charter expressly mandate the duty of the
State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for
policy development, subject to such limitations as may be provided
by law. The guarantee has been further enhanced in the New
Constitution with the adoption of a policy of full public disclosure, this
time "subject to reasonable conditions prescribed by law," in Article
11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full
public disclosure of all its transactions involving
public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was
bolstered by what this Court declared as an imperative duty of the
government officials concerned to publish all important legislative
acts and resolutions of a public nature as well as all executive orders
and proclamations of general applicability. We granted mandamus in
said case, and in the process, We found occasion to expound briefly
on the nature of said duty:
* * * That duty must be enforced if the Constitutional
right of the people to be informed on matters of
public concern is to be given substance and reality.
The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion
whatsoever as to what must be in included or
excluded from such publication. (Tanada v.
Tuvera,supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in

allowing the examination of public records, specifically, the records in
the Office of the Register of Deeds, is emphasized in Subido vs.
Ozaeta, supra:
Except, perhaps when it is clear that the purpose of
the examination is unlawful, or sheer, idle curiosity,
we do not believe it is the duty under the law of
registration officers to concern themselves with the
motives, reasons, and objects of the person seeking
access to the records. It is not their prerogative to
see that the information which the records contain is
not flaunted before public gaze, or that scandal is
not made of it. If it be wrong to publish the contents
of the records, it is the legislature and not the
officials having custody thereof which is called upon
to devise a remedy. *** (Subido v. Ozaeta, supra at
388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that
government agencies are without discretion in refusing disclosure of,
or access to, information of public concern. This is not to lose sight of
the reasonable regulations which may be imposed by said agencies
in custody of public records on the manner in which the right to
information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the
manner in which persons desiring to do so, may inspect, examine or
copy records relating to registered lands. However, the regulations
which the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of
examination to the end that damage to or loss of, the
records may be avoided, that undue interference
with the duties of the custodian of the books and
documents and other employees may be prevented,
that the right of other persons entitled to make

inspection may be insured * * * (Subido vs. Ozaeta,

80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar
authority in a municipal judge, to regulate the manner of inspection
by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14).
Said administrative case was filed against the respondent judge for
his alleged refusal to allow examination of the criminal docket
records in his sala. Upon a finding by the Investigating Judge that the
respondent had allowed the complainant to open and view the
subject records, We absolved the respondent. In effect, We have
also held that the rules and conditions imposed by him upon
the manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our
statement that the authority to regulate the manner of examining
public records does not carry with it the power to prohibit. A
distinction has to be made between the discretion to refuse outright
the disclosure of or access to a particular information and the
authority to regulate the manner in which the access is to be
afforded. The first is a limitation upon the availability of access to the
information sought, which only the Legislature may impose (Art. III,
Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to
regulate access is to be exercised solely to the end that damage to,
or loss of, public records may be avoided, undue interference with
the duties of said agencies may be prevented, and more importantly,
that the exercise of the same constitutional right by other persons
shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject
to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of
said agencies. Certainly, its performance cannot be made contingent
upon the discretion of such agencies. Otherwise, the enjoyment of

the constitutional right may be rendered nugatory by any whimsical

exercise of agency discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ of
mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before
Us, the public right to be enforced and the concomitant duty of the
State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of mandamus in
this case is, whether the information sought by the petitioner is within
the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the
free flow of ideas and information in a democracy (Baldoza v.
Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In
the same way that free discussion enables members of society to
cope with the exigencies of their time (Thornhill vs. Alabama, 310
U.S. 88,102 [1939]), access to information of general interest aids
the people in democratic decision-making (87 Harvard Law Review
1505 [1974]) by giving them a better perspective of the vital issues
confronting the nation.
But the constitutional guarantee to information on matters of public
concern is not absolute. It does not open every door to any and all
information. Under the Constitution, access to official records,
papers, etc., are "subject to limitations as may be provided by law"
(Art. III, Sec. 7, second sentence). The law may therefore exempt
certain types of information from public scrutiny, such as those
affecting national security (Journal No. 90, September 23, 1986, p.
10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being
of public concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the constitutional

guarantee. The threshold question is, therefore, whether or not the

information sought is of public interest or public concern.
a. This question is first addressed to the government agency having
custody of the desired information. However, as already discussed,
this does not give the agency concerned any discretion to grant or
deny access. In case of denial of access, the government agency
has the burden of showing that the information requested is not of
public concern, or, if it is of public concern, that the same has been
exempted by law from the operation of the guarantee. To hold
otherwise will serve to dilute the constitutional right. As aptly
observed, ". . . the government is in an advantageous position to
marshall and interpret arguments against release . . ." (87 Harvard
Law Review 1511 [1974]). To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to
review by the courts, and in the proper case, access may be
compelled by a writ of Mandamus.
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine in a case
by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera,
supra, was the need for adequate notice to the public of the various
laws which are to regulate the actions and conduct of citizens.
In Subido vs. Ozaeta, supra,the public concern deemed covered by
the statutory right was the knowledge of those real estate
transactions which some believed to have been registered in
violation of the Constitution.

The information sought by the petitioner in this case is the truth of

the claim of certain government employees that they are civil service
eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only
according to merit and fitness to be determined, as
far as practicable, and except as to positions which
are policy determining, primarily confidential or
highly technical, by competitive examination. (Art. IX,
B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the
legitimate concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who are
eligibles. Public officers are at all times accountable to the people
even as to their eligibilities for their respective positions.

The civil service eligibility of a sanitarian being of public concern, and

in the absence of express limitations under the law upon access to
the register of civil service eligibles for said position, the duty of the
respondent Commission to confirm or deny the civil service eligibility
of any person occupying the position becomes imperative.
Mandamus, therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its
register of eligibles for the position of sanitarian, and to confirm or
deny, the civil service eligibility of Julian Sibonghanoy and Mariano
Agas, for said position in the Health Department of Cebu City, as
requested by the petitioner Valentin L. Legaspi.
Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento,
JJ., concur.
Feliciano, J., is on leave.

b. But then, it is not enough that the information sought is of public

interest. For mandamus to lie in a given case, the information must
not be among the species exempted by law from the operation of the
constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of
eligibility, the respondent has failed to cite any provision in the Civil
Service Law which would limit the petitioner's right to know who are,
and who are not, civil service eligibles. We take judicial notice of the
fact that the names of those who pass the civil service examinations,
as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing
secret about one's civil service eligibility, if actually possessed.
Petitioner's request is, therefore, neither unusual nor unreasonable.
And when, as in this case, the government employees concerned
claim to be civil service eligibles, the public, through any citizen, has
a right to verify their professed eligibilities from the Civil Service
Commission.

LEO

ECHEGARAY, petitioner, vs. SECRETARY

JUSTICE, ET AL., respondents.

OF

RE S O LUTI ON
PUNO, J.:

For resolution are public respondents' Urgent Motion for

Reconsideration of the Resolution of this Court dated January 4,
1999 temporarily restraining the execution of petitioner and
Supplemental Motion to Urgent Motion for Reconsideration. It is
the submission of public respondents that:

"(1) The Decision in this case having become final and

executory, its execution enters the exclusive ambit of authority

of the executive authority. The issuance of the TRO may be

construed as trenching on that sphere of executive authority;
(2) The issuance of the temporary restraining order x x x
creates dangerous precedent as there will never be an end to
litigation because there is always a possibility that Congress
may repeal a law.
(3) Congress had earlier deliberated extensively on the death
penalty bill. To be certain, whatever question may now be
raised on the Death Penalty Law before the present Congress
within the 6-month period given by this Honorable Court had
in all probability been fully debated upon x x x.
(4) Under the time honored maxim lex futuro, judex
praeterito, the law looks forward while the judge looks at the
past, x x x the Honorable Court in issuing the TRO has
transcended its power of judicial review.
(5) At this moment, certain circumstances/supervening events
transpired to the effect that the repeal or modification of the
law imposing death penalty has become nil, to wit:
a. The public pronouncement of President Estrada
that he will veto any law imposing the death
penalty involving heinous crimes.
b. The resolution of Congressman Golez, et al., that they are
against the repeal of the law;

c. The fact that Senator Roco's resolution to repeal

the law only bears his signature and that of
Senator Pimentel."
In their Supplemental Motion to Urgent Motion for Reconsideration,
public respondents attached a copy of House Resolution No. 629
introduced by Congressman Golez entitled "Resolution expressing
the sense of the House of Representative to reject any move to
review Republic Act No. 7659 which provided for the re-imposition
of death penalty, notifying the Senate, the Judiciary and the
Executive Department of the position of the House of
Representatives on this matter, and urging the President to exhaust
all means under the law to immediately implement the death penalty
law." The Resolution was concurred in by one hundred thirteen
(113) congressmen.
In their Consolidated Comment, petitioner contends: (1) the
stay order x x x is within the scope of judicial power and duty and
does not trench on executive powers nor on congressional
prerogatives; (2) the exercise by this Court of its power to stay
execution was reasonable; (3) the Court did not lose jurisdiction to
address incidental matters involved or arising from the petition;
(4) public respondents are estopped from challenging the Court's
jurisdiction; and (5) there is no certainty that the law on capital
punishment will not be repealed or modified until Congress convenes
and considers all the various resolutions and bills filed before it.
Prefatorily, the Court likes to emphasize that the instant motions
concern matters that are not incidents in G.R. No. 117472, where the
death penalty was imposed on petitioner on automatic review of his
conviction by this Court. The instant motions were filed
in this case, G.R. No. 132601, where the constitutionality of R.A.
No. 8177 (Lethal Injection Law) and its implementing rules and
regulations was assailed by petitioner. For this reason, the Court in

its Resolution of January 4, 1999 merely noted the Motion to Set

Aside of Rodessa "Baby" R. Echegaray dated January 7, 1999 and
Entry of Appearance of her counsel dated January 5, 1999. Clearly,
she has no legal standing to intervene in the case at bar, let alone the
fact that the interest of the State is properly represented by the
Solicitor General.
We shall now resolve the basic issues raised by the public
respondents.
I

First. We do not agree with the sweeping submission of the

public respondents that this Court lost its jurisdiction over the case at
bar and hence can no longer restrain the execution of the
petitioner. Obviously, public respondents are invoking the rule that
final judgments can no longer be altered in accord with the principle
that "it is just as important that there should be a place to end as there
should be a place to begin litigation." [1] To start with, the Court is
not changing even a comma of its final Decision. It is appropriate
to examine with precision the metes and bounds of the Decision of
this Court that became final. These metes and bounds are clearly
spelled out in the Entry of Judgment in this case, viz:

"ENTRY OF JUDGMENT
This is to certify that on October 12, 1998 a decision rendered
in the above-entitled case was filed in this Office, the
dispositive part of which reads as follows:
`WHEREFORE, the petition is DENIED insofar as petitioner
seeks to declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19

of the Rules and Regulations to Implement Republic Act No.

8177 are concerned, which are hereby declared INVALID
because (a) Section 17 contravenes Article 83 of the Revised
Penal Code, as amended by Section 25 of Republic Act No.
7659; and (b) Section 19 fails to provide for review and
approval of the Lethal Injection Manual by the Secretary of
Justice, and unjustifiably makes the manual confidential, hence
unavailable to interested parties including the accused/convict
and counsel. Respondents are hereby enjoined from enforcing
and implementing Republic Act No. 8177 until the aforesaid
Sections 17 and 19 of the Rules and Regulations to Implement
Republic Act No. 8177 are appropriately amended, revised
and/or corrected in accordance with this Decision.
SO ORDERED.'
and that the same has, on November 6, 1998 become final and
executory and is hereby recorded in the Book of Entries of
Judgment.
Manila, Philippines.
Cle
rk of Court
By: (SGD)
TERESITA G. DIMAISIP

Acting Chief

Judic
ial Records Office"
The records will show that before the Entry of Judgment, the
Secretary of Justice, the Honorable Serafin Cuevas, filed with this
Court on October 21, 1998 a Compliance where he submitted the
Amended Rules and Regulations implementing R.A. No. 8177 in
compliance with our Decision. On October 28, 1998, Secretary
Cuevas submitted a Manifestation informing the Court that he has
caused the publication of the said Amended Rules and Regulations as
required by the Administrative Code. It is crystalline that the
Decision of this Court that became final and unalterable
mandated: (1) that R.A. No. 8177 is not unconstitutional; (2) that
sections 17 and 19 of the Rules and Regulations to Implement R.A.
No. 8177 are invalid, and (3) R.A. No. 8177 cannot be enforced and
implemented until sections 17 and 19 of the Rules and Regulations to
Implement R.A. No. 8177 are amended. It is also daylight clear that
this Decision was not altered a whit by this Court. Contrary to the
submission of the Solicitor General, the rule on finality of
judgment cannot divest this Court of its jurisdiction to execute
and enforce the same judgment. Retired Justice Camilo Quiason
synthesized the well established jurisprudence on this issue as
follows:[2]
xxx

"the finality of a judgment does not mean that the Court

has lost all its powers nor the case. By the finality of the
judgment, what the court loses is its jurisdiction to amend,
modify or alter the same. Even after the judgment has become
final the court retains its jurisdiction to execute and enforce it.
[3]

There is a difference between the jurisdiction of the court to execute its

judgment and its jurisdiction to amend, modify or alter the same. The former
continues even after the judgment has become final for the purpose of

enforcement of judgment; the latter terminates when the judgment becomes

final.[4] x x x For after the judgment has become final facts and circumstances may
transpire which can render the execution unjust or impossible. [5]

In truth, the argument of the Solicitor General has long been

rejected by this Court. As aptly pointed out by the petitioner, as
early as 1915, this Court has unequivocably ruled in the case
of Director of Prisons v. Judge of First Instance,[6] viz:

"This Supreme Court has repeatedly declared in various

decisions, which constitute jurisprudence on the subject, that in
criminal cases, after the sentence has been pronounced and the
period for reopening the same has elapsed, the court cannot
change or alter its judgment, as its jurisdiction has
terminated . . . When in cases of appeal or review the cause
has been returned thereto for execution, in the event that the
judgment has been affirmed, it performs a ministerial duty in
issuing the proper order. But it does not follow from this
cessation of functions on the part of the court with
reference to the ending of the cause that the judicial
authority terminates by having then passed completely to
the Executive. The particulars of the execution itself, which
are certainly not always included in the judgment and writ of
execution, in any event are absolutely under the control of the
judicial authority, while the executive has no power over the
person of the convict except to provide for carrying out of the
penalty and to pardon.
Getting down to the solution of the question in the case at bar,
which is that of execution of a capital sentence, it must be
accepted as a hypothesis that postponement of the date can
be requested. There can be no dispute on this point. It is a

well-known principle that notwithstanding the order of

execution and the executory nature thereof on the date set
or at the proper time, the date therefor can be postponed,
even in sentences of death. Under the common law this
postponement can be ordered in three ways: (1) By command
of the King; (2) by discretion (arbitrio) of the court; and
(3) by mandate of the law. It is sufficient to state this principle
of the common law to render impossible that assertion in
absolute terms that after the convict has once been placed in
jail the trial court can not reopen the case to investigate the
facts that show the need for postponement. If one of the ways
is by direction of the court, it is acknowledged that even
after the date of the execution has been fixed, and
notwithstanding the general rule that after the (court) has
performed its ministerial duty of ordering the execution . . .
and its part is ended, if however a circumstance arises that
ought to delay the execution, and there is an imperative
duty to investigate the emergency and to order a
postponement. Then the question arises as to whom the
application for postponing the execution ought to be addressed
while the circumstances is under investigation and as to who
has jurisdiction to make the investigation."
The power to control the execution of its decision is an
essential aspect of jurisdiction. It cannot be the subject
of substantial subtraction for our Constitution[7] vests the entirety of
judicial power in one Supreme Court and in such lower courts as
may be estabished by law. To be sure, the most important part of
a litigation, whether civil or criminal, is the process of execution
of decisions where supervening events may change
the circumstance of the parties and compel courts to intervene
and adjust the rights of the litigants to prevent unfairness. It is

because of these unforseen, supervening contingencies that

courts have been conceded the inherent and necessary power of
control of its processes and orders to make them conformable to
law and justice.[8] For this purpose, Section 6 of Rule 135 provides
that "when by law jurisdiction is conferred on a court or judicial
officer, all auxiliary writs, processes and other means necessary to
carry it into effect may be employed by such court or officer and if
the procedure to be followed in the exercise of such jurisdiction
is not specifically pointed out by law or by these rules, any
suitable process or mode of proceeding may be adopted which
appears conformable to the spirit of said law or rules." It bears
repeating that what the Court restrained temporarily is the execution
of its own Decision to give it reasonble time to check its fairness in
light of supervening events in Congress as alleged by petitioner. The
Court, contrary to popular misimpression, did not restrain the
effectivity of a law enacted by Congress.
The more disquieting dimension of the submission of the public
respondents that this Court has no jurisdiction to restrain the
execution of petitioner is that it can diminish the independence of
the judiciary. Since the implant of republicanism in our soil, our
courts have been conceded the jurisdiction to enforce their final
decisions. In accord with this unquestioned jurisdiction, this Court
promulgated
rules
concerning
pleading,
practice
and
procedure which, among others, spelled out the rules on execution
of judgments. These rules are all predicated on the assumption
that courts have the inherent, necessary and incidental power
to control and supervise the process of execution of their
decisions. Rule 39 governs execution, satisfaction and effects of
judgments in civil cases. Rule 120 governs judgments in criminal
cases. It should be stressed that the power to promulgate rules
of pleading, practice and procedure was granted by our
Constitutions to this Court to enhance its independence, for in the
words of Justice Isagani Cruz "without independence and integrity,

courts will lose that popular trust so essential to the maintenance of

their vigor as champions of justice."[9] Hence, our Constitutions
continuously vested this power to this Court for it enhances its
independence. Under the 1935 Constitution, the power of this
Court to promulgate rules concerning pleading, practice and
procedure was granted but it appeared to be co-existent with
legislative power for it was subject to the power of Congress to
repeal, alter or supplement. Thus, its Section 13, Article VIII
provides:

"Sec. 13. The Supreme Court shall have the power to

promulgate rules concerning pleading, practice and procedure
in all courts, and the admission to the practice of law. Said
rules shall be uniform for all courts of the same grade and shall
not diminish, increase, or modify substantive rights. The
existing laws on pleading, practice and procedure are hereby
repealed as statutes, and are declared Rules of Court, subject to
the power of the Supreme Court to alter and modify the
same. The Congress shall have the power to repeal, alter or
supplement the rules concerning pleading, practice and
procedure, and the admission to the practice of law in the
Philippines."
The said power of Congress, however, is not as absolute as it
may appear on its surface. In In re Cunanan[10] Congress in the
exercise of its power to amend rules of the Supreme Court regarding
admission to the practice of law, enacted the Bar Flunkers Act of
1953[11] which considered as a passing grade, the average of 70% in
the bar examinations after July 4, 1946 up to August 1951 and 71%
in the 1952 bar examinations. This Court struck down the law as
unconstitutional. In his ponencia, Mr. Justice Diokno held that "x x
x the disputed law is not a legislation; it is a judgment - a judgment
promulgated by this Court during the aforecited years affecting the

bar candidates concerned; and although this Court certainly can

revoke these judgments even now, for justifiable reasons, it is no less
certain that only this Court, and not the legislative nor executive
department, that may do so. Any attempt on the part of these
departments would be a clear usurpation of its function, as is the case
with the law in question."[12] The venerable jurist further ruled: "It is
obvious, therefore, that the ultimate power to grant license for the
practice of law belongs exclusively to this Court, and the law passed
by Congress on the matter is of permissive character, or as other
authorities say, merely to fix the minimum conditions for the
license." By its ruling, this Court qualified the absolutist tone of
the power of Congress to "repeal, alter or supplement the rules
concerning pleading, practice and procedure, and the admission to
the practice of law in the Philippines.
The ruling of this Court in In re Cunanan was not changed by
the 1973 Constitution. For the 1973 Constitution reiterated the
power of this Court "to promulgate rules concerning pleading,
practice and procedure in all courts, x x x which, however, may be
repealed, altered or supplemented by the Batasang Pambansa x x
x." More completely, Section 5(2)5 of its Article X provided:
xxx

xxx

xxx

"Sec. 5. The Supreme Court shall have the following powers.

xxx

xxx

xxx

(5) Promulgate rules concerning pleading, practice, and

procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be
repealed, altered, or supplemented by the Batasang
Pambansa. Such rules shall provide a simplified and

inexpensive procedure for the speedy disposition of cases, shall

be uniform for all courts of the same grade, and shall not
diminish, increase, or modify substantive rights."
Well worth noting is that the 1973 Constitution further
strengthened the independence of the judiciary by giving to it
the additional power to promulgate rules governing the integration
of the Bar.[13]
The 1987 Constitution molded an even stronger and more
independent judiciary. Among others, it enhanced the rule
making power of this Court. Its Section 5(5), Article VIII
provides:
xxx

xxx

xxx

"Section 5. The Supreme Court shall have the following

powers:
xxx

xxx

xxx

(5) Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading, practice and
procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of procedure of
special courts and quasi-judicial bodies shall remain
effective unless disapproved by the Supreme Court."

The rule making power of this Court was expanded. This

Court for the first time was given the power to promulgate rules
concerning the protection and enforcement of constitutional
rights. The Court was also granted for the first time the power to
disapprove rules of procedure of special courts and quasi-judicial
bodies. But most importantly, the 1987 Constitution took
away the power of Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. In fine, the power to
promulgate rules of pleading, practice and procedure is no longer
shared by this Court with Congress, more so with the
Executive. If the manifest intent of the 1987 Constitution is to
strengthen the independence of the judiciary, it is inutile to urge, as
public respondents do, that this Court has no jurisdiction to control
the process of execution of its decisions, a power conceded to it and
which it has exercised since time immemorial.
To be sure, it is too late in the day for public respondents to
assail the jurisdiction of this Court to control and supervise the
implementation of its decision in the case at bar. As aforestated,
our Decision became final and executory on November 6, 1998. The
records reveal that after November 6, 1998, or on December 8,
1998, no less than the Secretary of Justice recognized the
jurisdiction of this Court by filing a Manifestation and Urgent
Motion to compel the trial judge, the Honorable Thelma A.
Ponferrada, RTC, Br. 104, Quezon City to provide him "x x x a
certified true copy of the Warrant of Execution dated November 17,
1998 bearing the designated execution day of death convict Leo
Echegaray and allow (him) to reveal or announce the contents
thereof, particularly the execution date fixed by such trial court to the
public when requested." The relevant portions of the Manifestation
and Urgent Motion filed by the Secretary of Justice beseeching this
Court "to provide the appropriate relief" state:
xxx

xxx

xxx

5. Instead of filing a comment on Judge Ponferrada's

Manifestation however, herein respondent is submitting the
instant Manifestation and Motion (a) to stress, inter alia, that
the non-disclosure of the date of execution deprives herein
respondent of vital information necessary for the exercise of
his statutory powers, as well as renders nugatory the
constitutional guarantee that recognizes the people's right to
information of public concern, and (b) to ask this Honorable
Court to provide the appropriate relief.
6. The non-disclosure of the date of execution deprives herein
respondent of vital information necessary for the exercise of
his power of supervision and control over the Bureau of
Corrections pursuant to Section 39, Chapter 8, Book IV of the
Administrative Code of 1987, in relation to Title III, Book IV
of such Administrative Code, insofar as the enforcement of
Republic Act No. 8177 and the Amended Rules and
Regulations to Implement Republic Act No. 8177 is concerned
and for the discharge of the mandate of seeing to it that laws
and rules relative to the execution of sentence are faithfully
observed.
7. On the other hand, the willful omission to reveal the
information about the precise day of execution limits the
exercise by the President of executive clemency powers
pursuant to Section 19, Article VII (Executive Department) of
the 1987 Philippine Constitution and Article 81 of the Revised
Penal Code, as amended, which provides that the death
sentence shall be carried out `without prejudice to the exercise
by the President of his executive clemency powers at all
times." (Underscoring supplied) For instance, the President

cannot grant reprieve, i.e., postpone the execution of a sentence

to a day certain (People v. Vera, 65 Phil. 56, 110 [1937]) in the
absence of a precise date to reckon with. The exercise of such
clemency power, at this time, might even work to the prejudice
of the convict and defeat the purpose of the Constitution and
the applicable statute as when the date of execution set by the
President would be earlier than that designated by the court.
8. Moreover, the deliberate non-disclosure of information
about the date of execution to herein respondent and the public
violates Section 7, Article III (Bill of Rights) and Section 28,
Article II (Declaration of Principles and State Policies) of the
1987 Philippine Constitution which read:
SEC. 7. The right of the people to information on matters of
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
SEC. 28. Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
9. The `right to information' provision is self-executing. It
supplies 'the rules by means of which the right to information
may be enjoyed (Cooley, A Treatise on the Constitutional
Limitations, 167 [1972]) by guaranteeing the right and
mandating the duty to afford access to sources of
information. Hence, the fundamental right therein recognized

may be asserted by the people upon the ratification of the

Constitution without need for any ancillary act of the
Legislature (Id., at p. 165) What may be provided for by the
Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent
with the declared State policy of full public disclosure of all
transactions involving public interest (Constitution, Art. II, Sec.
28). However, it cannot be overemphasized that whatever
limitation may be prescribed by the Legislature, the right and
the duty under Art. III, Sec. 7 have become operative and
enforceable by virtue of the adoption of the New
Charter." (Decision of the Supreme Court En Banc in Legaspi
v. Civil Service Commission, 150 SCRA 530, 534-535 [1987]."
The same motion to compel Judge Ponferrada to reveal the date
of execution of petitioner Echegaray was filed by his counsel, Atty.
Theodore Te, on December 7, 1998. He invoked his client's right to
due process and the public's right to information. The Solicitor
General, as counsel for public respondents, did not oppose
petitioner's motion on the ground that this Court has no more
jurisdiction over the process of execution of Echegaray. This
Court granted the relief prayed for by the Secretary of Justice and
by the counsel of the petitioner in its Resolution of December 15,
1998. There was not a whimper of protest from the public
respondents and they are now estopped from contending that this
Court has lost its jurisdiction to grant said relief. The jurisdiction of
this Court does not depend on the convenience of litigants.
II

Second. We likewise reject the public respondents' contention

that the "decision in this case having become final and executory, its
execution enters the exclusive ambit of authority of the executive

department x x x. By granting the TRO, the Honorable Court

has in effect granted reprieve which is an executive
function."[14] Public respondents cite as their authority for this
proposition, Section 19, Article VII of the Constitution which reads:

"Except in cases of impeachment, or as otherwise provided in

this Constitution, the President may grant reprieves,
commutations, and pardons, and remit fines and forfeitures
after conviction by final judgment. He shall also have the
power to grant amnesty with the concurrence of a majority of
all the members of the Congress."
The text and tone of this provision will not yield to the
interpretation suggested by the public respondents. The
provision is simply the source of power of the President to grant
reprieves, commutations, and pardons and remit fines and forfeitures
after conviction by final judgment. It also provides the authority for
the President to grant amnesty with the concurrence of a majority of
all the members of the Congress. The provision, however, cannot
be interpreted as denying the power of courts to control the
enforcement of their decisions after their finality. In truth, an
accused who has been convicted by final judgment still
possesses collateral rights and these rights can be claimed in the
appropriate courts. For instance, a death convict who becomes
insane after his final conviction cannot be executed while in a state
of insanity.[15] As observed by Antieau, "today, it is generally assumed
that due process of law will prevent the government from executing
the death sentence upon a person who is insane at the time of
execution."[16] The suspension of such a death sentence
is undisputably an exercise of judicial power. It is not a usurpation
of the presidential power of reprieve though its effect is the same -the temporary suspension of the execution of the death convict. In
the same vein, it cannot be denied that Congress can at any

time amend R.A. No. 7659 by reducing the penalty of death to life
imprisonment. The effect of such an amendment is like that of
commutation of sentence. But by no stretch of the imagination can
the exercise by Congress of its plenary power to amend laws be
considered as a violation of the power of the President to commute
final sentences of conviction. The powers of the Executive, the
Legislative and the Judiciary to save the life of a death convict do
not exclude each other for the simple reason that there is no
higher right than the right to life. Indeed, in various States in the
United States, laws have even been enacted expressly granting courts
the power to suspend execution of convicts and their constitutionality
has been upheld over arguments that they infringe upon the power of
the President to grant reprieves. For the public respondents therefore
to contend that only the Executive can protect the right to life of an
accused after his final conviction is to violate the principle of coequal and coordinate powers of the three branches of our
government.
III

Third. The Court's resolution temporarily restraining the

execution of petitioner must be put in its proper perspective as it
has been grievously distorted especially by those who make a
living by vilifying courts. Petitioner filed his Very Urgent Motion
for Issuance of TRO on December 28, 1998 at about 11:30 p.m. He
invoked several grounds, viz: (1) that his execution has been set on
January 4, the first working day of 1999; (b) that members of
Congress had either sought for his executive clemency and/or review
or repeal of the law authorizing capital punishment; (b.1) that
Senator Aquilino Pimentel's resolution asking that clemency be
granted to the petitioner and that capital punishment be reviewed has
been concurred by thirteen (13) other senators; (b.2) Senate President
Marcelo Fernan and Senator Miriam S. Defensor have publicly
declared they would seek a review of the death penalty law;

(b.3) Senator Raul Roco has also sought the repeal of capital
punishment, and (b.4) Congressman Salacrib Baterina, Jr., and thirty
five (35) other congressmen are demanding review of the same law.
When the Very Urgent Motion was filed, the Court was already
in its traditional recess and would only resume session on January
18, 1999. Even then, Chief Justice Hilario Davide, Jr. called the
Court to a Special Session on January 4, 1999 [17] at 10. a.m. to
deliberate on petitioner's Very Urgent Motion. The Court hardly had
five (5) hours to resolve petitioner's motion as he was due to be
executed at 3 p.m. Thus, the Court had the difficult problem
of resolving whether petitioner's allegations about the moves in
Congress to repeal or amend the Death Penalty Law are
mere speculations or not. To the Court's majority, there were good
reasons why the Court should not immediately dismiss petitioner's
allegations as mere speculations and surmises. They noted
that petitioner's allegations were made in a pleading under oath and
were widely publicized in the print and broadcast media. It was also
of judicial notice that the 11th Congress is a new Congress and has
no less than one hundred thirty (130) new members whose views
on capital punishment are still unexpressed. The present Congress
is therefore different from the Congress that enacted the Death
Penalty Law (R.A. No. 7659) and the Lethal Injection Law (R.A. No.
8177). In contrast, the Court's minority felt that petitioner's
allegations lacked clear factual bases. There was hardly a time to
verify petitioner's allegations as his execution was set at 3 p.m. And
verification from Congress was impossible as Congress was not in
session. Given these constraints, the Court's majority did not rush to
judgment but took an extremely cautious stance by temporarily
restraining the execution of petitioner. The suspension was
temporary - - - "until June 15, 1999, coeval with the constitutional
duration of the present regular session of Congress, unless it sooner
becomes certain that no repeal or modification of the law is going
to be made." The extreme caution taken by the Court was

compelled, among others, by the fear that any error of the Court in
not stopping the execution of the petitioner will preclude any
further relief for all rights stop at the graveyard. As life was at
stake, the Court refused to constitutionalize haste and the hysteria of
some partisans. The Court's majority felt it needed the certainty
that the legislature will not change the circumstance of petitioner as
alleged by his counsel. It was believed that law and equitable
considerations demand no less before allowing the State to take the
life of one its citizens.
The temporary restraining order of this Court has
produced its desired result, i.e., the crystallization of the
issue whether Congress is disposed to review capital
punishment. The public respondents, thru the Solicitor General,
cite posterior events that negate beyond doubt the possibility that
Congress will repeal or amend the death penalty law. He names
these supervening events as follows:
xxx

"a. The public pronouncement of President Estrada that he will

veto any law repealing the death penalty involving heinous
crimes.
b. The resolution of Congressman Golez, et al., that they are
against the repeal of the law;
c. The fact that Senator Roco's resolution to repeal the law
only bears his signature and that of Senator Pimentel."[18]
In their Supplemental Motion to Urgent Motion for
Reconsideration, the Solicitor General cited House Resolution No.
629 introduced by Congressman Golez entitled "Resolution

expressing the sense of the House of Representatives to reject any

move to review R.A. No. 7659 which provided for the reimposition
of death penalty, notifying the Senate, the Judiciary and the
Executive Department of the position of the House of
Representatives on this matter and urging the President to exhaust all
means under the law to immediately implement the death penalty
law." The Golez resolution was signed by 113 congressmen as of
January 11, 1999. In a marathon session yesterday that extended up
to 3 o'clock in the morning, the House of Representatives with minor
amendments formally adopted the Golez resolution by an
overwhelming vote. House Resolution No. 25 expressed the
sentiment that the House "x x x does not desire at this time to review
Republic Act 7659." In addition, the President has stated that he will
not request Congress to ratify the Second Protocol in view of the
prevalence of heinous crimes in the country. In light of these
developments, the Court's TRO should now be lifted as it has
served its legal and humanitarian purpose.
A
last
note. In
1922,
the
famous
Clarence
Darrow predicted that "x x x the question of capital punishment has
been the subject of endless discussion and will probably never be
settled so long as men believe in punishment."[19] In our clime and
time when heinous crimes continue to be unchecked, the debate on
the legal and moral predicates of capital punishment has
been regrettably blurred
by emotionalism
because
of the
unfaltering faith of the pro and anti-death partisans on the right
and righteousness of their postulates. To be sure, any debate,
even if it is no more than an exchange of epithets is healthy in a
democracy. But when the debate deteriorates to discord due to
the overuse of words that wound, when anger threatens to turn
the majority rule to tyranny, it is the especial duty of this Court
to assure that the guarantees of the Bill of Rights to the minority
fully hold. As Justice Brennan reminds us "x x x it is the very
purpose of the Constitution - - - and particularly the Bill of Rights - -

- to declare certain values transcendent, beyond the reach of

temporary political majorities."[20] Man has yet to invent a better
hatchery of justice than the courts. It is a hatchery where justice
will bloom only when we can prevent the roots of reason to be
blown away by the winds of rage. The flame of the rule of law
cannot be ignited by rage, especially the rage of the mob which is
the mother of unfairness. The business of courts in rendering
justice is to be fair and they can pass their litmus test only when
they can be fair to him who is momentarily the most hated by
society.[21]
IN VIEW WHEREOF, the Court grants the public
respondents' Urgent Motion for Reconsideration and Supplemental
Motion to Urgent Motion for Reconsideration and lifts the
Temporary Restraining Order issued in its Resolution of January 4,
1999.
The Court also orders respondent trial court judge (Hon.
Thelma A. Ponferrada, Regional Trial Court, Quezon City, Branch
104) to set anew the date for execution of the convict/petitioner in
accordance with applicable provisions of law and the Rules of Court,
without further delay.
SO ORDERED.

[G.R. No. 130716. December 9, 1998]

FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL

COMMISSION ON GOOD GOVERNMENT
(PCGG) and MAGTANGGOL GUNIGUNDO, (in

his capacity as chairman of the PCGG), respondents.

GLORIA A. JOPSON, CELNAN A. JOPSON,
SCARLET A. JOPSON, and TERESA A.
JOPSON, petitioners-in-intervention.
DECISION
PANGANIBAN, J:

Petitioner asks this Court to define the nature and the extent of
the peoples constitutional right to information on matters of public
concern. Does this right include access to the terms of government
negotiations prior to their consummation or conclusion? May the
government, through the Presidential Commission on Good
Government (PCGG), be required to reveal the proposed terms of a
compromise agreement with the Marcos heirs as regards their alleged
ill-gotten wealth? More specifically, are the General Agreement
and Supplemental Agreement, both dated December 28, 1993 and
executed between the PCGG and the Marcos heirs, valid and
binding?

The Case
These are the main questions raised in this original action
seeking (1) to prohibit and [e]njoin respondents [PCGG and its
chairman] from privately entering into, perfecting and/or executing
any agreement with the heirs of the late President Ferdinand E.
Marcos x x x relating to and concerning the properties and assets
of Ferdinand Marcos located in the Philippines and/or abroad -including the so-called Marcos gold hoard; and (2) to [c]ompel
respondent[s] to make public all negotiations and agreement, be they
ongoing or perfected, and all documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos
heirs.[1]

The Facts
Petitioner Francisco I. Chavez, as taxpayer, citizen and former
government official who initiated the prosecution of the Marcoses
and their cronies who committed unmitigated plunder of the public
treasury and the systematic subjugation of the countrys economy,
alleges that what impelled him to bring this action were several news
reports[2] bannered in a number of broadsheets sometime in
September 1997. These news items referred to (1) the alleged
discovery of billions of dollars of Marcos assets deposited in various
coded accounts in Swiss banks; and (2) the reported execution of a
compromise, between the government (through PCGG) and the
Marcos heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information [3] and
the correlative duty of the state to disclose publicly all its
transactions involving the national interest, [4] demands that
respondents make public any and all negotiations and agreements
pertaining to PCGGs task of recovering the Marcoses ill-gotten
wealth. He claims that any compromise on the alleged billions of illgotten wealth involves an issue of paramount public interest, since
it has a debilitating effect on the countrys economy that would be
greatly prejudicial to the national interest of the Filipino
people. Hence, the people in general have a right to know the
transactions or deals being contrived and effected by the government.
Respondents, on the other hand, do not deny forging a
compromise agreement with the Marcos heirs. They claim, though,
that petitioners action is premature, because there is no showing that
he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled
to make any disclosure, since the proposed terms and conditions of
the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have submitted
the subject Agreements to the Sandiganbayan for its approval in
Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E.

Marcos, and that the Republic opposed such move on the principal
grounds that (1) said Agreements have not been ratified by or even
submitted to the President for approval, pursuant to Item No. 8 of the
General Agreement; and (2) the Marcos heirs have failed to comply
with their undertakings therein, particularly the collation and
submission of an inventory of their assets. The Republic also cited
an April 11, 1995 Resolution in Civil Case No. 0165, in which the
Sandiganbayan dismissed a similar petition filed by the Marcoses
attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998
Memorandum[5] to then PCGG Chairman Magtanggol Gunigundo,
categorically stated:

This is to reiterate my previous position embodied in the

Palace Press Release of 6 April 1995 that I have not authorized
you to approve the Compromise Agreements of December 28,
1993 or any agreement at all with the Marcoses, and would
have disapproved them had they been submitted to me.
The Full Powers of Attorney of March 1994 and July 4, 1994,
did not authorize you to approve said Agreements, which I
reserve for myself as President of the Republic of the
Philippines.
The assailed principal Agreement[6] reads:

GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993,
by and between -

The Republic of the Philippines, through the

Presidential Commission on Good Government
(PCGG), a governmental agency vested with
authority defined under Executive Orders Nos. 1, 2
and 14, with offices at the Philcomcen Building,
Pasig, Metro Manila, represented by its Chairman
referred to as the FIRST PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda
Romualdez Marcos and Ferdinand R. Marcos, Jr., all
of legal age, and with address at c/o No. 154 Lopez
Rizal St., Mandaluyong, Metro Manila, and Imelda
Romualdez Marcos, Imee Marcos Manotoc,
Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE
PARTY.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their
sense of nationalism and love of country and of the entire
Filipino people, and their desire to set up a foundation and
finance impact projects like installation of power plants in
selected rural areas and initiation of other community projects
for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from
the Swiss Federal Tribunal of December 21, 1990, that the
$356 million belongs in principle to the Republic of the
Philippines provided certain conditionalities are met, but even

after 7 years, the FIRST PARTY has not been able to procure a
final judgment of conviction against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a longdrawn out litigation which, as proven by the past 7 years, is
consuming money, time and effort, and is counter-productive
and ties up assets which the FIRST PARTY could otherwise
utilize for its Comprehensive Agrarian Reform Program, and
other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has
adopted a policy of unity and reconciliation in order to bind the
nations wounds and start the process of rebuilding this nation
as it goes on to the twenty-first century;
WHEREAS, this Agreement settles all claims and
counterclaims which the parties may have against one another,
whether past, present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual
covenants set forth herein, the parties agree as follows:
1. The parties will collate all assets presumed to be owned by, or
held by other parties for the benefit of, the PRIVATE PARTY
for purposes of determining the totality of the assets covered
by the settlement. The subject assets shall be classified by
the nature thereof, namely: (a) real estate; (b) jewelry; (c)
paintings and other works of art; (d) securities; (e) funds on
deposit; (f) precious metals, if any, and (g) miscellaneous
assets or assets which could not appropriately fall under any
of the preceding classification. The list shall be based on the
full disclosure of the PRIVATE PARTY to insure its accuracy.
2. Based on the inventory, the FIRST PARTY shall determine
which shall be ceded to the FIRST PARTY, and which shall
be assigned to/retained by the PRIVATE PARTY. The assets

of the PRIVATE PARTY shall be net of, and exempt from,

any form of taxes due the Republic of the
Philippines. However, considering the unavailability of all
pertinent and relevant documents and information as to
balances and ownership, the actual specification of assets to
be retained by the PRIVATE PARTY shall be covered by
supplemental agreements which shall form part of this
Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully
disclose but which are held by trustees, nominees, agents or
foundations are hereby waived over by the PRIVATE PARTY
in favor of the FIRST PARTY. For this purpose, the parties
shall cooperate in taking the appropriate action, judicial
and/or extrajudicial, to recover the same for the FIRST
PARTY.
4. All disclosures of assets made by the PRIVATE PARTY shall
not be used as evidence by the FIRST PARTY in any
criminal, civil, tax or administrative case, but shall be valid
and binding against said PARTY for use by the FIRST
PARTY in withdrawing any account and/or recovering any
asset. The PRIVATE PARTY withdraws any objection to the
withdrawal by and/or release to the FIRST PARTY by the
Swiss banks and/or Swiss authorities of the $356 million, its
accrued interests, and/or any other account; over which the
PRIVATE PARTY waives any right, interest or participation
in favor of the FIRST PARTY. However, any withdrawal or
release of any account aforementioned by the FIRST PARTY
shall be made in the presence of any authorized
representative of the PRIVATE PARTY.
5. The trustees, custodians, safekeepers, depositaries, agents,
nominees, administrators, lawyers, or any other party acting
in similar capacity in behalf of the PRIVATE PARTY are
hereby informed through this General Agreement to insure
that it is fully implemented and this shall serve as absolute
authority from both parties for full disclosure to the FIRST
PARTY of said assets and for the FIRST PARTY to withdraw
said account and/or assets and any other assets which the

FIRST PARTY on its own or through the help of the

PRIVATE PARTY/their trustees, etc., may discover.
6. Any asset which may be discovered in the future as belonging
to the PRIVATE PARTY or is being held by another for the
benefit of the PRIVATE PARTY and which is not included in
the list per No. 1 for whatever reason shall automatically
belong to the FIRST PARTY, and the PRIVATE PARTY in
accordance with No. 4 above, waives any right thereto.
7. This Agreement shall be binding on, and inure to the benefit
of, the parties and their respective legal representatives,
successors and assigns and shall supersede any other prior
agreement.
8. The PARTIES shall submit this and any other implementing
Agreements to the President of the Philippines for
approval. In the same manner, the PRIVATE PARTY shall
provide the FIRST PARTY assistance by way of testimony or
deposition on any information it may have that could shed
light on the cases being pursued by the FIRST PARTY
against other parties. The FIRST PARTY shall desist from
instituting new suits already subject of this Agreement against
the PRIVATE PARTY and cause the dismissal of all other
cases pending in the Sandiganbayan and in other courts.
9. In case of violation by the PRIVATE PARTY of any of the
conditions herein contained, the PARTIES shall be restored
automatically to the status quo ante the signing of this
Agreement.

