DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M.
Drilon,3 which held that incumbent national legislators
VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent) as having
forfeited his seat in the Senate.
The Facts
Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari
(petitioners) filed with this Court a Petition to Declare Richard J. Gordon as
Having Forfeited His Seat in the Senate. Petitioners are officers of the Board of
Directors of the Quezon City Red Cross Chapter while respondent is Chairman
of the Philippine National Red Cross (PNRC) Board of Governors.
During respondent’s incumbency as a member of the Senate of the
Philippines,1 he was elected Chairman of the PNRC during the 23 February
2006 meeting of the PNRC Board of Governors. Petitioners allege that by
accepting the chairmanship of the PNRC Board of Governors, respondent has
ceased to be a member of the Senate as provided in Section 13, Article VI of
the Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives may hold
any other office or employment in the Government, or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries, during his term without forfeiting his seat.
Neither shall he be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he was elected.
Petitioners cite Camporedondo v. NLRC,2 which held that the PNRC is a
government-owned or controlled corporation. Petitioners claim that in
accepting and holding the position of Chairman of the PNRC Board of
Governors, respondent has automatically forfeited his seat in the Senate,
pursuant to Flores v.
lose their elective posts upon their appointment to another government office.
In his Comment, respondent asserts that petitioners have no standing to file
this petition which appears to be an action for quo warranto, since the petition
alleges that respondent committed an act which, by provision of law,
constitutes a ground for forfeiture of his public office. Petitioners do not claim to
be entitled to the Senate office of respondent. Under Section 5, Rule 66 of the
Rules of Civil Procedure, only a person claiming to be entitled to a public office
usurped or unlawfully held by another may bring an action for quo warranto in
his own name. If the petition is one for quo warranto, it is already barred by
prescription since under Section 11, Rule 66 of the Rules of Civil Procedure,
the action should be commenced within one year after the cause of the public
officer’s forfeiture of office. In this case, respondent has been working as a Red
Cross volunteer for the past 40 years. Respondent was already Chairman of
the PNRC Board of Governors when he was elected Senator in May 2004,
having been elected Chairman in 2003 and re-elected in 2005.
Respondent contends that even if the present petition is treated as a
taxpayer’s suit, petitioners cannot be allowed to raise a constitutional question
in the absence of any claim that they suffered some actual damage or
threatened injury as a result of the allegedly illegal act of respondent.
Furthermore, taxpayers are allowed to sue only when there is a claim of illegal
disbursement of public funds, or that public money is being diverted to any
improper purpose, or where petitioners seek to restrain respondent from
enforcing an invalid law that results in wastage of public funds.
Respondent also maintains that if the petition is treated as one for declaratory
relief, this Court would have no jurisdiction since original jurisdiction for
declaratory relief lies with the Regional Trial Court.
Respondent further insists that the PNRC is not a government-owned or
controlled corporation and that the prohibition under Section 13, Article VI of
the Constitution does not apply in the present case since volunteer service to
the PNRC is neither an office nor an employment.
In their Reply, petitioners claim that their petition is neither an action for quo
warranto nor an action for declaratory relief. Petitioners maintain that the
present petition is a taxpayer’s suit questioning the unlawful disbursement of
funds, considering that respondent has been drawing his salaries and other
compensation as a Senator even if he is no longer entitled to his office.
Petitioners point out that this Court has jurisdiction over this petition since it
involves a legal or constitutional issue which is of transcendental importance.
The Issues
Petitioners raise the following issues:
1. Whether the Philippine National Red Cross (PNRC) is a government- owned
or controlled corporation;
2. Whether Section 13, Article VI of the Philippine Constitution applies to the
case of respondent who is Chairman of the PNRC and at the same time a
Member of the Senate;
3. Whether respondent should be automatically removed as a Senator
pursuant to Section 13, Article VI of the Philippine Constitution; and
4. Whether petitioners may legally institute this petition against respondent. 4
The substantial issue boils down to whether the office of the PNRC Chairman
is a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the
Constitution.
The Court’s Ruling
We find the petition without merit.
Petitioners Have No Standing to File this Petition
A careful reading of the petition reveals that it is an action for quo warranto.
Section 1, Rule 66 of the Rules of Court provides:
Section 1. Action by Government against individuals. – An action for the
usurpation of a public office, position or franchise may be commenced by a
verified petition brought in the name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a
public office, position or franchise;
(b) A public officer who does or suffers an act which by provision of law,
constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without
being legally incorporated or without lawful authority so to act. (Emphasis
supplied)
Petitioners allege in their petition that:
4. Respondent became the Chairman of the PNRC when he was elected as
such during the First Regular Luncheon-Meeting of the Board of Governors of
the PNRC held on February 23, 2006, the minutes of which is hereto attached
and made integral part hereof as Annex "A."
5. Respondent was elected as Chairman of the PNRC Board of Governors,
during his incumbency as a Member of the House of Senate of the Congress of
the Philippines, having been elected as such during the national elections last
May 2004.
6. Since his election as Chairman of the PNRC Board of Governors, which
position he duly accepted, respondent has been exercising the powers and
discharging the functions and duties of said office, despite the fact that he is
still a senator.
7. It is the respectful submission of the petitioner[s] that by accepting the
chairmanship of the Board of Governors of the PNRC, respondent has ceased
to be a Member of the House of Senate as provided in Section 13, Article VI of
the Philippine Constitution, x x x
xxxx
10. It is respectfully submitted that in accepting the position of Chairman of the
Board of Governors of the PNRC on February 23, 2006, respondent has
automatically forfeited his seat in the House of Senate and, therefore, has long
ceased to be a Senator, pursuant to the ruling of this Honorable Court in the
case of FLORES, ET AL. VS. DRILON AND GORDON, G.R. No. 104732, x x x
11. Despite the fact that he is no longer a senator, respondent continues to act
as such and still performs the powers, functions and duties of a senator,
contrary to the constitution, law and jurisprudence.
12. Unless restrained, therefore, respondent will continue to falsely act and
represent himself as a senator or member of the House of Senate, collecting
the salaries, emoluments and other compensations, benefits and privileges
appertaining and due only to the legitimate senators, to the damage, great and
irreparable injury of the Government and the Filipino people.5 (Emphasis
supplied)
Thus, petitioners are alleging that by accepting the position of Chairman of the
PNRC Board of Governors, respondent has automatically forfeited his seat in
the Senate. In short, petitioners filed an action for usurpation of public office
against respondent, a public officer who allegedly committed an act which
constitutes a ground for the forfeiture of his public office. Clearly, such an
action is for quo warranto, specifically under Section 1(b), Rule 66 of the Rules
of Court.
Quo warranto is generally commenced by the Government as the proper party
plaintiff. However, under Section 5, Rule 66 of the Rules of Court, an individual
may commence such an action if he claims to be entitled to the public office
allegedly usurped by another, in which case he can bring the action in his own
name. The person instituting quo warranto proceedings in his own behalf must
claim and be able to show that he is entitled to the office in dispute, otherwise
the action may be dismissed at any stage.6 In the present case, petitioners do
not claim to be entitled to the Senate office of respondent. Clearly, petitioners
have no standing to file the present petition.
Even if the Court disregards the infirmities of the petition and treats it as a
taxpayer’s suit, the petition would still fail on the merits.
PNRC is a Private Organization Performing Public Functions
On 22 March 1947, President Manuel A. Roxas signed Republic Act No.
95,7 otherwise known as the PNRC Charter. The PNRC is a non-profit, donor-
funded, voluntary, humanitarian organization, whose mission is to bring timely,
effective, and compassionate humanitarian assistance for the most vulnerable
without consideration of nationality, race, religion, gender, social status, or
political affiliation.8 The PNRC provides six major services: Blood Services,
Disaster Management, Safety Services, Community Health and Nursing, Social
Services and Voluntary Service.9
The Republic of the Philippines, adhering to the Geneva Conventions,
established the PNRC as a voluntary organization for the purpose
contemplated in the Geneva Convention of 27 July 1929.10 The Whereas
clauses of the PNRC Charter read:
WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864,
a convention by which the nations of the world were invited to join together in
diminishing, so far lies within their power, the evils inherent in war;
WHEREAS, more than sixty nations of the world have ratified or adhered to the
subsequent revision of said convention, namely the "Convention of Geneva of
July 29 [sic], 1929 for the Amelioration of the Condition of the Wounded and
Sick of Armies in the Field" (referred to in this Charter as the Geneva Red
Cross Convention);
WHEREAS, the Geneva Red Cross Convention envisages the establishment
in each country of a voluntary organization to assist in caring for the wounded
and sick of the armed forces and to furnish supplies for that purpose;
WHEREAS, the Republic of the Philippines became an independent nation on
July 4, 1946 and proclaimed its adherence to the Geneva Red Cross
Convention on February 14, 1947, and by that action indicated its desire to
participate with the nations of the world in mitigating the suffering caused by
war and to establish in the Philippines a voluntary organization for that purpose
as contemplated by the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines since 1917 a Charter of the
American National Red Cross which must be terminated in view of the
independence of the Philippines; and
WHEREAS, the volunteer organizations established in the other countries
which have ratified or adhered to the Geneva Red Cross Convention assist in
promoting the health and welfare of their people in peace and in war, and
through their mutual assistance and cooperation directly and through their
international organizations promote better understanding and sympathy among
the peoples of the world. (Emphasis supplied)
The PNRC is a member National Society of the International Red Cross and
Red Crescent Movement (Movement), which is composed of the International
Committee of the Red Cross (ICRC), the International Federation of Red Cross
and Red Crescent Societies (International Federation), and the National Red
Cross and Red Crescent Societies (National Societies). The Movement is
united and guided by its seven Fundamental Principles:
1. HUMANITY – The International Red Cross and Red Crescent Movement,
born of a desire to bring assistance without discrimination to the wounded on
the battlefield, endeavors, in its international and national capacity, to prevent
and alleviate human suffering wherever it may be found. Its purpose is to
protect life and health and to ensure respect for the human being. It promotes
mutual understanding, friendship, cooperation and lasting peace amongst all
peoples.
2. IMPARTIALITY – It makes no discrimination as to nationality, race, religious
beliefs, class or political opinions. It endeavors to relieve the suffering of
individuals, being guided solely by their needs, and to give priority to the most
urgent cases of distress.
3. NEUTRALITY – In order to continue to enjoy the confidence of all, the
Movement may not take sides in hostilities or engage at any time in
controversies of a political, racial, religious or ideological nature.
4. INDEPENDENCE – The Movement is independent. The National Societies,
while auxiliaries in the humanitarian services of their governments and subject
to the laws of their respective countries, must always maintain their autonomy
so that they may be able at all times to act in accordance with the principles of
the Movement.
5. VOLUNTARY SERVICE – It is a voluntary relief movement not prompted in
any manner by desire for gain.
6. UNITY – There can be only one Red Cross or one Red Crescent Society in
any one country. It must be open to all. It must carry on its humanitarian work
throughout its territory.
7. UNIVERSALITY – The International Red Cross and Red Crescent
Movement, in which all Societies have equal status and share equal
responsibilities and duties in helping each other, is worldwide. (Emphasis
supplied)
The Fundamental Principles provide a universal standard of reference for all
members of the Movement. The PNRC, as a member National Society of the
Movement, has the duty to uphold the Fundamental Principles and ideals of
the Movement. In order to be recognized as a National Society, the PNRC has
to be autonomous and must operate in conformity with the Fundamental
Principles of the Movement.11
The reason for this autonomy is fundamental. To be accepted by warring
belligerents as neutral workers during international or internal armed conflicts,
the PNRC volunteers must not be seen as belonging to any side of the armed
conflict. In the Philippines where there is a communist insurgency and a
Muslim separatist rebellion, the PNRC cannot be seen as government-owned
or controlled, and neither can the PNRC volunteers be identified as
government personnel or as instruments of government policy. Otherwise, the
insurgents or separatists will treat PNRC volunteers as enemies when the
volunteers tend to the wounded in the battlefield or the displaced civilians in
conflict areas.
Thus, the PNRC must not only be, but must also be seen to be, autonomous,
neutral and independent in order to conduct its activities in accordance with the
Fundamental Principles. The PNRC must not appear to be an instrument or
agency that implements government policy; otherwise, it cannot merit the trust
of all and cannot effectively carry out its mission as a National Red Cross
Society.12 It is imperative that the PNRC must be autonomous, neutral, and
independent in relation to the State.
To ensure and maintain its autonomy, neutrality, and independence, the PNRC
cannot be owned or controlled by the government. Indeed, the Philippine
government does not own the PNRC. The PNRC does not have government
assets and does not receive any appropriation from the Philippine
Congress.13 The PNRC is financed primarily by contributions from private
individuals and private entities obtained through solicitation campaigns
organized by its Board of Governors, as provided under Section 11 of the
PNRC Charter:
SECTION 11. As a national voluntary organization, the Philippine National Red
Cross shall be financed primarily by contributions obtained through solicitation
campaigns throughout the year which shall be organized by the Board of
Governors and conducted by the Chapters in their respective jurisdictions.
These fund raising campaigns shall be conducted independently of other fund
drives by other organizations. (Emphasis supplied)
The government does not control the PNRC. Under the PNRC Charter, as
amended, only six of the thirty members of the PNRC Board of Governors are
appointed by the President of the Philippines. Thus, twenty-four members, or
four-fifths (4/5), of the PNRC Board of Governors are not appointed by the
President. Section 6 of the PNRC Charter, as amended, provides:
SECTION 6. The governing powers and authority shall be vested in a Board of
Governors composed of thirty members, six of whom shall be appointed by the
President of the Philippines, eighteen shall be elected by chapter delegates in