For purposes of this Agreement, the PRIVATE PARTY shall be

represented by Atty. Simeon M. Mesina, Jr., as their only
Attorney-in-Fact.
IN WITNESS WHEREOF, the parties have signed this
instrument this 28th day of December, 1993, in Makati, Metro
Manila.
PRESIDENTIAL COMMISSION ON

GOOD GOVERNMENT

Counsel & Attorney-inFact

By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E.
MARCOS, IMELDA R.
MARCOS, MA. IMELDA
MARCOS-MANOTOC,
FERDINAND R. MARCOS, JR.,
& IRENE MARCOS-ARANETA
By:
[Sgd.]IMELDA ROMUALDEZMARCOS
[Sgd.] MA. IMELDA MARCOSMANOTOC
FERDINAND R. MARCOS, JR.[7]

[Sgd.] IRENE MARCOSARANETA

Assisted by:
[Sgd.] ATTY. SIMEON M.
MESINA, JR.

Petitioner also denounces this supplement to the above

Agreement: [8]

SUPPLEMENTAL AGREEMENT
This Agreement entered into this 28th day of December, 1993,
by and between -The Republic of the Philippines, through the
Presidential Commission on Good Government
(PCGG), a governmental agency vested with
authority defined under Executive Orders Nos. 1, 2
and 14, with offices at the Philcomcen Building,
Pasig, Metro Manila, represented by its Chairman
Magtanggol C. Gunigundo, hereinafter referred to as
the FIRST PARTY,
-- and -Estate of Ferdinand E. Marcos, represented by Imelda
Romualdez Marcos and Ferdinand R. Marcos, Jr., all
of legal age, and with address at c/o No. 154 Lopez
Rizal St., Mandaluyong, Metro Manila, and Imelda
Romualdez Marcos, Imee Marcos Manotoc,
Ferdinand E. Marcos, Jr., and Irene Marcos Araneta,
hereinafter collectively referred to as the PRIVATE
PARTY.
W I T N E S S E T H:
The parties in this case entered into a General
Agreement dated Dec. 28, 1993;

The PRIVATE PARTY expressly reserve their right to

pursue their interest and/or sue over local assets
located in the Philippines against parties other than
the FIRST PARTY.
The parties hereby agree that all expenses related to
the recovery and/or withdrawal of all assets including
lawyers fees, agents fees, nominees service fees,
bank charges, traveling expenses and all other
expenses related thereto shall be for the account of the
PRIVATE PARTY.
In consideration of the foregoing, the parties hereby agree that
the PRIVATE PARTY shall be entitled to the equivalent of 25%
of the amount that may be eventually withdrawn from said
$356 million Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this
instrument this 28th day of December, 1993, in Makati, Metro
Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E.
MARCOS, IMELDA R.
MARCOS, MA. IMELDA
MARCOS-MANOTOC,

FERDINAND R. MARCOS, JR.,

& IRENE MARCOS-ARANETA
By:
[Sgd.] IMELDA ROMUALDEZMARCOS
[Sgd.] MA. IMELDA MARCOSMANOTOC
FERDINAND R. MARCOS, JR.[9]

[Sgd.] IRENE MARCOSARANETA

Assisted by:
[Sgd.] ATTY. SIMEON M.
MESINA, JR.
Counsel & Attorney-inFact
Acting on a motion of petitioner, the Court issued a Temporary
Restraining Order[10] dated March 23, 1998, enjoining respondents,
their agents and/or representatives from entering into, or perfecting
and/or executing any agreement with the heirs of the late President
Ferdinand E. Marcos relating to and concerning their ill-gotten
wealth.

Issues

The Oral Argument, held on March 16, 1998, focused on the

following issues:

(a) Procedural:
(1) Whether or not the petitioner has the personality or legal
standing to file the instant petition; and
(2) Whether or not this Court is the proper court before which
this action may be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to
disclose to the public the details of any agreement, perfected or
not, with the Marcoses; and
(2) Whether or not there exist any legal restraints against a
compromise agreement between the Marcoses and the PCGG
relative to the Marcoses ill-gotten wealth.[11]
After their oral presentations, the parties filed their respective
memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all
surnamed Jopson, filed before the Court a Motion for Intervention,
attaching thereto their Petition in Intervention. They aver that they
are among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the
decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S.
Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16,
1994 and the Decision of the Swiss Supreme Court of December 10,
1997. As such, they claim to have personal and direct interest in the
subject matter of the instant case, since a distribution or disposition

of the Marcos properties may adversely affect their legitimate

claims. In a minute Resolution issued on August 24, 1998, the Court
granted their motion to intervene and required the respondents to
comment thereon. The September 25, 1998 Comment[12] of the
solicitor general on said motion merely reiterated his aforecited
arguments against the main petition.[13]

The Courts Ruling

The petition is imbued with merit.

First Procedural Issue: Petitioners Standing

Petitioner, on the one hand, explains that as a taxpayer and
citizen, he has the legal personality to file the instant petition. He
submits that since ill-gotten wealth belongs to the Filipino people
and [is], in truth and in fact, part of the public treasury, any
compromise in relation to it would constitute a diminution of the
public funds, which can be enjoined by a taxpayer whose interest is
for a full, if not substantial, recovery of such assets.
Besides, petitioner emphasizes, the matter of recovering the illgotten wealth of the Marcoses is an issue of transcendental
importance to the public. He asserts that ordinary taxpayers have a
right to initiate and prosecute actions questioning the validity of acts
or orders of government agencies or instrumentalities, if the issues
raised are of paramount public interest; and if they immeasurably
affect the social, economic, and moral well-being of the people.
Moreover, the mere fact that he is a citizen satisfies the
requirement of personal interest, when the proceeding involves the
assertion of a public right,[14] such as in this case. He invokes several

decisions[15] of this Court which have set aside the procedural matter
of locus standi, when the subject of the case involved public interest.

petitioner is a citizen and, therefore, part of the general public

which possesses the right.[21]

On the other hand, the solicitor general, on behalf of

respondents, contends that petitioner has no standing to institute the
present action, because no expenditure of public funds is involved
and said petitioner has no actual interest in the alleged
agreement. Respondents further insist that the instant petition is
premature, since there is no showing that petitioner has requested
PCGG to disclose any such negotiations and agreements; or that, if
he has, the Commission has refused to do so.

Further, in Albano v. Reyes,[22] we said that while expenditure of

public funds may not have been involved under the questioned
contract for the development, the management and the operation of
the Manila International Container Terminal, public interest [was]
definitely involved considering the important role [of the subject
contract] x x x in the economic development of the country and the
magnitude of the financial consideration involved. We concluded
that, as a consequence, the disclosure provision in the Constitution
would constitute sufficient authority for upholding the petitioners
standing.

Indeed, the arguments cited by petitioner constitute the

controlling decisional rule as regards his legal standing to institute
the instant petition. Access to public documents and records is a
public right, and the real parties in interest are the people themselves.
[16]

In Taada v. Tuvera,[17] the Court asserted that when the issue

concerns a public right and the object of mandamus is to obtain the
enforcement of a public duty, the people are regarded as the real
parties in interest; and because it is sufficient that petitioner is a
citizen and as such is interested in the execution of the laws, he need
not show that he has any legal or special interest in the result of the
action.[18] In the aforesaid case, the petitioners sought to enforce their
right to be informed on matters of public concern, a right then
recognized in Section 6, Article IV of the 1973 Constitution, [19] in
connection with the rule that laws in order to be valid and
enforceable must be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners legal standing,
the Court declared that the right they sought to be enforced is a
public right recognized by no less than the fundamental law of the
land.
Legaspi
v.
Civil
Service
Commission, [20] while
reiterating Taada,
further
declared
that
when
a mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that

Similarly, the instant petition is anchored on the right of the

people to information and access to official records, documents and
papers -- a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid
down by decisional law to sustain petitioners legal standing, i.e. (1)
the enforcement of a public right (2) espoused by a Filipino
citizen, we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez
is rendered moot by the intervention of the Jopsons, who are among
the legitimate claimants to the Marcos wealth. The standing of the
Jopsons is not seriously contested by the solicitor general. Indeed,
said petitioners-intervenors have a legal interest in the subject matter
of the instant case, since a distribution or disposition of the
Marcoses ill-gotten properties may adversely affect the satisfaction
of their claims.

Second Procedural Issue:The Courts Jurisdiction

Petitioner asserts that because this petition is an original action
for mandamus and one that is not intended to delay any proceeding

in the Sandiganbayan, its having been filed before this Court was
proper. He invokes Section 5, Article VIII of the Constitution, which
confers upon the Supreme Court original jurisdiction over petitions
for prohibition and mandamus.
The solicitor general, on the other hand, argues that the petition
has been erroneously brought before this Court, since there is neither
a justiciable controversy nor a violation of petitioners rights by the
PCGG. He alleges that the assailed agreements are already the
very lis mota in Sandiganbayan Civil Case No. 0141, which has yet
to dispose of the issue; thus, this petition is premature. Furthermore,
respondents themselves have opposed the Marcos heirs motion, filed
in the graft court, for the approval of the subject Agreements. Such
opposition belies petitioners claim that the government, through
respondents, has concluded a settlement with the Marcoses as
regards their alleged ill-gotten assets.
In Taada and Legaspi, we upheld therein petitioners resort to
a mandamus proceeding, seeking to enforce a public right as well as
to compel performance of a public duty mandated by no less than the
fundamental law.[23] Further, Section 5, Article VIII of the
Constitution,
expressly
confers
upon
the
Supreme
Court original jurisdiction
over
petitions
for certiorari, prohibition, mandamus, quo
warrantoand habeas
corpus.
Respondents argue that petitioner should have properly sought
relief before the Sandiganbayan, particularly in Civil Case No. 0141,
in which the enforcement of the compromise Agreements is pending
resolution. There may seem to be some merit in such argument, if
petitioner is merely seeking to enjoin the enforcement of the
compromise and/or to compel the PCGG to disclose to the public the
terms contained in said Agreements. However, petitioner is here
seeking the public disclosure of all negotiations and agreement, be
they ongoing or perfected, and documents related to or relating to
such negotiations and agreement between the PCGG and the Marcos
heirs.

In other words, this petition is not confined to the Agreements

that have already been drawn, but likewise to any other ongoing or
future undertaking towards any settlement on the alleged Marcos
loot. Ineluctably, the core issue boils down to the precise
interpretation, in terms of scope, of the twin constitutional provisions
on public transactions. This broad and prospective relief sought by
the instant petition brings it out of the realm of Civil Case No. 0141.

First Substantive Issue:

Public Disclosure of Terms of Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements
pertaining to a compromise settlement with the Marcoses as regards
their alleged ill-gotten wealth, petitioner invokes the following
provisions of the Constitution:

Sec. 7 [Article III]. The right of the people to information on

matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Sec. 28 [Article II]. Subject to reasonable conditions
prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public
interest.
Respondents opposite view is that the above constitutional
provisions refer to completed and operative official acts, not to those
still being considered. As regards the assailed Agreements entered
into by the PCGG with the Marcoses, there is yet no right of action

that has accrued, because said Agreements have not been approved
by the President, and the Marcos heirs have failed to fulfill their
express undertaking therein. Thus, the Agreements have not become
effective. Respondents add that they are not aware of any ongoing
negotiation for another compromise with the Marcoses regarding
their alleged ill-gotten assets.
The information and the transactions referred to in the
subject provisions of the Constitution have as yet no defined scope
and extent. There are no specific laws prescribing the exact
limitations within which the right may be exercised or the correlative
state duty may be obliged. However, the following are some of the
recognized restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3) criminal
matters, and (4) other confidential information.

Limitations to the Right: (1) National Security Matters

At the very least, this jurisdiction recognizes the common law
holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic
and other national security matters. [24] But where there is no need to
protect such state secrets, the privilege may not be invoked to
withhold documents and other information, [25] provided that they are
examined in strict confidence and given scrupulous protection.
Likewise, information on inter-government exchanges prior to
the conclusion of treaties and executive agreements may be subject
to reasonable safeguards for the sake of national interest. [26]

The drafters of the Constitution also unequivocally affirmed

that, aside from national security matters and intelligence
information, trade or industrial secrets (pursuant to the Intellectual
Property Code[27] and other related laws) as well as banking
transactions (pursuant to the Secrecy of Bank Deposits Act [28]) are
also exempted from compulsory disclosure.[29]

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as
those relating to the apprehension, the prosecution and the detention
of criminals,[30] which courts may not inquire into prior to such arrest,
detention and prosecution. Efforts at effective law enforcement
would be seriously jeopardized by free public access to, for example,
police information regarding rescue operations, the whereabouts of
fugitives, or leads on covert criminal activities.

(4) Other Confidential Information

The Ethical Standards Act[31] further prohibits public officials
and employees from using or divulging confidential or classified
information officially known to them by reason of their office and
not made available to the public.[32]
Other acknowledged limitations to information access include
diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the internal
deliberations of the Supreme Court.[33]

(2) Trade Secrets and Banking Transactions

Scope: Matters of Public Concern and Transactions Involving
Public Interest

In Valmonte v. Belmonte Jr.,[34] the Court emphasized that the

information sought must be matters of public concern, access to
which may be limited by law. Similarly, the state policy of full
public disclosure extends only to transactions involving public
interest and may also be subject to reasonable conditions
prescribed by law. As to the meanings of the terms public interest
and public concern, the Court, in Legaspi v. Civil Service
Commission,[35] elucidated:

In determining whether or not a particular information is of

public concern there is no rigid test which can be
applied. Public concern like public interest is a term that
eludes exact definition. Both terms embrace a broad spectrum
of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters
naturally arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine on a case by case basis
whether the matter at issue is of interest or importance, as it
relates to or affects the public.
Considered a public concern in the above-mentioned case was
the legitimate concern of citizens to ensure that government
positions requiring civil service eligibility are occupied only by
persons who are eligibles. So was the need to give the general
public adequate notification of various laws that regulate and affect
the actions and conduct of citizens, as held in Taada. Likewise did
the public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers (members of the defunct
Batasang Pambansa) qualify the information sought in Valmonte as
matters of public interest and concern. In Aquino-Sarmiento v.
Morato,[36] the Court also held that official acts of public officers
done in pursuit of their official functions are public in character;
hence, the records pertaining to such official acts and decisions are
within the ambit of the constitutional right of access to public
records.

Under Republic Act No. 6713, public officials and employees

are mandated to provide information on their policies and
procedures in clear and understandable language, [and] ensure
openness of information, public consultations and hearings whenever
appropriate x x x, except when otherwise provided by law or
when required by the public interest. In particular, the law
mandates free public access, at reasonable hours, to the annual
performance reports of offices and agencies of government and
government-owned or controlled corporations; and the statements of
assets, liabilities and financial disclosures of all public officials and
employees.[37]
In general, writings coming into the hands of public officers in
connection with their official functions must be accessible to the
public, consistent with the policy of transparency of governmental
affairs. This principle is aimed at affording the people an opportunity
to determine whether those to whom they have entrusted the affairs
of the government are honestly, faithfully and competently
performing their functions as public servants. [38] Undeniably, the
essence of democracy lies in the free flow of thought; [39] but thoughts
and ideas must be well-informed so that the public would gain a
better perspective of vital issues confronting them and, thus, be able
to criticize as well as participate in the affairs of the government in a
responsible, reasonable and effective manner. Certainly, it is by
ensuring an unfettered and uninhibited exchange of ideas among a
well-informed public that a government remains responsive to the
changes desired by the people.[40]

The Nature of the Marcoses Alleged Ill-Gotten Wealth

We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and
their cronies in February 1986, the new government headed by
President Corazon C. Aquino was specifically mandated to

[r]ecover ill-gotten properties amassed by the leaders and

supporters of the previous regime and [to] protect the interest of the
people through orders of sequestration or freezing of assets or
accounts.[41] Thus, President Aquinos very first executive orders
(which partook of the nature of legislative enactments) dealt with the
recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only
two (2) days after the Marcoses fled the country, created the PCGG
which was primarily tasked to assist the President in the recovery of
vast government resources allegedly amassed by former President
Marcos, his immediate family, relatives and close associates both
here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all
persons and entities who had knowledge or possession of ill-gotten
assets and properties were warned and, under pain of penalties
prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the
recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued
giving additional powers to the PCGG which, taking into account the
overriding considerations of national interest and national survival,
required it to achieve expeditiously and effectively its vital task of
recovering ill-gotten wealth.
With such pronouncements of our government, whose authority
emanates from the people, there is no doubt that the recovery of the
Marcoses alleged ill-gotten wealth is a matter of public concern and
imbued with public interest.[42] We may also add that ill-gotten
wealth, by its very nature, assumes a public character. Based on the
aforementioned Executive Orders, ill-gotten wealth refers to assets
and properties purportedly acquired, directly or indirectly, by former
President Marcos, his immediate family, relatives and close
associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue
advantage of their public office; or their use of powers, influences or

relationships, resulting in their unjust enrichment and causing grave

damage and prejudice to the Filipino people and the Republic of the
Philippines. Clearly, the assets and properties referred to
supposedly originated from the government itself. To all intents and
purposes, therefore, they belong to the people. As such, upon
reconveyance they will be returned to the public treasury, subject
only to the satisfaction of positive claims of certain persons as may
be
adjudged
by
competent
courts. Another
declared overriding consideration for the expeditious recovery of
ill-gotten wealth is that it may be used for national economic
recovery.
We believe the foregoing disquisition settles the question of
whether petitioner has a right to respondents disclosure of any
agreement that may be arrived at concerning the Marcoses purported
ill-gotten wealth.

Access to Information on Negotiating Terms

But does the constitutional provision likewise guarantee access
to information regarding ongoing negotiations or proposals prior to
the final agreement? This same clarification was sought and clearly
addressed by the constitutional commissioners during their
deliberations, which we quote hereunder:[43]

MR. SUAREZ. And when we say transactions which

should be distinguished from contracts, agreements, or treaties
or whatever, does the Gentleman refer to the steps leading to
the consummation of the contract, or does he refer to the
contract itself?
MR. OPLE. The transactions used here, I suppose, is
generic and, therefore, it can cover both steps leading to a

contract, and already a consummated contract, Mr. Presiding

Officer.
MR. SUAREZ. This contemplates inclusion of negotiations
leading to the consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the
national interest.
Considering the intent of the framers of the Constitution, we
believe that it is incumbent upon the PCGG and its officers, as
well as other government representatives, to disclose sufficient
public information on any proposed settlement they have decided
to take up with the ostensible owners and holders of ill-gotten
wealth. Such information, though, must pertain to definite
propositions of the government, not necessarily to intra-agency or
inter-agency recommendations or communications [44] during the stage
when common assertions are still in the process of being formulated
or are in the exploratory stage. There is a need, of course, to
observe the same restrictions on disclosure of information in general,
as discussed earlier -- such as on matters involving national security,
diplomatic or foreign relations, intelligence and other classified
information.

Second Substantive Issue: Legal Restraints on a Marcos-PCGG

Compromise
Petitioner lastly contends that any compromise agreement
between the government and the Marcoses will be a virtual
condonation of all the alleged wrongs done by them, as well as an
unwarranted permission to commit graft and corruption.

Respondents, for their part, assert that there is no legal restraint

on entering into a compromise with the Marcos heirs, provided the
agreement does not violate any law.

Prohibited Compromises
In general, the law encourages compromises in civil cases,
except with regard to the following matters: (1) the civil status of
persons, (2) the validity of a marriage or a legal separation, (3) any
ground for legal separation, (4) future support, (5) the jurisdiction of
courts, and (6) future legitime. [45] And like any other contract, the
terms and conditions of a compromise must not be contrary to law,
morals, good customs, public policy or public order.[46] A compromise
is binding and has the force of law between the parties, [47] unless the
consent of a party is vitiated -- such as by mistake, fraud, violence,
intimidation or undue influence -- or when there is forgery, or if the
terms of the settlement are so palpably unconscionable. In the latter
instances, the agreement may be invalidated by the courts. [48]

Effect of Compromise on Civil Actions

One of the consequences of a compromise, and usually its
primary object, is to avoid or to end a litigation. [49] In fact, the law
urges courts to persuade the parties in a civil case to agree to a fair
settlement.[50] As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise. [51]
In Republic & Campos Jr. v. Sandiganbayan,[52] which affirmed
the grant by the PCGG of civil and criminal immunity to Jose Y.
Campos and family, the Court held that in the absence of an express
prohibition, the rule on compromises in civil actions under the Civil
Code is applicable to PCGG cases. Such principle is pursuant to the
objectives of EO No. 14, particularly the just and expeditious

recovery of ill-gotten wealth, so that it may be used to hasten

economic recovery. The same principle was upheld in Benedicto v.
Board of Administrators of Television Stations RPN, BBC and
IBC[53] andRepublic v. Benedicto,[54] which ruled in favor of the
validity of the PCGG compromise agreement with Roberto S.
Benedicto.

Immunity from Criminal Prosecution

However, any compromise relating to the civil liability
arising from an offense does not automatically terminate the
criminal proceeding against or extinguish the criminal liability of
the malefactor.[55] While a compromise in civil suits is expressly
authorized by law, there is no similar general sanction as regards
criminal liability. The authority must be specifically conferred. In
the present case, the power to grant criminal immunity was conferred
on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A,
which provides:

SECTION 5. The Presidential Commission on Good

Government is authorized to grant immunity from criminal
prosecution to any person who provides information or testifies
in any investigation conducted by such Commission to
establish the unlawful manner in which any respondent,
defendant or accused has acquired or accumulated the property
or properties in question in any case where such information or
testimony is necessary to ascertain or prove the latters guilt or
his civil liability. The immunity thereby granted shall be
continued to protect the witness who repeats such testimony
before the Sandiganbayan when required to do so by the latter
or by the Commission.

The above provision specifies that the PCGG may exercise such
authority under these conditions: (1) the person to whom criminal
immunity is granted provides information or testifies in an
investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent,
defendant or accused acquired or accumulated ill-gotten property;
and (3) such information or testimony is necessary to ascertain or
prove guilt or civil liability of such individual. From the wording of
the law, it can be easily deduced that the person referred to is a
witness in the proceeding, not the principal respondent, defendant or
accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and
criminal immunity to him and his family was [i]n consideration of
the full cooperation of Mr. Jose Y. Campos [with] this Commission,
his voluntary surrender of the properties and assets [--] disclosed and
declared by him to belong to deposed President Ferdinand E. Marcos
[--] to the Government of the Republic of the Philippines[;] his full,
complete and truthful disclosures[;] and his commitment to pay a
sum
of
money
as
determined
by
the
Philippine
Government.[56] Moreover, the grant of criminal immunity to the
Camposes and the Benedictos was limited to acts and omissions
prior to February 25, 1996. At the time such immunity was granted,
no criminal cases have yet been filed against them before the
competent courts.

Validity of the PCGG-Marcos Compromise Agreements

Going now to the subject General and Supplemental
Agreements between the PCGG and the Marcos heirs, a cursory
perusal thereof reveals serious legal flaws. First, the Agreements do
not conform to the above requirements of EO Nos. 14 and 14-A. We
believe that criminal immunity under Section 5 cannot be
granted to the Marcoses, who are the principal defendants in the
spate of ill-gotten wealth cases now pending before the

Sandiganbayan. As stated earlier, the provision is applicable

mainly to witnesses who provide information or testify against a
respondent, defendant or accused in an ill-gotten wealth case.
While the General Agreement states that the Marcoses shall
provide the [government] assistance by way of testimony or
deposition on any information [they] may have that could shed light
on the cases being pursued by the [government] against other
parties,[57] the clause does not fully comply with the law. Its
inclusion in the Agreement may have been only an afterthought,
conceived in pro formacompliance with Section 5 of
EO No. 14, as amended. There is no indication whatsoever that
any of the Marcos heirs has indeed provided vital information
against any respondent or defendant as to the manner in which the
latter may have unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG
commits to exempt from all forms of taxes the properties to be
retained by the Marcos heirs. This is a clear violation of the
Constitution. The power to tax and to grant tax exemptions is vested
in the Congress and, to a certain extent, in the local legislative
bodies.[58] Section 28 (4), Article VI of the Constitution, specifically
provides: No law granting any tax exemption shall be passed
without the concurrence of a majority of all the Members of the
Congress. The PCGG has absolutely no power to grant tax
exemptions, even under the cover of its authority to compromise
ill-gotten wealth cases.
Even granting that Congress enacts a law exempting the
Marcoses from paying taxes on their properties, such law will
definitely not pass the test of the equal protection clause under the
Bill of Rights. Any special grant of tax exemption in favor only of
the Marcos heirs will constitute class legislation. It will also violate
the constitutional rule that taxation shall be uniform and
equitable.[59]
Neither can the stipulation be construed to fall within the power
of the commissioner of internal revenue to compromise taxes. Such

authority may
be
exercised
only when
(1)
there
is reasonable doubt as to the validity of the claim against the
taxpayer, and (2) the taxpayers financial position demonstrates
a clear inability to pay.[60] Definitely, neither requisite is present in
the case of the Marcoses, because under the Agreement they are
effectively conceding the validity of the claims against their
properties, part of which they will be allowed to retain. Nor can the
PCGG grant of tax exemption fall within the power of the
commissioner to abate or cancel a tax liability. This power can be
exercised only when (1) the tax appears to be unjustly or excessively
assessed, or (2) the administration and collection costs involved do
not justify the collection of the tax due. [61] In this instance, the
cancellation of tax liability is done even before the determination of
the amount due. In any event, criminal violations of the Tax Code,
for which legal actions have been filed in court or in which fraud is
involved, cannot be compromised.[62]
Third, the government binds itself to cause the dismissal of all
cases against the Marcos heirs, pending before the Sandiganbayan
and other courts.[63] This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the
doctrine that once a case has been filed before a court of competent
jurisdiction, the matter of its dismissal or pursuance lies within the
full discretion and control of the judge. In a criminal case, the
manner in which the prosecution is handled, including the matter of
whom to present as witnesses, may lie within the sound discretion of
the government prosecutor;[64] but the court decides, based on the
evidence proffered, in what manner it will dispose of the
case. Jurisdiction, once acquired by the trial court, is not lost despite
a resolution, even by the justice secretary, to withdraw the
information or to dismiss the complaint. [65] The prosecutions motion
to withdraw or to dismiss is not the least binding upon the court. On
the contrary, decisional rules require the trial court to make its own
evaluation of the merits of the case, because granting such motion is
equivalent to effecting a disposition of the case itself. [66]

Thus, the PCGG, as the government prosecutor of ill-gotten

wealth cases, cannot guarantee the dismissal of all such criminal
cases against the Marcoses pending in the courts, for said
dismissal is not within its sole power and discretion.
Fourth, the government also waives all claims and
counterclaims, whether past, present, or future, matured or
inchoate, against the Marcoses.[67] Again, this all-encompassing
stipulation is contrary to law. Under the Civil Code, an action for
future fraud may not be waived. [68] The stipulation in the Agreement
does not specify the exact scope of future claims against the
Marcoses that the government thereby relinquishes. Such vague and
broad statement may well be interpreted to include all future illegal
acts of any of the Marcos heirs, practically giving them a license to
perpetrate fraud against the government without any liability at
all. This is a palpable violation of the due process and equal
protection guarantees of the Constitution. It effectively ensconces
the Marcoses beyond the reach of the law. It also sets a dangerous
precedent for public accountability. It is a virtual warrant for
public officials to amass public funds illegally, since there is an
open option to compromise their liability in exchange for only a
portion of their ill-gotten wealth.
Fifth, the Agreements do not provide for a definite or
determinable period within which the parties shall fulfill their
respective prestations. It may take a lifetime before the Marcoses
submit an inventory of their total assets.
Sixth, the Agreements do not state with specificity the standards
for determining which assets shall be forfeited by the government
and which shall be retained by the Marcoses. While the
Supplemental Agreement provides that the Marcoses shall be entitled
to 25 per cent of the $356 million Swiss deposits (less government
recovery expenses), such sharing arrangement pertains only to the
said deposits. No similar splitting scheme is defined with respect to
the other properties. Neither is there, anywhere in the Agreements, a
statement of the basis for the 25-75 percent sharing ratio. Public
officers entering into an arrangement appearing to be manifestly and

grossly disadvantageous to the government, in violation of the AntiGraft and Corrupt Practices Act,[69] invite their indictment for
corruption under the said law.
Finally, the absence of then President Ramos approval of the
principal Agreement, an express condition therein, renders the
compromise incomplete and unenforceable. Nevertheless, as
detailed above, even if such approval were obtained, the Agreements
would still not be valid.
From the foregoing disquisition, it is crystal clear to the
Court that the General and Supplemental Agreements, both
dated December 28, 1993, which the PCGG entered into with the
Marcos heirs, are violative of the Constitution and the laws
aforementioned.
WHEREFORE, the petition is GRANTED. The General and
Supplemental Agreements dated December 28, 1993, which PCGG
and the Marcos heirs entered into are hereby declared NULL AND
VOIDfor being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials
who
are
or
may
be
directly or indirectly involved in the recovery of the alleged illgotten wealth of the Marcoses and their associates are DIRECTED to
disclose to the public the terms of any proposed compromise
settlement, as well as the final agreement, relating to such alleged illgotten wealth, in accordance with the discussions embodied in this
Decision. No pronouncement as to costs.
SO ORDERED.

RAMON A. GONZALES, petitioner, vs. HON. ANDRES

R. NARVASA, as Chairman, PREPARATORY
COMMISSION
ON
CONSTITUTIONAL
REFORMS; HON. RONALDO B. ZAMORA, as
Executive Secretary; COMMISSION ON AUDIT;
ROBERTO AVENTAJADO, as Presidential

Consultant
on
Council
of
Economic
Advisers/Economic Affairs; ANGELITO C.
BANAYO, as Presidential Adviser for/on
Political Affairs; VERONICA IGNACIO-JONES,
as
Presidential
Assistant/
Appointment
Secretary
(In
charge
of
appointments), respondents.
DECISION
GONZAGA-REYES, J.:

In this petition for prohibition and mandamus filed on

December 9, 1999, petitioner Ramon A. Gonzales, in his
capacity as a citizen and taxpayer, assails the constitutionality
of the creation of the Preparatory Commission on
Constitutional Reform (PCCR) and of the positions of
presidential consultants, advisers and assistants. Petitioner
asks this Court to enjoin the PCCR and the presidential
consultants, advisers and assistants from acting as such, and
to enjoin Executive Secretary Ronaldo B. Zamora from
enforcing their advice and recommendations. In addition,
petitioner seeks to enjoin the Commission on Audit from
passing in audit expenditures for the PCCR and the
presidential consultants, advisers and assistants. Finally,
petitioner prays for an order compelling respondent Zamora to
furnish petitioner with information on certain matters.
On January 28, 2000, respondent Hon. Andres R.
Narvasa, impleaded in his capacity as Chairman of the PCCR,
filed his Comment to the Petition. The rest of the respondents,
who are being represented in this case by the Solicitor
General, filed their Comment with this Court on March 7,

2000. Petitioner then filed a Consolidated Reply on April 24,

2000, whereupon this case was considered submitted for
decision.
I. Preparatory Commission on Constitutional Reform
The Preparatory Commission on Constitutional Reform
(PCCR) was created by President Estrada on November 26,
1998 by virtue of Executive Order No. 43 (E.O. No. 43) in
order to study and recommend proposed amendments and/or
revisions to the 1987 Constitution, and the manner of
implementing
the
same.[1] Petitioner
disputes
the
constitutionality of the PCCR on two grounds. First, he
contends that it is a public office which only the legislature can
create by way of a law.[2] Secondly, petitioner asserts that by
creating such a body the President is intervening in a process
from which he is totally excluded by the Constitution the
amendment of the fundamental charter.[3]
It is alleged by respondents that, with respect to the
PCCR, this case has become moot and academic. We agree.
An action is considered moot when it no longer presents
a justiciable controversy because the issues involved have
become academic or dead.[4] Under E.O. No. 43, the PCCR
was instructed to complete its task on or before June 30, 1999.
[5]
However, on February 19, 1999, the President issued
Executive Order No. 70 (E.O. No. 70), which extended the
time frame for the completion of the commissions work, viz

SECTION 6. Section 8 is hereby amended to read as

follows:

Time Frame. The Commission shall commence its

work on 01 January 1999 and complete the same on
or before 31 December 1999. The Commission shall
submit its report and recommendations to the
President within fifteen (15) working days from 31
December 1999.
The PCCR submitted its recommendations to the President on
December 20, 1999 and was dissolved by the President on the
same day. It had likewise spent the funds allotted to it. [6]Thus,
the PCCR has ceased to exist, having lost its raison detre.
Subsequent events have overtaken the petition and the Court
has nothing left to resolve.
The staleness of the issue before us is made more
manifest by the impossibility of granting the relief prayed for by
petitioner. Basically, petitioner asks this Court to enjoin the
PCCR from acting as such.[7] Clearly, prohibition is an
inappropriate remedy since the body sought to be enjoined no
longer exists. It is well established that prohibition is a
preventive remedy and does not lie to restrain an act that is
already fait accompli.[8] At this point, any ruling regarding the
PCCR would simply be in the nature of an advisory opinion,
which is definitely beyond the permissible scope of judicial
power.
In addition to the mootness of the issue, petitioners lack
of standing constitutes another obstacle to the successful
invocation of judicial power insofar as the PCCR is concerned.
The question in standing is whether a party has alleged
such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the

presentation of issues upon which the court so largely

depends
for
illumination
of
difficult
constitutional
questions.[9] In assailing the constitutionality of E.O. Nos. 43
and 70, petitioner asserts his interest as a citizen and
taxpayer.[10] A citizen acquires standing only if he can establish
that he has suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury
is likely to be redressed by a favorable action.[11] In Kilosbayan,
Incorporated v. Morato,[12]we denied standing to petitioners who
were assailing a lease agreement between the Philippine
Charity Sweepstakes Office and the Philippine Gaming
Management Corporation, stating that,

in Valmonte v. Philippine Charity Sweepstakes Office,

G.R. No. 78716, Sept. 22, 1987, standing was denied to
a petitioner who sought to declare a form of lottery known
as Instant Sweepstakes invalid because, as the Court
held,
Valmonte brings the suit as a citizen, lawyer, taxpayer
and father of three (3) minor children. But nowhere in his
petition does petitioner claim that his rights and privileges
as a lawyer or citizen have been directly and personally
injured by the operation of the Instant Sweepstakes. The
interest of the person assailing the constitutionality of a
statute must be direct and personal. He must be able to
show, not only that the law is invalid, but also that he has
sustained or in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about

to be denied some right or privilege to which he is

lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the statute
complained of.
We apprehend no difference between the petitioner
in Valmonte and the present petitioners. Petitioners do
not in fact show what particularized interest they have for
bringing this suit. It does not detract from the high regard
for petitioners as civic leaders to say that their interest
falls short of that required to maintain an action under
Rule 3, d 2.
Coming now to the instant case, petitioner has not shown
that he has sustained or is in danger of sustaining any
personal injury attributable to the creation of the PCCR. If at
all, it is only Congress, not petitioner, which can claim any
injury in this case since, according to petitioner, the President
has encroached upon the legislatures powers to create a
public office and to propose amendments to the Charter by
forming the PCCR. Petitioner has sustained no direct, or even
any indirect, injury. Neither does he claim that his rights or
privileges have been or are in danger of being violated, nor
that he shall be subjected to any penalties or burdens as a
result of the PCCRs activities. Clearly, petitioner has failed to
establish his locus standi so as to enable him to seek judicial
redress as a citizen.
A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public funds
have been disbursed in alleged contravention of the law or the
Constitution.[13], Thus payers action is properly brought only
when there is an exercise by Congress of its taxing or

spending power.[14] This was our ruling in a recent case

wherein petitioners Telecommunications and Broadcast
Attorneys of the Philippines (TELEBAP) and GMA Network,
Inc. questioned the validity of section 92 of B.P. No. 881
(otherwise knows as the Omnibus Election Code) requiring
radio and television stations to give free air time to the
Commission on Elections during the campaign period. [15] The
Court held that petitioner TELEBAP did not have any interest
as a taxpayer since the assailed law did not involve the taxing
or spending power of Congress.[16]
Many other rulings have premised the grant or denial of
standing to taxpayers upon whether or not the case involved a
disbursement of public funds by the legislature. In Sanidad v.
Commission on Elections,[17] the petitioners therein were
allowed to bring a taxpayers suit to question several
presidential decrees promulgated by then President Marcos in
his legislative capacity calling for a national referendum, with
the Court explaining that

...[i]t is now an ancient rule that the valid source of a

statute Presidential Decrees are of such nature may
be contested by one who will sustain a direct injury as a
result of its enforcement. At the instance of taxpayers,
laws providing for the disbursement of public funds may
be enjoined, upon the theory that the expenditure of
public funds by an officer of the State for the purpose of
executing an unconstitutional act constitutes a
misapplication of such funds. The breadth of Presidential
Decree No. 991 carries an appropriation of Five Million
Pesos for the effective implementation of its purposes.
Presidential Decree No. 1031 appropriates the sum of
Eight Million Pesos to carry out its provisions. The

interest of the aforenamed petitioners as taxpayers in the

lawful expenditure of these amounts of public money
sufficiently clothes them with that personality to litigate
the validity of the Decrees appropriating said funds.
In still another case, the Court held that petitioners the
Philippine Constitution Association, Inc., a non-profit civic
organization - had standing as taxpayers to question the
constitutionality of Republic Act No. 3836 insofar as it provides
for retirement gratuity and commutation of vacation and sick
leaves to Senators and Representatives and to the elective
officials of both houses of Congress.[18] And in Pascual v.
Secretary of Public Works,[19] the Court allowed petitioner to
maintain a taxpayers suit assailing the constitutional
soundness of Republic Act No. 920 appropriating P85,000 for
the construction, repair and improvement of feeder roads
within private property. All these cases involved the
disbursement of public funds by means of a law.
Meanwhile, in Bugnay Construction and Development
Corporation v. Laron,[20] the Court declared that the trial court
was wrong in allowing respondent Ravanzo to bring an action
for injunction in his capacity as a taxpayer in order to question
the legality of the contract of lease covering the public market
entered into between the City of Dagupan and petitioner. The
Court declared that Ravanzo did not possess the requisite
standing to bring such taxpayers suit since [o]n its face, and
there is no evidence to the contrary, the lease contract entered
into between petitioner and the City shows that no public funds
have been or will be used in the construction of the market
building.

Coming now to the instant case, it is readily apparent that

there is no exercise by Congress of its taxing or spending
power. The PCCR was created by the President by virtue of
E.O. No. 43, as amended by E.O. No. 70. Under section 7 of
E.O. No. 43, the amount of P3 million is appropriated for its
operational expenses to be sourced from the funds of the
Office of the President. The relevant provision states -

Appropriations. The initial amount of Three Million

Pesos (P3,000,000.00) is hereby appropriated for the
operational expenses of the Commission to be
sourced from funds of the Office of the President,
subject to the usual accounting and auditing rules
and regulations. Additional amounts shall be
released to the Commission upon submission of
requirements for expenditures.
The appropriations for the PCCR were authorized by the
President, not by Congress. In fact, there was no an
appropriation at all. In a strict sense, appropriation has been
defined as nothing more than the legislative authorization
prescribed by the Constitution that money may be paid out of
the Treasury, while appropriation made by law refers to the
act of the legislature setting apart or assigning to a particular
use a certain sum to be used in the payment of debt or dues
from the State to its creditors. [21] The funds used for the
PCCR were taken from funds intended for the Office of the
President, in the exercise of the Chief Executives power to
transfer funds pursuant to section 25 (5) of article VI of the
Constitution.
In the final analysis, it must be stressed that the Court
retains the power to decide whether or not it will entertain a

taxpayers suit.[22] In the case at bar, there being no exercise by

Congress of its taxing or spending power, petitioner cannot be
allowed to question the creation of the PCCR in his capacity
as a taxpayer, but rather, he must establish that he has a
personal and substantial interest in the case and that he has
sustained or will sustain direct injury as a result of its
enforcement.[23] In other words, petitioner must show that he is
a real party in interest - that he will stand to be benefited or
injured by the judgment or that he will be entitled to the avails
of the suit.[24] Nowhere in his pleadings does petitioner
presume to make such a representation.

or otherwise, the President attempted to create the positions

of presidential advisers, consultants and assistants. Thus, it is
unclear what act of the President petitioner is assailing. In
support of his allegation, petitioner merely annexed a copy of
the Philippine Government Directory (Annex C) listing the
names and positions of such presidential consultants, advisers
and assistants to his petition. However, appointment is
obviously not synonymous with creation. It would be
improvident for this Court to entertain this issue given the
insufficient nature of the allegations in the Petition.
III. Right to Information

II. Presidential Consultants, Advisers, Assistants

The second issue raised by petitioner concerns the
presidential consultants. Petitioner alleges that in 1995 and
1996, the President created seventy (70) positions in the
Office of the President and appointed to said positions twenty
(20) presidential consultants, twenty-two (22) presidential
advisers, and twenty-eight (28) presidential assistants.
[25]
Petitioner asserts that, as in the case of the PCCR, the
President does not have the power to create these positions.[26]
Consistent with the abovementioned discussion on
standing, petitioner does not have the personality to raise this
issue before the Court. First of all, he has not proven that he
has sustained or is in danger of sustaining any injury as a
result
of
the
appointment
of
such
presidential
advisers. Secondly, petitioner has not alleged the necessary
facts so as to enable the Court to determine if he possesses a
taxpayers interest in this particular issue. Unlike the PCCR
which was created by virtue of an executive order, petitioner
does not allege by what official act, whether it be by means of
an executive order, administrative order, memorandum order,

Finally, petitioner asks us to issue a writ

of mandamus ordering Executive Secretary Ronaldo B.
Zamora to answer his letter (Annex D) dated October 4, 1999
requesting for the names of executive officials holding multiple
positions in government, copies of their appointments, and a
list of the recipients of luxury vehicles seized by the Bureau of
Customs and turned over to Malacanang.[27]
The right to information is enshrined in Section 7 of the Bill
of Rights which provides that

The right of the people to information on matters of public

concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law.

Under both the 1973[28] and 1987 Constitution, this is a

self-executory provision which can be invoked by any citizen
before the courts. This was our ruling in Legaspi v. Civil
Service Commission,[29] wherein the Court classified the right to
information
as
a
public
right
and
when
a [m]andamus proceeding involves the assertion of a public right,
the requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen, and therefore, part of the
general public which possesses the right. However,
Congress may provide for reasonable conditions upon the
access to information. Such limitations were embodied in
Republic Act No. 6713, otherwise knows as the Code of
Conduct and Ethical Standards for Public Officials and
Employees, which took effect on March 25, 1989. This law
provides that, in the performance of their duties, all public
officials and employees are obliged to respond to letters sent
by the public within fifteen (15) working days from receipt
thereof and to ensure the accessibility of all public documents
for inspection by the public within reasonable working hours,
subject to the reasonable claims of confidentiality.[30]
Elaborating on the significance of the right to information,
the Court said in Baldoza v. Dimaano[31] that [t]he incorporation
of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public
of the nations problems, nor a meaningful democratic
decisionmaking if they are denied access to information of
general interest. Information is needed to enable the
members of society to cope with the exigencies of the times.
The information to which the public is entitled to are those
concerning matters of public concern, a term which
embrace[s] a broad spectrum of subjects which the public
may want to know, either because these directly affect their

lives, or simply because such matters naturally arouse the

interest of an ordinary citizen. In the final analysis, it is for the
courts to determine in a case by case basis whether the matter
at issue is of interest or importance, as it relates to or affects
the public.[32]
Thus, we agree with petitioner that respondent Zamora, in
his official capacity as Executive Secretary, has a
constitutional and statutory duty to answer petitioners letter
dealing with matters which are unquestionably of public
concern that is, appointments made to public offices and the
utilization of public property. With regard to petitioners
request for copies of the appointment papers of certain
officials, respondent Zamora is obliged to allow the inspection
and copying of the same subject to the reasonable limitations
required for the orderly conduct of official business.[33]
WHEREFORE, the petition is dismissed, with the
exception that respondent Zamora is ordered to furnish
petitioner with the information requested.
SO ORDERED.
G.R. No. 133250

July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,

vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY
DEVELOPMENT CORPORATION, respondents.
CARPIO, J.:
This is an original Petition for Mandamus with prayer for a writ of
preliminary injunction and a temporary restraining order. The petition
seeks to compel the Public Estates Authority ("PEA" for brevity) to

disclose all facts on PEA's then on-going renegotiations with Amari

Coastal Bay and Development Corporation ("AMARI" for brevity) to
reclaim portions of Manila Bay. The petition further seeks to enjoin
PEA from signing a new agreement with AMARI involving such
reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner
of Public Highways, signed a contract with the Construction and
Development Corporation of the Philippines ("CDCP" for brevity) to
reclaim certain foreshore and offshore areas of Manila Bay. The
contract also included the construction of Phases I and II of the
Manila-Cavite Coastal Road. CDCP obligated itself to carry out all
the works in consideration of fifty percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked
PEA "to reclaim land, including foreshore and submerged areas,"
and "to develop, improve, acquire, x x x lease and sell any and all
kinds of lands."1 On the same date, then President Marcos issued
Presidential Decree No. 1085 transferring to PEA the "lands
reclaimed in the foreshore and offshore of the Manila Bay" 2 under the
Manila-Cavite Coastal Road and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a
memorandum directing PEA to amend its contract with CDCP, so that
"[A]ll future works in MCCRRP x x x shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of
Agreement dated December 29, 1981, which stated:
"(i) CDCP shall undertake all reclamation, construction, and
such other works in the MCCRRP as may be agreed upon
by the parties, to be paid according to progress of works on
a unit price/lump sum basis for items of work to be agreed
upon, subject to price escalation, retention and other terms
and conditions provided for in Presidential Decree No. 1594.
All the financing required for such works shall be provided by
PEA.

xxx
(iii) x x x CDCP shall give up all its development rights and
hereby agrees to cede and transfer in favor of PEA, all of the
rights, title, interest and participation of CDCP in and to all
the areas of land reclaimed by CDCP in the MCCRRP as of
December 30, 1981 which have not yet been sold,
transferred or otherwise disposed of by CDCP as of said
date, which areas consist of approximately Ninety-Nine
Thousand Four Hundred Seventy Three (99,473) square
meters in the Financial Center Area covered by land pledge
No. 5 and approximately Three Million Three Hundred Eighty
Two Thousand Eight Hundred Eighty Eight (3,382,888)
square meters of reclaimed areas at varying elevations
above Mean Low Water Level located outside the Financial
Center Area and the First Neighborhood Unit."3
On January 19, 1988, then President Corazon C. Aquino issued
Special Patent No. 3517, granting and transferring to PEA "the
parcels of land so reclaimed under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP) containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters." Subsequently, on April 9, 1988, the
Register of Deeds of the Municipality of Paraaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA,
covering the three reclaimed islands known as the "Freedom
Islands" located at the southern portion of the Manila-Cavite Coastal
Road, Paraaque City. The Freedom Islands have a total land area
of One Million Five Hundred Seventy Eight Thousand Four Hundred
and Forty One (1,578,441) square meters or 157.841 hectares.
On April 25, 1995, PEA entered into a Joint Venture Agreement
("JVA" for brevity) with AMARI, a private corporation, to develop the
Freedom Islands. The JVA also required the reclamation of an
additional 250 hectares of submerged areas surrounding these
islands to complete the configuration in the Master Development
Plan of the Southern Reclamation Project-MCCRRP. PEA and
AMARI entered into the JVA through negotiation without public
bidding.4 On April 28, 1995, the Board of Directors of PEA, in its
Resolution No. 1245, confirmed the JVA.5On June 8, 1995, then

President Fidel V. Ramos, through then Executive Secretary Ruben

Torres, approved the JVA.6

petition "for unwarranted disregard of judicial hierarchy, without

prejudice to the refiling of the case before the proper court." 12

On November 29, 1996, then Senate President Ernesto Maceda

delivered a privilege speech in the Senate and denounced the JVA
as the "grandmother of all scams." As a result, the Senate
Committee on Government Corporations and Public Enterprises, and
the Committee on Accountability of Public Officers and
Investigations, conducted a joint investigation. The Senate
Committees reported the results of their investigation in Senate
Committee Report No. 560 dated September 16, 1997. 7 Among the
conclusions of their report are: (1) the reclaimed lands PEA seeks to
transfer to AMARI under the JVA are lands of the public domain
which the government has not classified as alienable lands and
therefore PEA cannot alienate these lands; (2) the certificates of title
covering the Freedom Islands are thus void, and (3) the JVA itself is
illegal.

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity)

as a taxpayer, filed the instant Petition for Mandamus with Prayer for
the Issuance of a Writ of Preliminary Injunction and Temporary
Restraining Order. Petitioner contends the government stands to
lose billions of pesos in the sale by PEA of the reclaimed lands to
AMARI. Petitioner prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II, and Section
7, Article III, of the 1987 Constitution on the right of the people to
information on matters of public concern. Petitioner assails the sale
to AMARI of lands of the public domain as a blatant violation of
Section 3, Article XII of the 1987 Constitution prohibiting the sale of
alienable lands of the public domain to private corporations. Finally,
petitioner asserts that he seeks to enjoin the loss of billions of pesos
in properties of the State that are of public dominion.

On December 5, 1997, then President Fidel V. Ramos issued

Presidential Administrative Order No. 365 creating a Legal Task
Force to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force
were the Secretary of Justice,8 the Chief Presidential Legal
Counsel,9 and the Government Corporate Counsel.10 The Legal Task
Force upheld the legality of the JVA, contrary to the conclusions
reached by the Senate Committees.11

After several motions for extension of time,13 PEA and AMARI filed
their Comments on October 19, 1998 and June 25, 1998,
respectively. Meanwhile, on December 28, 1998, petitioner filed an
Omnibus Motion: (a) to require PEA to submit the terms of the
renegotiated PEA-AMARI contract; (b) for issuance of a temporary
restraining order; and (c) to set the case for hearing on oral
argument. Petitioner filed a Reiterative Motion for Issuance of a TRO
dated May 26, 1999, which the Court denied in a Resolution dated
June 22, 1999.

On April 4 and 5, 1998, the Philippine Daily

Inquirer and Today published reports that there were on-going
renegotiations between PEA and AMARI under an order issued by
then President Fidel V. Ramos. According to these reports, PEA
Director Nestor Kalaw, PEA Chairman Arsenio Yulo and retired Navy
Officer Sergio Cruz composed the negotiating panel of PEA.
On April 13, 1998, Antonio M. Zulueta filed before the Court
a Petition for Prohibition with Application for the Issuance of a
Temporary Restraining Order and Preliminary Injunction docketed as
G.R. No. 132994 seeking to nullify the JVA. The Court dismissed the

In a Resolution dated March 23, 1999, the Court gave due course to
the petition and required the parties to file their respective
memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint
Venture Agreement ("Amended JVA," for brevity). On May 28, 1999,
the Office of the President under the administration of then President
Joseph E. Estrada approved the Amended JVA.

Due to the approval of the Amended JVA by the Office of the

President, petitioner now prays that on "constitutional and statutory
grounds the renegotiated contract be declared null and void." 14

The Court's Ruling

First issue: whether the principal reliefs prayed for in the
petition are moot and academic because of subsequent events.

The Issues
The issues raised by petitioner, PEA15 and AMARI16 are as follows:
I. WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN
THE PETITION ARE MOOT AND ACADEMIC BECAUSE OF
SUBSEQUENT EVENTS;
II. WHETHER THE PETITION MERITS DISMISSAL FOR
FAILING TO OBSERVE THE PRINCIPLE GOVERNING
THE HIERARCHY OF COURTS;
III. WHETHER THE PETITION MERITS DISMISSAL FOR
NON-EXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV. WHETHER PETITIONER HAS LOCUS STANDI TO
BRING THIS SUIT;
V. WHETHER THE CONSTITUTIONAL RIGHT TO
INFORMATION INCLUDES OFFICIAL INFORMATION ON
ON-GOING NEGOTIATIONS BEFORE A FINAL
AGREEMENT;
VI. WHETHER THE STIPULATIONS IN THE AMENDED
JOINT VENTURE AGREEMENT FOR THE TRANSFER TO
AMARI OF CERTAIN LANDS, RECLAIMED AND STILL TO
BE RECLAIMED, VIOLATE THE 1987 CONSTITUTION;
AND
VII. WHETHER THE COURT IS THE PROPER FORUM
FOR RAISING THE ISSUE OF WHETHER THE AMENDED
JOINT VENTURE AGREEMENT IS GROSSLY
DISADVANTAGEOUS TO THE GOVERNMENT.

The petition prays that PEA publicly disclose the "terms and
conditions of the on-going negotiations for a new agreement." The
petition also prays that the Court enjoin PEA from "privately entering
into, perfecting and/or executing any new agreement with AMARI."
PEA and AMARI claim the petition is now moot and academic
because AMARI furnished petitioner on June 21, 1999 a copy of the
signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's
prayer for a public disclosure of the renegotiations. Likewise,
petitioner's prayer to enjoin the signing of the Amended JVA is now
moot because PEA and AMARI have already signed the Amended
JVA on March 30, 1999. Moreover, the Office of the President has
approved the Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the
constitutional issue by simply fast-tracking the signing and approval
of the Amended JVA before the Court could act on the issue.
Presidential approval does not resolve the constitutional issue or
remove it from the ambit of judicial review.
We rule that the signing of the Amended JVA by PEA and AMARI and
its approval by the President cannot operate to moot the petition and
divest the Court of its jurisdiction. PEA and AMARI have still to
implement the Amended JVA. The prayer to enjoin the signing of the
Amended JVA on constitutional grounds necessarily includes
preventing its implementation if in the meantime PEA and AMARI
have signed one in violation of the Constitution. Petitioner's principal
basis in assailing the renegotiation of the JVA is its violation of
Section 3, Article XII of the Constitution, which prohibits the
government from alienating lands of the public domain to private
corporations. If the Amended JVA indeed violates the Constitution, it
is the duty of the Court to enjoin its implementation, and if already
implemented, to annul the effects of such unconstitutional contract.

The Amended JVA is not an ordinary commercial contract but one

which seeks to transfer title and ownership to 367.5 hectares of
reclaimed lands and submerged areas of Manila Bay to a single
private corporation. It now becomes more compelling for the Court
to resolve the issue to insure the government itself does not violate a
provision of the Constitution intended to safeguard the national
patrimony. Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision if there is a grave
violation of the Constitution. In the instant case, if the Amended JVA
runs counter to the Constitution, the Court can still prevent the
transfer of title and ownership of alienable lands of the public domain
in the name of AMARI. Even in cases where supervening events had
made the cases moot, the Court did not hesitate to resolve the legal
or constitutional issues raised to formulate controlling principles to
guide the bench, bar, and the public.17
Also, the instant petition is a case of first impression. All previous
decisions of the Court involving Section 3, Article XII of the 1987
Constitution, or its counterpart provision in the 1973
Constitution,18 covered agricultural landssold to private corporations
which acquired the lands from private parties. The transferors of the
private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles19 under Title II of
Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant
case, AMARI seeks to acquire from PEA, a public corporation,
reclaimed lands and submerged areas for nonagricultural purposes by purchase under PD No. 1084 (charter of
PEA) and Title III of CA No. 141. Certain undertakings by AMARI
under the Amended JVA constitute the consideration for the
purchase. Neither AMARI nor PEA can claim judicial confirmation of
their titles because the lands covered by the Amended JVA are newly
reclaimed or still to be reclaimed. Judicial confirmation of imperfect
title requires open, continuous, exclusive and notorious occupation of
agricultural lands of the public domain for at least thirty years since
June 12, 1945 or earlier. Besides, the deadline for filing applications
for judicial confirmation of imperfect title expired on December 31,
1987.20
Lastly, there is a need to resolve immediately the constitutional issue
raised in this petition because of the possible transfer at any time by

PEA to AMARI of title and ownership to portions of the reclaimed

lands. Under the Amended JVA, PEA is obligated to transfer to
AMARI the latter's seventy percent proportionate share in the
reclaimed areas as the reclamation progresses. The Amended JVA
even allows AMARI to mortgage at any time the entire reclaimed
area to raise financing for the reclamation project. 21
Second issue: whether the petition merits dismissal for failing
to observe the principle governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by
seeking relief directly from the Court. The principle of hierarchy of
courts applies generally to cases involving factual questions. As it is
not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of
transcendental importance to the public.22 The Court can resolve this
case without determining any factual issue related to the case. Also,
the instant case is a petition for mandamus which falls under the
original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the
instant case.
Third issue: whether the petition merits dismissal for nonexhaustion of administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling
PEA to disclose publicly certain information without first asking PEA
the needed information. PEA claims petitioner's direct resort to the
Court violates the principle of exhaustion of administrative remedies.
It also violates the rule that mandamus may issue only if there is no
other plain, speedy and adequate remedy in the ordinary course of
law.
PEA distinguishes the instant case from Taada v. Tuvera23 where the
Court granted the petition for mandamus even if the petitioners there
did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in
Taada, the Executive Department had an affirmative
statutory duty under Article 2 of the Civil Code24 and Section 1 of

Commonwealth Act No. 63825 to publish the presidential decrees.

There was, therefore, no need for the petitioners in Taada to make
an initial demand from the Office of the President. In the instant case,
PEA claims it has no affirmative statutory duty to disclose publicly
information about its renegotiation of the JVA. Thus, PEA asserts that
the Court must apply the principle of exhaustion of administrative
remedies to the instant case in view of the failure of petitioner here to
demand initially from PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by
PEA, a government corporation. Under Section 79 of the
Government Auditing Code,26 the disposition of government lands to
private parties requires public bidding. PEA was under a positive
legal duty to disclose to the public the terms and conditions for
the sale of its lands. The law obligated PEA to make this public
disclosure even without demand from petitioner or from anyone. PEA
failed to make this public disclosure because the original JVA, like
the Amended JVA, was the result of a negotiated contract, not of a
public bidding. Considering that PEA had an affirmative statutory
duty to make the public disclosure, and was even in breach of this
legal duty, petitioner had the right to seek direct judicial intervention.
Moreover, and this alone is determinative of this issue, the principle
of exhaustion of administrative remedies does not apply when the
issue involved is a purely legal or constitutional question. 27 The
principal issue in the instant case is the capacity of AMARI to acquire
lands held by PEA in view of the constitutional ban prohibiting the
alienation of lands of the public domain to private corporations. We
rule that the principle of exhaustion of administrative remedies does
not apply in the instant case.
Fourth issue: whether petitioner has locus standi to bring this
suit
PEA argues that petitioner has no standing to
institute mandamus proceedings to enforce his constitutional right to
information without a showing that PEA refused to perform an
affirmative duty imposed on PEA by the Constitution. PEA also
claims that petitioner has not shown that he will suffer any concrete

injury because of the signing or implementation of the Amended JVA.

Thus, there is no actual controversy requiring the exercise of the
power of judicial review.
The petitioner has standing to bring this taxpayer's suit because the
petition seeks to compel PEA to comply with its constitutional duties.
There are two constitutional issues involved here. First is the right of
citizens to information on matters of public concern. Second is the
application of a constitutional provision intended to insure the
equitable distribution of alienable lands of the public domain among
Filipino citizens. The thrust of the first issue is to compel PEA to
disclose publicly information on the sale of government lands worth
billions of pesos, information which the Constitution and statutory law
mandate PEA to disclose. The thrust of the second issue is to
prevent PEA from alienating hundreds of hectares of alienable lands
of the public domain in violation of the Constitution, compelling PEA
to comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to
the public. In Chavez v. PCGG,28 the Court upheld the right of a
citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus "Besides, petitioner emphasizes, the matter of recovering the
ill-gotten wealth of the Marcoses is an issue of
'transcendental importance to the public.' He asserts that
ordinary taxpayers have a right to initiate and prosecute
actions questioning the validity of acts or orders of
government agencies or instrumentalities, if the issues
raised are of 'paramount public interest,' and if they
'immediately affect the social, economic and moral well
being of the people.'
Moreover, the mere fact that he is a citizen satisfies the
requirement of personal interest, when the proceeding
involves the assertion of a public right, such as in this case.
He invokes several decisions of this Court which have set
aside the procedural matter of locus standi, when the subject
of the case involved public interest.

xxx
In Taada v. Tuvera, the Court asserted that when the issue
concerns a public right and the object of mandamus is to
obtain the enforcement of a public duty, the people are
regarded as the real parties in interest; and because it is
sufficient that petitioner is a citizen and as such is interested
in the execution of the laws, he need not show that he has
any legal or special interest in the result of the action. In the
aforesaid case, the petitioners sought to enforce their right to
be informed on matters of public concern, a right then
recognized in Section 6, Article IV of the 1973 Constitution,
in connection with the rule that laws in order to be valid and
enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the
petitioners' legal standing, the Court declared that the right
they sought to be enforced 'is a public right recognized by no
less than the fundamental law of the land.'
Legaspi v. Civil Service Commission, while reiterating
Taada, further declared that 'when a mandamus proceeding
involves the assertion of a public right, the requirement of
personal interest is satisfied by the mere fact that petitioner
is a citizen and, therefore, part of the general 'public' which
possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure
of public funds may not have been involved under the
questioned contract for the development, management and
operation of the Manila International Container Terminal,
'public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic
development of the country and the magnitude of the
financial consideration involved.' We concluded that, as a
consequence, the disclosure provision in the Constitution
would constitute sufficient authority for upholding the
petitioner's standing.

Similarly, the instant petition is anchored on the right of the

people to information and access to official records,
documents and papers a right guaranteed under Section
7, Article III of the 1987 Constitution. Petitioner, a former
solicitor general, is a Filipino citizen. Because of the
satisfaction of the two basic requisites laid down by
decisional law to sustain petitioner's legal standing, i.e. (1)
the enforcement of a public right (2) espoused by a Filipino
citizen, we rule that the petition at bar should be allowed."
We rule that since the instant petition, brought by a citizen, involves
the enforcement of constitutional rights - to information and to the
equitable diffusion of natural resources - matters of transcendental
public importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information
includes official information on on-going negotiations before a
final agreement.
Section 7, Article III of the Constitution explains the people's right to
information on matters of public concern in this manner:
"Sec. 7. The right of the people to information on matters of
public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to
official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law." (Emphasis supplied)
The State policy of full transparency in all transactions involving
public interest reinforces the people's right to information on matters
of public concern. This State policy is expressed in Section 28,
Article II of the Constitution, thus:
"Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public
interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote

transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. These twin provisions
are essential to the exercise of freedom of expression. If the
government does not disclose its official acts, transactions and
decisions to citizens, whatever citizens say, even if expressed
without any restraint, will be speculative and amount to nothing.
These twin provisions are also essential to hold public officials "at all
times x x x accountable to the people,"29 for unless citizens have the
proper information, they cannot hold public officials accountable for
anything. Armed with the right information, citizens can participate in
public discussions leading to the formulation of government policies
and their effective implementation. An informed citizenry is essential
to the existence and proper functioning of any democracy. As
explained by the Court in Valmonte v. Belmonte, Jr.30
"An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between
the government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive and
be responsive to the people's will. Yet, this open dialogue
can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the
issues and have access to information relating thereto can
such bear fruit."
PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going
negotiations the right to information is limited to "definite propositions
of the government." PEA maintains the right does not include access
to "intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still
in the process of being formulated or are in the 'exploratory stage'."
Also, AMARI contends that petitioner cannot invoke the right at the
pre-decisional stage or before the closing of the transaction. To
support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should

be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to
the consummation of the contract, or does he refer to the
contract itself?
Mr. Ople: The 'transactions' used here, I suppose is
generic and therefore, it can cover both steps leading to
a contract and already a consummated contract, Mr.
Presiding Officer.
Mr. Suarez: This contemplates inclusion of negotiations
leading to the consummation of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on
the national interest.
Mr. Suarez: Thank you."32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before
petitioner can invoke the right. Requiring government officials to
reveal their deliberations at the pre-decisional stage will degrade the
quality of decision-making in government agencies. Government
officials will hesitate to express their real sentiments during
deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they
decide.
We must first distinguish between information the law on public
bidding requires PEA to disclose publicly, and information the
constitutional right to information requires PEA to release to the
public. Before the consummation of the contract, PEA must, on its
own and without demand from anyone, disclose to the public matters
relating to the disposition of its property. These include the size,
location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties
qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of
the disposition process, long before the consummation of the

contract, because the Government Auditing Code requires public

bidding. If PEA fails to make this disclosure, any citizen can demand
from PEA this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or
proposals being undertaken by the bidding or review committee is
not immediately accessible under the right to information. While the
evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once
the committee makes its official recommendation, there arises
a "definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen
can access all the non-proprietary information leading to such
definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:
"Considering the intent of the framers of the Constitution, we
believe that it is incumbent upon the PCGG and its officers,
as well as other government representatives, to disclose
sufficient public information on any proposed settlement they
have decided to take up with the ostensible owners and
holders of ill-gotten wealth. Such information, though, must
pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency
recommendations or communications during the stage when
common assertions are still in the process of being
formulated or are in the "exploratory" stage. There is need,
of course, to observe the same restrictions on disclosure of
information in general, as discussed earlier such as on
matters involving national security, diplomatic or foreign
relations, intelligence and other classified information."
(Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986
Constitutional Commission understood that the right to
information "contemplates inclusion of negotiations leading to
the consummation of the transaction." Certainly, a consummated
contract is not a requirement for the exercise of the right to
information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too
late for the public to expose its defects.
1wphi1.nt

Requiring a consummated contract will keep the public in the dark

until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes a fait accompli. This negates
the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposedcontract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."
The right covers three categories of information which are "matters of
public concern," namely: (1) official records; (2) documents and
papers pertaining to official acts, transactions and decisions; and (3)
government research data used in formulating policies. The first
category refers to any document that is part of the public records in
the custody of government agencies or officials. The second
category refers to documents and papers recording, evidencing,
establishing, confirming, supporting, justifying or explaining official
acts, transactions or decisions of government agencies or officials.
The third category refers to research data, whether raw, collated or
processed, owned by the government and used in formulating
government policies.
The information that petitioner may access on the renegotiation of
the JVA includes evaluation reports, recommendations, legal and
expert opinions, minutes of meetings, terms of reference and other
documents attached to such reports or minutes, all relating to the
JVA. However, the right to information does not compel PEA to
prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records,
documents and papers, which means the opportunity to inspect and
copy them. One who exercises the right must copy the records,
documents and papers at his expense. The exercise of the right is
also subject to reasonable regulations to protect the integrity of the
public records and to minimize disruption to government operations,
like rules specifying when and how to conduct the inspection and
copying.35

The right to information, however, does not extend to matters

recognized as privileged information under the separation of
powers.36 The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and
information on investigations of crimes by law enforcement agencies
before the prosecution of the accused, which courts have long
recognized as confidential.37 The right may also be subject to other
limitations that Congress may impose by law.

The ownership of lands reclaimed from foreshore and submerged

areas is rooted in the Regalian doctrine which holds that the State
owns all lands and waters of the public domain. Upon the Spanish
conquest of the Philippines, ownership of all "lands, territories and
possessions" in the Philippines passed to the Spanish Crown. 42The
King, as the sovereign ruler and representative of the people,
acquired and owned all lands and territories in the Philippines except
those he disposed of by grant or sale to private individuals.

There is no claim by PEA that the information demanded by

petitioner is privileged information rooted in the separation of powers.
The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet
meetings which, like internal deliberations of the Supreme Court and
other collegiate courts, or executive sessions of either house of
Congress,38 are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank
exchange of exploratory ideas and assessments, free from the glare
of publicity and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power.39This is not the situation
in the instant case.

The 1935, 1973 and 1987 Constitutions adopted the Regalian

doctrine substituting, however, the State, in lieu of the King, as the
owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land
ownership that "all lands that were not acquired from the
Government, either by purchase or by grant, belong to the public
domain."43 Article 339 of the Civil Code of 1889, which is now Article
420 of the Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands

Sixth issue: whether stipulations in the Amended JVA for the

transfer to AMARI of lands, reclaimed or to be reclaimed, violate
the Constitution.

The Spanish Law of Waters of 1866 was the first statutory law
governing the ownership and disposition of reclaimed lands in the
Philippines. On May 18, 1907, the Philippine Commission enacted
Act No. 1654 which provided for the lease, but not the sale, of
reclaimed lands of the government to corporations and
individuals. Later, on November 29, 1919, the Philippine Legislature
approved Act No. 2874, the Public Land Act, which authorized the
lease, but not the sale, of reclaimed lands of the government to
corporations and individuals. On November 7, 1936, the National
Assembly passed Commonwealth Act No. 141, also known as the
Public Land Act, which authorized the lease, but not the sale, of
reclaimed lands of the government to corporations and
individuals. CA No. 141 continues to this day as the general law
governing the classification and disposition of lands of the public
domain.

The Regalian Doctrine

The Spanish Law of Waters of 1866 and the Civil Code of 1889

We rule, therefore, that the constitutional right to information includes

official information on on-going negotiations before a final contract.
The information, however, must constitute definite propositions by
the government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public order.40 Congress has
also prescribed other limitations on the right to information in several
legislations.41

Under the Spanish Law of Waters of 1866, the shores, bays, coves,
inlets and all waters within the maritime zone of the Spanish territory
belonged to the public domain for public use.44 The Spanish Law of
Waters of 1866 allowed the reclamation of the sea under Article 5,
which provided as follows:
"Article 5. Lands reclaimed from the sea in consequence of
works constructed by the State, or by the provinces, pueblos
or private persons, with proper permission, shall become the
property of the party constructing such works, unless
otherwise provided by the terms of the grant of authority."
Under the Spanish Law of Waters, land reclaimed from the sea
belonged to the party undertaking the reclamation, provided the
government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public
dominion as follows:
"Art. 339. Property of public dominion is
1. That devoted to public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State,
riverbanks, shores, roadsteads, and that of a similar
character;
2. That belonging exclusively to the State which, without
being of general public use, is employed in some public
service, or in the development of the national wealth, such
as walls, fortresses, and other works for the defense of the
territory, and mines, until granted to private individuals."
Property devoted to public use referred to property open for use by
the public. In contrast, property devoted to public service referred to
property used for some specific public service and open only to
those authorized to use the property.

Property of public dominion referred not only to property devoted to

public use, but also to property not so used but employed to
develop the national wealth. This class of property constituted
property of public dominion although employed for some economic
or commercial activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of
property of public dominion into private property, to wit:
"Art. 341. Property of public dominion, when no longer
devoted to public use or to the defense of the territory, shall
become a part of the private property of the State."
This provision, however, was not self-executing. The legislature, or
the executive department pursuant to law, must declare the property
no longer needed for public use or territorial defense before the
government could lease or alienate the property to private parties. 45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654
which regulated the lease of reclaimed and foreshore lands. The
salient provisions of this law were as follows:
"Section 1. The control and disposition of the
foreshore as defined in existing law, and the title to all
Government or public lands made or reclaimed by the
Government by dredging or filling or otherwise throughout
the Philippine Islands, shall be retained by the
Government without prejudice to vested rights and without
prejudice to rights conceded to the City of Manila in the
Luneta Extension.
Section 2. (a) The Secretary of the Interior shall cause all
Government or public lands made or reclaimed by the
Government by dredging or filling or otherwise to be divided
into lots or blocks, with the necessary streets and alleyways
located thereon, and shall cause plats and plans of such
surveys to be prepared and filed with the Bureau of Lands.

(b) Upon completion of such plats and plans the GovernorGeneral shall give notice to the public that such parts of
the lands so made or reclaimed as are not needed for
public purposes will be leased for commercial and
business purposes, x x x.
xxx
(e) The leases above provided for shall be disposed of
to the highest and best bidder therefore, subject to such
regulations and safeguards as the Governor-General may by
executive order prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to
all lands reclaimed by the government. The Act also vested in the
government control and disposition of foreshore lands. Private
parties could lease lands reclaimed by the government only if these
lands were no longer needed for public purpose. Act No. 1654
mandated public bidding in the lease of government reclaimed
lands. Act No. 1654 made government reclaimed lands sui
generis in that unlike other public lands which the government could
sell to private parties, these reclaimed lands were available only for
lease to private parties.
Act No. 1654, however, did not repeal Section 5 of the Spanish Law
of Waters of 1866. Act No. 1654 did not prohibit private parties from
reclaiming parts of the sea under Section 5 of the Spanish Law of
Waters. Lands reclaimed from the sea by private parties with
government permission remained private lands.
Act No. 2874 of the Philippine Legislature
On November 29, 1919, the Philippine Legislature enacted Act No.
2874, the Public Land Act.46 The salient provisions of Act No. 2874,
on reclaimed lands, were as follows:
"Sec. 6. The Governor-General, upon the
recommendation of the Secretary of Agriculture and

Natural Resources, shall from time to time classify the

lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands, x x x.
Sec. 7. For the purposes of the government and disposition
of alienable or disposable public lands, the GovernorGeneral, upon recommendation by the Secretary of
Agriculture and Natural Resources, shall from time to
time declare what lands are open to disposition or
concession under this Act."
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited or classified x x x.
xxx
Sec. 55. Any tract of land of the public domain which, being
neither timber nor mineral land, shall be classified
as suitable for residential purposes or for commercial,
industrial, or other productive purposes other than
agricultural purposes, and shall be open to disposition or
concession, shall be disposed of under the provisions of this
chapter, and not otherwise.
Sec. 56. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by
dredging, filling, or other means;
(b) Foreshore;

(c) Marshy lands or lands covered with water

bordering upon the shores or banks of navigable
lakes or rivers;
(d) Lands not included in any of the foregoing
classes.
x x x.
Sec. 58. The lands comprised in classes (a), (b), and (c)
of section fifty-six shall be disposed of to private parties
by lease only and not otherwise, as soon as the
Governor-General, upon recommendation by the
Secretary of Agriculture and Natural Resources, shall
declare that the same are not necessary for the public
service and are open to disposition under this
chapter. The lands included in class (d) may be disposed
of by sale or lease under the provisions of this Act."
(Emphasis supplied)
Section 6 of Act No. 2874 authorized the Governor-General to
"classify lands of the public domain into x x x alienable or
disposable"47 lands. Section 7 of the Act empowered the GovernorGeneral to "declare what lands are open to disposition or
concession." Section 8 of the Act limited alienable or disposable
lands only to those lands which have been "officially delimited and
classified."
Section 56 of Act No. 2874 stated that lands "disposable under this
title48 shall be classified" as government reclaimed, foreshore and
marshy lands, as well as other lands. All these lands, however, must
be suitable for residential, commercial, industrial or other
productive non-agricultural purposes. These provisions vested
upon the Governor-General the power to classify inalienable lands of
the public domain into disposable lands of the public domain. These
provisions also empowered the Governor-General to classify further
such disposable lands of the public domain into government
reclaimed, foreshore or marshy lands of the public domain, as well
as other non-agricultural lands.

Section 58 of Act No. 2874 categorically mandated that disposable

lands of the public domain classified as government reclaimed,
foreshore and marshy lands "shall be disposed of to private
parties by lease only and not otherwise." The Governor-General,
before allowing the lease of these lands to private parties, must
formally declare that the lands were "not necessary for the public
service." Act No. 2874 reiterated the State policy to lease and not to
sell government reclaimed, foreshore and marshy lands of the public
domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui
generis, as the only alienable or disposable lands of the public
domain that the government could not sell to private parties.
The rationale behind this State policy is obvious. Government
reclaimed, foreshore and marshy public lands for non-agricultural
purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government
reclaimed, foreshore and marshy lands into other non-agricultural
lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could
sell to private parties. Thus, under Act No. 2874, the government
could not sell government reclaimed, foreshore and marshy lands to
private parties, unless the legislature passed a law allowing their
sale.49
Act No. 2874 did not prohibit private parties from reclaiming parts of
the sea pursuant to Section 5 of the Spanish Law of Waters of 1866.
Lands reclaimed from the sea by private parties with government
permission remained private lands.
Dispositions under the 1935 Constitution
On May 14, 1935, the 1935 Constitution took effect upon its
ratification by the Filipino people. The 1935 Constitution, in adopting
the Regalian doctrine, declared in Section 1, Article XIII, that

"Section 1. All agricultural, timber, and mineral lands of the

public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines or to corporations or
associations at least sixty per centum of the capital of which
is owned by such citizens, subject to any existing right, grant,
lease, or concession at the time of the inauguration of the
Government established under this Constitution. Natural
resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or lease
for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years,
except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of
water power, in which cases beneficial use may be the
measure and limit of the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources
except public agricultural lands, which were the only natural
resources the State could alienate. Thus, foreshore lands,
considered part of the State's natural resources, became inalienable
by constitutional fiat, available only for lease for 25 years, renewable
for another 25 years. The government could alienate foreshore lands
only after these lands were reclaimed and classified as alienable
agricultural lands of the public domain. Government reclaimed and
marshy lands of the public domain, being neither timber nor mineral
lands, fell under the classification of public agricultural
lands.50 However, government reclaimed and marshy lands, although
subject to classification as disposable public agricultural lands, could
only be leased and not sold to private parties because of Act No.
2874.
The prohibition on private parties from acquiring ownership of
government reclaimed and marshy lands of the public domain was
only a statutory prohibition and the legislature could therefore
remove such prohibition. The 1935 Constitution did not prohibit
individuals and corporations from acquiring government reclaimed

and marshy lands of the public domain that were classified as

agricultural lands under existing public land laws. Section 2, Article
XIII of the 1935 Constitution provided as follows:
"Section 2. No private corporation or association may
acquire, lease, or hold public agricultural lands in
excess of one thousand and twenty four hectares, nor
may any individual acquire such lands by purchase in
excess of one hundred and forty hectares, or by lease in
excess of one thousand and twenty-four hectares, or by
homestead in excess of twenty-four hectares. Lands
adapted to grazing, not exceeding two thousand hectares,
may be leased to an individual, private corporation, or
association." (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did
not repeal Section 58 of Act No. 2874 to open for sale to private
parties government reclaimed and marshy lands of the public
domain. On the contrary, the legislature continued the long
established State policy of retaining for the government title and
ownership of government reclaimed and marshy lands of the public
domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved
Commonwealth Act No. 141, also known as the Public Land Act,
which compiled the then existing laws on lands of the public domain.
CA No. 141, as amended, remains to this day the existing general
law governing the classification and disposition of lands of the public
domain other than timber and mineral lands.51
Section 6 of CA No. 141 empowers the President to classify lands of
the public domain into "alienable or disposable" 52 lands of the public
domain, which prior to such classification are inalienable and outside
the commerce of man. Section 7 of CA No. 141 authorizes the
President to "declare what lands are open to disposition or
concession." Section 8 of CA No. 141 states that the government can
declare open for disposition or concession only lands that are

"officially delimited and classified." Sections 6, 7 and 8 of CA No. 141

read as follows:
"Sec. 6. The President, upon the recommendation of the
Secretary of Agriculture and Commerce, shall from time
to time classify the lands of the public domain into
(a) Alienable or disposable,
(b) Timber, and
(c) Mineral lands,
and may at any time and in like manner transfer such lands
from one class to another,53 for the purpose of their
administration and disposition.
Sec. 7. For the purposes of the administration and
disposition of alienable or disposable public lands, the
President, upon recommendation by the Secretary of
Agriculture and Commerce, shall from time to time
declare what lands are open to disposition or
concession under this Act.
Sec. 8. Only those lands shall be declared open to
disposition or concession which have been officially
delimited and classified and, when practicable,
surveyed, and which have not been reserved for public
or quasi-public uses, nor appropriated by the Government,
nor in any manner become private property, nor those on
which a private right authorized and recognized by this Act or
any other valid law may be claimed, or which, having been
reserved or appropriated, have ceased to be so. x x x."

Thus, before the government could alienate or dispose of lands of

the public domain, the President must first officially classify these
lands as alienable or disposable, and then declare them open to
disposition or concession. There must be no law reserving these
lands for public or quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed,
foreshore and marshy lands of the public domain, are as follows:
"Sec. 58. Any tract of land of the public domain which,
being neither timber nor mineral land, is intended to be
used for residential purposes or for commercial,
industrial, or other productive purposes other than
agricultural, and is open to disposition or concession,
shall be disposed of under the provisions of this
chapter and not otherwise.
Sec. 59. The lands disposable under this title shall be
classified as follows:
(a) Lands reclaimed by the Government by
dredging, filling, or other means;
(b) Foreshore;
(c) Marshy lands or lands covered with water
bordering upon the shores or banks of navigable
lakes or rivers;
(d) Lands not included in any of the foregoing
classes.
Sec. 60. Any tract of land comprised under this title may be
leased or sold, as the case may be, to any person,
corporation, or association authorized to purchase or lease
public lands for agricultural purposes. x x x.