biennial conventions and the remaining six shall be selected by the twenty-four
members of the Board already chosen. x x x.
Thus, of the twenty-four members of the PNRC Board, eighteen are elected by
the chapter delegates of the PNRC, and six are elected by the twenty-four
members already chosen — a select group where the private sector members
have three-fourths majority. Clearly, an overwhelming majority of four-fifths of
the PNRC Board are elected or chosen by the private sector members of the
PNRC.
The PNRC Board of Governors, which exercises all corporate powers of the
PNRC, elects the PNRC Chairman and all other officers of the PNRC. The
incumbent Chairman of PNRC, respondent Senator Gordon, was elected, as
all PNRC Chairmen are elected, by a private sector-controlled PNRC Board
four-fifths of whom are private sector members of the PNRC. The PNRC
Chairman is not appointed by the President or by any subordinate government
official.
Under Section 16, Article VII of the Constitution, 14 the President appoints all
officials and employees in the Executive branch whose appointments are
vested in the President by the Constitution or by law. The President also
appoints those whose appointments are not otherwise provided by law. Under
this Section 16, the law may also authorize the "heads of departments,
agencies, commissions, or boards" to appoint officers lower in rank than such
heads of departments, agencies, commissions or boards.15 In Rufino v.
Endriga,16 the Court explained appointments under Section 16 in this wise:
Under Section 16, Article VII of the 1987 Constitution, the President appoints
three groups of officers. The first group refers to the heads of the Executive
departments, ambassadors, other public ministers and consuls, officers of the
armed forces from the rank of colonel or naval captain, and other officers
whose appointments are vested in the President by the Constitution. The
second group refers to those whom the President may be authorized by law to
appoint. The third group refers to all other officers of the Government whose
appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers
whose appointments Congress may by law vest in the heads of departments,
agencies, commissions, or boards. x x x
xxx
In a department in the Executive branch, the head is the Secretary. The law
may not authorize the Undersecretary, acting as such Undersecretary, to
appoint lower-ranked officers in the Executive department. In an agency, the
power is vested in the head of the agency for it would be preposterous to vest
it in the agency itself. In a commission, the head is the chairperson of the
commission. In a board, the head is also the chairperson of the board. In the
last three situations, the law may not also authorize officers other than the
heads of the agency, commission, or board to appoint lower-ranked officers.
xxx
The Constitution authorizes Congress to vest the power to appoint lower-
ranked officers specifically in the "heads" of the specified offices, and in no
other person. The word "heads" refers to the chairpersons of the commissions
or boards and not to their members, for several reasons.
The President does not appoint the Chairman of the PNRC. Neither does the
head of any department, agency, commission or board appoint the PNRC
Chairman. Thus, the PNRC Chairman is not an official or employee of the
Executive branch since his appointment does not fall under Section 16, Article
VII of the Constitution. Certainly, the PNRC Chairman is not an official or
employee of the Judiciary or Legislature. This leads us to the obvious
conclusion that the PNRC Chairman is not an official or employee of the
Philippine Government. Not being a government official or employee, the
PNRC Chairman, as such, does not hold a government office or employment.
Under Section 17, Article VII of the Constitution, 17 the President exercises
control over all government offices in the Executive branch. If an office is
legally not under the control of the President, then such office is not part
of the Executive branch. In Rufino v. Endriga,18 the Court explained the
President’s power of control over all government offices as follows:
Every government office, entity, or agency must fall under the Executive,
Legislative, or Judicial branches, or must belong to one of the independent
constitutional bodies, or must be a quasi-judicial body or local government unit.
Otherwise, such government office, entity, or agency has no legal and
constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of
government. The CCP is also not one of the independent constitutional bodies.
Neither is the CCP a quasi-judicial body nor a local government unit. Thus, the
CCP must fall under the Executive branch. Under the Revised Administrative
Code of 1987, any agency "not placed by law or order creating them under any
specific department" falls "under the Office of the President."
Since the President exercises control over "all the executive departments,
bureaus, and offices," the President necessarily exercises control over the
CCP which is an office in the Executive branch. In mandating that the
President "shall have control of all executive . . . offices," Section 17, Article VII
of the 1987 Constitution does not exempt any executive office — one
performing executive functions outside of the independent constitutional bodies
— from the President’s power of control. There is no dispute that the CCP
performs executive, and not legislative, judicial, or quasi-judicial functions.
The President’s power of control applies to the acts or decisions of all officers
in the Executive branch. This is true whether such officers are appointed by the
President or by heads of departments, agencies, commissions, or boards. The
power of control means the power to revise or reverse the acts or decisions of
a subordinate officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and exercises
"control of all the executive departments, bureaus, and offices." There can be
no instance under the Constitution where an officer of the Executive branch is
outside the control of the President. The Executive branch is unitary since
there is only one President vested with executive power exercising control over
the entire Executive branch. Any office in the Executive branch that is not
under the control of the President is a lost command whose existence is
without any legal or constitutional basis. (Emphasis supplied)
An overwhelming four-fifths majority of the PNRC Board are private sector
individuals elected to the PNRC Board by the private sector members of the
PNRC. The PNRC Board exercises all corporate powers of the PNRC. The
PNRC is controlled by private sector individuals. Decisions or actions of the
PNRC Board are not reviewable by the President. The President cannot
reverse or modify the decisions or actions of the PNRC Board. Neither can the
President reverse or modify the decisions or actions of the PNRC Chairman. It
is the PNRC Board that can review, reverse or modify the decisions or actions
of the PNRC Chairman. This proves again that the office of the PNRC
Chairman is a private office, not a government office.1avvphi1
Although the State is often represented in the governing bodies of a National
Society, this can be justified by the need for proper coordination with the public
authorities, and the government representatives may take part in decision-
making within a National Society. However, the freely-elected representatives
of a National Society’s active members must remain in a large majority in a
National Society’s governing bodies.19
The PNRC is not government-owned but privately owned. The vast majority of
the thousands of PNRC members are private individuals, including students.
Under the PNRC Charter, those who contribute to the annual fund campaign of
the PNRC are entitled to membership in the PNRC for one year. Thus, any one
between 6 and 65 years of age can be a PNRC member for one year upon
contributing ₱35, ₱100, ₱300, ₱500 or ₱1,000 for the year.20 Even foreigners,
whether residents or not, can be members of the PNRC. Section 5 of the
PNRC Charter, as amended by Presidential Decree No. 1264,21 reads:
SEC. 5. Membership in the Philippine National Red Cross shall be open to the
entire population in the Philippines regardless of citizenship. Any contribution
to the Philippine National Red Cross Annual Fund Campaign shall entitle the
contributor to membership for one year and said contribution shall be
deductible in full for taxation purposes.
Thus, the PNRC is a privately owned, privately funded, and privately run
charitable organization. The PNRC is not a government-owned or controlled
corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v.
NLRC,22 which ruled that the PNRC is a government-owned or controlled
corporation. In ruling that the PNRC is a government-owned or controlled
corporation, the simple test used was whether the corporation was created by
its own special charter for the exercise of a public function or by incorporation
under the general corporation law. Since the PNRC was created under a
special charter, the Court then ruled that it is a government corporation.
However, the Camporedondo ruling failed to consider the definition of a
government-owned or controlled corporation as provided under Section 2(13)
of the Introductory Provisions of the Administrative Code of 1987:
SEC. 2. General Terms Defined. – x x x
(13) Government-owned or controlled corporation refers to any agency
organized as a stock or non-stock corporation, vested with functions relating to
public needs whether governmental or proprietary in nature, and owned by the
Government directly or through its instrumentalities either wholly, or where
applicable as in the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock: Provided, That government-owned or
controlled corporations may be further categorized by the Department of the
Budget, the Civil Service Commission, and the Commission on Audit for
purposes of the exercise and discharge of their respective powers, functions
and responsibilities with respect to such corporations.(Boldfacing and
underscoring supplied)
A government-owned or controlled corporation must be owned by the
government, and in the case of a stock corporation, at least a majority of its
capital stock must be owned by the government. In the case of a non-stock
corporation, by analogy at least a majority of the members must be
government officials holding such membership by appointment or designation
by the government. Under this criterion, and as discussed earlier, the
government does not own or control PNRC.
The PNRC Charter is Violative of the Constitutional Proscription against the
Creation of Private Corporations by Special Law
The 1935 Constitution, as amended, was in force when the PNRC was created
by special charter on 22 March 1947. Section 7, Article XIV of the 1935
Constitution, as amended, reads:
SEC. 7. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such
corporations are owned or controlled by the Government or any subdivision or
instrumentality thereof.
The subsequent 1973 and 1987 Constitutions contain similar provisions
prohibiting Congress from creating private corporations except by general law.
Section 1 of the PNRC Charter, as amended, creates the PNRC as a "body
corporate and politic," thus:
SECTION 1. There is hereby created in the Republic of the Philippines a body
corporate and politic to be the voluntary organization officially designated to
assist the Republic of the Philippines in discharging the obligations set forth in
the Geneva Conventions and to perform such other duties as are inherent
upon a National Red Cross Society. The national headquarters of this
Corporation shall be located in Metropolitan Manila. (Emphasis supplied)
In Feliciano v. Commission on Audit,23 the Court explained the constitutional
provision prohibiting Congress from creating private corporations in this wise:
We begin by explaining the general framework under the fundamental law. The
Constitution recognizes two classes of corporations. The first refers to private
corporations created under a general law. The second refers to government-
owned or controlled corporations created by special charters. Section 16,
Article XII of the Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations. Government-
owned or controlled corporations may be created or established by special
charters in the interest of the common good and subject to the test of economic
viability.
The Constitution emphatically prohibits the creation of private corporations
except by general law applicable to all citizens. The purpose of this
constitutional provision is to ban private corporations created by special
charters, which historically gave certain individuals, families or groups special
privileges denied to other citizens.
In short, Congress cannot enact a law creating a private corporation with a
special charter. Such legislation would be unconstitutional. Private corporations
may exist only under a general law. If the corporation is private, it must
necessarily exist under a general law. Stated differently, only corporations
created under a general law can qualify as private corporations. Under existing
laws, the general law is the Corporation Code, except that the Cooperative
Code governs the incorporation of cooperatives.
The Constitution authorizes Congress to create government-owned or
controlled corporations through special charters. Since private corporations
cannot have special charters, it follows that Congress can create corporations
with special charters only if such corporations are government-owned or
controlled.24 (Emphasis supplied)
In Feliciano, the Court held that the Local Water Districts are government-
owned or controlled corporations since they exist by virtue of Presidential
Decree No. 198, which constitutes their special charter. The seed capital
assets of the Local Water Districts, such as waterworks and sewerage
facilities, were public property which were managed, operated by or under the
control of the city, municipality or province before the assets were transferred
to the Local Water Districts. The Local Water Districts also receive subsidies
and loans from the Local Water Utilities Administration (LWUA). In fact, under
the 2009 General Appropriations Act,25 the LWUA has a budget amounting to
₱400,000,000 for its subsidy requirements.26 There is no private capital
invested in the Local Water Districts.The capital assets and operating funds However, since the PNRC Charter is void insofar as it creates the PNRC as a
of the Local Water Districts all come from the government, either through private corporation, the PNRC should incorporate under the Corporation Code
transfer of assets, loans, subsidies or the income from such assets or funds. and register with the Securities and Exchange Commission if it wants to be a
private corporation.
The government also controls the Local Water Districts because the municipal
or city mayor, or the provincial governor, appoints all the board directors of the WHEREFORE, we declare that the office of the Chairman of the Philippine
Local Water Districts. Furthermore, the board directors and other personnel of National Red Cross is not a government office or an office in a government-
the Local Water Districts are government employees subject to civil service owned or controlled corporation for purposes of the prohibition in Section 13,
laws and anti-graft laws. Clearly, the Local Water Districts are considered Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a),
government-owned or controlled corporations not only because of their 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red
creation by special charter but also because the government in fact owns and Cross, or Republic Act No. 95, as amended by Presidential Decree Nos. 1264
controls the Local Water Districts. and 1643, are VOID because they create the PNRC as a private corporation or
grant it corporate powers.
Just like the Local Water Districts, the PNRC was created through a special
charter. However, unlike the Local Water Districts, the elements of government SO ORDERED
ownership and control are clearly lacking in the PNRC. Thus, although the
PNRC is created by a special charter, it cannot be considered a government-
owned or controlled corporation in the absence of the essential elements of
ownership and control by the government. In creating the PNRC as a corporate
entity, Congress was in fact creating a private corporation. However, the
constitutional prohibition against the creation of private corporations by special
charters provides no exception even for non-profit or charitable corporations.
Consequently, the PNRC Charter, insofar as it creates the PNRC as a private
corporation and grants it corporate powers,27 is void for being unconstitutional.
Thus, Sections 1,28 2,29 3,30 4(a),31 5,32 6,33 7,34 8,35 9,3610,37 11,38 12,39 and
1340 of the PNRC Charter, as amended, are void.