Sec. 61. The lands comprised in classes (a), (b), and (c)
of section fifty-nine shall be disposed of to private
parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of
Agriculture, shall declare that the same are not necessary
for the public service and are open to disposition under
this chapter. The lands included in class (d) may be
disposed of by sale or lease under the provisions of this
Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935
Constitution, Section 58 of Act No. 2874 prohibiting the sale of
government reclaimed, foreshore and marshy disposable lands of
the public domain. All these lands are intended for residential,
commercial, industrial or other non-agricultural purposes. As before,
Section 61 allowed only the lease of such lands to private parties.
The government could sell to private parties only lands falling under
Section 59 (d) of CA No. 141, or those lands for non-agricultural
purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands,
however, became inalienable under the 1935 Constitution which only
allowed the lease of these lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of
the public domain intended for residential, commercial, industrial or
other productive purposes other than agricultural "shall be
disposed of under the provisions of this chapter and not
otherwise." Under Section 10 of CA No. 141, the term "disposition"
includes lease of the land. Any disposition of government reclaimed,
foreshore and marshy disposable lands for non-agricultural purposes
must comply with Chapter IX, Title III of CA No. 141,54 unless a
subsequent law amended or repealed these provisions.
In his concurring opinion in the landmark case of Republic Real
Estate Corporation v. Court of Appeals,55Justice Reynato S. Puno
summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for
public use. So too are lands reclaimed by the government by

dredging, filling, or other means. Act 1654 mandated that the

control and disposition of the foreshore and lands under
water remained in the national government. Said law allowed
only the 'leasing' of reclaimed land. The Public Land Acts of
1919 and 1936 also declared that the foreshore and lands
reclaimed by the government were to be "disposed of to
private parties by lease only and not otherwise." Before
leasing, however, the Governor-General, upon
recommendation of the Secretary of Agriculture and Natural
Resources, had first to determine that the land reclaimed
was not necessary for the public service. This requisite must
have been met before the land could be disposed of. But
even then, the foreshore and lands under water were not
to be alienated and sold to private parties. The
disposition of the reclaimed land was only by lease. The
land remained property of the State." (Emphasis supplied)
As observed by Justice Puno in his concurring opinion,
"Commonwealth Act No. 141 has remained in effect at present."
The State policy prohibiting the sale to private parties of government
reclaimed, foreshore and marshy alienable lands of the public
domain, first implemented in 1907 was thus reaffirmed in CA No. 141
after the 1935 Constitution took effect. The prohibition on the sale of
foreshore lands, however, became a constitutional edict under the
1935 Constitution. Foreshore lands became inalienable as natural
resources of the State, unless reclaimed by the government and
classified as agricultural lands of the public domain, in which case
they would fall under the classification of government reclaimed
lands.
After the effectivity of the 1935 Constitution, government reclaimed
and marshy disposable lands of the public domain continued to be
only leased and not sold to private parties.56 These lands
remained sui generis, as the only alienable or disposable lands of
the public domain the government could not sell to private parties.
Since then and until now, the only way the government can sell to
private parties government reclaimed and marshy disposable lands

of the public domain is for the legislature to pass a law authorizing

such sale. CA No. 141 does not authorize the President to reclassify
government reclaimed and marshy lands into other non-agricultural
lands under Section 59 (d). Lands classified under Section 59 (d) are
the only alienable or disposable lands for non-agricultural purposes
that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires
congressional authority before lands under Section 59 that the
government previously transferred to government units or entities
could be sold to private parties. Section 60 of CA No. 141 declares
that
"Sec. 60. x x x The area so leased or sold shall be such as
shall, in the judgment of the Secretary of Agriculture and
Natural Resources, be reasonably necessary for the
purposes for which such sale or lease is requested, and
shall not exceed one hundred and forty-four hectares:
Provided, however, That this limitation shall not apply to
grants, donations, or transfers made to a province,
municipality or branch or subdivision of the Government for
the purposes deemed by said entities conducive to the
public interest;but the land so granted, donated, or
transferred to a province, municipality or branch or
subdivision of the Government shall not be alienated,
encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x
x x." (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141
mirrors the legislative authority required in Section 56 of Act No.
2874.
One reason for the congressional authority is that Section 60 of CA
No. 141 exempted government units and entities from the maximum
area of public lands that could be acquired from the State. These
government units and entities should not just turn around and sell
these lands to private parties in violation of constitutional or statutory
limitations. Otherwise, the transfer of lands for non-agricultural

purposes to government units and entities could be used to

circumvent constitutional limitations on ownership of alienable or
disposable lands of the public domain. In the same manner, such
transfers could also be used to evade the statutory prohibition in CA
No. 141 on the sale of government reclaimed and marshy lands of
the public domain to private parties. Section 60 of CA No. 141
constitutes by operation of law a lien on these lands. 57
In case of sale or lease of disposable lands of the public domain
falling under Section 59 of CA No. 141, Sections 63 and 67 require a
public bidding. Sections 63 and 67 of CA No. 141 provide as follows:
"Sec. 63. Whenever it is decided that lands covered by this
chapter are not needed for public purposes, the Director of
Lands shall ask the Secretary of Agriculture and Commerce
(now the Secretary of Natural Resources) for authority to
dispose of the same. Upon receipt of such authority, the
Director of Lands shall give notice by public advertisement in
the same manner as in the case of leases or sales of
agricultural public land, x x x.
Sec. 67. The lease or sale shall be made by oral bidding;
and adjudication shall be made to the highest bidder. x x
x." (Emphasis supplied)
Thus, CA No. 141 mandates the Government to put to public auction
all leases or sales of alienable or disposable lands of the public
domain.58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not
repeal Section 5 of the Spanish Law of Waters of 1866. Private
parties could still reclaim portions of the sea with government
permission. However, thereclaimed land could become private
land only if classified as alienable agricultural land of the public
domain open to disposition under CA No. 141. The 1935
Constitution prohibited the alienation of all natural resources except
public agricultural lands.
The Civil Code of 1950

The Civil Code of 1950 readopted substantially the definition of

property of public dominion found in the Civil Code of 1889. Articles
420 and 422 of the Civil Code of 1950 state that
"Art. 420. The following things are property of public
dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridges constructed by the State,
banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth.
x x x.
Art. 422. Property of public dominion, when no longer
intended for public use or for public service, shall form part
of the patrimonial property of the State."
Again, the government must formally declare that the property of
public dominion is no longer needed for public use or public service,
before the same could be classified as patrimonial property of the
State.59 In the case of government reclaimed and marshy lands of the
public domain, the declaration of their being disposable, as well as
the manner of their disposition, is governed by the applicable
provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as
property of public dominion those properties of the State which,
without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed
and marshy lands of the State, even if not employed for public use or
public service, if developed to enhance the national wealth, are
classified as property of public dominion.
Dispositions under the 1973 Constitution

The 1973 Constitution, which took effect on January 17, 1973,

likewise adopted the Regalian doctrine. Section 8, Article XIV of the
1973 Constitution stated that
"Sec. 8. All lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, wildlife, and other natural resources of the
Philippines belong to the State. With the exception of
agricultural, industrial or commercial, residential, and
resettlement lands of the public domain, natural
resources shall not be alienated, and no license,
concession, or lease for the exploration, development,
exploitation, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years,
renewable for not more than twenty-five years, except as to
water rights for irrigation, water supply, fisheries, or industrial
uses other than the development of water power, in which
cases, beneficial use may be the measure and the limit of
the grant." (Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural
resources with the exception of "agricultural, industrial or
commercial, residential, and resettlement lands of the public
domain." In contrast, the 1935 Constitution barred the alienation of
all natural resources except "public agricultural lands." However, the
term "public agricultural lands" in the 1935 Constitution
encompassed industrial, commercial, residential and resettlement
lands of the public domain.60 If the land of public domain were neither
timber nor mineral land, it would fall under the classification of
agricultural land of the public domain. Both the 1935 and 1973
Constitutions, therefore, prohibited the alienation of all natural
resources except agricultural lands of the public domain.
The 1973 Constitution, however, limited the alienation of lands of the
public domain to individuals who were citizens of the Philippines.
Private corporations, even if wholly owned by Philippine citizens,
were no longer allowed to acquire alienable lands of the public
domain unlike in the 1935 Constitution. Section 11, Article XIV of the
1973 Constitution declared that

"Sec. 11. The Batasang Pambansa, taking into account

conservation, ecological, and development requirements of
the natural resources, shall determine by law the size of land
of the public domain which may be developed, held or
acquired by, or leased to, any qualified individual,
corporation, or association, and the conditions therefor. No
private corporation or association may hold alienable
lands of the public domain except by lease not to exceed
one thousand hectares in area nor may any citizen hold such
lands by lease in excess of five hundred hectares or acquire
by purchase, homestead or grant, in excess of twenty-four
hectares. No private corporation or association may hold by
lease, concession, license or permit, timber or forest lands
and other timber or forest resources in excess of one
hundred thousand hectares. However, such area may be
increased by the Batasang Pambansa upon
recommendation of the National Economic and Development
Authority." (Emphasis supplied)

(a) To reclaim land, including foreshore and submerged

areas, by dredging, filling or other means, or to acquire
reclaimed land;
(b) To develop, improve, acquire, administer, deal in,
subdivide, dispose, lease and sell any and all kinds of
lands, buildings, estates and other forms of real property,
owned, managed, controlled and/or operated by the
government;
(c) To provide for, operate or administer such service as may
be necessary for the efficient, economical and beneficial
utilization of the above properties.
Sec. 5. Powers and functions of the Authority. The Authority
shall, in carrying out the purposes for which it is created,
have the following powers and functions:

Thus, under the 1973 Constitution, private corporations could hold

alienable lands of the public domain only through lease. Only
individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from
acquiring any kind of alienable land of the public domain. The
constitutional ban extended to all kinds of alienable lands of the
public domain, while the statutory ban under CA No. 141 applied only
to government reclaimed, foreshore and marshy alienable lands of
the public domain.

(a)To prescribe its by-laws.

PD No. 1084 Creating the Public Estates Authority

xxx

On February 4, 1977, then President Ferdinand Marcos issued

Presidential Decree No. 1084 creating PEA, a wholly government
owned and controlled corporation with a special charter. Sections 4
and 8 of PD No. 1084, vests PEA with the following purposes and
powers:

(o) To perform such acts and exercise such functions as may

be necessary for the attainment of the purposes and
objectives herein specified." (Emphasis supplied)

"Sec. 4. Purpose. The Authority is hereby created for the

following purposes:

xxx
(i) To hold lands of the public domain in excess of the
area permitted to private corporations by statute.
(j) To reclaim lands and to construct work across, or
otherwise, any stream, watercourse, canal, ditch, flume x x x.

PD No. 1084 authorizes PEA to reclaim both foreshore and

submerged areas of the public domain. Foreshore areas are those
covered and uncovered by the ebb and flow of the tide. 61 Submerged
areas are those permanently under water regardless of the ebb and

flow of the tide.62 Foreshore and submerged areas indisputably

belong to the public domain63 and are inalienable unless reclaimed,
classified as alienable lands open to disposition, and further declared
no longer needed for public service.
The ban in the 1973 Constitution on private corporations from
acquiring alienable lands of the public domain did not apply to PEA
since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies
now, only to "private corporations and associations." PD No. 1084
expressly empowers PEA "to hold lands of the public domain"
even "in excess of the area permitted to private corporations by
statute." Thus, PEA can hold title to private lands, as well as title
to lands of the public domain.
In order for PEA to sell its reclaimed foreshore and submerged
alienable lands of the public domain, there must be legislative
authority empowering PEA to sell these lands. This legislative
authority is necessary in view of Section 60 of CA No.141, which
states
"Sec. 60. x x x; but the land so granted, donated or
transferred to a province, municipality, or branch or
subdivision of the Government shall not be alienated,
encumbered or otherwise disposed of in a manner affecting
its title, except when authorized by Congress; x x x."
(Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease
its reclaimed foreshore and submerged alienable lands of the public
domain. Nevertheless, any legislative authority granted to PEA to sell
its reclaimed alienable lands of the public domain would be subject
to the constitutional ban on private corporations from acquiring
alienable lands of the public domain. Hence, such legislative
authority could only benefit private individuals.
Dispositions under the 1987 Constitution

The 1987 Constitution, like the 1935 and 1973 Constitutions before
it, has adopted the Regalian doctrine. The 1987 Constitution
declares that all natural resources are "owned by the State," and
except for alienable agricultural lands of the public domain, natural
resources cannot be alienated. Sections 2 and 3, Article XII of the
1987 Constitution state that
"Section 2. All lands of the public domain, waters, minerals,
coal, petroleum and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration,
development, and utilization of natural resources shall be
under the full control and supervision of the State. x x x.
Section 3. Lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and national
parks. Agricultural lands of the public domain may be further
classified by law according to the uses which they may be
devoted. Alienable lands of the public domain shall be
limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the
public domain except by lease, for a period not
exceeding twenty-five years, renewable for not more
than twenty-five years, and not to exceed one thousand
hectares in area. Citizens of the Philippines may lease not
more than five hundred hectares, or acquire not more than
twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation,
ecology, and development, and subject to the requirements
of agrarian reform, the Congress shall determine, by law, the
size of lands of the public domain which may be acquired,
developed, held, or leased and the conditions therefor."
(Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973
Constitution banning private corporations fromacquiring any kind of

alienable land of the public domain. Like the 1973 Constitution,

the 1987 Constitution allows private corporations to hold alienable
lands of the public domain only through lease. As in the 1935 and
1973 Constitutions, the general law governing the lease to private
corporations of reclaimed, foreshore and marshy alienable lands of
the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from
acquiring, except through lease, alienable lands of the public domain
is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale
behind this ban, thus:
"FR. BERNAS: Mr. Vice-President, my questions have
reference to page 3, line 5 which says:
`No private corporation or association may hold alienable
lands of the public domain except by lease, not to exceed
one thousand hectares in area.'
If we recall, this provision did not exist under the 1935
Constitution, but this was introduced in the 1973
Constitution. In effect, it prohibits private corporations from
acquiring alienable public lands. But it has not been very
clear in jurisprudence what the reason for this is. In
some of the cases decided in 1982 and 1983, it was
indicated that the purpose of this is to prevent large
landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.
FR. BERNAS: In existing decisions involving the Iglesia ni
Cristo, there were instances where the Iglesia ni Cristo was
not allowed to acquire a mere 313-square meter land where
a chapel stood because the Supreme Court said it would be
in violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this

constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition against
purchases of public agricultural lands by private corporations
is to equitably diffuse land ownership or to encourage
'owner-cultivatorship and the economic family-size farm' and
to prevent a recurrence of cases like the instant case. Huge
landholdings by corporations or private persons had
spawned social unrest."
However, if the constitutional intent is to prevent huge landholdings,
the Constitution could have simply limited the size of alienable lands
of the public domain that corporations could acquire. The
Constitution could have followed the limitations on individuals, who
could acquire not more than 24 hectares of alienable lands of the
public domain under the 1973 Constitution, and not more than 12
hectares under the 1987 Constitution.
If the constitutional intent is to encourage economic family-size
farms, placing the land in the name of a corporation would be more
effective in preventing the break-up of farmlands. If the farmland is
registered in the name of a corporation, upon the death of the owner,
his heirs would inherit shares in the corporation instead of subdivided
parcels of the farmland. This would prevent the continuing break-up
of farmlands into smaller and smaller plots from one generation to
the next.
In actual practice, the constitutional ban strengthens the
constitutional limitation on individuals from acquiring more than the
allowed area of alienable lands of the public domain. Without the
constitutional ban, individuals who already acquired the maximum
area of alienable lands of the public domain could easily set up
corporations to acquire more alienable public lands. An individual
could own as many corporations as his means would allow him. An
individual could even hide his ownership of a corporation by putting
his nominees as stockholders of the corporation. The corporation is a
convenient vehicle to circumvent the constitutional limitation on
acquisition by individuals of alienable lands of the public domain.

The constitutional intent, under the 1973 and 1987 Constitutions, is

to transfer ownership of only a limited area of alienable land of the
public domain to a qualified individual. This constitutional intent is
safeguarded by the provision prohibiting corporations from acquiring
alienable lands of the public domain, since the vehicle to circumvent
the constitutional intent is removed. The available alienable public
lands are gradually decreasing in the face of an ever-growing
population. The most effective way to insure faithful adherence to
this constitutional intent is to grant or sell alienable lands of the
public domain only to individuals. This, it would seem, is the practical
benefit arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second
Whereas clause, consists of three properties, namely:
1. "[T]hree partially reclaimed and substantially eroded
islands along Emilio Aguinaldo Boulevard in Paranaque and
Las Pinas, Metro Manila, with a combined titled area of
1,578,441 square meters;"
2. "[A]nother area of 2,421,559 square meters contiguous to
the three islands;" and
3. "[A]t AMARI's option as approved by PEA, an additional
350 hectares more or less to regularize the configuration of
the reclaimed area."65
PEA confirms that the Amended JVA involves "the development of
the Freedom Islands and further reclamation of about 250 hectares x
x x," plus an option "granted to AMARI to subsequently reclaim
another 350 hectares x x x."66
In short, the Amended JVA covers a reclamation area of 750
hectares. Only 157.84 hectares of the 750-hectare reclamation
project have been reclaimed, and the rest of the 592.15 hectares
are still submerged areas forming part of Manila Bay.

Under the Amended JVA, AMARI will reimburse PEA the sum of
P1,894,129,200.00 for PEA's "actual cost" in partially reclaiming the
Freedom Islands. AMARI will also complete, at its own expense, the
reclamation of the Freedom Islands. AMARI will further shoulder all
the reclamation costs of all the other areas, totaling 592.15 hectares,
still to be reclaimed. AMARI and PEA will share, in the proportion of
70 percent and 30 percent, respectively, the total net usable area
which is defined in the Amended JVA as the total reclaimed area less
30 percent earmarked for common areas. Title to AMARI's share in
the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that
"x x x, PEA shall have the duty to execute without delay the
necessary deed of transfer or conveyance of the title
pertaining to AMARI's Land share based on the Land
Allocation Plan. PEA, when requested in writing by
AMARI, shall then cause the issuance and delivery of
the proper certificates of title covering AMARI's Land
Share in the name of AMARI, x x x; provided, that if more
than seventy percent (70%) of the titled area at any given
time pertains to AMARI, PEA shall deliver to AMARI only
seventy percent (70%) of the titles pertaining to AMARI, until
such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis
supplied)
Indisputably, under the Amended JVA AMARI will acquire and
own a maximum of 367.5 hectares of reclaimed land which will
be titled in its name.
To implement the Amended JVA, PEA delegated to the
unincorporated PEA-AMARI joint venture PEA's statutory authority,
rights and privileges to reclaim foreshore and submerged areas in
Manila Bay. Section 3.2.a of the Amended JVA states that
"PEA hereby contributes to the joint venture its rights and
privileges to perform Rawland Reclamation and Horizontal
Development as well as own the Reclamation Area, thereby
granting the Joint Venture the full and exclusive right,

authority and privilege to undertake the Project in

accordance with the Master Development Plan."

'Sec. 59. The lands disposable under this title shall

be classified as follows:

The Amended JVA is the product of a renegotiation of the original

JVA dated April 25, 1995 and its supplemental agreement dated
August 9, 1995.

(a) Lands reclaimed by the government by dredging,

filling, or other means;
x x x.'" (Emphasis supplied)

The Threshold Issue

The threshold issue is whether AMARI, a private corporation, can
acquire and own under the Amended JVA 367.5 hectares of
reclaimed foreshore and submerged areas in Manila Bay in view of
Sections 2 and 3, Article XII of the 1987 Constitution which state that:
"Section 2. All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of potential
energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State. With
the exception of agricultural lands, all other natural
resources shall not be alienated. x x x.

Likewise, the Legal Task Force68 constituted under Presidential

Administrative Order No. 365 admitted in its Report and
Recommendation to then President Fidel V. Ramos, "[R]eclaimed
lands are classified as alienable and disposable lands of the
public domain."69 The Legal Task Force concluded that
"D. Conclusion

xxx

Reclaimed lands are lands of the public domain. However,

by statutory authority, the rights of ownership and disposition
over reclaimed lands have been transferred to PEA, by
virtue of which PEA, as owner, may validly convey the same
to any qualified person without violating the Constitution or
any statute.

Section 3. x x x Alienable lands of the public domain shall be

limited to agricultural lands. Private corporations or
associations may not hold such alienable lands of the
public domain except by lease, x x x."(Emphasis supplied)

The constitutional provision prohibiting private corporations

from holding public land, except by lease (Sec. 3, Art.
XVII,70 1987 Constitution), does not apply to reclaimed lands
whose ownership has passed on to PEA by statutory grant."

Classification of Reclaimed Foreshore and Submerged Areas

PEA readily concedes that lands reclaimed from foreshore or
submerged areas of Manila Bay are alienable or disposable lands of
the public domain. In its Memorandum,67 PEA admits that
"Under the Public Land Act (CA 141, as
amended), reclaimed lands are classified as alienable
and disposable lands of the public domain:

Under Section 2, Article XII of the 1987 Constitution, the foreshore

and submerged areas of Manila Bay are part of the "lands of the
public domain, waters x x x and other natural resources" and
consequently "owned by the State." As such, foreshore and
submerged areas "shall not be alienated," unless they are classified
as "agricultural lands" of the public domain. The mere reclamation of
these areas by PEA does not convert these inalienable natural
resources of the State into alienable or disposable lands of the public
domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and
open to disposition or concession. Moreover, these reclaimed lands

cannot be classified as alienable or disposable if the law has

reserved them for some public or quasi-public use.71
Section 8 of CA No. 141 provides that "only those lands shall be
declared open to disposition or concession which have
been officially delimited and classified."72 The President has the
authority to classify inalienable lands of the public domain into
alienable or disposable lands of the public domain, pursuant to
Section 6 of CA No. 141. In Laurel vs. Garcia,73 the Executive
Department attempted to sell the Roppongi property in Tokyo, Japan,
which was acquired by the Philippine Government for use as the
Chancery of the Philippine Embassy. Although the Chancery had
transferred to another location thirteen years earlier, the Court still
ruled that, under Article 42274of the Civil Code, a property of public
dominion retains such character until formally declared otherwise.
The Court ruled that
"The fact that the Roppongi site has not been used for a long
time for actual Embassy service does not automatically
convert it to patrimonial property. Any such conversion
happens only if the property is withdrawn from public use
(Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481
[1975]. A property continues to be part of the public
domain, not available for private appropriation or
ownership 'until there is a formal declaration on the part
of the government to withdraw it from being
such'(Ignacio v. Director of Lands, 108 Phil. 335 [1960]."
(Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance
of special land patents for lands reclaimed by PEA from the
foreshore or submerged areas of Manila Bay. On January 19, 1988
then President Corazon C. Aquino issued Special Patent No. 3517 in
the name of PEA for the 157.84 hectares comprising the partially
reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos.
7309, 7311 and 7312 in the name of PEA pursuant to Section 103 of
PD No. 1529 authorizing the issuance of certificates of title
corresponding to land patents. To this day, these certificates of title
are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a

special patent covering the Freedom Islands, is equivalent to an
official proclamation classifying the Freedom Islands as alienable or
disposable lands of the public domain. PD No. 1085 and President
Aquino's issuance of a land patent also constitute a declaration that
the Freedom Islands are no longer needed for public service. The
Freedom Islands are thus alienable or disposable lands of the
public domain, open to disposition or concession to qualified
parties.
At the time then President Aquino issued Special Patent No. 3517,
PEA had already reclaimed the Freedom Islands although
subsequently there were partial erosions on some areas. The
government had also completed the necessary surveys on these
islands. Thus, the Freedom Islands were no longer part of Manila
Bay but part of the land mass. Section 3, Article XII of the 1987
Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither
timber, mineral, nor national park lands, the reclaimed Freedom
Islands necessarily fall under the classification of agricultural lands of
the public domain. Under the 1987 Constitution, agricultural lands of
the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such
as the seas or bays, are "waters x x x owned by the State" forming
part of the public domain, and are inalienable pursuant to Section 2,
Article XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because
CDCP, then a private corporation, reclaimed the islands under a
contract dated November 20, 1973 with the Commissioner of Public
Highways. AMARI, citing Article 5 of the Spanish Law of Waters of
1866, argues that "if the ownership of reclaimed lands may be given
to the party constructing the works, then it cannot be said that
reclaimed lands are lands of the public domain which the State may
not alienate."75 Article 5 of the Spanish Law of Waters reads as
follows:
"Article 5. Lands reclaimed from the sea in consequence of
works constructed by the State, or by the provinces, pueblos
or private persons, with proper permission, shall become the

property of the party constructing such works, unless

otherwise provided by the terms of the grant of
authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties
could reclaim from the sea only with "proper permission" from the
State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This
clearly meant that no one could reclaim from the sea without
permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold
ownership of the reclaimed land because any reclaimed land, like the
sea from which it emerged, belonged to the State. Thus, a private
person reclaiming from the sea without permission from the State
could not acquire ownership of the reclaimed land which would
remain property of public dominion like the sea it replaced. 76 Article 5
of the Spanish Law of Waters of 1866 adopted the time-honored
principle of land ownership that "all lands that were not acquired from
the government, either by purchase or by grant, belong to the public
domain."77
Article 5 of the Spanish Law of Waters must be read together with
laws subsequently enacted on the disposition of public lands. In
particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government
can alienate them. These lands must not be reserved for public or
quasi-public purposes.78 Moreover, the contract between CDCP and
the government was executed after the effectivity of the 1973
Constitution which barred private corporations from acquiring any
kind of alienable land of the public domain. This contract could not
have converted the Freedom Islands into private lands of a private
corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all
laws authorizing the reclamation of areas under water and revested
solely in the National Government the power to reclaim lands.
Section 1 of PD No. 3-A declared that

"The provisions of any law to the contrary

notwithstanding, the reclamation of areas under water,
whether foreshore or inland, shall be limited to the National
Government or any person authorized by it under a
proper contract. (Emphasis supplied)
x x x."
PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866
because reclamation of areas under water could now be undertaken
only by the National Government or by a person contracted by the
National Government. Private parties may reclaim from the sea only
under a contract with the National Government, and no longer by
grant or permission as provided in Section 5 of the Spanish Law of
Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated
PEA as the National Government's implementing arm to undertake
"all reclamation projects of the government," which "shall be
undertaken by the PEA or through a proper contract executed
by it with any person or entity." Under such contract, a private
party receives compensation for reclamation services rendered to
PEA. Payment to the contractor may be in cash, or in kind consisting
of portions of the reclaimed land, subject to the constitutional ban on
private corporations from acquiring alienable lands of the public
domain. The reclaimed land can be used as payment in kind only if
the reclaimed land is first classified as alienable or disposable land
open to disposition, and then declared no longer needed for public
service.
The Amended JVA covers not only the Freedom Islands, but also an
additional 592.15 hectares which are still submerged and forming
part of Manila Bay. There is no legislative or Presidential act
classifying these submerged areas as alienable or disposable
lands of the public domain open to disposition. These
submerged areas are not covered by any patent or certificate of title.
There can be no dispute that these submerged areas form part of the
public domain, and in their present state are inalienable and
outside the commerce of man. Until reclaimed from the sea, these

submerged areas are, under the Constitution, "waters x x x owned by

the State," forming part of the public domain and consequently
inalienable. Only when actually reclaimed from the sea can these
submerged areas be classified as public agricultural lands, which
under the Constitution are the only natural resources that the State
may alienate. Once reclaimed and transformed into public
agricultural lands, the government may then officially classify these
lands as alienable or disposable lands open to disposition.
Thereafter, the government may declare these lands no longer
needed for public service. Only then can these reclaimed lands be
considered alienable or disposable lands of the public domain and
within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged
lands into alienable or disposable lands open to disposition is
necessary because PEA is tasked under its charter to undertake
public services that require the use of lands of the public domain.
Under Section 5 of PD No. 1084, the functions of PEA include the
following: "[T]o own or operate railroads, tramways and other kinds
of land transportation, x x x; [T]o construct, maintain and operate
such systems of sanitary sewers as may be necessary; [T]o
construct, maintain and operate such storm drains as may be
necessary." PEA is empowered to issue "rules and regulations as
may be necessary for the proper use by private parties of any or all
of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus,
part of the reclaimed foreshore and submerged lands held by the
PEA would actually be needed for public use or service since many
of the functions imposed on PEA by its charter constitute essential
public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA
"shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the National
Government." The same section also states that "[A]ll reclamation
projects shall be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; x x x." Thus, under
EO No. 525, in relation to PD No. 3-A and PD No.1084, PEA became
the primary implementing agency of the National Government to

reclaim foreshore and submerged lands of the public domain. EO

No. 525 recognized PEA as the government entity "to undertake the
reclamation of lands and ensure their maximum utilization
in promoting public welfare and interests."79 Since large portions
of these reclaimed lands would obviously be needed for public
service, there must be a formal declaration segregating reclaimed
lands no longer needed for public service from those still needed for
public service.
1wphi1.nt

Section 3 of EO No. 525, by declaring that all lands reclaimed by

PEA "shall belong to or be owned by the PEA," could not
automatically operate to classify inalienable lands into alienable or
disposable lands of the public domain. Otherwise, reclaimed
foreshore and submerged lands of the public domain would
automatically become alienable once reclaimed by PEA, whether or
not classified as alienable or disposable.
The Revised Administrative Code of 1987, a later law than either PD
No. 1084 or EO No. 525, vests in the Department of Environment
and Natural Resources ("DENR" for brevity) the following powers
and functions:
"Sec. 4. Powers and Functions. The Department shall:
(1) x x x
xxx
(4) Exercise supervision and control over forest
lands, alienable and disposable public lands, mineral
resources and, in the process of exercising such control,
impose appropriate taxes, fees, charges, rentals and any
such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such
resources;
xxx

(14) Promulgate rules, regulations and guidelines on the

issuance of licenses, permits, concessions, lease
agreements and such other privileges concerning the
development, exploration and utilization of the country's
marine, freshwater, and brackish water and over all
aquatic resources of the country and shall continue to
oversee, supervise and police our natural resources;
cancel or cause to cancel such privileges upon failure, noncompliance or violations of any regulation, order, and for all
other causes which are in furtherance of the conservation of
natural resources and supportive of the national interest;
(15) Exercise exclusive jurisdiction on the management
and disposition of all lands of the public domain and
serve as the sole agency responsible for classification,
sub-classification, surveying and titling of lands in
consultation with appropriate agencies."80 (Emphasis
supplied)
As manager, conservator and overseer of the natural resources of
the State, DENR exercises "supervision and control over alienable
and disposable public lands." DENR also exercises "exclusive
jurisdiction on the management and disposition of all lands of the
public domain." Thus, DENR decides whether areas under water, like
foreshore or submerged areas of Manila Bay, should be reclaimed or
not. This means that PEA needs authorization from DENR before
PEA can undertake reclamation projects in Manila Bay, or in any part
of the country.
DENR also exercises exclusive jurisdiction over the disposition of all
lands of the public domain. Hence, DENR decides whether
reclaimed lands of PEA should be classified as alienable under
Sections 681 and 782 of CA No. 141. Once DENR decides that the
reclaimed lands should be so classified, it then recommends to the
President the issuance of a proclamation classifying the lands as
alienable or disposable lands of the public domain open to
disposition. We note that then DENR Secretary Fulgencio S.
Factoran, Jr. countersigned Special Patent No. 3517 in compliance
with the Revised Administrative Code and Sections 6 and 7 of CA
No. 141.

In short, DENR is vested with the power to authorize the reclamation

of areas under water, while PEA is vested with the power to
undertake the physical reclamation of areas under water, whether
directly or through private contractors. DENR is also empowered to
classify lands of the public domain into alienable or disposable lands
subject to the approval of the President. On the other hand, PEA is
tasked to develop, sell or lease the reclaimed alienable lands of the
public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or
submerged areas does not make the reclaimed lands alienable or
disposable lands of the public domain, much less patrimonial lands
of PEA. Likewise, the mere transfer by the National Government of
lands of the public domain to PEA does not make the lands alienable
or disposable lands of the public domain, much less patrimonial
lands of PEA.
Absent two official acts a classification that these lands are
alienable or disposable and open to disposition and a declaration
that these lands are not needed for public service, lands reclaimed
by PEA remain inalienable lands of the public domain. Only such an
official classification and formal declaration can convert reclaimed
lands into alienable or disposable lands of the public domain, open to
disposition under the Constitution, Title I and Title III 83of CA No. 141
and other applicable laws.84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or
disposable lands of the public domain, the reclaimed lands shall be
disposed of in accordance with CA No. 141, the Public Land Act.
PEA, citing Section 60 of CA No. 141, admits that reclaimed lands
transferred to a branch or subdivision of the government "shall not be
alienated, encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x
x."85 (Emphasis by PEA)
In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised
Administrative Code of 1987, which states that

"Sec. 48. Official Authorized to Convey Real Property.

Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following: x x x."
Thus, the Court concluded that a law is needed to convey any real
property belonging to the Government. The Court declared that "It is not for the President to convey real property of the
government on his or her own sole will. Any such
conveyance must be authorized and approved by a law
enacted by the Congress. It requires executive and
legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the
legislative authority allowing PEA to sell its reclaimed lands. PD No.
1085, issued on February 4, 1977, provides that
"The land reclaimed in the foreshore and offshore area
of Manila Bay pursuant to the contract for the reclamation
and construction of the Manila-Cavite Coastal Road Project
between the Republic of the Philippines and the
Construction and Development Corporation of the
Philippines dated November 20, 1973 and/or any other
contract or reclamation covering the same area is hereby
transferred, conveyed and assigned to the ownership
and administration of the Public Estates
Authority established pursuant to PD No. 1084; Provided,
however, That the rights and interests of the Construction
and Development Corporation of the Philippines pursuant to
the aforesaid contract shall be recognized and respected.
Henceforth, the Public Estates Authority shall exercise the
rights and assume the obligations of the Republic of the
Philippines (Department of Public Highways) arising from, or
incident to, the aforesaid contract between the Republic of
the Philippines and the Construction and Development
Corporation of the Philippines.

In consideration of the foregoing transfer and assignment,

the Public Estates Authority shall issue in favor of the
Republic of the Philippines the corresponding shares of
stock in said entity with an issued value of said shares of
stock (which) shall be deemed fully paid and nonassessable.
The Secretary of Public Highways and the General Manager
of the Public Estates Authority shall execute such contracts
or agreements, including appropriate agreements with the
Construction and Development Corporation of the
Philippines, as may be necessary to implement the above.
Special land patent/patents shall be issued by the
Secretary of Natural Resources in favor of the Public
Estates Authority without prejudice to the subsequent
transfer to the contractor or his assignees of such
portion or portions of the land reclaimed or to be
reclaimed as provided for in the above-mentioned
contract. On the basis of such patents, the Land
Registration Commission shall issue the corresponding
certificate of title." (Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14,
1979, provides that "Sec. 3. All lands reclaimed by PEA shall belong to or be
owned by the PEA which shall be responsible for its
administration, development, utilization or disposition in
accordance with the provisions of Presidential Decree No.
1084. Any and all income that the PEA may derive from the
sale, lease or use of reclaimed lands shall be used in
accordance with the provisions of Presidential Decree No.
1084."
There is no express authority under either PD No. 1085 or EO No.
525 for PEA to sell its reclaimed lands. PD No. 1085 merely
transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed

by PEA "shall belong to or be owned by PEA." EO No. 525 expressly

states that PEA should dispose of its reclaimed lands "in accordance
with the provisions of Presidential Decree No. 1084," the charter of
PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve,
acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands x x x owned, managed, controlled and/or
operated by the government."87 (Emphasis supplied) There is,
therefore, legislative authority granted to PEA to sell its lands,
whether patrimonial or alienable lands of the public domain.
PEA may sell to private parties itspatrimonial properties in
accordance with the PEA charter free from constitutional limitations.
The constitutional ban on private corporations from acquiring
alienable lands of the public domain does not apply to the sale of
PEA's patrimonial lands.
PEA may also sell its alienable or disposable lands of the public
domain to private individuals since, with the legislative authority,
there is no longer any statutory prohibition against such sales and
the constitutional ban does not apply to individuals. PEA, however,
cannot sell any of its alienable or disposable lands of the public
domain to private corporations since Section 3, Article XII of the 1987
Constitution expressly prohibits such sales. The legislative authority
benefits only individuals. Private corporations remain barred from
acquiring any kind of alienable land of the public domain, including
government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed
lands could be transferred by PEA to the "contractor or his
assignees" (Emphasis supplied) would not apply to private
corporations but only to individuals because of the constitutional ban.
Otherwise, the provisions of PD No. 1085 would violate both the
1973 and 1987 Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or
disposable lands open to disposition, and further declared no longer

needed for public service, PEA would have to conduct a public

bidding in selling or leasing these lands. PEA must observe the
provisions of Sections 63 and 67 of CA No. 141 requiring public
auction, in the absence of a law exempting PEA from holding a
public auction.88 Special Patent No. 3517 expressly states that the
patent is issued by authority of the Constitution and PD No. 1084,
"supplemented by Commonwealth Act No. 141, as amended." This is
an acknowledgment that the provisions of CA No. 141 apply to the
disposition of reclaimed alienable lands of the public domain unless
otherwise provided by law. Executive Order No. 654,89 which
authorizes PEA "to determine the kind and manner of payment for
the transfer" of its assets and properties, does not exempt PEA from
the requirement of public auction. EO No. 654 merely authorizes
PEA to decide the mode of payment, whether in kind and in
installment, but does not authorize PEA to dispense with public
auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell
valuable government property through public bidding. Section 79 of
PD No. 1445 mandates that
"Section 79. When government property has become
unserviceable for any cause, or is no longer needed, it shall,
upon application of the officer accountable therefor, be
inspected by the head of the agency or his duly authorized
representative in the presence of the auditor concerned and,
if found to be valueless or unsaleable, it may be destroyed in
their presence. If found to be valuable, it may be sold at
public auction to the highest bidder under the supervision
of the proper committee on award or similar body in the
presence of the auditor concerned or other authorized
representative of the Commission, after advertising by
printed notice in the Official Gazette, or for not less than
three consecutive days in any newspaper of general
circulation, or where the value of the property does not
warrant the expense of publication, by notices posted for a
like period in at least three public places in the locality where
the property is to be sold. In the event that the public
auction fails, the property may be sold at a private sale

at such price as may be fixed by the same committee or

body concerned and approved by the Commission."

Reclamation under the BOT Law and the Local Government

Code

It is only when the public auction fails that a negotiated sale is

allowed, in which case the Commission on Audit must approve the
selling price.90 The Commission on Audit implements Section 79 of
the Government Auditing Code through Circular No. 89-296 91 dated
January 27, 1989. This circular emphasizes that government assets
must be disposed of only through public auction, and a negotiated
sale can be resorted to only in case of "failure of public auction."

The constitutional prohibition in Section 3, Article XII of the 1987

Constitution is absolute and clear: "Private corporations or
associations may not hold such alienable lands of the public domain
except by lease, x x x." Even Republic Act No. 6957 ("BOT Law," for
brevity), cited by PEA and AMARI as legislative authority to sell
reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states

At the public auction sale, only Philippine citizens are qualified to bid
for PEA's reclaimed foreshore and submerged alienable lands of the
public domain. Private corporations are barred from bidding at the
auction sale of any kind of alienable land of the public domain.

"Sec. 6. Repayment Scheme. - For the financing,

construction, operation and maintenance of any
infrastructure projects undertaken through the build-operateand-transfer arrangement or any of its variations pursuant to
the provisions of this Act, the project proponent x x x may
likewise be repaid in the form of a share in the revenue of
the project or other non-monetary payments, such as, but
not limited to, the grant of a portion or percentage of the
reclaimed land, subject to the constitutional
requirements with respect to the ownership of the land:
x x x." (Emphasis supplied)

PEA originally scheduled a public bidding for the Freedom Islands on

December 10, 1991. PEA imposed a condition that the winning
bidder should reclaim another 250 hectares of submerged areas to
regularize the shape of the Freedom Islands, under a 60-40 sharing
of the additional reclaimed areas in favor of the winning bidder.92 No
one, however, submitted a bid. On December 23, 1994, the
Government Corporate Counsel advised PEA it could sell the
Freedom Islands through negotiation, without need of another public
bidding, because of the failure of the public bidding on December 10,
1991.93
However, the original JVA dated April 25, 1995 covered not only the
Freedom Islands and the additional 250 hectares still to be
reclaimed, it also granted an option to AMARI to reclaim another 350
hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares.94 The failure of public bidding on
December 10, 1991, involving only 407.84 hectares, 95 is not a valid
justification for a negotiated sale of 750 hectares, almost double the
area publicly auctioned. Besides, the failure of public bidding
happened on December 10, 1991, more than three years before the
signing of the original JVA on April 25, 1995. The economic situation
in the country had greatly improved during the intervening period.

A private corporation, even one that undertakes the physical

reclamation of a government BOT project, cannot acquire reclaimed
alienable lands of the public domain in view of the constitutional ban.
Section 302 of the Local Government Code, also mentioned by PEA
and AMARI, authorizes local governments in land reclamation
projects to pay the contractor or developer in kind consisting of a
percentage of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance,
Operation, and Management of Infrastructure Projects by the
Private Sector. x x x
xxx

In case of land reclamation or construction of industrial

estates, the repayment plan may consist of the grant of a
portion or percentage of the reclaimed land or the industrial
estate constructed."
Although Section 302 of the Local Government Code does not
contain a proviso similar to that of the BOT Law, the constitutional
restrictions on land ownership automatically apply even though not
expressly mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the
contractor or developer, if a corporate entity, can only be paid with
leaseholds on portions of the reclaimed land. If the contractor or
developer is an individual, portions of the reclaimed land, not
exceeding 12 hectares96 of non-agricultural lands, may be conveyed
to him in ownership in view of the legislative authority allowing such
conveyance. This is the only way these provisions of the BOT Law
and the Local Government Code can avoid a direct collision with
Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the
reclaimed lands to public respondent PEA transformed such lands of
the public domain to private lands." This theory is echoed by AMARI
which maintains that the "issuance of the special patent leading to
the eventual issuance of title takes the subject land away from the
land of public domain and converts the property into patrimonial or
private property." In short, PEA and AMARI contend that with the
issuance of Special Patent No. 3517 and the corresponding
certificates of titles, the 157.84 hectares comprising the Freedom
Islands have become private lands of PEA. In support of their theory,
PEA and AMARI cite the following rulings of the Court:
1. Sumail v. Judge of CFI of Cotabato,97 where the Court held

"Once the patent was granted and the corresponding

certificate of title was issued, the land ceased to be part of

the public domain and became private property over which

the Director of Lands has neither control nor jurisdiction."
2. Lee Hong Hok v. David,98 where the Court declared "After the registration and issuance of the certificate and
duplicate certificate of title based on a public land patent, the
land covered thereby automatically comes under the
operation of Republic Act 496 subject to all the safeguards
provided therein."3. Heirs of Gregorio Tengco v. Heirs of
Jose Aliwalas,99 where the Court ruled "While the Director of Lands has the power to review
homestead patents, he may do so only so long as the land
remains part of the public domain and continues to be under
his exclusive control; but once the patent is registered and a
certificate of title is issued, the land ceases to be part of the
public domain and becomes private property over which the
Director of Lands has neither control nor jurisdiction."
4. Manalo v. Intermediate Appellate Court,100 where the Court
held
"When the lots in dispute were certified as disposable on
May 19, 1971, and free patents were issued covering the
same in favor of the private respondents, the said lots
ceased to be part of the public domain and, therefore, the
Director of Lands lost jurisdiction over the same."
5.Republic v. Court of Appeals,101 where the Court stated
"Proclamation No. 350, dated October 9, 1956, of President
Magsaysay legally effected a land grant to the Mindanao
Medical Center, Bureau of Medical Services, Department of
Health, of the whole lot, validly sufficient for initial registration
under the Land Registration Act. Such land grant is
constitutive of a 'fee simple' title or absolute title in favor of
petitioner Mindanao Medical Center. Thus, Section 122 of
the Act, which governs the registration of grants or patents

involving public lands, provides that 'Whenever public lands

in the Philippine Islands belonging to the Government of the
United States or to the Government of the Philippines are
alienated, granted or conveyed to persons or to public or
private corporations, the same shall be brought forthwith
under the operation of this Act (Land Registration Act, Act
496) and shall become registered lands.'"
The first four cases cited involve petitions to cancel the land patents
and the corresponding certificates of titlesissued to private parties.
These four cases uniformly hold that the Director of Lands has no
jurisdiction over private lands or that upon issuance of the certificate
of title the land automatically comes under the Torrens System. The
fifth case cited involves the registration under the Torrens System of
a 12.8-hectare public land granted by the National Government to
Mindanao Medical Center, a government unit under the Department
of Health. The National Government transferred the 12.8-hectare
public land to serve as the site for the hospital buildings and other
facilities of Mindanao Medical Center, which performed a public
service. The Court affirmed the registration of the 12.8-hectare public
land in the name of Mindanao Medical Center under Section 122 of
Act No. 496. This fifth case is an example of a public land being
registered under Act No. 496 without the land losing its character as
a property of public dominion.
In the instant case, the only patent and certificates of title issued are
those in the name of PEA, a wholly government owned corporation
performing public as well as proprietary functions. No patent or
certificate of title has been issued to any private party. No one is
asking the Director of Lands to cancel PEA's patent or certificates of
title. In fact, the thrust of the instant petition is that PEA's certificates
of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not be
sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest
in the registrant private or public ownership of the land. Registration
is not a mode of acquiring ownership but is merely evidence of
ownership previously conferred by any of the recognized modes of
acquiring ownership. Registration does not give the registrant a

better right than what the registrant had prior to the

registration.102 The registration of lands of the public domain under
the Torrens system, by itself, cannot convert public lands into private
lands.103
Jurisprudence holding that upon the grant of the patent or issuance
of the certificate of title the alienable land of the public domain
automatically becomes private land cannot apply to government
units and entities like PEA. The transfer of the Freedom Islands to
PEA was made subject to the provisions of CA No. 141 as expressly
stated in Special Patent No. 3517 issued by then President Aquino,
to wit:
"NOW, THEREFORE, KNOW YE, that by authority of the
Constitution of the Philippines and in conformity with the
provisions of Presidential Decree No. 1084, supplemented
by Commonwealth Act No. 141, as amended, there are
hereby granted and conveyed unto the Public Estates
Authority the aforesaid tracts of land containing a total area
of one million nine hundred fifteen thousand eight hundred
ninety four (1,915,894) square meters; the technical
description of which are hereto attached and made an
integral part hereof." (Emphasis supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on
matters not covered by PD No. 1084. Section 60 of CA No. 141
prohibits, "except when authorized by Congress," the sale of
alienable lands of the public domain that are transferred to
government units or entities. Section 60 of CA No. 141 constitutes,
under Section 44 of PD No. 1529, a "statutory lien affecting title" of
the registered land even if not annotated on the certificate of
title.104 Alienable lands of the public domain held by government
entities under Section 60 of CA No. 141 remain public lands because
they cannot be alienated or encumbered unless Congress passes a
law authorizing their disposition. Congress, however, cannot
authorize the sale to private corporations of reclaimed alienable
lands of the public domain because of the constitutional ban. Only
individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance

with Section 60 of CA No. 141 does not automatically convert
alienable lands of the public domain into private or patrimonial lands.
The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to
dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become
illusory if Congress can declare lands of the public domain as private
or patrimonial lands in the hands of a government agency tasked to
dispose of public lands. This will allow private corporations to acquire
directly from government agencies limitless areas of lands which,
prior to such law, are concededly public lands.
Under EO No. 525, PEA became the central implementing
agency of the National Government to reclaim foreshore and
submerged areas of the public domain. Thus, EO No. 525 declares
that
"EXECUTIVE ORDER NO. 525
Designating the Public Estates Authority as the Agency
Primarily Responsible for all Reclamation Projects
Whereas, there are several reclamation projects which are
ongoing or being proposed to be undertaken in various parts
of the country which need to be evaluated for consistency
with national programs;
Whereas, there is a need to give further institutional support
to the Government's declared policy to provide for a
coordinated, economical and efficient reclamation of lands;

coordinated and integrated approach in the reclamation

of lands;
Whereas, Presidential Decree No. 1084 creates the
Public Estates Authority as a government corporation to
undertake reclamation of lands and ensure their
maximum utilization in promoting public welfare and
interests; and
Whereas, Presidential Decree No. 1416 provides the
President with continuing authority to reorganize the national
government including the transfer, abolition, or merger of
functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President
of the Philippines, by virtue of the powers vested in me by
the Constitution and pursuant to Presidential Decree No.
1416, do hereby order and direct the following:
Section 1. The Public Estates Authority (PEA) shall be
primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf
of the National Government. All reclamation projects shall
be approved by the President upon recommendation of the
PEA, and shall be undertaken by the PEA or through a
proper contract executed by it with any person or entity;
Provided, that, reclamation projects of any national
government agency or entity authorized under its charter
shall be undertaken in consultation with the PEA upon
approval of the President.
x x x ."

Whereas, Presidential Decree No. 3-A requires that all

reclamation of areas shall be limited to the National
Government or any person authorized by it under proper
contract;
Whereas, a central authority is needed to act on behalf
of the National Government which shall ensure a

As the central implementing agency tasked to undertake reclamation

projects nationwide, with authority to sell reclaimed lands, PEA took
the place of DENR as the government agency charged with leasing
or selling reclaimed lands of the public domain. The reclaimed lands
being leased or sold by PEA are not private lands, in the same
manner that DENR, when it disposes of other alienable lands, does

not dispose of private lands but alienable lands of the public domain.
Only when qualified private parties acquire these lands will the lands
become private lands. In the hands of the government agency
tasked and authorized to dispose of alienable of disposable
lands of the public domain, these lands are still public, not
private lands.
Furthermore, PEA's charter expressly states that PEA "shall hold
lands of the public domain" as well as "any and all kinds of lands."
PEA can hold both lands of the public domain and private lands.
Thus, the mere fact that alienable lands of the public domain like the
Freedom Islands are transferred to PEA and issued land patents or
certificates of title in PEA's name does not automatically make such
lands private.
To allow vast areas of reclaimed lands of the public domain to be
transferred to PEA as private lands will sanction a gross violation of
the constitutional ban on private corporations from acquiring any kind
of alienable land of the public domain. PEA will simply turn
around, as PEA has now done under the Amended JVA, and
transfer several hundreds of hectares of these reclaimed and still to
be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban
in Section 3, Article XII of the 1987 Constitution which was intended
to diffuse equitably the ownership of alienable lands of the public
domain among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural
lands of the public domain since PEA can "acquire x x x any and all
kinds of lands." This will open the floodgates to corporations and
even individuals acquiring hundreds of hectares of alienable lands of
the public domain under the guise that in the hands of PEA these
lands are private lands. This will result in corporations amassing
huge landholdings never before seen in this country - creating the
very evil that the constitutional ban was designed to prevent. This will
completely reverse the clear direction of constitutional development
in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973
Constitution prohibited private corporations from acquiring any kind

of public land, and the 1987 Constitution has unequivocally reiterated

this prohibition.
The contention of PEA and AMARI that public lands, once registered
under Act No. 496 or PD No. 1529, automatically become private
lands is contrary to existing laws. Several laws authorize lands of the
public domain to be registered under the Torrens System or Act No.
496, now PD No. 1529, without losing their character as public lands.
Section 122 of Act No. 496, and Section 103 of PD No. 1529,
respectively, provide as follows:
Act No. 496
"Sec. 122. Whenever public lands in the Philippine Islands
belonging to the x x x Government of the Philippine Islands
are alienated, granted, or conveyed to persons or the public
or private corporations, the same shall be brought
forthwith under the operation of this Act and shall become
registered lands."
PD No. 1529
"Sec. 103. Certificate of Title to Patents. Whenever public
land is by the Government alienated, granted or conveyed
to any person, the same shall be brought forthwith under
the operation of this Decree." (Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person"
in Section 103 of PD No. 1529 includes conveyances of public lands
to public corporations.
Alienable lands of the public domain "granted, donated, or
transferred to a province, municipality, or branch or subdivision of the
Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD
No. 1529. Such registration, however, is expressly subject to the
condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner
affecting its title, except when authorized by Congress." This

provision refers to government reclaimed, foreshore and marshy

lands of the public domain that have been titled but still cannot be
alienated or encumbered unless expressly authorized by Congress.
The need for legislative authority prevents the registered land of the
public domain from becoming private land that can be disposed of to
qualified private parties.
The Revised Administrative Code of 1987 also recognizes that lands
of the public domain may be registered under the Torrens System.
Section 48, Chapter 12, Book I of the Code states
"Sec. 48. Official Authorized to Convey Real Property.
Whenever real property of the Government is authorized by
law to be conveyed, the deed of conveyance shall be
executed in behalf of the government by the following:
(1) x x x
(2) For property belonging to the Republic of the
Philippines, but titled in the name of any political
subdivision or of any corporate agency or
instrumentality, by the executive head of the agency or
instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for
expansion of a public wharf may be titled in the name of a
government corporation regulating port operations in the country.
Private property purchased by the National Government for
expansion of an airport may also be titled in the name of the
government agency tasked to administer the airport. Private property
donated to a municipality for use as a town plaza or public school
site may likewise be titled in the name of the municipality.106 All these
properties become properties of the public domain, and if already
registered under Act No. 496 or PD No. 1529, remain registered
land. There is no requirement or provision in any existing law for the
de-registration of land from the Torrens System.
Private lands taken by the Government for public use under its
power of eminent domain become unquestionably part of the public

domain. Nevertheless, Section 85 of PD No. 1529 authorizes the

Register of Deeds to issue in the name of the National Government
new certificates of title covering such expropriated lands. Section 85
of PD No. 1529 states
"Sec. 85. Land taken by eminent domain. Whenever any
registered land, or interest therein, is expropriated or taken
by eminent domain, the National Government, province, city
or municipality, or any other agency or instrumentality
exercising such right shall file for registration in the proper
Registry a certified copy of the judgment which shall state
definitely by an adequate description, the particular property
or interest expropriated, the number of the certificate of title,
and the nature of the public use. A memorandum of the right
or interest taken shall be made on each certificate of title by
the Register of Deeds, and where the fee simple is taken, a
new certificate shall be issued in favor of the National
Government, province, city, municipality, or any other
agency or instrumentality exercising such right for the land
so taken. The legal expenses incident to the memorandum
of registration or issuance of a new certificate of title shall be
for the account of the authority taking the land or interest
therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529
are not exclusively private or patrimonial lands. Lands of the public
domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to
AMARI of the Freedom Islands or of the lands to be reclaimed from
submerged areas of Manila Bay. In the words of AMARI, the
Amended JVA "is not a sale but a joint venture with a stipulation for
reimbursement of the original cost incurred by PEA for the earlier
reclamation and construction works performed by the CDCP under
its 1973 contract with the Republic." Whether the Amended JVA is a
sale or a joint venture, the fact remains that the Amended JVA
requires PEA to "cause the issuance and delivery of the certificates
of title conveying AMARI's Land Share in the name of AMARI." 107

This stipulation still contravenes Section 3, Article XII of the 1987

Constitution which provides that private corporations "shall not hold
such alienable lands of the public domain except by lease." The
transfer of title and ownership to AMARI clearly means that AMARI
will "hold" the reclaimed lands other than by lease. The transfer of
title and ownership is a "disposition" of the reclaimed lands, a
transaction considered a sale or alienation under CA No. 141, 108 the
Government Auditing Code,109 and Section 3, Article XII of the 1987
Constitution.
The Regalian doctrine is deeply implanted in our legal system.
Foreshore and submerged areas form part of the public domain and
are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable,
unless converted pursuant to law into alienable or disposable lands
of the public domain. Historically, lands reclaimed by the government
are sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential
as areas for public use or public service. Alienable lands of the public
domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure
such equitable distribution, the 1973 and 1987 Constitutions have
barred private corporations from acquiring any kind of alienable land
of the public domain. Those who attempt to dispose of inalienable
natural resources of the State, or seek to circumvent the
constitutional ban on alienation of lands of the public domain to
private corporations, do so at their own risk.
We can now summarize our conclusions as follows:
1. The 157.84 hectares of reclaimed lands comprising the
Freedom Islands, now covered by certificates of title in the
name of PEA, are alienable lands of the public domain.
PEA may lease these lands to private corporations but may
not sell or transfer ownership of these lands to private
corporations. PEA may only sell these lands to Philippine
citizens, subject to the ownership limitations in the 1987
Constitution and existing laws.

2. The 592.15 hectares of submerged areas of Manila Bay

remain inalienable natural resources of the public domain
until classified as alienable or disposable lands open to
disposition and declared no longer needed for public service.
The government can make such classification and
declaration only after PEA has reclaimed these submerged
areas. Only then can these lands qualify as agricultural lands
of the public domain, which are the only natural resources
the government can alienate. In their present state, the
592.15 hectares of submerged areas are inalienable and
outside the commerce of man.
3. Since the Amended JVA seeks to transfer to AMARI, a
private corporation, ownership of 77.34 hectares110 of the
Freedom Islands, such transfer is void for being contrary to
Section 3, Article XII of the 1987 Constitution which prohibits
private corporations from acquiring any kind of alienable land
of the public domain.
4. Since the Amended JVA also seeks to transfer to AMARI
ownership of 290.156 hectares111 of still submerged areas of
Manila Bay, such transfer is void for being contrary to
Section 2, Article XII of the 1987 Constitution which prohibits
the alienation of natural resources other than agricultural
lands of the public domain. PEA may reclaim these
submerged areas. Thereafter, the government can classify
the reclaimed lands as alienable or disposable, and further
declare them no longer needed for public service. Still, the
transfer of such reclaimed alienable lands of the public
domain to AMARI will be void in view of Section 3, Article XII
of the 1987 Constitution which prohibits private corporations
from acquiring any kind of alienable land of the public
domain.
Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article
XII of the 1987 Constitution. Under Article 1409 112 of the Civil Code,
contracts whose "object or purpose is contrary to law," or whose
"object is outside the commerce of men," are "inexistent and void
from the beginning." The Court must perform its duty to defend and

uphold the Constitution, and therefore declares the Amended JVA

null and void ab initio.
Seventh issue: whether the Court is the proper forum to raise
the issue of whether the Amended JVA is grossly
disadvantageous to the government.
Considering that the Amended JVA is null and void ab initio, there is
no necessity to rule on this last issue. Besides, the Court is not a trier
of facts, and this last issue involves a determination of factual
matters.
WHEREFORE, the petition is GRANTED. The Public Estates
Authority and Amari Coastal Bay Development Corporation
are PERMANENTLY ENJOINED from implementing the Amended
Joint Venture Agreement which is hereby
declared NULL and VOID ab initio.
SO ORDERED.
G.R. No. 95367 May 23, 1995
COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ,
NERIO ROGADO, and ELISA RIVERA,petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED
CITIZENS, respondents.

MENDOZA, J.:
This is a petition for certiorari, prohibition, and mandamus to annul
the subpoena duces tecum and orders issued by respondent
Ombudsman, requiring petitioners Nerio Rogado and Elisa Rivera,
as chief accountant and record custodian, respectively, of the
Economic Intelligence and Investigation Bureau (EIIB) to produce "all

documents relating to Personal Services Funds for the year 1988

and all evidence, such as vouchers (salary) for the whole plantilla of
EIIB for 1988" and to enjoin him from enforcing his orders.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB,
while Villamor C. Perez is Chief of the EIIB's Budget and Fiscal
Management Division. The subpoena duces tecum was issued by
the Ombudsman in connection with his investigation of an
anonymous letter alleging that funds representing savings from
unfilled positions in the EIIB had been illegally disbursed. The letter,
purporting to have been written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary of Finance, with
copies furnished several government offices, including the Office of
the Ombudsman.
The letter reads in pertinent parts:
1 These are the things that I have
been observing. During the
implementation of E.O. 127 on May
1, 1988, one hundred ninety (190)
personnel were dismissed. Before
that implementation, we had a
monthly savings of P500,000.00
from unfilled plantilla position plus
the implementation of RA 6683
wherein seventy (70) regular
employees availed a total amount of
P1,400,000.00 was saved from the
government monthly. The question
is, how do they used or disbursed
this savings? The EIIB has a
syndicate headed by the Chief of
Budget Division who is manipulating
funds and also the brain of the so
called "ghost agents" or the
"Emergency Intelligence Agents"

(EIA). The Commissioner of EIIB

has a biggest share on this. Among
his activities are:
a) Supporting RAM
wherein he is
involved. He gives
big amount
especially during
the Dec. Failed
coup.
b) Payment for
thirty five (30) mini
UZI's.
c) Payment for the
purchased of
Maxima '87 for
personal used of
the Commissioner.
d) Another
observation was the
agents under the
Director of NCR
EIIB is the sole
operating unit within
Metro Manila which
was approved by no
less than the
Commissioner due
to anomalous
activities of almost
all agents assigned
at the central office
directly under the

Commissioner.
Retired Brig. Gen.
Almonte as one of
the Anti-Graft board
member of the
Department of
Finance should not
tolerate this.
However, the
Commissioner did
not investigate his
own men instead,
he placed them
under the 15-30
payroll.
e) Many more
which are personal.
2. Sir, my question is this. Can your
good office investigate EII
intelligence funds particularly
Personal Services (01) Funds? I
wonder why the Dep't of Budget &
Mgmt. cannot compel EIIB to submit
an actual filled up position because
almost half of it are vacant and still
they are releasing it. Are EIIB
plantilla position classified? It is
included in the Personal Services
Itemization (PSI) and I believe it is
not classified and a ruling from Civil
Service Commission that EIIB is not
exempted from Civil Service.
Another info, when we had salary
differential last Oct '88 all money for
the whole plantilla were released

and from that alone, Millions were

saved and converted to ghost
agents of EIA.
3. Another thing that I have
observed was the Chief Budget
Division possesses high caliber
firearms such as a mini UZI,
Armalite rifle and two (2) 45 cal.
pistol issued to him by the Assistant
Commissioner wherein he is not an
agent of EIIB and authorized as
such according to memorandum
order number 283 signed by the
President of the Republic of the
Philippines effective 9 Jan. 1990.
Another observation was when EIIB
agents apprehended a certain
civilian who possesses numerous
assorted high powered firearms.
Agents plus one personnel from the
legal proclaimed only five (5)
firearms and the remaining was
pilfered by them.
Another observation is almost all
EIIB agents collects payroll from the
big time smuggler syndicate monthly
and brokers every week for them
not to be apprehended.
Another observation is the
commissioner allocates funds
coming from the intelligence funds
to the media to sustain their good
image of the bureau.

In his comment 1 on the letter-complaint, petitioner Almonte denied that as

a result of the separation of personnel, the EIIB had made some savings. He
averred that the only funds released to his agency by the Department of
Budget and Management (DBM) were those corresponding to 947 plantilla
positions which were filled. He also denied that there were "ghost agents" in
the EIIB and claimed that disbursements for "open" (i.e., "overt" personnel)
and "closed" (i.e., "covert" personnel) plantillas of the agency had been
cleared by the Commission on Audit (COA); that the case of the 30 Uzis had
already been investigated by Congress, where it was shown that it was not
the EIIB but an agent who had spent for the firearms and they were only
loaned to the EIIB pending appropriation by Congress; that, contrary to the
charge that a Maxima car had been purchased for his use, he was using a
government issued car from the NICA; that it was his prerogative as
Commissioner to "ground" agents in the EIIB main office so that they could
be given reorientation and retraining; that the allegation that the EIIB
operatives pilfered smuggled firearms was without factual basis because the
firearms were the subject of seizure proceedings before the Collector of
Customs, Port of Manila; that the EIIB had been uncompromising toward
employees found involved in anomalous activities; and that intelligence
funds had not been used for media propaganda and if media people went to
the EIIB it was because of newsworthy stories. Petitioner asked that the
complaint be dismissed and the case considered closed.

Similarly petitioner Perez, budget chief of the EIIB, denied in his

comment 2 dated April 3, 1990 that savings had been realized from the
implementation of E.O. No. 127, since the DBM provided allocations for only
the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the
COA and that the high-powered firearms had been issued for the protection
of EIIB personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.

The Graft Investigation Officer of the Ombudsman's office, Jose F.

Sao, found the comments unsatisfactory, being "unverified and
plying only on generalizations without meeting specifically the points
raised by complainant as constitutive of the alleged anomalies." 3 He,
therefore, asked for authority to conduct a preliminary investigation.
Anticipating the grant of his request, he issued a subpoena 4 to petitioners
Almonte and Perez, requiring them to submit their counter-affidavits and the
affidavits of their witnesses, as well as a subpoena duces tecum 5 to the

Chief of the EIIB's Accounting Division ordering him to bring "all documents
relating to Personal Services Funds for the year 1988 and all evidence, such
as vouchers (salary) for the whole plantilla of EIIB for 1988."

Petitioners Almonte and Perez moved to quash the subpoena and

the subpoena duces tecum. In his Order dated June 15,
1990, 6 respondent Ombudsman granted the motion to quash the subpoena
in view of the fact that there were no affidavits filed against petitioners. But
he denied their motion to quash the subpoena duces tecum. He ruled that
petitioners were not being forced to produce evidence against themselves,
since the subpoena duces tecum was directed to the Chief Accountant,
petitioner Nerio Rogado. In addition the Ombudsman ordered the Chief of
the Records a Section of the EIIB, petitioner Elisa Rivera, to produce before
the investigator "all documents relating to Personnel Service Funds, for the
year 1988, and all documents, salary vouchers for the whole plantilla of the
EIIB for 1988, within ten (10) days from receipt hereof."

Petitioners Almonte and Perez moved for a reconsideration, arguing

that Rogado and Rivera were EIIB employees under their
supervision and that the Ombudsman was doing indirectly what he
could not do directly,i.e., compelling them (petitioners Almonte and
Perez) to produce evidence against themselves.
Petitioners' motion was denied in respondent Ombudsman's order
dated August 6, 1990. Hence, this petition which questions the
orders of June 15, 1990 and August 6, 1990 of respondent
Ombudsman.
To put this case in perspective it should be stated at the outset that it
does not concern a demand by a citizen for information under the
freedom of information guarantee of the Constitution. 7 Rather it
concerns the power of the Office of the Ombudsman to obtain evidence in
connection with an investigation conducted by it vis-a-vis the claim of
privilege of an agency of the Government. Thus petitioners raise the
following issues: 8

I. WHETHER OR NOT A CASE

BROUGHT ABOUT BY AN

UNSIGNED AND UNVERIFIED

LETTER COMPLAINT IS AN
"APPROPRIATE CASE" WITHIN
THE CONCEPT OF THE
CONSTITUTION IN WHICH
PUBLIC RESPONDENT CAN
OBLIGE PETITIONERS BY VIRTUE
OF HIS SUBPOENA DUCES
TECUM TO PRODUCE TO HIM
"ALL DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS
FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS
VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR
1988."
II. WHETHER OR NOT "ALL
DOCUMENTS RELATING TO
PERSONAL SERVICES FUNDS
FOR THE YEAR 1988 AND ALL
EVIDENCES, SUCH AS
VOUCHERS (SALARY) FOR THE
WHOLE PLANTILLA OF EIIB FOR
1988" ARE CLASSIFIED AND,
THEREFORE, BEYOND THE
REACH OF PUBLIC
RESPONDENT'S
SUBPOENA DUCES TECUM.
I.
There are several subsidiary issues raised by petitioners, but the
principal ones revolve on the question whether petitioners can be
ordered to produce documents relating to personal services and
salary vouchers of EIIB employees on the plea that such documents
are classified. Disclosure of the documents in question is resisted on

the ground that "knowledge of EIIB's documents relative to its

Personal Services Funds and its plantilla . . . will necessarily [lead to]
knowledge of its operations, movements, targets, strategies, and
tactics and the whole of its being" and this could "destroy the EIIB." 9
Petitioners do not question the power of the Ombudsman to issue a
subpoena duces tecum nor the relevancy or materiality of the
documents required to be produced, to the pending investigation in
the Ombudsman's office. Accordingly, the focus of discussion should
be on the Government's claim of privilege.
A.
At common law a governmental privilege against disclosure is
recognized with respect to state secrets bearing on military,
diplomatic and similar matters. This privilege is based upon public
interest of such paramount importance as in and of itself
transcending the individual interests of a private citizen, even though,
as a consequence thereof, the plaintiff cannot enforce his legal
rights. 10
In addition, in the litigation over the Watergate tape subpoena in
1973, the U.S. Supreme Court recognized the right of the President
to the confidentiality of his conversations and correspondence, which
it likened to "the claim of confidentiality of judicial deliberations." Said
the Court in United States v. Nixon: 11
The expectation of a President to the confidentiality
of his conversations and correspondence, like the
claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord
deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or
harsh opinions in Presidential decision-making. A
President and those who assist him must be free to
explore alternatives in the process of shaping

policies and making decisions and to do so in a way

many would be unwilling to express except privately.
These are the considerations justifying a
presumptive privilege for Presidential
communications. The privilege is fundamental to the
operation of the government and inextricably rooted
in the separation of powers under the
Constitution. . . .
Thus, the Court for the first time gave executive privilege a
constitutional status and a new name, although not necessarily a
new birth. 12
"The confidentiality of judicial deliberations" mentioned in the opinion
of the Court referred to the fact that Justices of the U.S. Supreme
Court and judges of lower federal courts have traditionally treated
their working papers and judicial notes as private property. A 1977
proposal in the U.S. Congress that Justices and judges of lower
federal courts "should be encouraged to make such arrangements as
will assure the preservation and eventual availability of their personal
papers, especially the deposit of their papers in the same depository
they select for [their] Public Papers" 13 was rebuffed by the Justices who,
in a letter to the Chairman of the Subcommittee on Regulation and
Government Information of the U.S. Senate, referred to "difficult concerns
respecting the appropriate separation that must be maintained between the
legislative branch and this Court." 14

There are, in addition to such privileges, statutorily-created ones

such as the Government's privilege to withhold the identity of
persons who furnish information of violations of laws. 15
With respect to the privilege based on state secret, the rule was
stated by the U.S. Supreme Court as follows:
Judicial control over the evidence in a case cannot
be abdicated to the caprice of executive officers. Yet
we will not go so far as to say that the court may

automatically require a complete disclosure to the

judge before the claim of privilege will be accepted in
any case. It may be possible to satisfy the court,
from all the circumstances of the case, that there is a
reasonable danger that compulsion of the evidence
will expose military matters which, in the interest of
national security, should not be divulged. When this
is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the
security which the privilege is meant to protect by
insisting upon an examination of the evidence, even
by the judge alone, in chambers. . . . In each case,
the showing of necessity which is made will
determine how far the court should probe in
satisfying itself that the occasion for invoking the
privilege is appropriate. Where there is a strong
showing of necessity, the claim of privilege should
not be lightly accepted, but even the most
compelling necessity cannot overcome the claim of
privilege if the court is ultimately satisfied that
military secrets are at stake. A fortiori, where
necessity is dubious, a formal claim of privilege,
made under the circumstances of this case, will have
to prevail. 16
On the other hand, where the claim of confidentiality does not rest on
the need to protect military, diplomatic or other national security
secrets but on a general public interest in the confidentiality of his
conversations, courts have declined to find in the Constitution an
absolute privilege of the President against a subpoena considered
essential to the enforcement of criminal laws. 17
B.
In the case at bar, there is no claim that military or diplomatic secrets
will be disclosed by the production of records pertaining to the
personnel of the EIIB. Indeed, EIIB's function is the gathering and

evaluation of intelligence reports and information regarding "illegal

activities affecting the national economy, such as, but not limited to,
economic sabotage, smuggling, tax evasion, dollar
salting." 18 Consequently, while in cases which involve state secrets it may
be sufficient to determine from the circumstances of the case that there is
reasonable danger that compulsion of the evidence will expose military
matters without compelling production, 19 no similar excuse can be made for
a privilege resting on other considerations.

Nor has our attention been called to any law or regulation which
considers personnel records of the EIIB as classified information. To
the contrary, COA Circular No. 88-293, which petitioners invoke to
support their contention that there is adequate safeguard against
misuse of public funds, provides that the "only item of expenditure
which should be treated strictly confidential" is that which refers to
the "purchase of information and payment of rewards." Thus, part V,
No. 7 of the Circular reads:
The only item of expenditure which should be
treated as strictly confidential because it falls under
the category of classified information is that relating
to purchase of information and payment of rewards.
However, reasonable records should be maintained
and kept for inspection of the Chairman,
Commission on Audit or his duly authorized
representative. All other expenditures are to be
considered unclassified supported by invoices,
receipts and other documents, and, therefore,
subject to reasonable inquiry by the Chairman or his
duly authorized representative. 20
It should be noted that the regulation requires that
"reasonable records" be kept justifying the confidential or
privileged character of the information relating to informers.
There are no such reasonable records in this case to
substitute for the records claimed to be confidential.

The other statutes and regulations 21 invoked by petitioners in support of

their contention that the documents sought in the subpoena duces tecum of
the Ombudsman are classified merely indicate the confidential nature of the
EIIB's functions, but they do not exempt the EIIB from the duty to account for
its funds to the proper authorities. Indeed by denying that there were savings
made from certain items in the agency and alleging that the DBM had
released to the EIIB only the allocations needed for the 947 personnel
retained after its reorganization, petitioners in effect invited inquiry into the
veracity of their claim. If, as petitioners claim, the subpoenaed records have
been examined by the COA and found by it to be regular in all respects,
there is no reason why they cannot be shown to another agency of the
government which by constitutional mandate is required to look into any
complaint concerning public office.

On the other hand, the Ombudsman is investigating a complaint that

several items in the EIIB were filled by fictitious persons and that the
allotments for these items in 1988 were used for illegal purposes.
The plantilla and other personnel records are relevant to his
investigation. He and his Deputies are designated by the Constitution
"protectors of the people" and as such they are required by it "to act
promptly on complaints in any form or manner against public officials
or employees of the Government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporation." 22
His need for the documents thus outweighs the claim of
confidentiality of petitioners. What is more, while there might have
been compelling reasons for the claim of privilege in 1988 when it
was asserted by petitioners, now, seven years later, these reasons
may have been attenuated, if they have not in fact ceased. The
agents whose identities could not then be revealed may have ceased
from the service of the EIIB, while the covert missions to which they
might have been deployed might either have been accomplished or
abandoned. On the other hand, the Ombudsman's duty to investigate
the complaint that there were in 1988 unfilled positions in the EIIB for
which continued funding was received by its officials and put to illegal
use, remains.

Above all, even if the subpoenaed documents are treated as

presumptively privileged, this decision would only justify ordering
their inspection in camera but not their nonproduction. However, as
concession to the nature of the functions of the EIIB and just to be
sure no information of a confidential character is disclosed, the
examination of records in this case should be made in strict
confidence by the Ombudsman himself. Reference may be made to
the documents in any decision or order which the Ombudsman may
render or issue but only to the extent that it will not reveal covert
activities of the agency. Above all, there must be a scrupulous
protection of the documents delivered.
With these safeguards outlined, it is believed that a satisfactory
resolution of the conflicting claims of the parties is achieved. It is not
amiss to state that even matters of national security have been
inquired into in appropriate in camera proceedings by the courts.
In Lansang v. Garcia 23 this Court held closed door sessions, with only the
immediate parties and their counsel present, to determine claims that
because of subversion there was imminent danger to public safety
warranting the suspension of the writ of habeas corpus in 1971. Again
in Marcos v. Manglapus 24 the Court met behind closed doors to receive
military briefings on the threat posed to national security by the return to the
country of the former President and his family. In the United States, a similar
inquiry into the danger to national security as a result of the publication of
classified documents on the Vietnam war was upheld by the U.S. Supreme
Court. 25 We see no reason why similar safeguards cannot be made to
enable an agency of the Government, like the Office of the Ombudsman, to
carry out its constitutional duty to protect public interests 26 while insuring the
confidentiality of classified documents.

C.
Petitioners contend that under Art. XI, 13(4) the Ombudsman can
act only "in any appropriate case, and subject to such limitations as
may be provided by law" and that because the complaint in this case
is unsigned and unverified, the case is not an appropriate one. This
contention lacks merit. As already stated, the Constitution expressly
enjoins the Ombudsman to act on any complaint filed "in any form or

manner" concerning official acts or omissions. Thus, Art. XI, 12

provides:
The Ombudsman and his Deputies, as protectors of
the people, shall act promptly on complaints filed in
any form or manner against public officials or
employees of the Government, or any subdivision,
agency, or instrumentality thereof, including
government-owned or controlled corporations and
shall in appropriate cases, notify the complainants of
the action taken and the result thereof. (Emphasis
added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770)
provides in 26(2):
The Office of the Ombudsman shall receive
complaints from any source in whatever
form concerning an official act or omission. It shall
act on the complaint immediately and if it finds the
same entirely baseless, it shall dismiss the same
and inform the complainant of such dismissal citing
the reasons therefor. If it finds a reasonable ground
to investigate further, it shall first furnish the
respondent public officer or employee with a
summary of the complaint and require him to submit
a written answer within seventy-two hours from
receipt thereof. If the answer is found satisfactory, it
shall dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony
given at a fact-finding investigation and charges made in a pleading in a
case in court constituted a sufficient basis for the Ombudsman to commence
investigation, because a formal complaint was really not necessary.

Rather than referring to the form of complaints, therefore, the phrase

"in an appropriate case" in Art. XI, 12 means any case concerning

official act or omission which is alleged to be "illegal, unjust,

improper, or inefficient."28 The phrase "subject to such limitations as may
be provided by law" refers to such limitations as may be provided by
Congress or, in the absence thereof, to such limitations as may be imposed
by the courts. Such limitations may well include a requirement that the
investigation be concluded in camera, with the public excluded, as exception
to the general nature of the proceedings in the Office of the
Ombudsman. 29 A reconciliation is thereby made between the demands of
national security and the requirement of accountability enshrined in the
Constitution. 30

What has been said above disposes of petitioners' contention that

the anonymous letter-complaint against them is nothing but a
vexatious prosecution. It only remains to say that the general
investigation in the Ombudsman' s office is precisely for the purpose
of protecting those against whom a complaint is filed against hasty,
malicious, and oppressive prosecution as much as securing the
State from useless and expensive trials. There may also be benefit
resulting from such limited in camera inspection in terms of
increased public confidence that the privilege is not being abused
and increased likelihood that no abuse is in fact occurring.
II.
Nor is there violation of petitioner's right to the equal protection of the
laws. Petitioners complain that "in all forum and tribunals . . . the
aggrieved parties . . . can only hale respondents via their verified
complaints or sworn statements with their identities fully disclosed,"
while in proceedings before the Office of the Ombudsman
anonymous letters suffice to start an investigation. In the first place,
there can be no objection to this procedure because it is provided in
the Constitution itself. In the second place, it is apparent that in
permitting the filing of complaints "in any form and in a manner," the
framers of the Constitution took into account the well-known
reticence of the people which keep them from complaining against
official wrongdoings. As this Court had occasion to point out, the
Office of the Ombudsman is different from the other investigatory and
prosecutory agencies of the government because those subject to its

jurisdiction are public officials who, through official pressure and

influence, can quash, delay or dismiss investigations held against
them. 31 On the other hand complainants are more often than not poor and
simple folk who cannot afford to hire lawyers. 32

III.
Finally, it is contended that the issuance of the subpoena duces
tecum would violate petitioners' right against self-incrimination. It is
enough to state that the documents required to be produced in this
case are public records and those to whom the subpoena duces
tecum is directed are government officials in whose possession or
custody the documents are. Moreover, if, as petitioners claim the
disbursement by the EIIB of funds for personal service has already
been cleared by the COA, there is no reason why they should object
to the examination of the documents by respondent Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is directed that the
inspection of subpoenaed documents be made personally in
camera by the Ombudsman, and with all the safeguards outlined in
this decision.

ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary
and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of the
Philippines,Respondents.
x-------------------------x
G.R. No. 169659

BAYAN MUNA represented by DR. REYNALDO LESACA, JR.,

Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL
MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR, COURAGE represented by FERDINAND GAITE,
and COUNSELS FOR THE DEFENSE OF LIBERTIES (CODAL)
represented by ATTY. REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, Respondent.
x-------------------------x

SO ORDERED.

G.R. No. 169660

G.R. No. 169777

April 20, 2006

April 20, 2006

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M.

DRILON, in his capacity as Senate President, JUAN M. FLAVIER,
in his capacity as Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader, AQUILINO Q.
PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO,
JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO
ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR

FRANCISCO I. CHAVEZ, Petitioner,

vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary,
AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,
and GENEROSO S. SENGA, in his capacity as AFP Chief of
Staff, Respondents.
x-------------------------x
G.R. No. 169667

April 20, 2006

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

vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive
Secretary, Respondent.

Convention said: "Decision, activity, secrecy, and dispatch will

generally characterize the proceedings of one man, in a much more
eminent degree than the proceedings of any greater number; and in
proportion as the number is increased, these qualities will be
diminished."1

x-------------------------x
G.R. No. 169834

April 20, 2006

PDP- LABAN, Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO

R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE PHILIPPINES,Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly
republican state. Even in the early history of republican thought,
however, it has been recognized that the head of government may
keep certain information confidential in pursuit of the public interest.
Explaining the reason for vesting executive power in only one
magistrate, a distinguished delegate to the U.S. Constitutional

History has been witness, however, to the fact that the power to
withhold information lends itself to abuse, hence, the necessity to
guard it zealously.
The present consolidated petitions for certiorari and prohibition
proffer that the President has abused such power by issuing
Executive Order No. 464 (E.O. 464) last September 28, 2005. They
thus pray for its declaration as null and void for being
unconstitutional.
In resolving the controversy, this Court shall proceed with the
recognition that the issuance under review has come from a co-equal
branch of government, which thus entitles it to a strong presumption
of constitutionality. Once the challenged order is found to be indeed
violative of the Constitution, it is duty-bound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the
Filipino people, must prevail over any issuance of the government
that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines,
through its various Senate Committees, conducts inquiries or
investigations in aid of legislation which call for, inter alia, the
attendance of officials and employees of the executive department,
bureaus, and offices including those employed in Government
Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a
whole issued invitations to various officials of the Executive
Department for them to appear on September 29, 2005 as resource
speakers in a public hearing on the railway project of the North

Luzon Railways Corporation with the China National Machinery and

Equipment Group (hereinafter North Rail Project). The public hearing
was sparked by a privilege speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other
unlawful provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise
issued invitations2 dated September 22, 2005 to the following officials
of the AFP: the Commanding General of the Philippine Army, Lt.
Gen. Hermogenes C. Esperon; Inspector General of the AFP Vice
Admiral Mateo M. Mayuga; Deputy Chief of Staff for Intelligence of
the AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence
Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen.
Francisco V. Gudani; and Assistant Commandant, Corps of Cadets
of the PMA, Col. Alexander F. Balutan, for them to attend as
resource persons in a public hearing scheduled on September 28,
2005 on the following: (1) Privilege Speech of Senator Aquilino Q.
Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided
Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2)
Privilege Speech of Senator Jinggoy E. Estrada delivered on July 26,
2005 entitled "The Philippines as the Wire-Tapping Capital of the
World"; (3) Privilege Speech of Senator Rodolfo Biazon delivered on
August 1, 2005 entitled "Clear and Present Danger"; (4) Senate
Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, and in the
National Interest, on the Role of the Military in the So-called
"Gloriagate Scandal"; and (5) Senate Resolution No. 295 filed by
Senator Biazon Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of Legislation, on
the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28
2005 was the AFP Chief of Staff, General Generoso S. Senga who,
by letter3 dated September 27, 2005, requested for its postponement

"due to a pressing operational situation that demands [his utmost

personal attention" while "some of the invited AFP officers are
currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon
received from Executive Secretary Eduardo R. Ermita a letter 4 dated
September 27, 2005 "respectfully request[ing] for the postponement
of the hearing [regarding the NorthRail project] to which various
officials of the Executive Department have been invited" in order to
"afford said officials ample time and opportunity to study and prepare
for the various issues so that they may better enlighten the Senate
Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita
that the Senators "are unable to accede to [his request]" as it "was
sent belatedly" and "[a]ll preparations and arrangements as well as
notices to all resource persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a
letter6 from the President of the North Luzon Railways Corporation
Jose L. Cortes, Jr. requesting that the hearing on the NorthRail
project be postponed or cancelled until a copy of the report of the UP
Law Center on the contract agreements relative to the project had
been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring
Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive Privilege and Respect for the Rights of Public
Officials Appearing in Legislative Inquiries in Aid of Legislation Under
the Constitution, and For Other Purposes,"7 which, pursuant to
Section 6 thereof, took effect immediately. The salient provisions of
the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before
Congress. In accordance with Article VI, Section 22 of the
Constitution and to implement the Constitutional provisions on the
separation of powers between co-equal branches of the government,

all heads of departments of the Executive Branch of the government

shall secure the consent of the President prior to appearing before
either House of Congress.
When the security of the State or the public interest so requires and
the President so states in writing, the appearance shall only be
conducted in executive session.