The other provisions41 of the PNRC Charter remain valid as they can be
considered as a recognition by the State that the unincorporated PNRC is the
local National Society of the International Red Cross and Red Crescent
Movement, and thus entitled to the benefits, exemptions and privileges set
forth in the PNRC Charter. The other provisions of the PNRC Charter
implement the Philippine Government’s treaty obligations under Article 4(5) of
the Statutes of the International Red Cross and Red Crescent Movement,
which provides that to be recognized as a National Society, the Society must
be "duly recognized by the legal government of its country on the basis of the
Geneva Conventions and of the national legislation as a voluntary aid society,
auxiliary to the public authorities in the humanitarian field."

In sum, we hold that the office of the PNRC Chairman is not a government
office or an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the 1987 Constitution.
G. R. No. 175352 January 18, 2011
DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M.
VIARI, Petitioners,
vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.
RESOLUTION
LEONARDO-DE CASTRO, J.:
This resolves the Motion for Clarification and/or for Reconsideration1 filed on
August 10, 2009 by respondent Richard J. Gordon (respondent) of the
Decision promulgated by this Court on July 15, 2009 (the Decision), the
Motion for Partial Reconsideration2 filed on August 27, 2009 by movant-
intervenor Philippine National Red Cross (PNRC), and the latter’s
Manifestation and Motion to Admit Attached Position Paper3 filed on
December 23, 2009.
In the Decision,4 the Court held that respondent did not forfeit his seat in the
Senate when he accepted the chairmanship of the PNRC Board of
Governors, as "the office of the PNRC Chairman is not a government office
or an office in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution."5 The
Decision, however, further declared void the PNRC Charter "insofar as it
creates the PNRC as a private corporation" and consequently ruled that "the
PNRC should incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private
corporation."6 The dispositive portion of the Decision reads as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine
National Red Cross is not a government office or an office in a government-
owned or controlled corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution. We also declare that Sections 1, 2, 3, 4(a),
5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red
Cross, or Republic Act No. 95, as amended by Presidential Decree Nos.
1264 and 1643, are VOID because they create the PNRC as a private
corporation or grant it corporate powers.7
In his Motion for Clarification and/or for Reconsideration, respondent raises
the following grounds: (1) as the issue of constitutionality of Republic Act
(R.A.) No. 95 was not raised by the parties, the Court went beyond the case
in deciding such issue; and (2) as the Court decided that Petitioners did not
have standing to file the instant Petition, the pronouncement of the Court on
the validity of R.A. No. 95 should be considered obiter.8
Respondent argues that the validity of R.A. No. 95 was a non-issue;
therefore, it was unnecessary for the Court to decide on that question.
Respondent cites Laurel v. Garcia,9 wherein the Court said that it "will not
pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground" and goes on to
claim that since this Court, in the Decision, disposed of the petition on some
other ground, i.e., lack of standing of petitioners, there was no need for it to
delve into the validity of R.A. No. 95, and the rest of the judgment should be
deemed obiter.
In its Motion for Partial Reconsideration, PNRC prays that the Court sustain
the constitutionality of its Charter on the following grounds:
A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL
REPUBLIC ACT NO. 95 AS AMENDED DEPRIVED INTERVENOR PNRC
OF ITS CONSTITUTIONAL RIGHT TO DUE PROCESS.
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT
CONTROVERSY.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS
AMENDED WAS NEVER AN ISSUE IN THIS CASE.
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO.
1264 AND NOT REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO.
1264 WAS NOT A CREATION OF CONGRESS.
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN.
WHILE IT IS PERFORMING HUMANITARIAN FUNCTIONS AS AN
AUXILIARY TO GOVERNMENT, IT IS A NEUTRAL ENTITY SEPARATE
AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT DOES NOT
QUALIFY AS STRICTLY PRIVATE IN CHARACTER.
In his Comment and Manifestation10 filed on November 9, 2009, respondent
manifests: (1) that he agrees with the position taken by the PNRC in its
Motion for Partial Reconsideration dated August 27, 2009; and (2) as of the
writing of said Comment and Manifestation, there was pending before the
Congress of the Philippines a proposed bill entitled "An Act Recognizing the
PNRC as an Independent, Autonomous, Non-Governmental Organization
Auxiliary to the Authorities of the Republic of the Philippines in the
Humanitarian Field, to be Known as The Philippine Red Cross."11
After a thorough study of the arguments and points raised by the respondent
as well as those of movant-intervenor in their respective motions, we have
reconsidered our pronouncements in our Decision dated July 15, 2009 with
regard to the nature of the PNRC and the constitutionality of some provisions
of the PNRC Charter, R.A. No. 95, as amended.
As correctly pointed out in respondent’s Motion, the issue of constitutionality
of R.A. No. 95 was not raised by the parties, and was not among the issues
defined in the body of the Decision; thus, it was not the very lis mota of the
case. We have reiterated the rule as to when the Court will consider the issue
of constitutionality in Alvarez v. PICOP Resources, Inc.,12 thus:
This Court will not touch the issue of unconstitutionality unless it is the very lis
mota. It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and that when it is raised, if the
record also presents some other ground upon which the court may [rest] its
judgment, that course will be adopted and the constitutional question will be
left for consideration until such question will be unavoidable.13
Under the rule quoted above, therefore, this Court should not have declared
void certain sections of R.A. No. 95, as amended by Presidential Decree
(P.D.) Nos. 1264 and 1643, the PNRC Charter. Instead, the Court should
have exercised judicial restraint on this matter, especially since there was
some other ground upon which the Court could have based its judgment.
Furthermore, the PNRC, the entity most adversely affected by this
declaration of unconstitutionality, which was not even originally a party to this
case, was being compelled, as a consequence of the Decision, to suddenly
reorganize and incorporate under the Corporation Code, after more than sixty
(60) years of existence in this country.
Its existence as a chartered corporation remained unchallenged on ground of
unconstitutionality notwithstanding that R.A. No. 95 was enacted on March
22, 1947 during the effectivity of the 1935 Constitution, which provided for a
proscription against the creation of private corporations by special law, to wit:
SEC. 7. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations, unless such
corporations are owned and controlled by the Government or any subdivision
or instrumentality thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution
and Article XII, Section 16 of the 1987 Constitution. The latter reads:
SECTION 16. The Congress shall not, except by general law, provide for the
formation, organization, or regulation of private corporations. Government-
owned or controlled corporations may be created or established by special
charters in the interest of the common good and subject to the test of
economic viability.
Since its enactment, the PNRC Charter was amended several times,
particularly on June 11, 1953, August 16, 1971, December 15, 1977, and
October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373, P.D. No. 1264,
and P.D. No. 1643, respectively. The passage of several laws relating to the
PNRC’s corporate existence notwithstanding the effectivity of the
constitutional proscription on the creation of private corporations by law, is a
recognition that the PNRC is not strictly in the nature of a private corporation
contemplated by the aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that there is none like it
not just in terms of structure, but also in terms of history, public service and
official status accorded to it by the State and the international community.
There is merit in PNRC’s contention that its structure is sui generis.
The PNRC succeeded the chapter of the American Red Cross which was in
existence in the Philippines since 1917. It was created by an Act of Congress
after the Republic of the Philippines became an independent nation on July 6,
1946 and proclaimed on February 14, 1947 its adherence to the Convention
of Geneva of July 29, 1929 for the Amelioration of the Condition of the
Wounded and Sick of Armies in the Field (the "Geneva Red Cross
Convention"). By that action the Philippines indicated its desire to participate
with the nations of the world in mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization for that purpose and like
other volunteer organizations established in other countries which have
ratified the Geneva Conventions, to promote the health and welfare of the
people in peace and in war.14
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and
further amended by P.D. Nos. 1264 and 1643, show the historical
background and legal basis of the creation of the PNRC by legislative fiat, as
a voluntary organization impressed with public interest. Pertinently R.A. No.
95, as amended by P.D. 1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894,
the nations of the world unanimously agreed to diminish within their power
the evils inherent in war;
WHEREAS, more than one hundred forty nations of the world have ratified or
adhered to the Geneva Conventions of August 12, 1949 for the Amelioration
of the Condition of the Wounded and Sick of Armed Forces in the Field and
at Sea, The Prisoners of War, and The Civilian Population in Time of War
referred to in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an independent nation
on July 4, 1946, and proclaimed on February 14, 1947 its adherence to the
Geneva Conventions of 1929, and by the action, indicated its desire to
participate with the nations of the world in mitigating the suffering caused by
war and to establish in the Philippines a voluntary organization for that
purpose as contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter of the
American National Red Cross which was terminated in view of the
independence of the Philippines; and
WHEREAS, the volunteer organizations established in other countries which
have ratified or adhered to the Geneva Conventions assist in promoting the
health and welfare of their people in peace and in war, and through their
mutual assistance and cooperation directly and through their international
organizations promote better understanding and sympathy among the people
of the world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all the Armed Forces of the Philippines and pursuant
to Proclamation No. 1081 dated September 21, 1972, and General Order No.
1 dated September 22, 1972, do hereby decree and order that Republic Act