Information between inter-government agencies prior to the

conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9
December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998);

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on
executive privilege is fundamental to the operation of government
and rooted in the separation of powers under the Constitution
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further,
Republic Act No. 6713 or the Code of Conduct and Ethical Standards
for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified
information officially known to them by reason of their office and not
made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information
between the President and the public officers covered by this
executive order, including:
Conversations and correspondence between the President and the
public official covered by this executive order (Almonte vs. Vasquez
G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority,
G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the
interest of national security should not be divulged (Almonte vs.
Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December
1998).

Matters affecting national security and public order (Chavez v. Public

Estates Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive
order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are
covered by the executive privilege;
Philippine National Police (PNP) officers with rank of chief
superintendent or higher and such other officers who in the judgment
of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National
Security Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress.
All public officials enumerated in Section 2 (b) hereof shall secure
prior consent of the President prior to appearing before either House
of Congress to ensure the observance of the principle of separation
of powers, adherence to the rule on executive privilege and respect

for the rights of public officials appearing in inquiries in aid of

legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another
letter8 informing him "that officials of the Executive Department
invited to appear at the meeting [regarding the NorthRail project] will
not be able to attend the same without the consent of the President,
pursuant to [E.O. 464]" and that "said officials have not secured the
required consent from the President." On even date which was also
the scheduled date of the hearing on the alleged wiretapping, Gen.
Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per
instruction of [President Arroyo], thru the Secretary of National
Defense, no officer of the [AFP] is authorized to appear before any
Senate or Congressional hearings without seeking a written approval
from the President" and "that no approval has been granted by the
President to any AFP officer to appear before the public hearing of
the Senate Committee on National Defense and Security scheduled
[on] 28 September 2005."
Despite the communications received from Executive Secretary
Ermita and Gen. Senga, the investigation scheduled by the
Committee on National Defense and Security pushed through, with
only Col. Balutan and Brig. Gen. Gudani among all the AFP officials
invited attending.
For defying President Arroyos order barring military personnel from
testifying before legislative inquiries without her approval, Brig. Gen.
Gudani and Col. Balutan were relieved from their military posts and
were made to face court martial proceedings.
As to the NorthRail project hearing scheduled on September 29,
2005, Executive Secretary Ermita, citing E.O. 464, sent letter of
regrets, in response to the invitations sent to the following
government officials: Light Railway Transit Authority Administrator
Melquiades Robles, Metro Rail Transit Authority Administrator

Roberto Lastimoso, Department of Justice (DOJ) Chief State

Counsel Ricardo V. Perez, then Presidential Legal Counsel
Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General
Manager Jose Serase II, Monetary Board Member Juanita Amatong,
Bases Conversion Development Authority Chairperson Gen. Narciso
Abaya and Secretary Romulo L. Neri.10 NorthRail President Cortes
sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659,
169660, and 169667, for certiorari and prohibition, were filed before
this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage, an
organization of government employees, and Counsels for the
Defense of Liberties (CODAL), a group of lawyers dedicated to the
promotion of justice, democracy and peace, all claiming to have
standing to file the suit because of the transcendental importance of
the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive Secretary
and alter-ego of President Arroyo, be prohibited from imposing, and
threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners
claim that E.O. 464 infringes on their rights and impedes them from
fulfilling their respective obligations. Thus, Bayan Muna alleges that
E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464
infringes on their rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight
functions in the implementation of laws; Courage alleges that the
tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464
should they be summoned by Congress; and CODAL alleges that its

members have a sworn duty to uphold the rule of law, and their rights
to information and to transparent governance are threatened by the
imposition of E.O. 464.

conduct of inquiries in aid of legislation and transcendental issues

need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his

constitutional rights as a citizen, taxpayer and law practitioner, are
affected by the enforcement of E.O. 464, prays in his petition that
E.O. 464 be declared null and void for being unconstitutional.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon

reiterated his invitation to Gen. Senga for him and other military
officers to attend the hearing on the alleged wiretapping scheduled
on February 10, 2005. Gen. Senga replied, however, by letter 15 dated
February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow
[them] to appear before the public hearing" and that "they will attend
once [their] request is approved by the President." As none of those
invited appeared, the hearing on February 10, 2006 was cancelled. 16

In G.R. No. 169667, petitioner Alternative Law Groups, Inc. 12 (ALG),

alleging that as a coalition of 17 legal resource non-governmental
organizations engaged in developmental lawyering and work with the
poor and marginalized sectors in different parts of the country, and
as an organization of citizens of the Philippines and a part of the
general public, it has legal standing to institute the petition to enforce
its constitutional right to information on matters of public concern, a
right which was denied to the public by E.O. 464, 13 prays, that said
order be declared null and void for being unconstitutional and that
respondent Executive Secretary Ermita be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging
that it has a vital interest in the resolution of the issue of the validity
of E.O. 464 for it stands to suffer imminent and material injury, as it
has already sustained the same with its continued enforcement since
it directly interferes with and impedes the valid exercise of the
Senates powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and
prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with
members duly elected into the Philippine Senate and House of
Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the

In another investigation conducted jointly by the Senate Committee

on Agriculture and Food and the Blue Ribbon Committee on the
alleged mismanagement and use of the fertilizer fund under the
Ginintuang Masaganang Ani program of the Department of
Agriculture (DA), several Cabinet officials were invited to the
hearings scheduled on October 5 and 26, November 24 and
December 12, 2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose
Montes, Fertilizer and Pesticide Authority Executive Director Norlito
R. Gicana,17 and those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13,
2006, Press Secretary and Presidential Spokesperson Ignacio R.
Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of
Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of
appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however, Secretary
Bunye was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent
members of the Board of Governors of the Integrated Bar of the

Philippines, as taxpayers, and the Integrated Bar of the Philippines

as the official organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public interest, filed
their petition for certiorari and prohibition, docketed as G.R. No.
171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining
Order enjoining respondents from implementing, enforcing, and
observing E.O. 464.
In the oral arguments on the petitions conducted on February 21,
2006, the following substantive issues were ventilated: (1) whether
respondents committed grave abuse of discretion in implementing
E.O. 464 prior to its publication in the Official Gazette or in a
newspaper of general circulation; and (2) whether E.O. 464 violates
the following provisions of the Constitution: Art. II, Sec. 28, Art. III,
Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec.
22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of
whether there is an actual case or controversy that calls for judicial
review was not taken up; instead, the parties were instructed to
discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed
to submit their respective memoranda, paying particular attention to
the following propositions: (1) that E.O. 464 is, on its face,
unconstitutional; and (2) assuming that it is not, it is unconstitutional
as applied in four instances, namely: (a) the so called Fertilizer
scam; (b) the NorthRail investigation (c) the Wiretapping activity of
the ISAFP; and (d) the investigation on the Venable contract. 22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No. 169667 25 and
G.R. No. 16983426 filed theirs the next day or on March 8, 2006.
Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion
for extension to file memorandum27 was granted, subsequently filed a

manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them. 29
Petitioners submit that E.O. 464 violates the following constitutional
provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand,
pray in their consolidated memorandum38 on March 13, 2006 for the
dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry
vested in Congress;
2. Whether E.O. 464 violates the right of the people to
information on matters of public concern; and

3. Whether respondents have committed grave abuse of

discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O.
464, ascertainment of whether the requisites for a valid exercise of
the Courts power of judicial review are present is in order.
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 standing to challenge
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.39

E.O. 464, there being no mention of any investigation called by the

House of Representatives or any of its committees which was
aborted due to the implementation of E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner
groups and individuals who profess to have standing as advocates
and defenders of the Constitution, respondents contend that such
interest falls short of that required to confer standing on them as
parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez
may not claim an interest as a taxpayer for the implementation of
E.O. 464 does not involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue
that in the absence of a personal or direct injury by reason of the
issuance of E.O. 464, the Senate and its individual members are not
the proper parties to assail the constitutionality of E.O. 464.

Standing

Invoking this Courts ruling in National Economic Protectionism

Association v. Ongpin42 and Valmonte v. Philippine Charity
Sweepstakes Office,43 respondents assert that to be considered a
proper party, one must have a personal and substantial interest in
the case, such that he has sustained or will sustain direct injury due
to the enforcement of E.O. 464.44

Respondents, through the Solicitor General, assert that the

allegations in G.R. Nos. 169659, 169660 and 169667 make it clear
that they, adverting to the non-appearance of several officials of the
executive department in the investigations called by the different
committees of the Senate, were brought to vindicate the
constitutional duty of the Senate or its different committees to
conduct inquiry in aid of legislation or in the exercise of its oversight
functions. They maintain that Representatives Ocampo et al. have
not shown any specific prerogative, power, and privilege of the
House of Representatives which had been effectively impaired by

That the Senate of the Philippines has a fundamental right essential

not only for intelligent public decision-making in a democratic
system, but more especially for sound legislation45 is not disputed.
E.O. 464, however, allegedly stifles the ability of the members of
Congress to access information that is crucial to law-making. 46 Verily,
the Senate, including its individual members, has a substantial and
direct interest over the outcome of the controversy and is the proper
party to assail the constitutionality of E.O. 464. Indeed, legislators
have standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are allowed to

Except with respect to the requisites of standing and existence of an

actual case or controversy where the disagreement between the
parties lies, discussion of the rest of the requisites shall be omitted.

sue to question the validity of any official action which they claim
infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan
Muna), Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna),
Crispin Beltran (Anakpawis), Rafael Mariano (Anakpawis), and Liza
Maza (Gabriela) are allowed to sue to question the constitutionality
of E.O. 464, the absence of any claim that an investigation called by
the House of Representatives or any of its committees was aborted
due to the implementation of E.O. 464 notwithstanding, it being
sufficient that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight functions in
the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of
Representatives in the 2004 elections and is, therefore, entitled to
participate in the legislative process consonant with the declared
policy underlying the party list system of affording citizens belonging
to marginalized and underrepresented sectors, organizations and
parties who lack well-defined political constituencies to contribute to
the formulation and enactment of legislation that will benefit the
nation.48
As Bayan Muna and Representatives Ocampo et al. have the
standing to file their petitions, passing on the standing of their copetitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to

be an organization of citizens, and the incumbent members of the
IBP Board of Governors and the IBP in behalf of its lawyer
members,50 invoke their constitutional right to information on matters
of public concern, asserting that the right to information, curtailed
and violated by E.O. 464, is essential to the effective exercise of
other constitutional rights51 and to the maintenance of the balance of
power among the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the
petitioner in assailing the constitutionality of laws, presidential
decrees, orders, and other regulations, must be direct and personal.
In Franciso v. House of Representatives,53 this Court held that when
the proceeding involves the assertion of a public right, the mere fact
that he is a citizen satisfies the requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with
legal standing in view of the transcendental issues raised in its
petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded standing on the ground of
transcendental importance, however, it must establish (1) the
character of the funds (that it is public) or other assets involved in the
case, (2) the presence of a clear case of disregard of a constitutional
or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with
a more direct and specific interest in raising the questions being
raised.54 The first and last determinants not being present as no
public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the
resolution of the controversy, petitioner PDP-Laban is bereft of
standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a
"generalized interest" which it shares with the rest of the political
parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a
form traditionally capable of judicial resolution. 55 In fine, PDP-Labans

alleged interest as a political party does not suffice to clothe it with

legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence
of the executive officials invited by the Senate to its hearings after
the issuance of E.O. 464, particularly those on the NorthRail project
and the wiretapping controversy.
Respondents counter that there is no case or controversy, there
being no showing that President Arroyo has actually withheld her
consent or prohibited the appearance of the invited officials. 56 These
officials, they claim, merely communicated to the Senate that they
have not yet secured the consent of the President, not that the
President prohibited their attendance.57 Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of
the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that
such apprehension is not sufficient for challenging the validity of E.O.
464.
The Court finds respondents assertion that the President has not
withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does
not require either a deliberate withholding of consent or an express
prohibition issuing from the President in order to bar officials from
appearing before Congress.
As the implementation of the challenged order has already resulted
in the absence of officials invited to the hearings of petitioner Senate

of the Philippines, it would make no sense to wait for any further

event before considering the present case ripe for adjudication.
Indeed, it would be sheer abandonment of duty if this Court would
now refrain from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive
officials before Congress, deprives Congress of the information in the
possession of these officials. To resolve the question of whether such
withholding of information violates the Constitution, consideration of
the general power of Congress to obtain information, otherwise
known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21
of Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of
its respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The rights
of persons appearing in or affected by such inquiries shall be
respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the
1973 Constitution except that, in the latter, it vests the power of
inquiry in the unicameral legislature established therein the
Batasang Pambansa and its committees.
The 1935 Constitution did not contain a similar provision.
Nonetheless, in Arnault v. Nazareno,58 a case decided in 1950 under
that Constitution, the Court already recognized that the power of
inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous

purchase of the Buenavista and Tambobong Estates by the Rural
Progress Administration. Arnault, who was considered a leading
witness in the controversy, was called to testify thereon by the
Senate. On account of his refusal to answer the questions of the
senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senates power to punish
Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing
either House of Congress with power to make investigations and
exact testimony to the end that it may exercise its legislative
functions advisedly and effectively, such power is so far incidental to
the legislative function as to be implied. In other words, the power of
inquiry with process to enforce it is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate
wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and
where the legislative body does not itself possess the requisite
information which is not infrequently true recourse must be had
to others who do possess it. Experience has shown that mere
requests for such information are often unavailing, and also that
information which is volunteered is not always accurate or complete;
so some means of compulsion is essential to obtain what is
needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the
executive branch may be deduced from the same case. The power
of inquiry, the Court therein ruled, is co-extensive with the power to
legislate.60 The matters which may be a proper subject of legislation
and those which may be a proper subject of investigation are one. It
follows that the operation of government, being a legitimate subject
for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the
government transaction involved in Arnault was a proper exercise of
the power of inquiry. Besides being related to the expenditure of

public funds of which Congress is the guardian, the transaction, the

Court held, "also involved government agencies created by
Congress and officers whose positions it is within the power of
Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the
executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most
familiar with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with process to
enforce it," is grounded on the necessity of information in the
legislative process. If the information possessed by executive
officials on the operation of their offices is necessary for wise
legislation on that subject, by parity of reasoning, Congress has the
right to that information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-called
"McCarthy era," however, the right of Congress to conduct inquiries
in aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial
review pursuant to the Courts certiorari powers under Section 1,
Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress.
Such inquiry could not usurp judicial functions. Parenthetically, one
possible way for Congress to avoid such a result as occurred in
Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such
statement in its invitations, along with the usual indication of the
subject of inquiry and the questions relative to and in furtherance
thereof, there would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that

proscribe the legislative power of inquiry. The provision requires that
the inquiry be done in accordance with the Senate or Houses duly
published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the
Bill of Rights.
These abuses are, of course, remediable before the courts, upon the
proper suit filed by the persons affected, even if they belong to the
executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear
pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed
to members of the executive department under the Bill of Rights. In
such instances, depending on the particulars of each case, attempts
by the Executive Branch to forestall these abuses may be accorded
judicial sanction.
Even where the inquiry is in aid of legislation, there are still
recognized exemptions to the power of inquiry, which exemptions fall
under the rubric of "executive privilege." Since this term figures
prominently in the challenged order, it being mentioned in its
provisions, its preambular clauses,62 and in its very title, a discussion
of executive privilege is crucial for determining the constitutionality of
E.O. 464.

Schwartz defines executive privilege as "the power of the

Government to withhold information from the public, the courts, and
the Congress."64 Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public." 65
Executive privilege is, nonetheless, not a clear or unitary
concept. 66 It has encompassed claims of varying kinds.67 Tribe, in
fact, comments that while it is customary to employ the phrase
"executive privilege," it may be more accurate to speak of executive
privileges "since presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations, and
may be asserted, with differing degrees of success, in the context of
either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with Washington, on
the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another
variety is the informers privilege, or the privilege of the Government
not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case,
thus:

Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has
been used even prior to the promulgation of the 1986
Constitution.63 Being of American origin, it is best understood in light
of how it has been defined and used in the legal literature of the
United States.

Since the beginnings of our nation, executive officials have claimed a

variety of privileges to resist disclosure of information the
confidentiality of which they felt was crucial to fulfillment of the
unique role and responsibilities of the executive branch of our
government. Courts ruled early that the executive had a right to
withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity

of government informers in some circumstances and a qualified right

to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is
similarly instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of
powers, exempts the executive from disclosure requirements
applicable to the ordinary citizen or organization where such
exemption is necessary to the discharge of highly important
executive responsibilities involved in maintaining governmental
operations, and extends not only to military and diplomatic secrets
but also to documents integral to an appropriate exercise of the
executive domestic decisional and policy making functions, that is,
those documents reflecting the frank expression necessary in intragovernmental advisory and deliberative
communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not,
however, necessarily mean that it would be considered privileged in
all instances. For in determining the validity of a claim of privilege,
the question that must be asked is not only whether the requested
information falls within one of the traditional privileges, but also
whether that privilege should be honored in a given procedural
setting.71
The leading case on executive privilege in the United States is U.S.
v. Nixon, 72 decided in 1974. In issue in that case was the validity of
President Nixons claim of executive privilege against a subpoena
issued by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of
privilege was based on the Presidents general interest in the
confidentiality of his conversations and correspondence. The U.S.
Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to
the extent that it relates to the effective discharge of a Presidents

powers. The Court, nonetheless, rejected the Presidents claim of

privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the
Court was careful to clarify that it was not there addressing the issue
of claims of privilege in a civil litigation or against congressional
demands for information.
Cases in the U.S. which involve claims of executive privilege against
Congress are rare.73 Despite frequent assertion of the privilege to
deny information to Congress, beginning with President
Washingtons refusal to turn over treaty negotiation records to the
House of Representatives, the U.S. Supreme Court has never
adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same
year as Nixon, recognized the Presidents privilege over his
conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest protected by the
claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized
by this Court in Almonte v. Vasquez.77Almonte used the term in
reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon decision which explains the basis for
the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of confidentiality
of judicial deliberations, for example, has all the values to which we
accord deference for the privacy of all citizens and, added to those
values, is the necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in Presidential decisionmaking. A President and those who assist him must be free to
explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express

except privately. These are the considerations justifying a

presumptive privilege for Presidential communications. The privilege
is fundamental to the operation of government and inextricably
rooted in the separation of powers under the Constitution x x x "
(Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not involve, as
expressly stated in the decision, the right of the people to
information.78 Nonetheless, the Court recognized that there are
certain types of information which the government may withhold from
the public, thus acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens demands for
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes
the common law holding that there is a "governmental privilege
against public disclosure with respect to state secrets regarding
military, diplomatic and other national security matters." 80 The same
case held that closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that
the right to information does not extend to matters recognized as
"privileged information under the separation of powers," 82 by which
the Court meant Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held that
information on military and diplomatic secrets and those affecting
national security, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused were
exempted from the right to information.
From the above discussion on the meaning and scope of executive
privilege, both in the United States and in this jurisdiction, a clear
principle emerges. Executive privilege, whether asserted against
Congress, the courts, or the public, is recognized only in relation to
certain types of information of a sensitive character. While executive

privilege is a constitutional concept, a claim thereof may be valid or

not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information by the mere
fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily
against executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials
covered by them to secure the consent of the President prior to
appearing before Congress. There are significant differences
between the two provisions, however, which constrain this Court to
discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike
Section 3, require a prior determination by any official whether they
are covered by E.O. 464. The President herself has, through the
challenged order, made the determination that they are. Further,
unlike also Section 3, the coverage of department heads under
Section 1 is not made to depend on the department heads
possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2,
there is no reference to executive privilege at all. Rather, the required
prior consent under Section 1 is grounded on Article VI, Section 22 of
the Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own
initiative, with the consent of the President, or upon the request of
either House, as the rules of each House shall provide, appear
before and be heard by such House on any matter pertaining to their
departments. Written questions shall be submitted to the President of
the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall
not be limited to written questions, but may cover matters related
thereto. When the security of the State or the public interest so

requires and the President so states in writing, the appearance shall

be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of
the meaning of Section 22 of Article VI. Section 22 which provides for
the question hour must be interpreted vis--vis Section 21 which
provides for the power of either House of Congress to "conduct
inquiries in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows, the framers
were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section
22 on the Question Hour] yesterday, I noticed that members of the
Cabinet cannot be compelled anymore to appear before the House
of Representatives or before the Senate. I have a particular problem
in this regard, Madam President, because in our experience in the
Regular Batasang Pambansa as the Gentleman himself has
experienced in the interim Batasang Pambansa one of the most
competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them, but if they
do not come and it is a congressional investigation, we usually issue
subpoenas.
I want to be clarified on a statement made by Commissioner Suarez
when he said that the fact that the Cabinet ministers may refuse to
come to the House of Representatives or the Senate [when
requested under Section 22] does not mean that they need not come
when they are invited or subpoenaed by the committee of either
House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that
is allowed and their presence can be had under Section 21. Does the
gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section
20 refers only to what was originally the Question Hour, whereas,

Section 21 would refer specifically to inquiries in aid of legislation,

under which anybody for that matter, may be summoned and if he
refuses, he can be held in contempt of the House. 83 (Emphasis and
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation
and the question hour. While attendance was meant to be
discretionary in the question hour, it was compulsory in inquiries in
aid of legislation. The reference to Commissioner Suarez bears
noting, he being one of the proponents of the amendment to make
the appearance of department heads discretionary in the question
hour.
So clearly was this distinction conveyed to the members of the
Commission that the Committee on Style, precisely in recognition of
this distinction, later moved the provision on question hour from its
original position as Section 20 in the original draft down to Section
31, far from the provision on inquiries in aid of legislation. This gave
rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the
Committee on Style] We now go, Mr. Presiding Officer, to the Article
on Legislative and may I request the chairperson of the Legislative
Department, Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.
|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one
reaction to the Question Hour. I propose that instead of putting it as
Section 31, it should follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr.
Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we

sequenced this but we reasoned that in Section 21, which is
Legislative Inquiry, it is actually a power of Congress in terms of its
own lawmaking; whereas, a Question Hour is not actually a power in
terms of its own lawmaking power because in Legislative Inquiry, it is
in aid of legislation. And so we put Question Hour as Section 31. I
hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the
legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the
members of Cabinet would be very, very essential not only in the
application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find merit
in the suggestion of Commissioner Davide. In other words, we are
accepting that and so this Section 31 would now become Section 22.
Would it be, Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations,
Commissioners Davide and Maambong proceeded from the same
assumption that these provisions pertained to two different functions
of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davides
only concern was that the two provisions on these distinct powers be
placed closely together, they being complementary to each other.
Neither Commissioner considered them as identical functions of
Congress.
The foregoing opinion was not the two Commissioners alone. From
the above-quoted exchange, Commissioner Maambongs committee
the Committee on Style shared the view that the two provisions
reflected distinct functions of Congress. Commissioner Davide, on

the other hand, was speaking in his capacity as Chairman of the

Committee on the Legislative Department. His views may thus be
presumed as representing that of his Committee.
In the context of a parliamentary system of government, the
"question hour" has a definite meaning. It is a period of confrontation
initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and the operation of the
government,85 corresponding to what is known in Britain as the
question period. There was a specific provision for a question hour in
the 1973 Constitution86 which made the appearance of ministers
mandatory. The same perfectly conformed to the parliamentary
system established by that Constitution, where the ministers are also
members of the legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is
the immediate accountability of the Prime Minister and the Cabinet to
the National Assembly. They shall be responsible to the National
Assembly for the program of government and shall determine the
guidelines of national policy. Unlike in the presidential system where
the tenure of office of all elected officials cannot be terminated before
their term expired, the Prime Minister and the Cabinet remain in
office only as long as they enjoy the confidence of the National
Assembly. The moment this confidence is lost the Prime Minister and
the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature
of such appearance during the question hour in the present
Constitution so as to conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is presently
understood in this jurisdiction, departs from the question period of
the parliamentary system. That department heads may not be
required to appear in a question hour does not, however, mean that
the legislature is rendered powerless to elicit information from them
in all circumstances. In fact, in light of the absence of a mandatory
question period, the need to enforce Congress right to executive

information in the performance of its legislative function becomes

more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the
subject under discussion, it is that the Congress has the right to
obtain information from any source even from officials of
departments and agencies in the executive branch. In the United
States there is, unlike the situation which prevails in a parliamentary
system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the
executive so essential, if the functions of the Congress as the
elected representatives of the people are adequately to be carried
out. The absence of close rapport between the legislative and
executive branches in this country, comparable to those which exist
under a parliamentary system, and the nonexistence in the Congress
of an institution such as the British question period have perforce
made reliance by the Congress upon its right to obtain information
from the executive essential, if it is intelligently to perform its
legislative tasks. Unless the Congress possesses the right to obtain
executive information, its power of oversight of administration in a
system such as ours becomes a power devoid of most of its practical
content, since it depends for its effectiveness solely upon information
parceled out ex gratia by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to
the power to conduct inquiries in aid of legislation, the aim of which is
to elicit information that may be used for legislation, while the other
pertains to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress oversight
function.
When Congress merely seeks to be informed on how department
heads are implementing the statutes which it has issued, its right to

such information is not as imperative as that of the President to

whom, as Chief Executive, such department heads must give a
report of their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the
same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in pursuit
of legislation. This is consistent with the intent discerned from the
deliberations of the Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of
executive officials under Section 21 and the lack of it under Section
22 find their basis in the principle of separation of powers. While the
executive branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing to comply
with its demands for information.
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they are
department heads. Only one executive official may be exempted
from this power the President on whom executive power is
vested, hence, beyond the reach of Congress except through the
power of impeachment. It is based on her being the highest official of
the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing
custom.
By the same token, members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on
the basis not only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the judiciary. This

point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the
Chief Justice.

the same section (i.e. department heads, Chief of Staff of the AFP,
Chief of the PNP, and the National Security Adviser), are "covered by
the executive privilege."

Having established the proper interpretation of Section 22, Article VI

of the Constitution, the Court now proceeds to pass on the
constitutionality of Section 1 of E.O. 464.

The enumeration also includes such other officers as may be

determined by the President. Given the title of Section 2 "Nature,
Scope and Coverage of Executive Privilege" , it is evident that
under the rule of ejusdem generis, the determination by the
President under this provision is intended to be based on a similar
finding of coverage under executive privilege.

Section 1, in view of its specific reference to Section 22 of Article VI

of the Constitution and the absence of any reference to inquiries in
aid of legislation, must be construed as limited in its application to
appearances of department heads in the question hour contemplated
in the provision of said Section 22 of Article VI. The reading is
dictated by the basic rule of construction that issuances must be
interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section
1, limited as it is only to appearances in the question hour, is valid on
its face. For under Section 22, Article VI of the Constitution, the
appearance of department heads in the question hour is
discretionary on their part.
Section 1 cannot, however, be applied to appearances of department
heads in inquiries in aid of legislation. Congress is not bound in such
instances to respect the refusal of the department head to appear in
such inquiry, unless a valid claim of privilege is subsequently made,
either by the President herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in
Section 2(b) to secure the consent of the President prior to
appearing before either house of Congress. The enumeration is
broad. It covers all senior officials of executive departments, all
officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in

En passant, the Court notes that Section 2(b) of E.O. 464 virtually
states that executive privilege actually covers persons. Such is a
misuse of the doctrine. Executive privilege, as discussed above, is
properly invoked in relation to specific categories of information and
not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the
nature, scope and coverage of executive privilege, the reference to
persons being "covered by the executive privilege" may be read as
an abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall thus proceed
on the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the
President that an official is "covered by the executive privilege," such
official is subjected to the requirement that he first secure the
consent of the President prior to appearing before Congress. This
requirement effectively bars the appearance of the official concerned
unless the same is permitted by the President. The proviso allowing
the President to give its consent means nothing more than that the
President may reverse a prohibition which already exists by virtue of
E.O. 464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the President under

E.O. 464, or by the President herself, that such official is in

possession of information that is covered by executive privilege. This
determination then becomes the basis for the officials not showing
up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his
failure to be present, such invocation must be construed as a
declaration to Congress that the President, or a head of office
authorized by the President, has determined that the requested
information is privileged, and that the President has not reversed
such determination. Such declaration, however, even without
mentioning the term "executive privilege," amounts to an implied
claim that the information is being withheld by the executive branch,
by authority of the President, on the basis of executive privilege.
Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive
Secretary Ermita to Senate President Drilon illustrates the implied
nature of the claim of privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of
the Whole regarding the Northrail Project of the North Luzon
Railways Corporation on 29 September 2005 at 10:00 a.m., please
be informed that officials of the Executive Department invited to
appear at the meeting will not be able to attend the same without the
consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation
Of Powers, Adherence To The Rule On Executive Privilege And
Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other
Purposes". Said officials have not secured the required consent from
the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the
matter on which these officials are being requested to be resource
persons falls under the recognized grounds of the privilege to justify
their absence. Nor does it expressly state that in view of the lack of

consent from the President under E.O. 464, they cannot attend the
hearing.
Significant premises in this letter, however, are left unstated,
deliberately or not. The letter assumes that the invited officials are
covered by E.O. 464. As explained earlier, however, to be covered by
the order means that a determination has been made, by the
designated head of office or the President, that the invited official
possesses information that is covered by executive privilege. Thus,
although it is not stated in the letter that such determination has been
made, the same must be deemed implied. Respecting the statement
that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the
standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion
that the executive branch, either through the President or the heads
of offices authorized under E.O. 464, has made a determination that
the information required by the Senate is privileged, and that, at the
time of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the
executive.
While there is no Philippine case that directly addresses the issue of
whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the
possession of the executive may validly be claimed as privileged
even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by
petitioner is privileged information rooted in the separation of powers.
The information does not cover Presidential conversations,
correspondences, or discussions during closed-door Cabinet
meetings which, like internal-deliberations of the Supreme Court and
other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank

exchange of exploratory ideas and assessments, free from the glare

of publicity and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power. This is not the situation
in the instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as
invalid by the mere fact that it sanctions claims of executive privilege.
This Court must look further and assess the claim of privilege
authorized by the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed on a case
to case basis, examining the ground invoked therefor and the
particular circumstances surrounding it, there is, in an implied claim
of privilege, a defect that renders it invalid per se. By its very nature,
and as demonstrated by the letter of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464
is not accompanied by any specific allegation of the basis thereof
(e.g., whether the information demanded involves military or
diplomatic secrets, closed-door Cabinet meetings, etc.). While
Section 2(a) enumerates the types of information that are covered by
the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the
phrase "confidential or classified information between the President
and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive
considers the requested information privileged. It does not suffice to
merely declare that the President, or an authorized head of office,
has determined that it is so, and that the President has not
overturned that determination. Such declaration leaves Congress in
the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the

question of why the executive branch is not providing it with the

information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to
disclose information, must, therefore, be clearly asserted. As U.S. v.
Reynolds teaches:
The privilege belongs to the government and must be asserted by it;
it can neither be claimed nor waived by a private party. It is not to be
lightly invoked. There must be a formal claim of privilege, lodged by
the head of the department which has control over the matter, after
actual personal consideration by that officer. The court itself must
determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a disclosure of the very thing
the privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of
the traditional privileges, or whether, given the circumstances in
which it is made, it should be respected.93 These, in substance, were
the same criteria in assessing the claim of privilege asserted against
the Ombudsman in Almonte v. Vasquez94 and, more in point, against
a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm
resulting from disclosure impossible, thereby preventing the Court
from balancing such harm against plaintiffs needs to determine
whether to override any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to
perform this balancing operation. In stating its objection to claimants

interrogatories, government asserts, and nothing more, that the

disclosures sought by claimant would inhibit the free expression of
opinion that non-disclosure is designed to protect. The government
has not shown nor even alleged that those who evaluated
claimants product were involved in internal policymaking, generally,
or in this particular instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the privilege is based must
be established. To find these interrogatories objectionable, this Court
would have to assume that the evaluation and classification of
claimants products was a matter of internal policy formulation, an
assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that
"an agency must provide precise and certain reasons for preserving
the confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific
designation and description of the documents within its scope as well
as precise and certain reasons for preserving their confidentiality.
Without this specificity, it is impossible for a court to analyze the
claim short of disclosure of the very thing sought to be protected. As
the affidavit now stands, the Court has little more than its sua sponte
speculation with which to weigh the applicability of the claim. An
improperly asserted claim of privilege is no claim of privilege.
Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the
claim in the instant case because it is legally insufficient to allow the
Court to make a just and reasonable determination as to its
applicability. To recognize such a broad claim in which the Defendant
has given no precise or compelling reasons to shield these
documents from outside scrutiny, would make a farce of the whole
procedure.101(Emphasis and underscoring supplied)

Due respect for a co-equal branch of government, moreover,

demands no less than a claim of privilege clearly stating the grounds
therefor. Apropos is the following ruling in McPhaul v. U.S: 102
We think the Courts decision in United States v. Bryan, 339 U.S.
323, 70 S. Ct. 724, is highly relevant to these questions. For it is as
true here as it was there, that if (petitioner) had legitimate reasons
for failing to produce the records of the association, a decent respect
for the House of Representatives, by whose authority the subpoenas
issued, would have required that (he) state (his) reasons for
noncompliance upon the return of the writ. Such a statement would
have given the Subcommittee an opportunity to avoid the blocking of
its inquiry by taking other appropriate steps to obtain the records. To
deny the Committee the opportunity to consider the objection or
remedy is in itself a contempt of its authority and an obstruction of its
processes. His failure to make any such statement was "a patent
evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis
and underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to
state the reasons for the claim with such particularity as to compel
disclosure of the information which the privilege is meant to
protect.103 A useful analogy in determining the requisite degree of
particularity would be the privilege against self-incrimination. Thus,
Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself his say-so
does not of itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and to require him to
answer if it clearly appears to the court that he is mistaken.
However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to
be established in court, he would be compelled to surrender the very
protection which the privilege is designed to guarantee. To sustain
the privilege, it need only be evident from the implications of the

question, in the setting in which it is asked, that a responsive answer

to the question or an explanation of why it cannot be answered might
be dangerous because injurious disclosure could result." x x x
(Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464, coupled with an announcement
that the President has not given her consent. It is woefully insufficient
for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates
the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely
provides guidelines, binding only on the heads of office mentioned in
Section 2(b), on what is covered by executive privilege. It does not
purport to be conclusive on the other branches of government. It may
thus be construed as a mere expression of opinion by the President
regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating the
challenged order the alleged unlawful delegation of authority to the
heads of offices in Section 2(b). Petitioner Senate of the Philippines,
in particular, cites the case of the United States where, so it claims,
only the President can assert executive privilege to withhold
information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the
head of office determines that a certain information is privileged,
such determination is presumed to bear the Presidents authority and
has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These

provisions thus allow the President to authorize claims of privilege by

mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as already
discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch,105 or in those instances
where exemption from disclosure is necessary to the discharge of
highly important executive responsibilities.106 The doctrine of
executive privilege is thus premised on the fact that certain
informations must, as a matter of necessity, be kept confidential in
pursuit of the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court
finds it essential to limit to the President the power to invoke the
privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the President,"
which means that he personally consulted with her. The privilege
being an extraordinary power, it must be wielded only by the highest
official in the executive hierarchy. In other words, the President may
not authorize her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant case where
the authorization is not explicit but by mere silence. Section 3, in
relation to Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by
Congress on a matter which, in his own judgment, might be covered
by executive privilege, he must be afforded reasonable time to inform
the President or the Executive Secretary of the possible need for
invoking the privilege. This is necessary in order to provide the
President or the Executive Secretary with fair opportunity to consider
whether the matter indeed calls for a claim of executive privilege. If,

after the lapse of that reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress is no longer
bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel
his appearance.
The Court notes that one of the expressed purposes for requiring
officials to secure the consent of the President under Section 3 of
E.O. 464 is to ensure "respect for the rights of public officials
appearing in inquiries in aid of legislation." That such rights must
indeed be respected by Congress is an echo from Article VI Section
21 of the Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is
essentially an authorization for implied claims of executive privilege,
for which reason it must be invalidated. That such authorization is
partly motivated by the need to ensure respect for such officials does
not change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the
appearance of executive officials in the hearings conducted by it, and
not with the demands of citizens for information pursuant to their
right to information on matters of public concern. Petitioners are not
amiss in claiming, however, that what is involved in the present
controversy is not merely the legislative power of inquiry, but the right
of the people to information.
There are, it bears noting, clear distinctions between the right of
Congress to information which underlies the power of inquiry and the
right of the people to information on matters of public concern. For
one, the demand of a citizen for the production of documents
pursuant to his right to information does not have the same
obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to

exact testimony from government officials. These powers belong only

to Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the
people, it does not follow, except in a highly qualified sense, that in
every exercise of its power of inquiry, the people are exercising their
right to information.
To the extent that investigations in aid of legislation are generally
conducted in public, however, any executive issuance tending to
unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being
presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions on
the matter before Congress opinions which they can then
communicate to their representatives and other government officials
through the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political
discussion be maintained to the end that the government may
perceive and be responsive to the peoples will. Yet, this open
dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when
the participants in the discussion are aware of the issues and have
access to information relating thereto can such bear
fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislatures power of
inquiry.
Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it

does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that do
not directly apply to people in general, Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the people
in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a
relative of President Marcos who was decreed instant naturalization.
It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people.
The subject of such law is a matter of public interest which any
member of the body politic may question in the political forums or, if
he is a proper party, even in courts of justice.108 (Emphasis and
underscoring supplied)
Although the above statement was made in reference to statutes,
logic dictates that the challenged order must be covered by the
publication requirement. As explained above, E.O. 464 has a direct
effect on the right of the people to information on matters of public
concern. It is, therefore, a matter of public interest which members of
the body politic may question before this Court. Due process thus
requires that the people should have been apprised of this issuance
before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive
branch whenever it is sought in aid of legislation. If the executive
branch withholds such information on the ground that it is privileged,
it must so assert it and state the reason therefor and why it must be
respected.
The infirm provisions of E.O. 464, however, allow the executive
branch to evade congressional requests for information without need
of clearly asserting a right to do so and/or proffering its reasons

therefor. By the mere expedient of invoking said provisions, the

power of Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old
presumption in favor of secrecy, based on the divine right of kings
and nobles, and replace it with a presumption in favor of publicity,
based on the doctrine of popular sovereignty. (Underscoring
supplied)109
Resort to any means then by which officials of the executive branch
could refuse to divulge information cannot be presumed valid.
Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the operations of government, but we shall
have given up something of much greater value our right as a
people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b)
and 3 of Executive Order No. 464 (series of 2005), "Ensuring
Observance of the Principle of Separation of Powers, Adherence to
the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the Constitution, and
For Other Purposes," are declared VOID. Sections 1 and 2(a) are,
however, VALID.
SO ORDERED.

PURIFICACION M. VDA. DE URBANO, PEDRO DE

CASTRO, AURELIO I. ARRIENDA, ARNEL U.
ARRIENDA, ALBERT U. ARRIENDA, ALICE A.
PEDRON and MARILYN C. BILOG, petitioners,
vs. GOVERNMENT
SERVICE
INSURANCE
SYSTEM (GSIS), FELICIANO BELMONTE, JR.,

ZACARIAS
BELTRAN,
JR.,
MARCIAL
SECOQUIAN
and
CRISPINA
DELA
CRUZ, respondents.
DECISION
PUNO, J.:

The petitioners in the case at bar have been fighting tooth and
nail for a roof above their heads. They have fought long and hard
but still not enough, for while as a succor institution the respondent
GSIS can bend back to accommodate the needs of a member, it can
only bend as far as it can also assure the solvency of its funds for the
common good of its members.
This is a petition for review on certiorari to annul and set aside
the Court of Appeals' October 30, 1998 decision [1] and March 4, 1999
resolution affirming the decision of the Regional Trial Court of
Quezon City, Branch 102, dismissing petitioner's complaint for
annulment of contract, reconveyance and damages.
The facts, gathered mainly from the stipulation and admissions
of the parties,[2] are as follows:
In 1971, petitioners mortgaged their 200-square meter property
in Quezon City to the respondent GSIS to secure a housing loan
of P47,000.00. As petitioners failed to pay their loan when it fell
due, GSIS foreclosed the mortgage on October 28, 1983. With a bid
of P154,896.00, GSIS emerged as the highest bidder in the public
auction of the property.
In a bid to redeem their property, petitioner Arnel Arrienda
wrote on September 26, 1984 to the Acquired Assets Department

(AAD) of the GSIS signifying the petitioners' intention to redeem

their property. Two days after or on September 28, petitioner vda. de
Urbano wrote the GSIS Board of Trustees (the "Board") to inform
them of her desire to redeem the subject property and for advice on
the procedure for redemption.[3] GSIS responded on October 16, 1984
advising her to pay the total redemption price of P154,896.00 on or
before the expiry date of redemption on November 18, 1984 in full
and in cash, failing which the property would be offered for sale
through public bidding.
On October 29, 1984, petitioner vda. de Urbano requested for
more time to redeem the subject property. In a letter dated January
10, 1985, AAD Manager Marcial Secoquian informed petitioners
that the Board adopted Resolution No. 929 on November 16, 1984
approving the "sale of the subject property to petitioner Purificacion
Urbano for the sum of P174,572.62, provided that the aforesaid price
shall be paid in CASH, within sixty (60) days from notice of this
resolution, failing which, the property shall be sold thru public
bidding with the fair market value of the property as the minimum
bid price."
Unable to find financing to repurchase the subject property,
petitioners again wrote to the Board through AAD Manager
Secoquian on January 18, 1985 requesting for re-mortgage through
repurchase of the subject property.[4] On February 27, 1985, AAD
Manager Secoquian wrote to petitioners that "the granting of real
estate/housing loan to the GSIS members is not within the province
and competence of this department, hence your request for a remortgage of said property cannot be acted upon." [5] On June 19,
1985, petitioner vda. de Urbano wrote to the Board requesting
approval to file a loan ofP240,000.00 with the GSIS Real Estate
Department to repurchase their foreclosed property.

On June 20, 1985, then Deputy Minister and Vice Governor

Ismael A. Mathay, Jr. interceded for the petitioners and wrote to the
Board requesting for a more liberal arrangement to enable petitioners
to repurchase their property. In response to the letter, the Board
adopted Resolution No. 593 on July 6, 1985 granting petitioner
Aurelio Arrienda "60 days from notice within which to purchase the
subject property for P174,572.62 payable in CASH. Should Mr.
Arrienda fail to pay the same within the time frame mentioned, the
property shall be sold at public auction without need of any further
action by the Board." Petitioners were notified of this Resolution in a
letter dated August 2, 1985.[6]
On August 21, 1985, months after the expiration of the
redemption period on November 18, 1984, GSIS consolidated its title
over the property, leading to the cancellation of TCT No. 167532
covering the property and the issuance of TCT No. 33418 in favor of
GSIS.[7]
On September 5, 1985, respondent Crispina dela Cruz
commenced negotiations with respondent GSIS for her purchase of
the petitioners' foreclosed property for P250,000.00 spot cash.
Unable to raise the entire amount of the property but still
persistent to reacquire it, petitioner Arnel Arrienda wrote to the
Board on October 4, 1985, offering a downpayment of P50,000.00 to
purchase their property, the balance of P124,572.62 to be paid within
five years in equal monthly installments. He enclosed a cashier's
check in the amount of P10,000.00 as earnest money. On October
30, 1985, AAD Manager Secoquian informed petitioners that the
Board adopted Resolution No. 881 on October 10, 1985 declining
their offer to purchase the subject property under their proposed
terms and conditions.[8]

On November 11, 1985, petitioner Arnel Arrienda again wrote

to the Board requesting reconsideration of Resolution No. 881 and
abeyance of the public sale or negotiation of the subject property.
[9]
Secoquian wrote petitioner Arnel Arrienda on December 26, 1985
informing him that the Board adopted Resolution No. 1022 dated
December 12, 1985 denying his request for reconsideration of
Resolution No. 881 and returning petitioners' cashier's check
of P10,000.00.[10] The Board also directed the "Operating Unit
Concerned to inform Ms. Cristina Cruz (sic) that her offer to
purchase the above-mentioned property shall only be entertained by
the GSIS Board if accompanied by a Cashier's or Manager's check in
the amount equivalent to 10% of her offer, forfeitable in favor of the
System in case she fails to comply with the terms and conditions
proposed by the System."[11]
With no let up on their efforts to repurchase their property,
petitioner Aurelio Arrienda wrote to the Board on January 6, 1986
requesting a restructuring or a liberal arrangement to purchase back
the subject property. This was denied by the Board in Resolution
No. 36 dated January 16, 1986.
Meantime, GSIS continued negotiating with private respondent
dela Cruz. On January 28, 1986, Secoquian recommended to the
Board the approval of the sale to dela Cruz.
Not having lost their resolve and pinning their hopes on the new
Board of Trustees under the new administration of then President
Corazon Aquino, petitioner vda. de Urbano wrote on January 20,
1987 to Atty. Regalado Resurreccion, Head of the Operation Pabahay
of the Government Investments and Loan Department of the GSIS,
requesting reconsideration of GSIS' position with regard to the
subject property.[12] As indicated in a GSIS internal commmunication,
Officer-in-Charge Rosales of the Residential Loans Department
initially handled the request, then endorsed it to Atty. Resurreccion

on January 19, 1987 and enclosed in his endorsement petitioner vda.

de Urbano's June 19, 1985 letter applying for a loan of P240,000.00
to repurchase the subject property. The matter was, in turn, endorsed
by Atty. Resurreccion to AAD Manager Secoquian on January 20,
1987 as "the Operation Pabahay Task Force cannot undertake the
processing of this kind of loan unless a certificate of award or sale is
issued in favor of the applicant." Atty. Resurreccion likewise noted in
his endorsement that the applicant for the loan was already 81 years
old and no longer a member of the GSIS. AAD Manager Secoquian
returned said application to the head of the Operation Pabahay on
March 3, 1987, enumerating the Board resolutions relative to the
subject property and stating that "pending action by the Board on the
offer of CRISPINA VDA. DELA CRUZ to purchase the subject
property for the amount of P250,000.00, the request of Mrs.
URBANO cannot as yet be given due consideration."[13]
On August 11, 1987, GSIS approved under Resolution No.
342 the "sale of the subject property to respondent dela Cruz for a
consideration of P267,000.00 CASH." The following day, respondent
AAD & GRADE Acting Vice-President Zacarias C. Beltran, Jr.
wrote to petitioners Zenaida/Aurelio Arrienda calling their attention
to the absence of a formal lease contract over the subject property
where petitioners continued to stay. He also demanded payment of
rental arrears on the property for 45 months as of July 31, 1987
amounting to P58,500.00[14] and invited petitioners Zenaida and
Aurelio Arrienda to the GSIS Office to make arrangements for the
payment of the rental arrears and to execute the corresponding lease
contract. The letter did not mention the negotiation with private
respondent dela Cruz.
On September 1, 1987, GSIS wrote to private respondent dela
Cruz that the Board, through Board Resolution No. 342, approved
the sale of the subject property payable in full and in cash
forP267,000.00, representing its current market value, within thirty

days from notice of the resolution. On January 20, 1988, a Deed of

Absolute Sale over the subject property was executed between GSIS
and private respondent de la Cruz. The following day, TCT No.
374292 covering the subject property was issued to dela Cruz.
Meantime, having learned about the sale of the subject property
to dela Cruz, petitioner Aurelio Arrienda wrote to the GSIS on
September 27, 1987 protesting the said sale and requesting its
reconsideration and recall. Respondent Beltran, then already the
Vice President of the AAMG & GRADE Department of the GSIS,
responded on October 27, 1987 informing him of Resolution No.
430, dated October 13, 1987, which reiterated the approval of the
sale of the subject property to respondent dela Cruz as previously
approved under Board Resolution No. 342. On November 4, 1987,
petitioner Aurelio Arrienda again wrote to the GSIS protesting the
sale of the property to respondent dela Cruz and requesting for a
formal investigation of the circumstances leading to the sale. The
GSIS' Department of Investigation manager wrote to petitioner
Aurelio Arrienda on January 11, 1988 requesting petitioner Aurelio
Arrienda to "come for conference" with Atty. Gatpatan of the said
department regarding his complaint on the subject property.
Not satisfied with the investigation of GSIS, petitioners filed the
instant case before the Regional Trial Court of Quezon City, Branch
102. The lower court dismissed the complaint. This was affirmed by
the Court of Appeals. Hence, this petition for review with the
following assignment of errors:

"The Honorable Court of Appeals (Former Eleventh Division)

erred as follows:
1. In not finding that the alleged negotiated sale of petitioners'
foreclosed property was consummated by respondent GSIS in favor
of respondent Crispina Dela Cruz, a non-GSIS member, in violation

of its own Board Resolution Nos. 929 and 593, existing laws and
applicable jurisprudence.
2. In not finding that respondent GSIS had consummated the
alleged negotiated sale in favor of respondent Dela
Cruz notwithstanding the failure of the latter to comply with the
terms and conditions of the alleged sale.
3. In not finding that respondent GSIS had committed
dishonesty and/or perjury by falsely alleging in their Answer to the
Complaint that it acted on the request of petitioner Purificacion Vda.
De Urbano to re-acquire her former property through the GSIS
Operation Pabahay by transmitting said request to the Acquired
Assets Department.

already withdrawn her offer to buy subject property and the same
was accepted by respondent GSIS."
The petition is devoid of merit.
The smorgasbord of issues raised by the petitioner can be
reduced to three jugular issues, viz:
I. Do petitioners have a right to repurchase the subject
property?
II. Does the GSIS have a duty to dispose of the subject property
through public bidding?
III.

Was GSIS in bad faith in dealing with petitioners?

4. In not finding that the case of Valmonte vs. Belmonte, Jr., 170
SCRA 256 (1989), is applicable to the case at bench.

I.

5. In not finding that Section 35 of P.D. 1146, does not provide

any prerogative to the GSIS Board of Trustees to authorize and/or
approve the alleged negotiated sale in favor of a non-GSIS member
or an outsider without complying with pertinent existing laws and
established jurisprudence.

We first deal with the issue of repurchase. At the time

petitioners offered to repurchase the subject property from GSIS, the
charter of the GSIS then in force was P.D. 1146 or the Revised
Government Insurance Act of 1977 (the "Act"). Sections 35 and 36
of the Act provide in relevant part as follows:

6. In not finding that the appealed Decision of the lower court

did not faithfully comply with Sec. 1, Rule 36 of the Rules of Court.

"Sec. 35. Powers and Functions of the System. The System

shall have the following powers and functions specified in this
Act and the usual general corporate powers:

7. In not finding that the case of Maharlika Publishing

Corporation vs. Tagle, 142 SCRA 553 (1986), is a precedent to the
case at bench.
8. In not giving due consideration to the newly discovered
evidence of the petitioners (Annexes "A" and "B", Brief for the
Appellants) which showed that respondent Crispina Dela Cruz had

xxx

(d) To acquire, utilize or dispose of, in any manner

recognized by law, real or personal properties in the

Philippines or elsewhere necessary to carry out the purposes of

this Act." (emphasis supplied)

"The Board of Trustees has the following powers and

functions, among others:

"Sec. 36. The Board of Trustees; Its Composition; Tenure and

Compensation.- The Corporate powers and functions of the
System shall be vested in, and exercised by the Board of
Trustees. . ."

(a) To formulate the policies, guidelines and programs to

effectively carry out the purposes and objectives of this Act;

P.D. 1146 was amended by P.D. 1981 dated July 19, 1985 as follows:

(f) The provisions of any law to the contrary

notwithstanding, to compromise or release, in whole or in
part, any claim or settled liability to the System, regardless
of the amount involved, under such terms and conditions as
it may impose for the best interest of the System; . . ."
(emphasis supplied)

"WHEREAS, the GSIS Board of Trustees should be vested

with powers and authority necessary or proper to ensure a
fair and profitable return of the investments of the funds
administered by the GSIS, and, for this purpose, the GSIS
Board of Trustees should be given full and sole
responsibility of controlling and monitoring insurance
investments operations and fixing and determining the terms
and conditions of financial accomodations to its members,
including the power to compromise or release any claim or
settled liability to the GSIS;
WHEREAS, it has thus become necessary to amend
Presidential Decree No. 1146 to clarify some of its
provisions to make it more responsive to the needs of the
members of the GSIS and to assure the actuarial solvency
of the Fund administered by the GSIS during these times of
grave economic crisis affecting the country;
xxx

Sec. 7. There is hereby incorporated a new paragraph after the

third paragraph of Section 36, which shall read as follows:

xxx

The above laws grant the GSIS Board of Trustees (the "Board")
the power, nay, the responsibility, to exercise discretion in
"determining the terms and conditions of financial accomodations to
its members" with the dual purpose of making the GSIS "more
responsive to the needs of the members of the GSIS" and assuring
"the actuarial solvency of the Fund administered by the GSIS." As
mandated by P.D. 1146, this discretion may be exercised in
acquiring, utilizing or disposing of, in any manner recognized by
law, "real or personal properties in the Philippines or elsewhere
necessary to carry out the purposes of this Act." Contrary to
petitioners' position, there is no restriction or qualification that the
GSIS should dispose of its real properties in favor only of GSIS
members. Based on these laws, the Board could exercise its
discretion on whether to accept or reject petitioners' offer to
repurchase the subject property taking into account the dual purpose
enunciated in the "whereas clause" of P.D. 1981, i.e.,making the
GSIS "more responsive to the needs of the members of the GSIS"

and assuring "the actuarial solvency of the Fund administered by the

GSIS."
Jurisprudence also supports the Board's exercise of discretion in
case of repurchase, viz:

"The right to redeem becomes functus officio on the date of its

expiry, and its exercise after the period is not really one of
redemption but a repurchase. Distinction must be made
because redemption is by force of law; the purchaser at public
auction is bound to accept redemption. Repurchase however
of foreclosed property, after redemption period, imposes no
such obligation. After expiry, the purchaser may or may
not re-sell the property but no law will compel him to do
so. And, he is not bound by the bid price; it is entirely within
his discretion to set a higher price, for after all, the property
already belongs to him as owner."[15] (emphasis supplied)
In response to petitioners' plea to repurchase the subject
property after the redemption period had expired, the Board
approved its sale to petitioners by virtue of Resolution No. 929 dated
November 16, 1984, provided that the payment of its purchase price
of P174,572.62 shall be made in cash within sixty days from notice
of the resolution, otherwise the property would be sold through
public bidding. After petitioners' failure to purchase the property
within the prescribed period, the Board, through Resolution No. 593
dated July 6, 1985, granted petitioners another sixty days within
which to purchase the property for the same amount and under the
same terms stated in Resolution No. 929. Counting from the expiry
date of redemption on November 18, 1984, the petitioners were
given about ten months within which to repurchase the subject
property for the same price of P174,572.62. In view of petitioners'
repeated failure to repurchase coupled with their failure to pay rent

on the subject property, the Board denied through Resolution No.

1022 dated December 12, 1985 petitioners' subsequent request to
repurchase the subject property. The minutes of the Board Meeting
on December 12, 1985 show the comment of the AAD Manager, viz:

"From the aforementioned background of the Case where the

family of Mr. Arrienda has repeatedly made different and/or
conflicting offers/requests, it seems that their family apparently
lack(sic) the capacity to reacquire their former property, and
are obviously delaying our final disposition of the
property. Moreover, since the expiry date of the redemption
period, Mr. Arrienda has not made any rental payments on the
property."[16]
The Board's denial of petitioners' request to purchase the subject
property was based not on whim or caprice, but on a factual
assessment of the financial capacity of the petitioners to make good
their repeated offers to purchase the subject property. Respondent
GSIS struck a balance between being "responsive to the needs of the
members of the GSIS" and assuring "the actuarial solvency of the
Fund administered by the GSIS", and tilted the scale in favor of the
latter. Under the then GSIS charter or P.D. 1146, this was well
within the powers of the Board.
Petitioners, in addition, fault their failure to meet the GSIS'
terms for repurchase on the GSIS' inaction on their January 20, 1987
request to re-acquire the subject property through the GSIS
Operation Pabahay. They allege that instead of acting upon this
letter, what was acted upon was their letter of June 19, 1985. The
evidence on record, however, shows that Officer-in-Charge Rosales
of the Residential Loans Department endorsed the matter raised by
petitioners in their January 20, 1987 letter to Atty. Resurreccion,
Head of the Operation Pabahay. While the endorsement shows that

enclosed therewith was petitioner vda. de Urbano's June 19, 1985

letter applying for a loan of P240,000.00 to repurchase the subject
property, the endorsement itself stated that the loan for
reacquisition of the subject property was being made under the
"current Operations Pabahay." Thereafter, the matter was
endorsed by Atty. Resurreccion to the Manager of the AAD on
January 20, 1987 as "the Operation Pabahay Task Force cannot
undertake the processing of this kind of loan unless a certificate of
award or sale is issued in favor of the applicant." AAD Manager
Secoquian returned said application to the head of the Operation
Pabahay on March 3, 1987, enumerating the Board resolutions
relative to the subject property and stating that "pending action by
the Board on the offer of CRISPINA VDA. DELA CRUZ to
purchase the subject property for the amount of P250,000.00, the
request of Mrs. URBANO cannot as yet be given due
consideration."[17]

repurchase be discussed with him a day before the scheduled date of

the bidding. The case is not in point. In the Maharlika case, this
Court ruled that GSIS was deemed to have accepted the offer to
repurchase when it ordered the bidding to be stopped pending
discussion of the repurchase with the owner of the property. In the
case at bar, however, the GSIS granted petitioners two opportunities
under Resolutions No. 929 dated November 16, 1984 and Resolution
No. 593 dated July 6, 1985 to repurchase the subject property, but
petitioners failed to comply with the GSIS' terms of
repurchase. Subsequently, when petitioners offered to repurchase the
subject property under their own terms of payment, the GSIS under
Resolution No. 881 dated October 10, 1985 denied the same. Unlike
in the Maharlika case therefore, it cannot be said that the GSIS
"created an agreement (to repurchase) of binding nature" with the
herein petitioners.
II.

In sum, insofar as the petitioners' request for repurchase is

concerned, they are not entitled to repurchase as a matter of
right. The Board exercised its discretion in accordance with law in
denying their requests and the GSIS cannot be faulted for petitioners'
failure to repurchase as it acted upon petitioners' application under
the Operation Pabahay. The sale of the subject property to
respondent dela Cruz cannot therefore be annulled on the basis of
petitioners' alleged right to repurchase.
Neither can petitioners invoke Maharlika Publishing
Corporation v. Tagle,[18] as a precedent insofar as the Board's exercise
of its discretion to grant loan restructuring is concerned. [19] Petitioners
point out that in that case, the Supreme Court found that the GSIS
"created an agreement of binding nature" with the owner of the
foreclosed property when the owners proposed to repurchase the
property and the then GSIS General Manager Roman Cruz, Jr.
ordered that the public bidding of the property be stopped and the

We come now to the second issue of whether the GSIS should

dispose of the subject property through public bidding.
Petitioners aver that Section 79 of P.D. 1445 [20] and Commission
on Audit (COA) Circular No. 86-264 mandate the GSIS to dispose of
its assets, such as the subject property, primarily through public
bidding and only upon its failure, through a negotiated sale.
On the other hand, GSIS contends that Section 79 of P.D. 1445
does not apply to the case at bar as this provision covers
unserviceable government property and not acquired assets like the
subject property. Nor does the sale of the subject property come
within the purview of COA Circular No. 86-264 as it is a "sale of
merchandise/inventory held for sale in the regular course of
business" which is carved out as an exception under the

circular. GSIS posits that this interpretation of COA Circular No. 86264 was made clear by the subsequent COA Circular No. 89-296.
We uphold the position of the GSIS.
Section 79 of P.D. 1445 does not apply to the case at bar as this
provision applies only to unserviceable property, viz:

"SECTION 79. Destruction or sale of unserviceable

property. - When government property has
become unserviceable for any cause, or is no longer
needed, it shall, upon application of the officer accountable
therefor, be inspected by the head of the agency or his duly
authorized representative in the presence of the auditor
concerned and, if found to be valueless or unsalable, it may be
destroyed in their presence. If found to be valuable, it may be
sold at public auction to the highest bidder under the
supervision of the proper committee on award or similar body
in the presence of the auditor concerned or other duly
authorized representative of the Commission, after advertising
by printed notice in the Official Gazette, or for not less than
three consecutive days in any newspaper of general circulation,
or where the value of the property does not warrant the expense
of publication, by notices posted for a like period in at least
three public places in the locality where the property is to be
sold. In the event that the public auction fails, the property
may be sold at a private sale at such price as may be fixed by
the same committee or body concerned and approved by the
Commission."
That the subject property is not "unserviceable" or useless is rather
obvious. Petitioners are precisely fighting tooth and nail to claim the

subject property as they are still using it as their family home. It still
serves its purpose well. Neither is it "no longer needed" by the
GSIS. As a financial institution extending housing loans, the
disposition of foreclosed properties - such as the subject property - at
a price beneficial to the GSIS helps maintain the actuarial solvency
of the GSIS fund. It cannot therefore be said that the subject
property is "no longer needed" by the GSIS.
We turn now to the COA circulars cited by the parties. COA
Circular No. 86-264 dated October 16, 1986, the "General guidelines
on the divestment or disposal of assets of government-owned and/or
controlled corporations, and their subsidiaries" provides in relevant
part, viz:

"1.0 Rationale and Scope

These guidelines shall govern the general procedures on the
divestment or disposal of assets of government-owned and/or
controlled corporations and their subsidiaries, which shall be
supplemented by specific procedures as may be adopted by the
corporation concerned, provided they do not contravene
existing laws and the provisions of this circular.
xxx

3.0

Modes of Disposal

3.1. Public Auction

As a rule, public auction or bidding shall be the primary mode
of disposal of assets.
3.2. Sale thru Negotiation

Disposal thru this mode, which is a sale without public bidding,

shall be resorted to only in case of failure of public auction.
xxx

5.0 Exceptions and Effectivity

This Circular shall not apply to sales of
merchandise/inventory held for sale in the regular course of
business." (emphasis supplied)
On January 27, 1989, COA Circular No. 89-296 was issued
providing also for "Audit Guidelines on the Divestment or Disposal
of Property and Other Assets of National Government Agencies and
Instrumentalities, Local Government Units and Government-Owned
or Controlled Corporations and their Subsidiaries." It provides for
the disposition of government assets, viz:

"III.

DEFINITION AND SCOPE:

These audit guidelines shall be observed and adhered to in the

divestment or disposal of property and other assets of all
government entities/instrumentalities, whether national, local
or corporate, including the subsidiaries thereof but shall not
apply to the disposal of merchandise or inventory held for
sale in the regular course of business nor to the disposal by
government financial institutions of foreclosed assets or
collaterals acquired in the regular course of business and
not transferred to the National Government under
Proclamation No. 50. . .
xxx

V.

MODES OF DISPOSAL/DIVESTMENT:

This Commission recognizes the following modes of

disposal/divestment of assets and property of national
government agencies, local government units and governmentowned and controlled corporations and their subsidiaries, aside
from such modes as may be provided by law.
1.

Public Auction

Conformably to existing state policy, the divestment or

disposal of government property as contemplated herein shall
be undertaken primarily thru public auction. . .
2.

Sale Thru Negotiation

For justifiable reasons and as demanded by the exigencies of

the service, disposal thru negotiated sale may be resorted to
and undertaken by the proper committee or body in the agency
or entity concerned taking into consideration the following
factors: . . ." (emphasis supplied)
When the Board approved the sale of the subject property to
private respondent dela Cruz through Resolution No. 342 in August
1987 and Resolution No. 430 in October of the same year, and when
the Deed of Sale was executed between GSIS and private respondent
dela Cruz in January 1988, Circular No. 86-264 was then in force.
The pivotal question is whether the subject property is covered
by COA Circular 86-264 or falls under the exception in its paragraph
5 above. In construing this exception, we derive insight from the
exceptions provided under the subsequent COA Circular 89-296, viz:

"III.

DEFINITION AND SCOPE:

These audit guidelines shall be observed and adhered to in the

divestment or disposal of property and other assets of all
government entities/instrumentalities, whether national, local
or corporate, including the subsidiaries thereof but shall not
apply to the disposal of merchandise or inventory held for
sale in the regular course of business nor to the disposal by
government financial institutions of foreclosed assets or
collaterals acquired in the regular course of business and
not transferred to the National Government under
Proclamation No. 50. . ."
We refer to Circular No. 89-296 in interpreting Circular No. 86264 in adherence to the rule in statutory construction, viz:

"The correct rule of interpretation is, that if divers (sic) statutes

relate to the same thing, they ought all to be taken into
consideration in construing any one of them, and it is an
established rule of law, that all acts in pari materia are to be
taken together, as if they were one law. (Doug., 30; 2 Term
Rep., 387, 586; 4 Maule & Selw., 210). If a thing contained
in a subsequent statute, be within the reason of a former
statute, it shall be taken to be within the meaning of that
statute. (Lord Raym., 1028); and if it can be gathered from a
subsequent statute in pari materia, what meaning the
Legislature attached to the words of a former statute, they will
amount to a legislative declaration of its meaning, and will
govern the construction of the first statute. (Morris v. Mellin, 6
Barn. & Cress., 454; 7 Barn. & Cress. 99)"[21]

In Riggs et al. v. Palmer et al.,[22] it was also ruled:

"It is a familiar canon of construction that a thing which is

within the intention of the makers of a statute is as much within
the statute as if it were within the letter; and a thing which is
within the letter of the statute is not within the statute unless it
be within the intention of the makers. The writers of the laws
do not always express their intention perfectly, but either
exceed it or fall short of it, so that judges are to collect it from
probable or rational conjectures only, and this is called 'rational
interpretation;' and Rutherford, in his Institutes, (page 420,)
says: 'Where we make use of rational interpretation, sometimes
we restrain the meaning of the writer so as to take in less,
and sometimes we extend or enlarge his meaning so as to
take in more, than his words express.' Such a construction
ought to be put upon a statute as will best answer the
intention which the makers had in view, for qui haret in
litera, haret in cortice. In Bac. Abr. 'Statutes,' 1.5; Puff. Law
Nat. bk. 5, c. 12; Ruth. Inst. 422, 427, and in Smith's
Commentaries, 814, many cases are mentioned where it was
held that matters embraced in the general words of statutes
nevertheless were not within the statutes, because it could not
have been the intention of the law-makers that they should be
included. They were taken out of the statutes by an equitable
construction; and it is said in Bacon: 'By an equitable
construction a case not within the letter of a statute is
sometimes holden to be within the meaning, because it is
within the mischief for which the remedy is provided. The
reason for such construction is that the law-makers could
not set down every case in express terms.'"[23]

In C&C Commercial Corporation v. National Waterworks

and Sewerage Authority,[24] we ruled that statutes in pari
materia should be construed together to attain the purpose of an
expressed national policy, viz:

"On the presumption that whenever the legislature enacts a

provision it has in mind the previous statutes relating to the
same subject matter, it is held that in the absence of any
express repeal or amendment therein, the new provision
was enacted in accord with the legislative policy embodied
in those prior statutes, and they all should be construed
together. Provisions in an act which are omitted in another
act relating to the same subject matter will be applied in a
proceeding under the other act, when not inconsistent with
its purpose. Prior statutes relating to the same subject
matter are to be compared with the new provisions; and if
possible by reasonable construction, both are to be
construed that effect is given to every provision of
each. Statutes in pari materia, although in apparent conflict,
are so far as reasonably possible construed to be in harmony
with each other."[25]
Agpalo writes in his book, Statutory Construction, viz:

"Statutes in pari materia should be read and construed together

because enactments of the same legislature on the same subject
are supposed to form part of one uniform system; later
statutes are supplementary or complimentary (sic) to the
earlier enactments and in the passage of its acts the
legislature is supposed to have in mind the existing
legislations on the subject and to have enacted its new act
with reference thereto."[26]

When both COA Circular No. 86-264 and COA Circular No.
89-296 were issued, affording flexibility to government-owned and
controlled corporations (GOCC's) to allow them to generate more
revenue for national development was a declared government
policy. This policy is unmistakable in laws executed before the
issuance of Circular No. 86-264 in October 1986. P.D. 2029,
"Defining Government-Owned and Controlled Corporations and
Indentifying Their Role in National Development," dated February 4,
1986, provides:

"WHEREAS, there is a need to assure the flexibility of such

government corporations consistent with the need for public
accountability by providing for differential treatment for
government corporations;
xxx

SECTION 1. General Policy. - It is the policy of the State that

the corporate form of organization, utilized judiciously, is
one of the valid forms through which the government
may participate in economic and social development.
xxx

SEC. 7. Provision of adequate operational flexiblity.

-Government corporations shall be provided with adequate
operational flexibility in order to function properly and
efficiently, especially under conditions of market
competition. Such flexibility shall nevertheless be consistent
with the requirements of public acountability.
xxx

SEC. 8. Differential treatment.- To implement the concept of

greater flexibility, government corporations in general shall be
accorded differential treatment which is more consistent with
coporate organizational requirements as distinguished from
regular government agencies, with respect to the exercise by
the various service-wide agencies, such as the Civil Service
Commission, the Commission on Audit, and the Office of
Budget and Management, of their respective jurisdiction."
Letter of Instructions No. 1520, issued on the same day as P.D.
2029 on February 4, 1986, also provides for the role of government
corporations in national development, viz:

"WHEREAS, it is necessary that the limited resources of

government be utilized as efficiently, as effectively, and as
economically as possible to further national development and
to support the economic recovery program, for which the
judicious use of the corporate form of organization is critical;
xxx"
P.D. 2030, Providing for the Orderly Disposition of Certain
Assets of Government Institutions, also issued on February 4, 1986,
made explicit the policy of the government to divest government
corporations of assets as an aid to national development, viz:

"WHEREAS, the National Government, through the agency of

various financial and other government institutions, has
acquired or is otherwise the owner of a large number of assets
in the industrial, manufacturing and commercial sectors of the
economy which, as part of the economic recovery program
adopted by the National Government, it has been deemed

necessary and appropriate for the National Government

to divest in a planned and orderly manner;
WHEREAS, as an integral part of this economic recovery
program and in order to facilitate the reorganization of certain
government financial institutions, it is necessary to relieve
those institutions of assets which adversely affect their
financial viability and liquidity, and for the National
Government to take over such assets and to assume the realted
liabilities of those institutions;
WHEREAS, it is the desire of the National Government to
realize on such assets within the shortest possible time and,
to such end, to dispose of such assets generally on terms
that would permit immediate substantial cash returns to
the National Government;
xxx"
Proclamation No. 50, "Proclaiming and Launching a Program
for the Expeditious Disposition and Privatization of Certain
Government Corporations and/or the Assets Thereof, and Creating
the Committee on Privatization and the Asset Privatization Trust,"
issued on December 8, 1986 after the issuance of COA Circular No.
86-264, but prior to COA Circular No. 89-296, reiterates the
continuing policy of the government to encourage divestment of
assets as an aid to national development, viz:

"CONSIDERING that the government has decided to adopt, as

the twin cornerstones of the program, the following parallel
imperatives for the attainment of national policy:

xxx

(b) reducing the number of government corporations

which has proliferated to unmanageable proportions;
circumscribing the areas of economic activities within
which the government corporations may operate; and
aiming to achieve these goals through the privatization of
a good number of government corporations, and
the disposition and liquidation of the non-relevant and
non-performing assetsof retained corporations as the
logical first step to their rehabilitation."
The above-quoted laws on GOCC's and disposition of their
assets unmistakeably show the policy of the government to allow
flexibility to GOCC's and to promote disposition of non-performing
assets. This policy undergirds both COA Circular No. 86-264 and 89296. Thus, the exception provided in COA Circular No. 86-264
should be, to the widest extent possible, construed to accommodate
this policy and allow GOCC's wide latitude in the disposition of their
assets, including foreclosed assets or collaterals acquired in the
regular course of business. COA Circular No. 89-296 provides for
two exceptions to the requirement of disposition primarily through
public bidding, i.e., (1) disposal of merchandise or inventory held
for sale in the regular course of business; and (2) disposal by
government financial institutions of foreclosed assets or
collaterals acquired in the regular course of business." In light of
the declared policy of the government on GOCC's and their assets,
COA Circular No. 89-296 should be understood to have clarified the
coverage of the exception under COA Circular No. 86-264, i.e., sales
of merchandise/inventory held for sale in the regular course of
business.

The GSIS being a financial institution extending loans to its

members, the foreclosure of the subject property as collateral to a
loan was done in the regular course of business. Its sale to private
respondent dela Cruz falls within the exception provided by COA
Circular No. 86-264 as clarified by COA Circular 89-296, and thus
does not offend the requirements of the said COA circulars.
Instead, the policies and procedures of the GSIS on the
disposition of acquired assets govern the case at bar. Mr. Romeo
Tejedor, manager of the Acquired Assets Department of GSIS,
testified that at the time the disputed transaction took place, the GSIS
still did not have clear cut policies on the sale of acquired assets. At
that time, the GSIS Board of Trustees had the prerogative to
authorize the sale of acquired assets. Petitioners aver that the GSIS
"Policy and Procedural Guidelines Acquisition, Administration, and
Disposition of Acquired Assets (PPG)", a newspaper copy of which
they annexed to their reply to the GSIS' brief, provides that a
negotiated sale may only be entered into after two failed public
biddings on the acquired property. Petitioners, however, omitted to
state that the said newspaper copy was published and the PPG took
effect only on January 17, 1991, long after the sale of the subject
property.[27] In the absence of evidence of policies and procedures
contrary to the testimony of Mr. Tejedor, we give credence to Mr.
Tejedor's testimony that at the time of the disputed sale to private
respondent dela Cruz, GSIS did not have clear cut policies on
disposition of assets that required it to first sell the subject property
through public bidding before a negotiated sale. The GSIS precisely
came out with a PPG in 1991 to set the policies and procedures to
govern the disposition of acquired assets because these were not
clear cut prior to 1991. We therefore hold that the sale of the subject
property to private respondent dela Cruz was not contrary to law.
Neither can petitioners invoke the Maharlika case to lend
support to its contention that the Board is bound to fulfill its

representations in its letters to the petitioners that upon the latter's

failure to repurchase the property under Resolution Nos. 929 and
593, the GSIS will dispose of the subject property through public
bidding. Petitioners claim that these representations constituted a
contract between them and GSIS. The Court of Appeals correctly
ruled that there was no contract between GSIS and the petitioners
that obligates the GSIS to sell the subject property through public
bidding, viz:

". . . the mortgage contract between the parties was not novated
as to the extension of the redemption period of appellants since
this is not sanctioned by law. What GSIS did per Resolution
929 was to make a counter proposal to appellants for the sale of
the property at the price of P174,572.62 payable in cash within
60 days from notice of resolution with a warning that noncompliance thereof (sic) will result to the sale of the property at
public auction. At this point in time, there was still no meeting
of the minds between the parties since the request of appellants
thru Purificacion Urbano is to extend the redemption period to
enable them to redeem the property while Resolution No. 929
is for outright sale for the price of P174,572.62. These are two
(2) separate and distinct legal transactions. Under Article 1319
of the Civil Code, the offer must be certain. The offer of Ms.
Urbano is certain and explicit as to the extension of time to
redeem their property. The acceptance of GSIS to this proposal
must also be absolute and clear in granting said
extension. However, GSIS did not agree to the extension due
to legal constraints and instead a qualified acceptance was
given in the sense that GSIS made a counter-offer for
appellants to buy the property under certain terms.

Was there an acceptance of the counter-offer of GSIS on the

part of appellants? Definitely none. On January 10, 1985,
when appellants thru Purificacion Urbano was notified by
GSIS Manager M.M. Secoquian of the Acquired Assets
Department of the approval of the sale under Board Resolution
No. 929, appellant Urbano replied on January 18, 1985 that
they cannot pay the price of P174,572.62 as it may be difficult
for a financial institution to accommodate said obligation
within the grace period of 60 days. (Exhibit "E", Records). In
turn, Ms. Urbano made another counter-proposal "to have the
said property be RE-MORTGAGE (sic) through the process of
repurchase with the GSIS". (Exhibit "F", Records). . . A
similar request was sent by appellant Aurelio Arrienda on May
20, 1985 but the same was denied in a Board Resolution No.
516 dated June 6, 1985. (Exhibit "H", Records).
From the foregoing, this Court rules that there was no meeting
of the minds between the parties as the counter-offer of GSIS
for the appellants to buy the property based on terms and
conditions laid down under Board Resolution No. 929 was
NOT accepted by appellants. Under Article 1319 of the Civil
Code, there was no valid and perfected contract. Hence,
appellants cannot claim any right under Board Resolution No.
929, more particularly on the sale at public auction since they
did not agree to the counter-offer of GSIS as contained in
Board Resolution 929.
. . . In response to the request of the First Lady Imelda Marcos,
the GSIS Board of Trustees approved Board Resolution No.
593 which granted to "Mr. Aurelio Arrienda sixty (60) days
from notice within which to purchase the property for

P174,572.62 payable in cash. Should Mr. Arrienda fail to pay

the same within the time frame mentioned, the property shall
be sold at public auction, without need of any further action
from the Board." (Exhibit "3", p. 232 Records). Mr. Arrienda
was notified of the Board Resolution 593 by Manager M.M.
Secoquian on August 2, 1985, asking him to remit the amount
within 60 days from receipt of said letter (Exhibit "K",
Records). However, on October 4, 1985, appellants thru Atty.
Ariel Arrienda sent a letter to GSIS making a counter-offer to
purchase said property. . . On October 10, 1985, the GSIS
Board passed Board Resolution 818 declining the offer of Mr.
Arnel Arrienda to purchase the property for P147,572,62 under
the terms and conditions he proposed. . .

and the appellants did not accept the same by making another
counter-offer to pay on staggered basis. This counter offer was
denied twice by GSIS and therefore there was clearly no
meeting of the minds and no perfected contract.

From the foregoing, We likewise conclude that there was no

perfected contract between the parties. The proposal of
appellants thru Mr. Aurelio Arrienda is for the extension of the
redemption period or to restructure their loan with
GSIS. (Exhibit "J", Records). The approval of GSIS is for
appellants to purchase the property at the price of P174,572.62
within 60 days from receipt of notice. (Exhibit "3", Res. No.
592, Records). This was NOT approved by appellants and
instead they made another counter-proposal to pay said amount
with a down payment of P50,000.00 and the balance to be paid
in 60 monthly installments. (Exhibit "1", Records). This
counter offer was denied in Resolution 1022. . . It is clear from
the above-described events that the offer of appellants to
redeem the property or restructure the loan was met with a
qualified acceptance from GSIS which is for them to pay the
prescribed price within 60 days. Said qualified acceptance
constitutes a counter-offer under Article 1319 of the Civil Code

A counter-offer as a matter of fact extinguishes the offer. It

may or may not be accepted by the original offerer. (Trillana
vs. Quezon Colleges, L-5003, June 27, 1953)" (emphasis
supplied)[28]

If there is completely no acceptance or if the offer is expressly

rejected, there is no meeting of the minds. (Leoquingco vs.
Postal Savings Bank, 47 Phil. 772 and in Gamboa vs.
Gonzales, 17 Phil. 381)
If the acceptance be qualified or not absolute, there is no
concurrence of minds. There merely is counteroffer. (Batangan vs. Cojuangco, 78 Phil. 481)

III.

Finally, on the issue of whether or not GSIS was in bad faith in

dealing with the petitioners, we rule in the negative. As earlier
discussed, respondent GSIS' denial of petitioners' further requests for
repurchase of the subject property was based on a factual
determination of petitioners' financial incapacity and the then GSIS
charter, P.D. 1146. It is also worth noting that GSIS sold the subject
property to respondent dela Cruz only after giving petitioners an
almost one year opportunity to repurchase the property and only after
ascertaining that the purchase price proposed by private respondent
dela Cruz in payment of the subject property would benefit the
GSIS. Nor can petitioners, on the strength of Valmonte v. Belmonte,
Jr.,[29] impute bad faith on the part of GSIS when the latter did not

disclose to petitioners that it was negotiating with private respondent

dela Cruz for the sale of the subject property as soon as it started the
negotiations. The Court ruled in the Valmonte case that the
constitutional right to information is limited to "matters of public
concern," to "transactions involving public interest." The negotiation
and subsequent sale of the subject property by the GSIS to private
respondent dela Cruz was by no stretch of the imagination imbued
with public interest as it was a purely private transaction. Petitioners
cannot therefore demand that it be informed of such negotiation and
sale moreso since they no longer had any interest on the subject
property upon failure to comply with GSIS' terms for repurchase and
upon GSIS' denial of petitioners' offer to repurchase under their
proposed terms and conditions. In the absence of proof of bad faith
on the part of the respondents, we deny petitioners' prayer for moral
damages and attorney's fees.
WHEREFORE, the petition is DENIED and the impugned
decision and resolution of the Court of Appeals are AFFIRMED. No
costs.
SO ORDERED.
G.R. No. 163155

The present petition is one for mandamus and prohibition.