No. 95, Charter of the Philippine National Red Cross (PNRC) as amended by
Republic Acts No. 855 and 6373, be further amended as follows:
Section 1. There is hereby created in the Republic of the Philippines a body
corporate and politic to be the voluntary organization officially designated to
assist the Republic of the Philippines in discharging the obligations set forth
in the Geneva Conventions and to perform such other duties as are inherent
upon a national Red Cross Society. The national headquarters of this
Corporation shall be located in Metropolitan Manila. (Emphasis supplied.)
The significant public service rendered by the PNRC can be gleaned from
Section 3 of its Charter, which provides:
Section 3. That the purposes of this Corporation shall be as follows:
(a) To provide volunteer aid to the sick and wounded of armed forces
in time of war, in accordance with the spirit of and under the
conditions prescribed by the Geneva Conventions to which the
Republic of the Philippines proclaimed its adherence;
(b) For the purposes mentioned in the preceding sub-section, to
perform all duties devolving upon the Corporation as a result of the
adherence of the Republic of the Philippines to the said Convention;
(c) To act in matters of voluntary relief and in accordance with the
authorities of the armed forces as a medium of communication
between people of the Republic of the Philippines and their Armed
Forces, in time of peace and in time of war, and to act in such
matters between similar national societies of other governments and
the Governments and people and the Armed Forces of the Republic
of the Philippines;
(d) To establish and maintain a system of national and international
relief in time of peace and in time of war and apply the same in
meeting and emergency needs caused by typhoons, flood, fires,
earthquakes, and other natural disasters and to devise and carry on
measures for minimizing the suffering caused by such disasters;
(e) To devise and promote such other services in time of peace and
in time of war as may be found desirable in improving the health,
safety and welfare of the Filipino people;
(f) To devise such means as to make every citizen and/or resident of
the Philippines a member of the Red Cross.
The PNRC is one of the National Red Cross and Red Crescent Societies,
which, together with the International Committee of the Red Cross (ICRC)
and the IFRC and RCS, make up the International Red Cross and Red
Crescent Movement (the Movement). They constitute a worldwide
humanitarian movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be found, to
protect life and health and ensure respect for the human being, in particular
in times of armed conflict and other emergencies, to work for the prevention
of disease and for the promotion of health and social welfare, to encourage
voluntary service and a constant readiness to give help by the members of
the Movement, and a universal sense of solidarity towards all those in need
of its protection and assistance.15
The PNRC works closely with the ICRC and has been involved in
humanitarian activities in the Philippines since 1982. Among others, these
activities in the country include:
1. Giving protection and assistance to civilians displaced or otherwise
affected by armed clashes between the government and armed
opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and violence
on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the
public and private sectors.16
National Societies such as the PNRC act as auxiliaries to the public
authorities of their own countries in the humanitarian field and provide a
range of services including disaster relief and health and social programmes.
The International Federation of Red Cross (IFRC) and Red Crescent
Societies (RCS) Position Paper,17 submitted by the PNRC, is instructive with
regard to the elements of the specific nature of the National Societies such as
the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister
Red Cross and Red Crescent Societies, have certain specificities deriving
from the 1949 Geneva Convention and the Statutes of the International Red
Cross and Red Crescent Movement (the Movement). They are also guided
by the seven Fundamental Principles of the Red Cross and Red Crescent
Movement: Humanity, Impartiality, Neutrality, Independence, Voluntary
Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a protected
component of the Red Cross movement under Articles 24 and 26 of the First
Geneva Convention, especially in times of armed conflict. These provisions
require that the staff of a National Society shall be respected and protected in
all circumstances. Such protection is not ordinarily afforded by an
international treaty to ordinary private entities or even non-governmental
organisations (NGOs). This sui generis character is also emphasized by the
Fourth Geneva Convention which holds that an Occupying Power cannot
require any change in the personnel or structure of a National
Society. National societies are therefore organizations that are directly
regulated by international humanitarian law, in contrast to other
ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their public
authorities as voluntary aid societies, auxiliary to the public authorities in the
humanitarian field, but also benefit from recognition at the International level.
This is considered to be an element distinguishing National Societies from
other organisations (mainly NGOs) and other forms of humanitarian
response.
x x x. No other organisation belongs to a world-wide Movement in which all
Societies have equal status and share equal responsibilities and duties in
helping each other. This is considered to be the essence of the Fundamental
Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the
public authorities in the humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the
same time a private institution and a public service organization
because the very nature of its work implies cooperation with the
authorities, a link with the State. In carrying out their major functions, Red
Cross Societies give their humanitarian support to official bodies, in general
having larger resources than the Societies, working towards comparable
ends in a given sector.
x x x No other organization has a duty to be its government’s humanitarian
partner while remaining independent.18(Emphases ours.)
It is in recognition of this sui generis character of the PNRC that R.A. No. 95
has remained valid and effective from the time of its enactment in March 22,
1947 under the 1935 Constitution and during the effectivity of the 1973
Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or
challenged on constitutional grounds, not even in this case before the Court
now.
In the Decision, the Court, citing Feliciano v. Commission on
Audit,19 explained that the purpose of the constitutional provision prohibiting
Congress from creating private corporations was to prevent the granting of
special privileges to certain individuals, families, or groups, which were
denied to other groups. Based on the above discussion, it can be seen that
the PNRC Charter does not come within the spirit of this constitutional
provision, as it does not grant special privileges to a particular individual,
family, or group, but creates an entity that strives to serve the common good.
Furthermore, a strict and mechanical interpretation of Article XII, Section 16
of the 1987 Constitution will hinder the State in adopting measures that will
serve the public good or national interest. It should be noted that a special
law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and not the
general corporation code, vests corporate power and capacities upon
cooperatives which are private corporations, in order to implement the State’s
avowed policy.
In the Decision of July 15, 2009, the Court recognized the public service
rendered by the PNRC as the government’s partner in the observance of its
international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian
organization, whose mission is to bring timely, effective, and compassionate
humanitarian assistance for the most vulnerable without consideration of
nationality, race, religion, gender, social status, or political affiliation. The
PNRC provides six major services: Blood Services, Disaster Management,
Safety Services, Community Health and Nursing, Social Services and
Voluntary Service.
The Republic of the Philippines, adhering to the Geneva Conventions,
established the PNRC as a voluntary organization for the purpose
contemplated in the Geneva Convention of 27 July 1929. x x x.20 (Citations
omitted.)
So must this Court recognize too the country’s adherence to the
Geneva Convention and respect the unique status of the PNRC in
consonance with its treaty obligations. The Geneva Convention has the
force and effect of law.21 Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the
land.22 This constitutional provision must be reconciled and harmonized with
Article XII, Section 16 of the Constitution, instead of using the latter to negate
the former.
By requiring the PNRC to organize under the Corporation Code just like any
other private corporation, the Decision of July 15, 2009 lost sight of the
PNRC’s special status under international humanitarian law and as an
auxiliary of the State, designated to assist it in discharging its obligations
under the Geneva Conventions. Although the PNRC is called to be
independent under its Fundamental Principles, it interprets such
independence as inclusive of its duty to be the government’s humanitarian
partner. To be recognized in the International Committee, the PNRC must
have an autonomous status, and carry out its humanitarian mission in a
neutral and impartial manner.
However, in accordance with the Fundamental Principle of Voluntary Service
of National Societies of the Movement, the PNRC must be distinguished from
private and profit-making entities. It is the main characteristic of National
Societies that they "are not inspired by the desire for financial gain but by
individual commitment and devotion to a humanitarian purpose freely chosen
or accepted as part of the service that National Societies through its
volunteers and/or members render to the Community."23
The PNRC, as a National Society of the International Red Cross and Red
Crescent Movement, can neither "be classified as an instrumentality of the
State, so as not to lose its character of neutrality" as well as its
independence, nor strictly as a private corporation since it is regulated by
international humanitarian law and is treated as an auxiliary of the State.24
Based on the above, the sui generis status of the PNRC is now sufficiently
established.1âwphi1 Although it is neither a subdivision, agency, or
instrumentality of the government, nor a government-owned or -controlled
corporation or a subsidiary thereof, as succinctly explained in the Decision of
July 15, 2009, so much so that respondent, under the Decision, was correctly
allowed to hold his position as Chairman thereof concurrently while he served
as a Senator, such a conclusion does not ipso facto imply that the PNRC is a
"private corporation" within the contemplation of the provision of the
Constitution, that must be organized under the Corporation Code. As
correctly mentioned by Justice Roberto A. Abad, the sui generis character of
PNRC requires us to approach controversies involving the PNRC on a case-
to-case basis.

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

WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion

for Clarification and/or for Reconsideration and movant-intervenor PNRC’s
Motion for Partial Reconsideration of the Decision in G.R. No. 175352 dated
July 15, 2009 are GRANTED. The constitutionality of R.A. No. 95, as
amended, the charter of the Philippine National Red Cross, was not raised by
the parties as an issue and should not have been passed upon by this Court.
The structure of the PNRC is sui generis¸ being neither strictly private nor
public in nature. R.A. No. 95 remains valid and constitutional in its entirety.
The dispositive portion of the Decision should therefore be MODIFIED by
deleting the second sentence, to now read as follows:

WHEREFORE, we declare that the office of the Chairman of the Philippine

National Red Cross is not a government office or an office in a government-
owned or controlled corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution. SO ORDERED.
G.R. No. 227757
REPRESENTATIVE TEDDY BRAWNER BAGUILAT, JR.,
REPRESENTATIVE EDCEL C. LAGMAN, REPRESENTATIVE RAUL A.
DAZA, REPRESENTATIVE EDGAR R. ERICE, REPRESENTATIVE
EMMANUEL A. BILLONES, REPRESENTATIVE TOMASITO S. VILLARIN,
and REPRESENTATIVE GARY C. ALEJANO,Petitioners
vs.
SPEAKER PANTALEON D. ALVAREZ, MAJORITY LEADER RODOLFO C.
FARINAS, and REPRESENTATIVE DANILO E. SUAREZ, Respondents
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for mandamus1 filed by petitioners
Representatives Teddy Brawner Baguilat, Jr., (Rep. Baguilat), Edcel C.
Lagman (Rep. Lagman), Raul A. Daza, Edgar R. Erice, Emmanuel A.
Billones, Tomasito S. Villarin, and Gary C. Alejano (collectively, petitioners),
all members of the House of Representatives, essentially praying that
respondents Speaker Pantaleon D. Alvarez (Speaker Alvarez), Majority
Leader Rodolfo C. Farifias (Rep. Fariñas), and Representative Danilo E.
Suarez (Rep. Suarez; collectively, respondents), also members of the House
of Representatives, be compelled to recognize: (a) Rep. Baguilat as the
Minority Leader of the 17th Congress of the House of Representatives;
and (b) petitioners as the legitimate members of the Minority.
The Facts
The petition alleges that prior to the opening of the 17th Congress on July 25,
2016, several news articles surfaced about Rep. Suarez's announcement
that he sought the adoption or anointment of President Rodrigo Roa Duterte's
Administration as the "Minority Leader" to lead a "cooperative minority" in the
House of Representatives (or the House), and even purportedly encamped
himself in Davao shortly after the May 2016 Elections to get the endorsement
of President Duterte and the majority partisans. The petition further claims
that to ensure Rep. Suarez's election as the Minority Leader, the
supermajority coalition in the House allegedly "lent" Rep. Suarez some of its
members to feign membership in the Minority, and thereafter, vote for him as
the Minority Leader.2
On July 25, 2016, which was prior to the election of the Speaker of the House
of Representatives, then-Acting Floor Leader Rep. Farinas and Rep. Jose
Atienza (Rep. Atienza) had an interchange before the Plenary, wherein the
latter elicited the following from the former: (a) all those who vote for the
winning Speaker shall belong to the Majority and those who vote for the
other candidates shall belong to the Minority; (b) those who abstain
from voting shall likewise be considered part of the Minority; and (c) the
Minority Leader shall be elected by the members of the
Minority.3 Thereafter, the Elections for the Speakership were held, "[w]ith
252 Members voting for [Speaker] Alvarez, eight [(8)] voting for Rep.
Baguilat, seven [(7)] voting for Rep. Suarez, 21 abstaining and one [(l)]
registering a no vote,"4 thus, resulting in Speaker Alvarez being the duly
elected Speaker of the House of Representatives of the 17th Congress.
Petitioners hoped that as a "long-standing tradition" of the House - where the
candidate who garnered the second (2nd)-highest number of votes for
Speakership automatically becomes the Minority Leader - Rep. Baguilat
would be declared and recognized as the Minority Leader. However, despite
numerous follow-ups from respondents, Rep. Baguilat was never recognized
as such.5
On August 1, 2016, one of the "abstentionists," Representative Harlin Neil
Abayon, III (Rep. Abayon), manifested before the Plenary that on July 27,
2016, those who did not vote for Speaker Alvarez (including the 21
"abstentionists") convened and elected Rep. Suarez as the Minority
Leader.6 Thereafter, on August 15, 2016, Rep. (now, Majority Leader)
Farinas moved for the recognition of Rep. Suarez as the Minority Leader.
This was opposed by Rep. Lagman essentially on the ground that various
"irregularities" attended Rep. Suarez's election as Minority Leader,
particularly: (a) that Rep. Suarez was a member of the Majority as he voted
for Speaker Alvarez, and that his "transfer" to the Minority was irregular; and
(b) that the "abstentionists" who constituted the bulk of votes in favor of Rep.
Suarez's election as Minority Leader are supposed to be considered
independent members of the House, and thus, irregularly deemed as part of
the Minority.7 However, Rep. Lagman's opposition was overruled, and
consequently, Rep. Suarez was officially recognized as the House Minority
Leader.
Thus, petitioners filed the instant petition for mandamus, insisting that Rep.
Baguilat should be recognized as the Minority Leader in light of: (a) the "long-
standing tradition" in the House where the candidate who garnered the
second (2nd)-highest number of votes for Speakership automatically
becomes the Minority Leader; and (b) the irregularities attending Rep.
Suarez's election to said Minority Leader position.
For his part, Rep. Suarez maintains that the election of Minority Leader is an
internal matter to the House of Representatives. Thus, absent any finding of
violation of the Constitution or grave abuse of discretion, the Court cannot
interfere with such internal matters of a coequal branch of the
govemment.8 In the same vein, the Office of the Solicitor General (OSG), on
behalf of Speaker Alvarez and Majority Leader Farinas contends, inter
alia, that the election of Minority Leader is within the exclusive realm of the
House of Representatives, which the Court cannot intrude in pursuant to the
principle of separation of powers, as well as the political question doctrine.
Similarly, the OSG argues that the recognition of Rep. Suarez as the House
Minority Leader was not tainted with any violation of the Constitution or grave
abuse of discretion and, thus, must be sustained.9
The Issue Before the Court
The essential issue for resolution is whether or not respondents may be
compelled via a writ of mandamus to recognize: (a) Rep. Baguilat as the
Minority Leader of the House of Representatives; and (b) petitioners as the
only legitimate members of the House Minority.
The Court's Ruling
The petition is without merit.
"Mandamus is defined as a writ commanding a tribunal, corporation, board or
person to do the act required to be done when it or he unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting
from an office, trust or station, or unlawfully excludes another from the use
and enjoyment of a right or office or which such other is entitled, there being
no other plain, speedy, and adequate remedy in the ordinary course
oflaw."10 In Special People, Inc. Foundation v. Canda,11 the Court explained
that the peremptory writ of mandamus is an extraordinary remedy that is
issued only in extreme necessity, and the ordinary course of procedure is
powerless to afford an adequate and speedy relief to one who has a clear
legal right to the performance of the act to be compelled.12
After a judicious study of this case, the Court finds that petitioners have no
clear legal right to the reliefs sought. Records disclose that prior to the
Speakership Election held on July 25, 2016, then-Acting Floor Leader Rep.
Farinas responded to a parliamentary inquiry from Rep. Atienza as to who
would elect the Minority Leader of the House of Representatives. Rep.
Farinas then articulated that: (a) all those who vote for the winning
Speaker shall belong to the Majority and those who vote for other
candidates shall belong to the Minority; (b) those who abstain from
voting shall likewise be considered part of the Minority; and (c) the
Minority Leader shall be elected by the members of the
Minority.13 Thereafter, the election of the Speaker of the House
proceeded without any objection from any member of Congress, including
herein petitioners. Notably, the election of the Speaker of the House is the
essential and formative step conducted at the first regular session of the
17th Congress to determine the constituency of the Majority and Minority (and
later on, their respective leaders), considering that the Majority would be
comprised of those who voted for the winning Speaker and the Minority of
those who did not. The unobjected procession of the House at this juncture is
reflected in its Journal No. 1 dated July 25, 2016,14which, based on case law,
is conclusive15 as to what transpired in Congress:
PARLIAMENTARY INQUIRY OF REP. ATIENZA
Recognized by the Chair, Rep. Atienza inquired as to who would elect the
Minority Leader of the House of Representatives.
REMARKS OF REP. FARINAS
In reply, Rep. Fariñas referred to Section 8 of the Rules of the house on
membership to the Majority and the Minority. He explained that the Members
who voted for the winning candidate for the Speaker shall constitute the
Majority and shall elect from among themselves the Majority Leader. while
those who voted against the winning Speaker or did not vote at all shall
belong to the Minority and would thereafter elect their Minority Leader.
NOMINAL VOTING ON THE NOMINEES FOR SPEAKER OF
THE HOUSE
Thereafter, on motion of Rep. Farinas, there being no objection, the Members
proceeded to the election of the Speaker of the House of Representatives.
The Presiding Officer then directed Deputy Secretary General Adasa to call
the Roll for nominal voting for the Speaker of the House and requested each
Member to state the name of the candidate he or she will vote for.
The result of the voting was as follows:
For Rep. Pantaleon D. Alvarez:
xxxx
For Rep. Teddy Brawner Baguilat Jr.
xxxx
For Rep. Danilo E. Suarez
xxxx
Abstained
xxxx
With 252 Members voting for Rep. Alvarez (P.), eight voting for Rep.
Baguilat, seven voting for Rep. Suarez, 21 abstaining and one registering a
no vote, the Presiding Officer declared Rep. Alvarez (P.) as the duly elected
Speaker of the House of Representatives for the 17th Congress.
COMMITTEE ON NOTIFICATION
On motion of Rep. Farinas, there being no objection, the Body constituted a
committee composed of the following Members to notify Rep. Alvarez (P.) of
his election as Speaker of the House of Representatives and to escort the
Speaker-elect to the rostrum for his oath-taking: Reps. Eric D. Singson,
Mercedes K. Alvarez, Fredenil "Fred" H. Castro, Raneo "Ranie" E. Abu, Lucy
T. Gomez, Nancy A. Catamco, Elenita Milagros "Eileen" Ermita-Buhain, Rose
Marie "Baby" J. Arenas, Mylene J. Garcia-Albano, Gwendolyn F. Garcia,
Marlyn L. PrimiciasAgabas, Emmeline Aglipay-Villar, Sarah Jane I. Elago and
Victoria Isabel G. Noel.
SUSPENSION OF SESSION
The Presiding Officer motu proprio suspended the session at 12:43p.m.16
After Speaker Alvarez took his oath of office, he administered the oath of
office to all Members of the House of the 17th Congress.17 On the same day,
the Deputy Speakers, and other officers of the House (among others, the
Majority Leader) were elected and all took their respective oaths of office. 18
During his privilege speech delivered on July 26, 2016, which was a full day
after all the above-mentioned proceedings had already been commenced
and completed, Rep. Lagman questioned Rep. Fariñas' interpretation of the
Rules.19 Aside from the belated timing of Rep. Lagman's query, Rep. Suarez
aptly points out that the Journal for that session does not indicate any motion
made, seconded and carried to correct the entry in the Journal of the
previous session (July 25, 2016) pertinent to any recording error that may
have been made, as to indicate that in fact, a protest or objection was
raised.20
Logically speaking, the foregoing circumstances would show that the House
of Representatives had effectively adopted Rep. Farinas' proposal anent the
new rules regarding the membership of the Minority, as well as the process of
determining who the Minority Leader would be. More significantly, this
demonstrates the House's deviation from the "legal bases" of petitioners'
claim for entitlement to the reliefs sought before this Court, namely: (a) the
"long-standing tradition" of automatically awarding the Minority Leadership to
the second placer in the Speakership Elections, i.e., Rep. Baguilat;
and (b) the rule21 that those who abstained in the Speakership Elections
should be deemed as independent Members of the House of
Representatives, and thus, they could not have voted for a Minority Leader in
the person of Rep. Suarez.22 As will be explained hereunder, the deviation by
the Lower House from the aforesaid rules is not averse to the Constitution.
Section 16 (1), Article VI of the 1987 Constitution reads:
Section 16. (1) The Senate shall elect its President and the House of
Representatives, its Speaker, by a majority vote of all its respective
Members.
Each house shall choose such other officers as it may deem necessary.
Under this provision, the Speaker of the House of Representatives shall be
elected by a majority vote of its entire membership. Said provision also states
that the House of Representatives may decide to have officers other than the
Speaker, and that the method and manner as to how these officers are
chosen is something within its sole control.23 In the case of Defensor-
Santiago v. Guingona,24 which involved a dispute on the rightful Senate
Minority Leader during the 11th Congress (1998-2001), this Court observed
that "[w]hile the Constitution is explicit on the manner of electing x x x [a
Speaker of the House of Representative,] it is, however, dead silent on the
manner of selecting the other officers [of the Lower House]. All that the
Charter says is that ' [e]ach House shall choose such other officers as it may
deem necessary.' [As such], the method of choosing who will be such other
officers is merely a derivative of the exercise of the prerogative conferred by
the aforequoted constitutional provision. Therefore, such method must be
prescribed by the [House of Representatives] itself, not by [the] Court. "25
Corollary thereto, Section 16 (3), Article VI26 of the Constitution vests in the
House of Representatives the sole authority to, inter alia, "determine the rules
of its proceedings." These "legislative rules, unlike statutory laws, do not
have the imprints of permanence and obligatoriness during their effectivity. In
fact, they 'are subject to revocation, modification or waiver at the pleasure of
the body adopting them.' Being merely matters of procedure, their
observance are of no concern to the courts, for said rules may be waived or
disregarded by the legislative body at will, upon the concurrence of a majority
[of the House of Representatives]. "27 Hence, as a general rule, "[t]his Court
has no authority to interfere and unilaterally intrude into that exclusive realm,
without running afoul of [C]onstitutional principles that it is bound to protect
and uphold x x x. Constitutional respect and a becoming regard for the
sovereign acts of a coequal branch prevents the Court from prying into the
internal workings of the [House of Representatives]."28
Of course, as in any general rule, there lies an exception. While the Court in
taking jurisdiction over petitions questioning an act of the political
departments of government, will not review the wisdom, merits or propriety of
such action, it will, however, strike it down on the ground of grave abuse of
discretion.29 This stems from the expanded concept of judicial power, which,
under Section 1, Article VIII of the 1987 Constitution, expressly "includes the
duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government."
Case law decrees that "[t]he foregoing text emphasizes the judicial
department's duty and power to strike down grave abuse of discretion on the
part of any branch or instrumentality of government including Congress. It is
an innovation in our political law. As explained by former Chief Justice
Roberto Concepcion:30
[T]he judiciary is the final arbiter on the question of whether or not a branch of
government or any of its officials has acted without jurisdiction or in excess of
jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction. This is not only a judicial power but a
duty to pass judgment on matters of this nature.31
Accordingly, this Court "will not shirk, digress from or abandon its sacred duty
and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer,
agency, instrumentality or department of the government."32
However, as may be gleaned from the circumstances as to how the House
had conducted the questioned proceedings and its apparent deviation from
its traditional rules, the Court is hard-pressed to find any attending grave
abuse of discretion which would warrant its intrusion in this case. By and
large, this case concerns an internal matter of a coequal, political branch of
government which, absent any showing of grave abuse of discretion, cannot
be judicially interfered with. To rule otherwise would not only embroil this
Court in the realm of politics, but also lead to its own breach of the separation
of powers doctrine.33 Verily, "[i]t would be an unwarranted invasion of the
prerogative of a coequal department for this Court either to set aside a
legislative action as void [only] because [it] thinks [that] the House has
disregarded its own rules of procedure, or to allow those defeated in the