Julita Campos Benedicto (private respondent), the surviving spouse
of the deceased Roberto S. Benedicto, filed on May 25, 2000 a
petition for issuance of letters of administration, docketed as Special
Proceeding No. 00-97505, "Intestate Estate of Roberto S.
Benedicto" (the case), before the Regional Trial Court (RTC) of
Manila. The case was raffled to Branch 21 presided by Judge Amor
A. Reyes (public respondent).
Private respondent was, by Order1 of August 2, 2000, appointed
Administratrix of the estate of Benedicto (the estate), and letters of
administration were thereafter issued in her favor.
Herein petitioners, Alfredo Hilado, Manuel Lacson, Jose M. Tuvilla,
Joaquin Limjap, Lopez Sugar Corporation and First Farmers Holding
Corporation had, during the lifetime of Benedicto, filed before the
Bacolod City RTC two complaints for damages or collection of sums
of money, docketed as Civil Case No. 95-9137 and Civil Case No.
111718, against Roberto Benedicto et al.2
In the initial inventory of the estate which private respondent
submitted on January 18, 20013 in the case before the Manila RTC,
she listed, among other liabilities of the estate, the claims of
petitioners subject of the above-said Bacolod RTC cases as follows:

July 21, 2006

LIST OF LIABILITIES

ALFREDO HILADO, MANUEL LACSON, JOSE MA. TUVILLA,

JOAQUIN LIMJAP LOPEZ SUGAR CORPORATION, petitioners,
vs.
JUDGE AMOR A. REYES, PRESIDING JUDGE, REGIONAL TRIAL
COURT OF MANILA, BRANCH 21 and ADMINISTRATRIX JULITA
CAMPOS BENEDICTO, respondents.
DECISION
CARPIO MORALES, J.:

DESCRIPTION

xxxx

AMOUNT

On February 2, 2004, petitioners' counsel was served with a notice of

hearing of the case on February 13, 2004.8Petitioners' counsel thus
A claim of several sugar planters which is presently the
P136,045,772.50
attended such scheduled hearing during which he filed a Motion for
subject of Civil Case No. 95-9137 entitled Lacson et al. v. [at P50.00 per US 9
Inhibition of public respondent on the ground of gross ignorance,
R.S. Benedicto et al., pending before Branch 44 of the
$1.00]
dereliction of duty, and manifest partiality towards the administratrix.
Regional Trial Court in Bacolod City
Public respondent, noting that an error was committed in the service
to petitioners of the notice of hearing, ignored the motion of
petitioners' counsel.10
A claim filed by various sugar planters which is presently
the subject of Civil Case No. 11178 entitled Lopez Sugar
Corporation et al. v. R.S. Benedicto, et al., pending
before Branch 41 of the Regional Trial Court in Bacolod
City.4

(Emphasis and underscoring supplied)

P35,198,697.40
[at P50.00Intending
per US to compare the list of properties in the estate's inventory all
of
which properties were appraised at a fair value of P100 million
$1.00]
with the list of assets valued at P1 Billion said to have been ceded in
1990 to the decedent under his Compromise Agreement with the
Presidential Commission on Good Government,11 petitioners' counsel
sent the Branch Clerk of Court of Branch 21 of the Manila RTC a
letter12 requesting to be furnished with certified true copies of the
"updated inventory."

From January 2002 until November 2003, the Branch Clerk of Court
of Branch 21 of the Manila RTC allowed petitioners through counsel
Sedigo and Associates to regularly and periodically examine the
records of the case and to secure certified true copies thereof.

By still another letter,13 petitioners' counsel requested to be furnished

with certified true copies of the order issued by the court during the
hearing of February 13, 2004, as well as the transcript of
stenographic notes taken thereon.14

By December 2003, however, Atty. Grace Carmel Paredes, an

associate of petitioners' counsel, was denied access to the last
folder-record of the case which, according to the court's clerical staff,
could not be located and was probably inside the chambers of public
respondent for safekeeping.5

By Order15 of March 2, 2004, public respondent indicated why

petitioners had no standing to file the Motion for Inhibition as well as
to request for certified true copies of the above-indicated documents.
Read the Order of March 2, 2004:

Petitioners' counsel thus requested public respondent, by letter 6 of

January 15, 2004, to allow Atty. Paredes topersonally check the
records of the case. Acting on the letter, the Officer-In- Charge/Legal
Researcher of Branch 21 advised petitioners' counsel in writing that
"per instruction of the Hon. Presiding Judge[,] only parties or those
with authority from the parties are allowed to inquire or verify the
status of the case pending in this Court," and that they may be
"allowed to go over the records of the above-entitled case upon
presentation of written authority from the [administratrix]." 7

Perusal of the motion shows that the movant is asking this

Court to act on their motion despite the denial of their
Omnibus Motion to Intervene which to date remains pending
resolution with the Court of Appeals.
As correctly pointed out by the Administratrix, said motion is
filed by persons/entities who have no legal standing in the
above-entitled case, hence they cannot ask anything from
this Court, much more for this Court to act on pleadings filed
or soon to be filed.

For the record, the Court received two (2) letters dated
February 17 and 27, 2004 addressed to Atty. Maria Luisa
Lesle G. Gonzales, the Branch Clerk of Courtasking that
he be furnished with certified true copies of the updated
inventory and Order issued by this Court on February 13,
2004 hearing as well as the corresponding transcript of
stenographic notes within fifteen (15) days from receipt of
said letters.
Considering that the movants were not allowed to intervene
in the proceedings per order of this Court dated January 2,
2002, copies of all pleadings/orders filed/issued relative to
this case may only be secured from the [Administratrix]
and/or counsel.16 (Underscoring supplied)
Petitioners thus filed on April 30, 2004 before this Court the present
petition for mandamus and prohibition to compel public respondent
to allow them to access, examine, and obtain copies of any and all
documents forming part of the records of the case and disqualify
public respondent from further presiding thereover.
In their petition, petitioners contend that the records of the case are
public records to which the public has the right to access, inspect
and obtain official copies thereof,17 recognition of which right is
enjoined under Section 7, Article III of the Constitution and Section 2,
Rule 135 and Section 11, Rule 136 of the Rules of Court.
Petitioners further contend that public respondent manifested her
arbitrariness, malice and partiality through her blatant disregard of
basic rules in the disposition and safekeeping of court records, and
her denial of their right to access the records suffices to bar her from
presiding over the case;18 and public respondent's incompetence,
malice, bad faith and partiality are underscored by her failure to
enforce for more than three years the requirement of the Rules of
Court on the prompt submission by the administratrix of her final
inventory and the filing of a periodic accounting of her
administration.19

By Comment20 filed on September 21, 2004, private respondent

submits that the petition is fatally defective since petitioners failed to
disclose in their certification of non-forum shopping that they had
earlier instituted an administrative complaint against public
respondent which prayed for the same reliefs21 for the
disqualification of public respondent from presiding over the case
and for the court docket to be opened for examination.
Private respondent further submits that the petition for prohibition
should be dismissed since petitioners are not parties to the case,
hence, they have no personality to file a motion for inhibition. 22
As to the alleged denial of petitioners' right to examine court records
and participate in the proceedings, private respondent submits that
this is not unqualifiedly true for petitioners must have secured a copy
of the inventory of the assets and liabilities of the estate, they being
aware of the declared fair value of the estate and their counsel was
present during the February 13, 2004 hearing. 23
For consideration then are the following issues: (1) whether the
present petition is fatally defective for failure of petitioners to disclose
in the certificate of non-forum shopping that they had priorly
instituted an administrative complaint against public respondent
which prays for the same reliefs; (2) whether a writ of mandamus
may issue to compel public respondent to allow petitioners to
examine and obtain copies of any or all documents forming part of
the records of the case; and (3) whether a writ of prohibition will
issue in favor of petitioners, who are not parties to the case, to inhibit
public respondent from presiding over the case.
As reflected above, petitioners had, before the filing of the present
petition, filed an administrative complaint before this Court against
public respondent, "Alfredo Hilado, Lopez Sugar Corporation and
First Farmers Holding Corporation v. Judge Amor A. Reyes,
Regional Trial Court of Manila, Branch 21," docketed as A.M. No.
RTJ-05-1910.
Petitioners subsequently filed a supplemental24 and a second
supplemental administrative complaint25 praying for 1) the imposition

of appropriate disciplinary sanctions against public respondent for,

among other things, denying them their right to access the docket of
the case, and 2) the disqualification of public respondent from
presiding over the case, which latter prayer was, however,
subsequently withdrawn in a motion26 filed on April 30, 2004, the
same day that the present petition was filed.
Denying the existence of forum shopping, petitioners argue that it
"exists only where the elements of litis pendencia are present, or
where a final judgment in one case will amount to res judicata in the
other."27
It is well settled that the doctrine of res judicata applies only to
judicial or quasi-judicial proceedings, and not to the exercise of
administrative powers.28
The non-existence of forum shopping notwithstanding, this Court
proscribes the filing of an administrative complaint before the
exhaustion of judicial remedies against questioned errors of a judge
in the exercise of its jurisdiction.
Resort to and exhaustion of judicial remedies are prerequisites for
the taking of, among other measures, an administrative complaint
against the person of the judge concerned. So Atty. Flores v. Hon.
Abesamis29 teaches:
x x x [T]he law provides ample judicial remedies against
errors or irregularities being committed by a Trial Court in the
exercise of its jurisdiction. The ordinary remedies against
errors or irregularities which may be regarded as normal in
nature (i.e., error in appreciation or admission of evidence,
or in construction or application of procedural or substantive
law or legal principle) include a motion for reconsideration
(or after rendition of a judgment or final order, a motion for
new trial), and appeal. The extraordinary remediesagainst
error or irregularities which may be deemed extraordinary in
character (i.e., whimsical, capricious, despotic exercise of
power or neglect of duty, etc.) are inter alia the special civil
actions of certiorari,prohibition or mandamus, or a motion for

inhibition, a petition for change of venue, as the case may

be.
x x x Resort to and exhaustion of these judicial remedies, as
well as the entry of judgment in the corresponding action or
proceeding, are pre-requisites for the taking of other
measures against the persons of the judges concerned,
whether of civil, administrative, or criminal nature. It is only
after the available judicial remedies have been
exhausted and the appellate tribunals have spoken with
finality, that the door to an inquiry into his criminal, civil or
administrative liability may be said to have opened, or
closed.
x x x Law and logic decree that "administrative or criminal
remedies are neither alternative nor cumulative to judicial
review where such review is available, and must wait on the
result thereof" Indeed, since judges must be free to judge,
without pressure or influence from external forces or factors,
they should not be subject to intimidation, the fear of civil,
criminal or administrative sanctions for acts they may do and
dispositions they may make in the performance of their
duties and functions; x x x30 (Emphasis and underscoring
supplied; citations omitted)
It is thus only after a questioned action of a judge in a pending case
has been judicially resolved with finality that the door to an inquiry
into his or her administrative liability may be said to have opened.
Parenthetically, during the pendency of the present petition or on
April 15, 2005, the Second Division of this Court rendered a
decision31 on the above-said administrative complaint filed by
petitioners against public respondent.
On the merits of the petition for mandamus, Section 7 of Article III of
the Constitution provides:
SECTION 7. The right of the people to information
on matters of public concern shall be recognized.Access

to official records, and to documents, and papers pertaining

to official acts, transactions, or decisions, as well as to
government research data used as basis for policy
development, shall be affordedthe citizen, subject to such
limitations as may be provided by law.(Emphasis and
underscoring supplied)
The above-quoted constitutional provision guarantees a general right
the right to information on matters of "public concern" and, as an
accessory thereto, the right of access to "official records" and the
like. The right to information on "matters of public concern or of
public interest" is both the purpose and the limit of the constitutional
right of access to public documents.32
Insofar as the right to information relates to judicial records, an
understanding of the term "judicial record" or "court record" is in
order.
The term "judicial record" or "court record" does not only refer to the
orders, judgment or verdict of the courts. It comprises the official
collection of all papers, exhibits and pleadings filed by the parties, all
processes issued and returns made thereon, appearances, and
word-for-word testimony33 which took place during the trial and which
are in the possession, custody, or control of the judiciary or of the
courts for purposes of rendering court decisions. It has also been
described to include any paper, letter, map, book, other document,
tape, photograph, film, audio or video recording, court reporter's
notes, transcript, data compilation, or other materials, whether in
physical or electronic form, made or received pursuant to law or in
connection with the transaction of any official business by the court,
and includes all evidence it has received in a case. 34
In determining whether a particular information is of public concern,
there is no right test. In the final analysis, it is for the courts to
determine on a case to case basis whether the matter at issue is of
interest or importance as it relates to or affect the public. 35
It bears emphasis that the interest of the public hinges on its right to
transparency in the administration of justice, to the end that it will

serve to enhance the basic fairness of the judicial proceedings,

safeguard the integrity of the fact-finding process, and foster an
informed public discussion of governmental affairs. Thus in Barretto
v. Philippine Publishing Co.,36 this Court held:
x x x The foundation of the right of the public to know what is
going on in the courts is not the fact that the public, or a
portion of it, is curious, or that what is going on in the court is
news, or would be interesting, or would furnish topics of
conversation; but is simply that it has a right to know whether
a public officer is properly performing his duty. In other
words, the right of the public to be informed of the
proceedings in court is not founded in the desire or necessity
of people to know about the doing of others, but in
thenecessity of knowing whether its servant, the judge,
is properly performing his duty. x x x
The case in Cowley vs. Pulsifer (137 Mass. 392) is so
pertinent to the questions presented for our decision in the
case at bar that we cannot refrain from quoting extensively
therefrom. x x x
x x x "The general advantage to the country in
having these proceedings made public more than
counterbalances the inconveniences to the private
persons whose conduct may be the subject of such
proceedings." x x x
"The chief advantage to the country to which we can
discern, and that which we understand to be
intended by the foregoing passage, is the security
which publicity gives for the proper administration of
justice. x x x It is desirable that the trial of causes
should take place under the public eye, not because
the controversies of one citizen with another are of
public concern, but because it is of the highest
moment that those who administer justice
should act under the sense of public
responsibility, and that every citizen should be

able to satisfy himself with his own eyes as to

the mode in which a public duty is performed."
From this quotation it is obvious that it was not the idea of
the supreme court of Massachusetts to lay down the
proposition that simply because a pleading happened to be
filed in a public office it becomes public property that any
individual, whether interested or not, had the right to publish
its contents, or that any newspaper was privileged to scatter
the allegations contained therein to the four corners of the
country. The right of the public to know the contents of the
paper is the basis of the privilege, which is, as we have
said, the right to determine by its own senses that its
servant, the judge, is performing his duties according to law.
x x x37 (Emphasis and underscoring supplied; citations
omitted)
Decisions and opinions of a court are of course matters of public
concern or interest for these are the authorized expositions and
interpretations of the laws, binding upon all citizens, of which every
citizen is charged with knowledge.38 Justice thus requires that all
should have free access to the opinions of judges and justices, and it
would be against sound public policy to prevent, suppress or keep
the earliest knowledge of these from the public.39 Thus, in Lantaco
Sr. et al. v. Judge Llamas,40 this Court found a judge to have
committed grave abuse of discretion in refusing to furnish Lantaco et
al. a copy of his decision in a criminal case of which they were even
the therein private complainants, the decision being "already part of
the public record which the citizen has a right to scrutinize."
Unlike court orders and decisions, however, pleadings and other
documents filed by parties to a case need not be matters of public
concern or interest. For they are filed for the purpose of establishing
the basis upon which the court may issue an order or a judgment
affecting their rights and interests.
In thus determining which part or all of the records of a case may be
accessed to, the purpose for which the parties filed them is to be
considered.

In intestate proceedings, the heirs file pleadings and documents for

the purpose of establishing their right to a share of the estate. As for
the creditors, their purpose is to establish their claim to the estate
and be paid therefor before the disposition of the estate.
Information regarding the financial standing of a person at the time of
his death and the manner by which his private estate may ultimately
be settled is not a matter of general, public concern or one in which a
citizen or the public has an interest by which its legal rights or
liabilities maybe affected. Granting unrestricted public access and
publicity to personal financial information may constitute an
unwarranted invasion of privacy to which an individual may have an
interest in limiting its disclosure or dissemination.
If the information sought then is not a matter of public concern or
interest, denial of access thereto does not violate a citizen's
constitutional right to information.
Once a particular information has been determined to be of public
concern, the accessory right of access to official records, including
judicial records, are open to the public.
The accessory right to access public records may, however, be
restricted on a showing of good cause. How "good cause" can be
determined, the Supreme Judicial Court of Massachusetts
in Republican Company v. Appeals Court teaches:41
The public's right of access to judicial records, including
transcripts, evidence, memoranda, and court orders, maybe
restricted, but only on a showing of "good cause." "To
determine whether good cause is shown, a judge
must balance the rights of the parties based on the
particular facts of each case." In so doing, the judge "must
take into account all relevant factors, 'including, but not
limited to, the nature ofthe parties and the controversy, the
type of information and the privacy interests involved, the
extent of community interest, and the reason for the
request.'"42 (Emphasis and underscoring supplied; citations
omitted)

And even then, the right is subject to inherent supervisory and

protective powers of every court over its own records and files. 43
The Supreme Court of Canada, expounding on the right of the court
to exercise supervisory powers over materials surrendered into its
care, held:
It follows that the court, as the custodian of the exhibits, is
bound to inquire into the use that is to be made of them and,
in my view, is fully entitled to regulate that use by securing
appropriate undertakings and assurances if those be
advisable to protect competing interests. x x x
In exercising its supervisory powers over materials
surrendered into its care, the court may regulate the use
made of it. In an application of this nature, the court must
protect the respondent and accommodate public interest in
access. x x x In an application of this nature the court must
protect the respondent and accommodate the public interest
in access. This can only be done in terms of the actual
purpose, and in the face of obvious prejudice and the
absence of a specific purpose, the order for unrestricted
access and reproduction should not have been
made.44 (Underscoring supplied)
In fine, access to court records may be permitted at the
discretion45 and subject to the supervisory and protective powers of
the court,46 after considering the actual use or purpose for which the
request for access is based and the obvious prejudice to any of the
parties. In the exercise of such discretion, the following issues may
be relevant: "whether parties have interest in privacy, whether
information is being sought for legitimate purpose or for improper
purpose, whether there is threat of particularly serious
embarrassment to party, whether information is important to public
health and safety, whether sharing of information among litigants
would promote fairness and efficiency, whether party benefiting from
confidentiality order is public entity or official, and whether case
involves issues important to the public."47

By the administratrix-private respondent's own information,

petitioners are the plaintiffs in two complaints (against Roberto
Benedicto et al.) for damages and/or sums of money, Civil Case No.
95-9137 and Civil Case No. 11178, filed before the Bacolod RTC.
She contends, however, that "if the motion to dismiss [these RTC
Bacolod cases is] granted, . . . petitioners would have absolutely no
interest of any kind [over] the [e]state of the [d]eceased Roberto S.
Benedicto."48
Petitioners' stated main purpose for accessing the records to
monitor prompt compliance with the Rules governing the
preservation and proper disposition of the assets of the estate, e.g.,
the completion and appraisal of the Inventory and the submission by
the Administratrix of an annual accounting49 appears legitimate,
for, as the plaintiffs in the complaints for sum of money against
Roberto Benedicto et al., they have an interest over the outcome of
the settlement of his estate. They are in fact "interested persons"
under Rule 135, Sec. 2 of the Rules of Court reading:
Rule 135, SEC. 2. Publicity of proceedings and records. x
x x x The records of every court of justice shall be public
records and shall be available for the inspection of
any interested person, at all proper business hours, under
the supervision of the clerk having custody of such records,
unless the court shall, in any special case, have forbidden
their publicity, in the interest of morality or decency.
(Underscoring supplied),
entitled to be informed of the inventory as well as other records
which are relevant to their claims against Benedicto.
As long then as any party, counsel or person has a legitimate
reason to have a copy of court records and pays court fees, 50 a court
may not deny access to such records. Of course as this Court held
in Beegan v. Borja,51precautionary measures to prevent tampering or
alteration must be observed:
We are not unaware of the common practice in the courts
with respect to the photocopying or xeroxing of portions of

case records as long as the same are not confidential or

disallowed by the rules to be reproduced. The judge need
not be bothered as long as the permission of the Clerk of
Court has been sought and as long as a duly authorized
representative of the court takes charge of the reproduction
within the court premises if warranted or if not, the said court
representative must bring along the case records where
reproduction takes place and return the same intact to the
Clerk of Court.52
In fine, this Court finds the petition for mandamus meritorious,
petitioners being "interested persons" who have a legitimate reason
or purpose for accessing the records of the case.
Respecting the prohibition aspect of the petition, the same fails.
Sections 1 and 2 of Rule 137 of the Rules of Court which govern
disqualification of judges provide:
SECTION 1. Disqualification of judges. No judge or
judicial officer shall sit in any case in which he, or his wife or
child, is pecuniarily interested as heir, legatee, creditor or
otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity or to counsel within
the fourth degree, computed according to the rules of the
civil law, or in which he was presided in any inferior court
when his ruling or decision is the subject of review, without
the written consent of all parties in interest, signed by them
and entered upon the record.
A judge may, in the exercise of his sound discretion,
disqualify himself from sitting in a case, for just and valid
reasons other than those mentioned above.
SECTION 2. Objection that judge disqualified, how made
and effect. - If it be claimed that an official is disqualified from
sitting as above provided, the party objecting to his
competency may, in writing, file with the official his objection,
stating the grounds therefor, and the official shall thereupon

proceed with the trial, or withdraw therefrom, in accordance

with his determination of the question of his disqualification.
His decision shall be forthwith made in writing and filed with
the other papers in the case, but no appeal or stay shall be
allowed from, or by reason of, his decision in favor of his
own competency, until after final judgment in the case.
(Emphasis and underscoring supplied)
Since petitioners are not parties to the case, they may not seek
public respondent's inhibition, whether under the first paragraph of
above-quoted Section 1 which constitutes grounds
for mandatory disqualification, or under the second paragraph of the
same section on voluntary disqualification.
WHEREFORE, the petition for mandamus is GRANTED. Public
respondent is ORDERED to allow petitioners to access, examine,
and obtain copies of any and all documents-part of the records of
Special Proceeding No. 00-97505 bearing on
the inventory of assets and liabilities of the estate and the hearing
conducted by the trial court on February 13, 2004, subject to
precautionary measures to prevent tampering or alteration thereof.
The petition for prohibition is DISMISSED.
SO ORDERED.

BANTAY REPUBLIC ACT OR BA-RA 7941,

represented by MR. AMEURFINO E. CINCO,
Chairman, AND URBAN POOR FOR LEGAL
REFORMS (UP-LR), represented by MRS. MYRNA P.
PORCARE,
SecretaryGeneral,
Petitioners,

G.R. No.
Present:

PUNO,
QUISUM
YNARE
SANTIAGO,
- versus SANDO
CARPIO
COMMISSION ON ELECTIONS, BIYAHENG PINOY,

KAPATIRAN NG MGA NAKAKULONG NA WALANG

SALA (KAKUSA), BARANGAY ASSOCIATION FOR
NATIONAL ADVANCEMENT AND TRANSPARENCY
(BANAT), AHON PINOY, AGRICULTURAL SECTOR
ALLIANCE OF THE PHILIPPINES, INC. (AGAP),
PUWERSA NG BAYANING ATLETA (PBA), ALYANSA
NG MGA GRUPONG HALIGI NG AGHAM AT
TEKNOLOHIYA PARA SA MAMAMAYAN, INC.
(AGHAM), BABAE PARA SA KAUNLARAN (BABAE
KA), AKSYON SAMBAYANAN (AKSA), ALAY SA
BAYAN NG MALAYANG PROPESYUNAL AT
REPORMANG KALAKAL (ABAY-PARAK), AGBIAG
TIMPUYOG ILOCANO, INC. (AGBIAG!), ABANTE
ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO
(AT), AANGAT ANG KABUHAYAN (ANAK), BAGO
NATIONAL CULTURAL SOCIETY OF THE
PHILIPPINES (BAGO), ANGAT ANTAS-KABUHAYAN
PILIPINO MOVEMENT (AANGAT KA PILIPINO),
ARTS BUSINESS AND SCIENCE PROFESSIONAL
(ABS), ASSOSASYON NG MGA MALILIIT NA
NEGOSYANTENG GUMAGANAP INC. (AMANG),
SULONG BARANGAY MOVEMENT, KASOSYO
PRODUCERS
CONSUMER
EXCHANGE
ASSOCIATION,
INC.
(KASOSYO),
UNITED
MOVEMENT
AGAINST
DRUGS
(UNI-MAD),
PARENTS ENABLING PARENTS (PEP), ALLIANCE
OF NEO-CONSERVATIVES (ANC), FILIPINOS FOR
PEACE, JUSTICE AND PROGRESS MOVEMENT
(FPJPM), BIGKIS PINOY MOVEMENT (BIGKIS), 1UNITED TRANSPORT KOALISYON (1-UNTAK),
ALLIANCE FOR BARANGAY CONCERNS (ABC),
BIYAYANG
BUKID,
INC.,
ALLIANCE
FOR
NATIONALISM AND DEMOCRACY (ANAD), AKBAY

PINOY OFW-NATIONAL INC., (APOI), ALLIANCE

MARTINEZ,
TRANSPORT SECTOR (ATS), KALAHI SECTORAL
PARTY (ADVOCATES FOR OVERSEAS FILIPINO)
AND
ASSOCIATION
OF
ADMINISTRATORS,
MORALES,
PROFESSIONALS AND SENIORS (AAPS),
Respondents.
x--------------------------------------------------x
REP. LORETTA ANN P. ROSALES,
G.R. No. 177314
NAZARIO,
KILOSBAYAN FOUNDATION,
BANTAY KATARUNGAN FOUNDATION,
Petitioners,
and
- versus -

THE COMMISSION ON ELECTIONS,

Respondent.
X
------------------------------------------------------------------------------------------------- x

DECISION
GARCIA, J.:

Before the Court are these two consolidated petitions

for certiorari and mandamus to nullify and set aside certain
issuances of the Commission on Elections (Comelec)
respecting party-list groups which have manifested their
intention to participate in the party-list elections on May 14,
2007.
In the first petition, docketed as G.R. No. 177271,
petitioners Bantay Republic Act (BA-RA 7941, for short) and
the Urban Poor for Legal Reforms (UP-LR, for short) assail
the various
Comelec resolutions
accrediting
private
respondents Biyaheng Pinoy et al., to participate in the
forthcoming party-list elections on May 14, 2007 without
simultaneously determining whether or not their respective
nominees possess the requisite qualifications defined in
Republic Act (R.A.) No. 7941, or the Party-List System Act
and belong to the marginalized and underrepresented sector
each seeks to represent. In the second, docketed as G.R. No.
177314, petitioners Loreta Ann P. Rosales, Kilosbayan
Foundation
and
Bantay
Katarungan Foundation
impugn Comelec Resolution 07-0724 dated April 3, 2007
effectively denying their request for the release or disclosure of
the names of the nominees of the fourteen (14) accredited
participating party-list groups mentioned in petitioner Rosales
previous letter-request.

While both petitions commonly seek to compel the

Comelec to disclose or publish the names of the nominees of
the various party-list groups named in the petitions,[1] the
petitioners in G.R. No. 177271 have the following
additional prayers:
1) that the
33 private
respondents named therein be declare[d] as unqualified to
participate in the party-list elections as sectoral
organizations, parties or coalition for failure to comply with
the guidelines prescribed by the [Court] in [Ang Bagong
Bayani v.
Comelec[2]]
and, 2)correspondingly, that the
Comelec be enjoined from allowing respondent groups
from participating in the May 2007 elections.
In separate resolutions both dated April 24, 2007, the
Court en banc required the public and private respondents to
file their respective comments on the petitions within a nonextendible period of five (5) days from notice. Apart from
respondent Comelec, seven (7) private respondents[3] in G.R.
No.
177271 and
one
party-list
group[4] mentioned
inG.R. No. 177314 submitted their separate comments. In the
main, the separate comments of the private respondents
focused on the untenability and prematurity of the plea of
petitioners BA-RA 7941 and UP-LR to nullify their
accreditation as party-list groups and thus disqualify them and
their respective nominees from participating in the May 14,
2007 party-list elections.

The facts:
On January 12, 2007, the Comelec issued Resolution No.
7804 prescribing rules and regulations to govern the filing of
manifestation of intent to participate and submission of names
of nominees under the party-list system of representation in
connection with the May 14, 2007 elections. Pursuant thereto, a
number of organized groups filed the necessary manifestations.
Among these and ostensibly subsequently accredited by the
Comelec to participate in the 2007 elections - are 14 party-list
groups, namely: (1)BABAE KA; (2) ANG KASANGGA;
(3) AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON
PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD;
(10) AANGAT
ANG
KABUHAYAN;
(11) AGBIAG;
(12) BANAT;
(13) BANTAY
LIPAD;
(14) AGING
PINOY. Petitioners BA-RA 7941 and UP-LR presented a
longer, albeit an overlapping, list.
Subsequent events saw BA-RA 7941 and UP-LR
filing with
the
Comelec an Urgent
Petition
to
Disqualify, thereunder seeking to disqualify the nominees of
certain party-list organizations. Both petitioners appear not to
have the names of the nominees sought to be
disqualified since they still asked for a copy of the list of

nominees. Docketed in the Comelec as SPA Case No 07-026,

this urgent petition has yet to be resolved.
Meanwhile, reacting to the emerging public perception
that the individuals behind the aforementioned 14 party-list
groups do not, as they should, actually represent the poor and
marginalized sectors, petitioner Rosales, in G.R. No.
177314, addressed a letter[5] dated March 29, 2007 to Director
Alioden Dalaig of the Comelecs Law Department requesting a
list of that groups nominees. Another letter[6] of the same
tenor dated March 31, 2007 followed, this time petitioner
Rosales impressing upon Atty. Dalaig the particular urgency of
the subject request.
Neither the Comelec Proper nor its Law Department
officially
responded
to
petitioner
Rosales requests. The April 13, 2007 issue of the Manila
Bulletin, however, carried the front-page banner headline
COMELEC WONT BARE PARTY-LIST NOMINEES,
[7]
with the following sub-heading: Abalos says party-list polls
not personality oriented.
On April 16, 2007, Atty. Emilio Capulong, Jr. and exSenator Jovito R. Salonga, in their own behalves and as
counsels of petitioner Rosales, forwarded a letter[8] to the
Comelec formally requesting action and definitive decision on

Rosales earlier plea for information regarding the names of

several party-list nominees. Invoking their constitutionallyguaranteed right to information, Messrs. Capulong and Salonga
at the same time drew attention to the banner headline adverted
to earlier, with a request for the Comelec, collectively or
individually, to issue a formal clarification, either confirming
or denying the banner headline and the alleged statement of
Chairman
Benjamin
Abalos,
Sr.
xxx
Evidently
unbeknownst then to Ms. Rosales, et al., was the issuance
of Comelec en banc Resolution 07-0724[9] under date April 3,
2007 virtually declaring the nominees names confidential and
in net effect denying petitioner Rosales basic disclosure
request. In its relevant part, Resolution 07-0724 reads as
follows:
RESOLVED,
moreover,
that
the
Commission will disclose/publicize the names
of party-list nominees in connection with
the May 14, 2007 Elections only after 3:00
p.m. on election day.
Let the Law Department implement this
resolution and reply to all letters addressed to
the Commission inquiring on the party-list
nominees. (Emphasis added.)
According to petitioner Rosales, she was able to obtain a
copy of the April 3, 2007 Resolution only on April 21,

2007. She would later state the observation that the last part of
the Order empowering the Law Department to implement
this resolution and reply to all letters inquiring on the partylist nominees is apparently a fool-proof bureaucratic way to
distort and mangle the truth and give the impression that the
antedated Resolution of April 3, 2007 is the final answer to
the two formal requests of Petitioners.[10]
The herein consolidated petitions are cast against the
foregoing factual setting, albeit petitioners BA-RA 7941 and
UP-LR appear not to be aware, when they filed their petition
on
April
18,
2007, of
the
April
3,
2007 Comelec Resolution 07-0724.
To start off, petitioners BA-RA 7941 and UP-LR would
have the Court cancel the accreditation accorded by the
Comelec to the respondent party-list groups named in their
petition

on

the

ground

that

these

groups

and

their respective nominees do not appear to be qualified. In the

words of petitioners BA-RA 7941 and UP-LR, Comelec xxx committed grave abuse of discretion

when
it granted
the
assailed
accreditations even
without simultaneously determining whether the
nominees of herein private respondents are

qualified or not, or whether or not the nominees

are likewise belonging to the marginalized and
underrepresented sector they claim to represent
in Congress, in accordance with No. 7 of the
eight-point guidelines prescribed by the
Honorable Supreme in the Ang Bagong
Bayani[11] case which states that, not only the
candidate party or organization must represent
marginalizedand underrepresented sectors; so
also must its nominees. In the case of private
respondents, public respondent Comelec granted
accreditations
without
the
required simultaneous determination of the
qualification of the nominees as part of the
accreditation process of the party-list
organization itself. (Words in bracket added;
italization in the original)[12]

review by way of special civil action for certiorari.

In certiorari proceedings, the Court is not called upon to
decide factual issues and the case must be decided on the
undisputed facts on record.[13] The sole function of a writ of
certiorari is to address issues of want of jurisdiction or grave
abuse of discretion and does not include a review of the
tribunals evaluation of the evidence.[14]
Not lost on the Court of course is the pendency before
the Comelec of SPA Case No. 07-026 in which petitioners BARA 7941 and UP-LR themselves seek to disqualify the
nominees of the respondent party-list groups named in their

The Court is unable to grant the desired plea of

petitioners BA-RA 7941 and UP-LR for cancellation of
accreditation on the grounds thus advanced in their petition.
For,

such

course

of

action

would

entail going over and evaluating the qualities of the sectoral

groups or parties in question, particularly whether or not they
indeed represent marginalized/underrepresented groups. The
exercise would require the Court to make a factual
determination, a matter which is outside the office of judicial

petition.
Petitioners BA-RA 7941s and UP-LRs posture that the
Comelec committed grave abuse of discretion when it granted
the assailed accreditations without simultaneouslydetermining
the qualifications of their nominees is without basis. Nowhere
in R.A. No. 7941 is there a requirement that the qualification of
a party-list nominee be determined simultaneously with the
accreditation of an organization. And as aptly pointed out by
private respondent Babae Para sa Kaunlaran (Babae Ka),

Section 4 of R.A. No. 7941 requires a petition for registration

While the Comelec did not explicitly say so, it based its

of a party-list organization to be filed with the Comelec not

refusal to disclose the names of the nominees of subject party-

later than ninety (90) days before the election whereas the

list groups on Section 7 of R.A. 7941. This provision, while

succeeding Section 8 requires the submission not later than

commanding the publication and the posting in polling places

forty-five (45) days before the election of the list of names

of a certified

whence party-list representatives shall be chosen.

groups, nonetheless tells the Comelec not to show or include

list of

party-list

system

participating

the names of the party-list nominees in said certified list.

Now to the other but core issues of the case. The
petition in G.R. No. 177314 formulates and captures the main
issues tendered by the petitioners in these consolidated cases
and they may be summarized as follows:
1.

Whether respondent Comelec, by

refusing to reveal the names of the
nominees of the various party-list
groups,
has violated
the right
to
information
and
free access
to documents as guaranteed by the
Constitution; and

2.

Whether
respondent
Comelec is mandated
by
the
Constitution to disclose to the public the
names of said nominees.

Thus:
SEC. 7. Certified List of Registered
Parties.- The COMELEC shall, not later than
sixty (60) days before election, prepare a
certified list of national, regional, or sectoral
parties, organizations or coalitions which have
applied or who have manifested their desire to
participate under the party-list system and
distribute copies thereof to all precincts for
posting in the polling places on election
day. The names of the party-list nominees
shall not be shown on the certified
list. (Emphasis added.)
And doubtless part of Comelecs reason for keeping the
names of the party list nominees away from the public is
deducible from the following excerpts of the news report

appearing in the adverted April 13, 2007 issue of the Manila

information enshrined in the self-executory[15] Section 7,

Bulletin:

Article III of the Constitution, viz:

The Commission on Elections (COMELEC)

firmed up yesterday its decision not to release the
names of nominees of sectoral parties, organizations,
or coalitions accredited to participate in the party-list
election which will be held simultaneously with the
May 14 mid-term polls.
COMELEC Chairman Benjamin S. Abalos,
Sr. said he and [the other five COMELEC]
Commissioners --- believe that the party list
elections must not be personality oriented.
Abalos said under [R.A.] 7941 ,
the people are to vote for sectoral parties,
organizations, or coalitions, not for their nominees.
He said there is nothing in R.A. 7941 that
requires the Comelec to disclose the names of
nominees. xxx (Words in brackets and emphasis
added)

Insofar as the disclosure issue is concerned, the

petitions are impressed with merit.

Sec.7. The right of the people to

information on matters of public concern shall
be recognized. Access to official records, and to
documents, and papers pertaining to official
acts, transactions, or decisions, as well to
government research data used as basis for
policy development, shall be afforded the
citizen, subject to such limitations as may be
provided by law.

Complementing and going hand in hand with the right

to information is another constitutional provision enunciating
the policy of full disclosure and transparency
inGovernment. We refer to Section 28, Article II of the
Constitution reading:
Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of
all its transactions involving public interest.

Assayed against the non-disclosure stance of the

Comelec and the given rationale therefor is the right to

The right to information is a public right where the real

parties in interest are the public, or the citizens to be precise.
And for every right of the people recognized

asfundamental lies a corresponding duty on the part of those

who govern to respect and protect that right. This is the essence
of the Bill of Rights in a constitutional regime.[16]Without a
governments acceptance of the limitations upon it by the
Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the
rights pertaining to the citizens, the Bill of Rights becomes a
sophistry.
By weight of jurisprudence, any citizen can challenge
any attempt to obstruct the exercise of his right to
information and may seek its enforcement by mandamus.
[17]
And since every citizen by the simple fact of his citizenship
possesses the right to be informed, objections on
ground of locus standi are ordinarily unavailing.[18]
Like all constitutional guarantees, however, the right
to information and its companion right of access to official
records are not absolute. As articulated in Legaspi, supra,the
peoples right to know is limited to matters of public concern
and is further subject to such limitation as may be provided by
law. Similarly, the policy of full disclosure is confined to
transactions involving public interest and is subject to
reasonable conditions prescribed by law. Too, there is also the
need of preserving a measure of confidentiality on some

matters, such as military, trade, banking and diplomatic secrets

or those affecting national security.[19]
The terms public concerns and public interest have
eluded precise definition. But both terms embrace, to borrow
from Legaspi, a broad spectrum of subjects which the public
may want to know, either because these directly affect their
lives, or simply because such matters naturally whet the
interest of an ordinary citizen. At the end of the day, it is for the
courts to determine, on a case to case basis, whether or not at
issue is of interest or importance to the public.
If, as in Legaspi, it was the legitimate concern of a
citizen to know if certain persons employed as sanitarians of a
health department of a city are civil service eligibles,surely the
identity of candidates for a lofty elective public office should
be a matter of highest public concern and interest.
As may be noted, no national security or like
concerns is involved in the disclosure of the names of the
nominees of the party-list groups in question. Doubtless, the
Comelec committed grave abuse of discretion in refusing the
legitimate demands of the petitioners for a list of the nominees
of the party-list groups subject of their respective
petitions. Mandamus, therefore, lies.

The last sentence of Section 7 of R.A. 7941 reading:

[T]he names of the party-list nominees shall not be shown on
the certified list is certainly not a justifying card for the
Comelec to deny the requested disclosure. To us, the
prohibition imposed on the Comelec under said Section 7 is
limited in scope and duration, meaning, that it extends only to
the certified list which the same provision requires to be
posted in the polling places on election day. To stretch the
coverage of the prohibition to the absolute is to read intothe
law something that is not intended. As it were, there is
absolutely nothing in R.A. No. 7941 that prohibits the
Comelec from disclosing or even publishing through mediums
other than the Certified List the names of the party-list
nominees. The Comelec obviously misread the limited nondisclosure aspect of the provision as an absolute bar to public
disclosure before the May 2007 elections. The interpretation
thus given by the Comelec virtually tacks an unconstitutional
dimension on the last sentence of Section 7 of R.A. No.
7941.
The Comelecs reasoning that a party-list election is
not an election of personalities is valid to a point. It cannot be
taken, however, to justify its assailed non-disclosure stance
which comes, as it were, with a weighty presumption of
invalidity, impinging, as it does, on a fundamental right to
information.[20] While the vote cast in a party-list elections is a

vote for a party, such vote, in the end, would be a vote for
its nominees, who, in appropriate cases, would eventually sit in
the House of Representatives.

The Court is very much aware of newspaper reports

detailing the purported reasons behind the Comelecs
disinclination to release the names of party-list nominees. It is
to be stressed, however, that the Court is in the business of
dispensing justice on the basis of hard facts and applicable
statutory and decisional laws. And lest it be overlooked, the
Court always assumes, at the first instance, the presumptive
validity and regularity of official acts of government officials
and offices.
It has been repeatedly said in various contexts that the
people have the right to elect their representatives on the basis
of an informed judgment. Hence the need for voters to be
informed about matters that have a bearing on their choice. The
ideal cannot be achieved in a system of blind voting, as
veritably advocated in the assailed resolution of the Comelec.
The Court, since the 1914 case of Gardiner v. Romulo,[21] has
consistently made it clear that it frowns upon any interpretation

In all, we agree with the petitioners that respondent

Comelec has a constitutional duty to disclose and release the
names of the nominees of the party-list groups named in the
herein petitions.
WHEREFORE, the petition in G.R. No. 177271 is
partly DENIED insofar as it seeks to nullify the accreditation
of the respondents named therein. However, insofar as it seeks
to compel the Comelec to disclose or publish the names of the
nominees of party-list groups, sectors or organizations
accredited to participate in the May 14, 2007elections, the
same
petition
and
the
petition
in G.R.
No.
177314 are GRANTED. Accordingly, the Comelec is
hereby ORDERED to immediately disclose and release the
names of the nominees of the party-list groups, sectors or
organizations accredited to participate in the May 14,
2007 party-list
elections.
The
Comelec
is
further DIRECTED to submit to the Court its compliance
herewith within five (5) days from notice hereof.
This Decision is declared immediately executory upon
its receipt by the Comelec.

of the law or rules that would hinder in any way the free and
intelligent casting of the votes in an election. [22] So it must be
here for still other reasons articulated earlier.

No pronouncement as to cost.
SO ORDERED.