political arena to seek a rematch in the judicial forum when petitioners can
find their remedy in that department itself."34
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R.
ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance,
HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner
of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his
Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing
and enforcing Republic Act (RA) 93352(Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards
and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board).3 It covers all officials
and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget
and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.5
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary,
the Director General of the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the Commissioners of the BIR
and the BOC or their Deputy Commissioners, two representatives from the
rank-and-file employees and a representative from the officials nominated by
their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and
procedures for removing from the service officials and employees whose
revenue collection falls short of the target; (3) terminate personnel in
accordance with the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress.7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC)
were tasked to promulgate and issue the implementing rules and regulations
of RA 9335,8 to be approved by a Joint Congressional Oversight Committee
created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by
establishing a system of rewards and incentives, the law "transform[s] the
officials and employees of the BIR and the BOC into mercenaries and bounty
hunters" as they will do their best only in consideration of such rewards.
Thus, the system of rewards and incentives invites corruption and
undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty
and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and
incentives only to officials and employees of the BIR and the BOC violates
the constitutional guarantee of equal protection. There is no valid basis for
classification or distinction as to why such a system should not apply to
officials and employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix
revenue targets to the President as it lacks a sufficient standard on that
matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC
officials may be dismissed from the service if their revenue collections fall
short of the target by at least 7.5%, the law does not, however, fix the
revenue targets to be achieved. Instead, the fixing of revenue targets has
been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in order
to dismiss BIR or BOC personnel.
Finally, petitioners assail the creation of a congressional oversight committee
on the ground that it violates the doctrine of separation of powers. While the
legislative function is deemed accomplished and completed upon the
enactment and approval of the law, the creation of the congressional
oversight committee permits legislative participation in the implementation
and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General,
question the petition for being premature as there is no actual case or
controversy yet. Petitioners have not asserted any right or claim that will
necessitate the exercise of this Court’s jurisdiction. Nevertheless,
respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation that
the reward system will breed mercenaries is mere speculation and does not
suffice to invalidate the law. Seen in conjunction with the declared objective
of RA 9335, the law validly classifies the BIR and the BOC because the
functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient
standard that will guide the executive in the implementation of its provisions.
Lastly, the creation of the congressional oversight committee under the law
enhances, rather than violates, separation of powers. It ensures the
fulfillment of the legislative policy and serves as a check to any over-
accumulation of power on the part of the executive and the implementing
agencies.
After a careful consideration of the conflicting contentions of the parties, the
Court finds that petitioners have failed to overcome the presumption of
constitutionality in favor of RA 9335, except as shall hereafter be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion
of opposite legal claims susceptible of judicial adjudication.10 A closely
related requirement is ripeness, that is, the question must be ripe for
adjudication. And a constitutional question is ripe for adjudication when the
governmental act being challenged has a direct adverse effect on the
individual challenging it.11 Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the case or an injury
to himself that can be redressed by a favorable decision of the Court. 12
In this case, aside from the general claim that the dispute has ripened into a
judicial controversy by the mere enactment of the law even without any
further overt act,13 petitioners fail either to assert any specific and concrete
legal claim or to demonstrate any direct adverse effect of the law on them.
They are unable to show a personal stake in the outcome of this case or an
injury to themselves. On this account, their petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the
constitutional issues raised by petitioners. The grave nature of their
allegations tends to cast a cloud on the presumption of constitutionality in
favor of the law. And where an action of the legislative branch is alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. 14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
Sec. 1. Public office is a public trust. Public officers and employees
must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency, act with
patriotism, and justice, and lead modest lives.
Public office is a public trust. It must be discharged by its holder not for his
own personal gain but for the benefit of the public for whom he holds it in
trust. By demanding accountability and service with responsibility, integrity,
loyalty, efficiency, patriotism and justice, all government officials and
employees have the duty to be responsive to the needs of the people they
are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their
duties. This presumption necessarily obtains in favor of BIR and BOC officials
and employees. RA 9335 operates on the basis thereof and reinforces it by
providing a system of rewards and sanctions for the purpose of encouraging
the officials and employees of the BIR and the BOC to exceed their revenue
targets and optimize their revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it.
It cannot be overturned by mere conjecture or denied in advance (as
petitioners would have the Court do) specially in this case where it is an
underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC
officials and employees into "bounty hunters and mercenaries" is not only
without any factual and legal basis; it is also purely speculative.
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal
one.16 To invalidate RA 9335 based on petitioners’ baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also of the
executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be
rewarded for exemplary and exceptional performance. A system of incentives
for exceeding the set expectations of a public office is not anathema to the
concept of public accountability. In fact, it recognizes and reinforces
dedication to duty, industry, efficiency and loyalty to public service of
deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law
which awards to officers of the customs as well as other parties an amount
not exceeding one-half of the net proceeds of forfeitures in violation of the
laws against smuggling. Citing Dorsheimer v. United States,18 the U.S.
Supreme Court said:
The offer of a portion of such penalties to the collectors is to
stimulate and reward their zeal and industry in detecting fraudulent
attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled
to a reward when, as a consequence of their zeal in the enforcement of tax
and customs laws, they exceed their revenue targets. In addition, RA 9335
establishes safeguards to ensure that the reward will not be claimed if it will
be either the fruit of "bounty hunting or mercenary activity" or the product of
the irregular performance of official duties. One of these precautionary
measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR
and the BOC. – The officials, examiners, and employees of the [BIR]
and the [BOC] who violate this Act or who are guilty of negligence,
abuses or acts of malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties shall be
held liable for any loss or injury suffered by any business
establishment or taxpayer as a result of such violation, negligence,
abuse, malfeasance, misfeasance or failure to exercise extraordinary
diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the
same conditions and among persons similarly situated; it is equality among
equals, not similarity of treatment of persons who are classified based on
substantial differences in relation to the object to be accomplished.19 When
things or persons are different in fact or circumstance, they may be treated in
law differently. In Victoriano v. Elizalde Rope Workers’ Union,20 this Court
declared:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the [S]tate.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does
not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to
operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A
law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that
it be reasonable, which means that the classification should be
based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law;
that it must not be limited to existing conditions only; and that it
must apply equally to each member of the class. This Court has
 held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not necessary
that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification
be made with mathematical nicety. Hence, legislative classification
may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from
recognizing degrees of evil or harm, and legislation is addressed to
evils as they may appear.21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR
and the BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or
sanctions provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because they have
the common distinct primary function of generating revenues for the national
government through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision
and control of the Commissioner of Internal Revenue, who shall be
appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account
for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance
of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which
shall be headed and subject to the management and control of the
Commissioner of Customs, who shall be appointed by the President
upon the recommendation of the Secretary[of the DOF] and
hereinafter referred to as Commissioner, shall have the following
functions:
(1) Collect custom duties, taxes and the corresponding fees,
charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs
laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all
ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
 (9) Perform such other functions as may be provided by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions – taxation. Indubitably,
such substantial distinction is germane and intimately related to the purpose
of the law. Hence, the classification and treatment accorded to the BIR and
the BOC under RA 9335 fully satisfy the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete
when it sets forth therein the policy to be executed, carried out or
implemented by the delegate.26 It lays down a sufficient standard when it
provides adequate guidelines or limitations in the law to map out the
boundaries of the delegate’s authority and prevent the delegation from
running riot.27 To be sufficient, the standard must specify the limits of the
delegate’s authority, announce the legislative policy and identify the
conditions under which it is to be implemented.28
RA 9335 adequately states the policy and standards to guide the President in
fixing revenue targets and the implementing agencies in carrying out the
provisions of the law. Section 2 spells out the policy of the law:
SEC. 2. Declaration of Policy. – It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC)
by providing for a system of rewards and sanctions through the
creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the purpose
of encouraging their officials and employees to exceed their revenue
targets.
Section 4 "canalized within banks that keep it from overflowing"29 the
delegated power to the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives
Fund, hereinafter referred to as the Fund, is hereby created, to be
sourced from the collection of the BIR and the BOC in excess
of their respective revenue targets of the year, as determined by
the Development Budget and Coordinating Committee (DBCC),
in the following percentages:
Excess of Collection of Percent (%) of the Excess
the Excess the Revenue Collection to Accrue to the
Targets Fund
30% or – 15%
below
More than 30% – 15% of the first 30% plus
20% of the remaining excess
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target
was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue
collection expected of the BIR and the BOC for a given fiscal
year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The
BIR and the BOC shall submit to the DBCC the distribution of the
agencies’ revenue targets as allocated among its revenue districts in
the case of the BIR, and the collection districts in the case of the
BOC.
xxx xxx xxx (emphasis supplied)
Revenue targets are based on the original estimated revenue collection
expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the President to
Congress.30 Thus, the determination of revenue targets does not rest solely
on the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and
identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:
SEC. 7. Powers and Functions of the Board. – The Board in the
agency shall have the following powers and functions:
 xxx xxx xxx
(b) To set the criteria and procedures for removing from service
officials and employees whose revenue collection falls short of
the target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of
collection as provided in the rules and regulations promulgated
under this Act, subject to civil service laws, rules and regulations
and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-
created, not exceeding two years in operation, as has no
historical record of collection performance that can be used
as basis for evaluation; and
2. Where the revenue or customs official or employee is a
recent transferee in the middle of the period under
consideration unless the transfer was due to
nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from
economic difficulties brought about by natural calamities
or force majeure or economic causes as may be determined
by the Board, termination shall be considered only after
careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in
the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of
the criteria for the separation of an official or employee from
service under this Act shall be without prejudice to the
application of other relevant laws on accountability of public
officers and employees, such as the Code of Conduct and
Ethical Standards of Public Officers and Employees and the
Anti-Graft and Corrupt Practices Act;
xxx xxx xxx (emphasis supplied)
Clearly, RA 9335 in no way violates the security of tenure of officials and
employees of the BIR and the BOC. The guarantee of security of tenure only
means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at least
7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil
service laws.32 The action for removal is also subject to civil service laws,
rules and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient standards:
"public interest," "justice and equity," "public convenience and welfare" and
"simplicity, economy and welfare."33 In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR
and the BOC is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is
hereby created a Joint Congressional Oversight Committee
composed of seven Members from the Senate and seven Members
from the House of Representatives. The Members from the Senate
shall be appointed by the Senate President, with at least two
senators representing the minority. The Members from the House of
Representatives shall be appointed by the Speaker with at least two
members representing the minority. After the Oversight Committee
will have approved the implementing rules and regulations (IRR) it
shall thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for
the purpose of approving the implementing rules and regulations (IRR)
formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006,
it approved the said IRR. From then on, it became functus officio and ceased
to exist. Hence, the issue of its alleged encroachment on the executive
function of implementing and enforcing the law may be considered moot and
academic.
This notwithstanding, this might be as good a time as any for the Court to
confront the issue of the constitutionality of the Joint Congressional Oversight
Committee created under RA 9335 (or other similar laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the
concept of congressional oversight in Macalintal v. Commission on
Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities
undertaken by Congress to enhance its understanding of and
influence over the implementation of legislation it has enacted.
Clearly, oversight concerns post-enactment measures
undertaken by Congress: (a) to monitor bureaucratic
compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of
legislative authority, and (d) to assess executive conformity with
the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of
legislative power itself and integral to the checks and balances
inherent in a democratic system of government. x x x x x x x x x
Over the years, Congress has invoked its oversight power with
increased frequency to check the perceived "exponential
accumulation of power" by the executive branch. By the beginning of
the 20th century, Congress has delegated an enormous amount of
legislative authority to the executive branch and the administrative
agencies. Congress, thus, uses its oversight power to make sure that
the administrative agencies perform their functions within the
authority delegated to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its
oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and
continuity of attention to administrative operations. Its
primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of
legislative scrutiny, Congress may request information and
report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the
agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive
process of looking at the facts that are readily
available, congressional investigation involves a more
intense digging of facts. The power of Congress to conduct
investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises
its oversight power is thru legislative supervision. "Supervision"
connotes a continuing and informed awareness on the part of a
congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in
order to influence future executive branch
performance, congressional supervision allows Congress to
scrutinize the exercise of delegated law-making authority, and
permits Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through
its veto power. It typically utilizes veto provisions when granting the
President or an executive agency the power to promulgate
regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to
Congress, which retains a "right" to approve or disapprove any
regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after the
expiration of a certain period of time, only if Congress does not
affirmatively disapprove of the regulation in the meantime. Less
frequently, the statute provides that a proposed regulation will
become law if Congress affirmatively approves it.
Supporters of legislative veto stress that it is necessary to maintain
the balance of power between the legislative and the executive
branches of government as it offers lawmakers a way to delegate
vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power
without having to pass new legislation or to repeal existing law. They
contend that this arrangement promotes democratic accountability as
it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:
It is too late to debate the merits of this delegation policy: the
policy is too deeply embedded in our law and practice. It
suffices to say that the complexities of modern government
have often led Congress-whether by actual or perceived
necessity- to legislate by declaring broad policy goals and
general statutory standards, leaving the choice of policy
options to the discretion of an executive officer. Congress
articulates legislative aims, but leaves their implementation
to the judgment of parties who may or may not have
participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the
reverse of our constitutional scheme could be effected:
Congress proposes, the Executive disposes. One safeguard,
of course, is the legislative power to enact new legislation or
to change existing law. But without some means of
overseeing post enactment activities of the executive branch,
Congress would be unable to determine whether its policies
have been implemented in accordance with legislative intent
and thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue
encroachment upon the executive prerogatives. They urge
that any post-enactment measures undertaken by the legislative
branch should be limited to scrutiny and investigation; any
measure beyond that would undermine the separation of
powers guaranteed by the Constitution. They contend that
legislative veto constitutes an impermissible evasion of the
President’s veto authority and intrusion into the powers vested in the
executive or judicial branches of government. Proponents counter
that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too
much power. They submit that reporting requirements and
congressional committee investigations allow Congress to scrutinize
only the exercise of delegated law-making authority. They do not
allow Congress to review executive proposals before they take effect
and they do not afford the opportunity for ongoing and binding
expressions of congressional intent. In contrast, legislative veto
permits Congress to participate prospectively in the approval or
disapproval of "subordinate law" or those enacted by the executive
branch pursuant to a delegation of authority by Congress. They
further argue that legislative veto "is a necessary response by
Congress to the accretion of policy control by forces outside its
chambers." In an era of delegated authority, they point out that
legislative veto "is the most efficient means Congress has yet
devised to retain control over the evolution and implementation of its
policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S.
Supreme Court resolved the validity of legislative veto
provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the
Immigration and Nationality Act. The United States House of
Representatives passed a resolution vetoing the suspension
pursuant to § 244(c)(2) authorizing either House of Congress, by
resolution, to invalidate the decision of the executive branch to allow
a particular deportable alien to remain in the United States. The
immigration judge reopened the deportation proceedings to
implement the House order and the alien was ordered deported. The
Board of Immigration Appeals dismissed the alien’s appeal, holding
that it had no power to declare unconstitutional an act of Congress.
The United States Court of Appeals for Ninth Circuit held that the
House was without constitutional authority to order the alien’s
deportation and that § 244(c)(2) violated the constitutional doctrine
on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2)
unconstitutional. But the Court shied away from the issue of
separation of powers and instead held that the provision violates
the presentment clause and bicameralism. It held that the one-house
veto was essentially legislative in purpose and effect. As such, it is
subject to the procedures set out in Article I of the Constitution
 requiring the passage by a majority of both Houses and presentment
to the President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in
memorandum decision, two lower court decisions invalidating the
legislative veto provisions in the Natural Gas Policy Act of 1978 and
the Federal Trade Commission Improvement Act of 1980. Following
this precedence, lower courts invalidated statutes containing
legislative veto provisions although some of these provisions
required the approval of both Houses of Congress and thus met the
bicameralism requirement of Article I. Indeed, some of these veto
provisions were not even exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of
congressional oversight and considering the nature and powers of a
constitutional body like the Commission on Elections, the Court struck down
the provision in RA 9189 (The Overseas Absentee Voting Act of 2003)
creating a Joint Congressional Committee. The committee was tasked not
only to monitor and evaluate the implementation of the said law but also to
review, revise, amend and approve the IRR promulgated by the Commission
on Elections. The Court held that these functions infringed on the
constitutional independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not
unconstitutional per se, meaning, it neither necessarily constitutes an
encroachment on the executive power to implement laws nor undermines the
constitutional separation of powers. Rather, it is integral to the checks and
balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of
power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the
legislative sphere," the Constitution imposes two basic and related
constraints on Congress.37 It may not vest itself, any of its committees or its
members with either executive or judicial power.38 And, when it exercises its
legislative power, it must follow the "single, finely wrought and exhaustively
considered, procedures" specified under the Constitution,39 including the
procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be
limited to scrutiny and investigation. In particular, congressional oversight
must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and
the budget hearings conducted in connection with it, its power to ask
heads of departments to appear before and be heard by either of its
Houses on any matter pertaining to their departments and its power
of confirmation40 and
(2) investigation and monitoring41 of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.42
Any action or step beyond that will undermine the separation of powers
guaranteed by the Constitution. Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an
administrative agency to present the proposed implementing rules and
regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such
regulations before they take effect. As such, a legislative veto in the form of a
congressional oversight committee is in the form of an inward-turning
delegation designed to attach a congressional leash (other than through
scrutiny and investigation) to an agency to which Congress has by law
initially delegated broad powers.43It radically changes the design or structure
of the Constitution’s diagram of power as it entrusts to Congress a direct role
in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy
within the broad horizons of its legislative competence. 45 It can itself
formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with
those standards.46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the
legislature.47 Thus, what is left for the executive branch or the concerned
administrative agency when it formulates rules and regulations implementing
the law is to fill up details (supplementary rule-making) or ascertain facts
necessary to bring the law into actual operation (contingent rule-making).48
Administrative regulations enacted by administrative agencies to implement
and interpret the law which they are entrusted to enforce have the force of
law and are entitled to respect.49 Such rules and regulations partake of the
nature of a statute50and are just as binding as if they have been written in the
statute itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with
finality in an appropriate case by a competent court.51 Congress, in the guise
of assuming the role of an overseer, may not pass upon their legality by
subjecting them to its stamp of approval without disturbing the calculated
balance of powers established by the Constitution. In exercising discretion to
approve or disapprove the IRR based on a determination of whether or not
they conformed with the provisions of RA 9335, Congress arrogated judicial
power unto itself, a power exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected
to approval by Congress as a condition for their effectivity violates the
cardinal constitutional principles of bicameralism and the rule on
presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress
of the Philippines which shall consist of a Senate and a House
of Representatives, except to the extent reserved to the people by
the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal
laws)53 is vested in Congress which consists of two chambers, the Senate
and the House of Representatives. A valid exercise of legislative power
requires the act of both chambers. Corrollarily, it can be exercised neither
solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-
chamber legislative veto and a congressional committee legislative veto are
invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it
becomes a law, be presented to the President. If he approves the
same, he shall sign it, otherwise, he shall veto it and return the same
with his objections to the House where it originated, which shall enter
the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such
House shall agree to pass the bill, it shall be sent, together with the
objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of
that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names of
the members voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House where
it originated within thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had signed it. (emphasis
supplied)
Every bill passed by Congress must be presented to the President for
approval or veto. In the absence of presentment to the President, no bill
passed by Congress can become a law. In this sense, law-making under the
Constitution is a joint act of the Legislature and of the Executive. Assuming
that legislative veto is a valid legislative act with the force of law, it cannot
take effect without such presentment even if approved by both chambers of
Congress.
In sum, two steps are required before a bill becomes a law. First, it must be
approved by both Houses of Congress.54Second, it must be presented to and
approved by the President.55 As summarized by Justice Isagani Cruz56 and
Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval
of bills:
A bill is introduced by any member of the House of Representatives
or the Senate except for some measures that must originate only in
the former chamber.
The first reading involves only a reading of the number and title of the
measure and its referral by the Senate President or the Speaker to
the proper committee for study.
The bill may be "killed" in the committee or it may be recommended
for approval, with or without amendments, sometimes after public
hearings are first held thereon. If there are other bills of the same
nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.
Once reported out, the bill shall be calendared for second reading. It
is at this stage that the bill is read in its entirety, scrutinized, debated
upon and amended when desired. The second reading is the most
important stage in the passage of a bill.
 The bill as approved on second reading is printed in its final form and
copies thereof are distributed at least three days before the third
reading. On the third reading, the members merely register their
votes and explain them if they are allowed by the rules. No further
debate is allowed.
Once the bill passes third reading, it is sent to the other chamber,
where it will also undergo the three readings. If there are differences
between the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of
Representatives will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the Congress,
thereafter authenticated with the signatures of the Senate President,
the Speaker, and the Secretaries of their respective chambers… 59
The President’s role in law-making.
The final step is submission to the President for approval. Once
approved, it takes effect as law after the required publication.60
Where Congress delegates the formulation of rules to implement the law it
has enacted pursuant to sufficient standards established in the said law, the
law must be complete in all its essential terms and conditions when it leaves
the hands of the legislature. And it may be deemed to have left the hands of
the legislature when it becomes effective because it is only upon effectivity of
the statute that legal rights and obligations become available to those entitled
by the language of the statute. Subject to the indispensable requisite of
publication under the due process clause,61 the determination as to when a
law takes effect is wholly the prerogative of Congress.62 As such, it is only
upon its effectivity that a law may be executed and the executive branch
acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.63
From the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of separation
of powers and is thus unconstitutional. Under this principle, a provision that
requires Congress or its members to approve the implementing rules of a law
after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by
the members of the executive branch charged with the implementation of the
law.
Following this rationale, Section 12 of RA 9335 should be struck down as
unconstitutional. While there may be similar provisions of other laws that may
be invalidated for failure to pass this standard, the Court refrains from
invalidating them wholesale but will do so at the proper time when an
appropriate case assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the
unconstitutionality of Section 12 of RA 9335 on the other provisions of the
law? Will it render the entire law unconstitutional? No.
Section 13 of RA 9335 provides:
SEC. 13. Separability Clause. – If any provision of this Act is
declared invalid by a competent court, the remainder of this Act or
any provision not affected by such declaration of invalidity shall
remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the
following rules:
The general rule is that where part of a statute is void as repugnant
to the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The
presence of a separability clause in a statute creates the
presumption that the legislature intended separability, rather than
complete nullity of the statute. To justify this result, the valid portion
must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough
must remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute
are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as to
warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the
 statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to

isolate and detach any invalid provision from the other provisions so that the
latter may continue in force and effect. The valid portions can stand
independently of the invalid section. Without Section 12, the remaining
provisions still constitute a complete, intelligible and valid law which carries
out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and
sanctions through the Rewards and Incentives Fund and a Revenue
Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full

if their purpose is to enforce or implement existing law pursuant to a valid
delegation. The IRR of RA 9335 were published on May 30, 2006 in two
newspapers of general circulation66 and became effective 15 days
thereafter.67 Until and unless the contrary is shown, the IRR are presumed
valid and effective even without the approval of the Joint Congressional
Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of

RA 9335 creating a Joint Congressional Oversight Committee to approve the
implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant
to Section 13 of RA 9335, the rest of the provisions remain in force and
effect.

SO ORDERED.
G.R. No. 170338 December 23, 2008 notoriously referred to as the "Hello Garci" tapes, allegedly contained the
President’s instructions to COMELEC Commissioner Virgilio Garcillano to
VIRGILIO O. GARCILLANO, petitioner, manipulate in her favor results of the 2004 presidential elections. These
vs. recordings were to become the subject of heated legislative hearings
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC conducted separately by committees of both Houses of Congress.1
INFORMATION, PUBLIC ORDER AND SAFETY, NATIONAL DEFENSE
AND SECURITY, INFORMATION AND COMMUNICATIONS In the House of Representatives (House), on June 8, 2005, then Minority
TECHNOLOGY, and SUFFRAGE AND ELECTORAL Floor Leader Francis G. Escudero delivered a privilege speech, "Tale of Two
REFORMS, respondents. Tapes," and set in motion a congressional investigation jointly conducted by
the Committees on Public Information, Public Order and Safety, National
x----------------------x Defense and Security, Information and Communications Technology, and
Suffrage and Electoral Reforms (respondent House Committees). During the
G.R. No. 179275 December 23, 2008 inquiry, several versions of the wiretapped conversation emerged. But on
July 5, 2005, National Bureau of Investigation (NBI) Director Reynaldo
Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners, Samuel Ong submitted to the respondent House Committees seven alleged
vs. "original" tape recordings of the supposed three-hour taped conversation.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED After prolonged and impassioned debate by the committee members on the
BY THE SENATE PRESIDENT THE HONORABLE MANUEL admissibility and authenticity of the recordings, the tapes were eventually
VILLAR, respondents. played in the chambers of the House.2

x----------------------x On August 3, 2005, the respondent House Committees decided to suspend

the hearings indefinitely. Nevertheless, they decided to prepare committee
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention reports based on the said recordings and the testimonies of the resource
persons.3
x----------------------x
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano)
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, filed with this Court a Petition for Prohibition and Injunction, with Prayer for
RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA, Temporary Restraining Order and/or Writ of Preliminary Injunction4docketed
M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. as G.R. No. 170338. He prayed that the respondent House Committees be
TRILLANES, respondents-intervenors restrained from using these tape recordings of the "illegally obtained"
wiretapped conversations in their committee reports and for any other
DECISION purpose. He further implored that the said recordings and any reference
thereto be ordered stricken off the records of the inquiry, and the respondent
House Committees directed to desist from further using the recordings in any
NACHURA, J.:
of the House proceedings.5

More than three years ago, tapes ostensibly containing a wiretapped

Without reaching its denouement, the House discussion and debates on the
conversation purportedly between the President of the Philippines and a
"Garci tapes" abruptly stopped.
high-ranking official of the Commission on Elections (COMELEC) surfaced.
They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the After more than two years of quiescence, Senator Panfilo Lacson roused the
line, and resulted in the near-collapse of the Arroyo government. The tapes, slumbering issue with a privilege speech, "The Lighthouse That Brought
Darkness." In his discourse, Senator Lacson promised to provide the public
"the whole unvarnished truth – the what’s, when’s, where’s, who’s and why’s"
of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping
activities.
On motion of Senator Francis Pangilinan, Senator Lacson’s speech was
referred to the Senate Committee on National Defense and Security, chaired
by Senator Rodolfo Biazon, who had previously filed two bills6 seeking to
regulate the sale, purchase and use of wiretapping equipment and to prohibit
the Armed Forces of the Philippines (AFP) from performing electoral duties.7
In the Senate’s plenary session the following day, a lengthy debate ensued
when Senator Richard Gordon aired his concern on the possible
transgression of Republic Act (R.A.) No. 42008 if the body were to conduct a
legislative inquiry on the matter. On August 28, 2007, Senator Miriam
Defensor-Santiago delivered a privilege speech, articulating her considered
view that the Constitution absolutely bans the use, possession, replay or
communication of the contents of the "Hello Garci" tapes. However, she
recommended a legislative investigation into the role of the Intelligence
Service of the AFP (ISAFP), the Philippine National Police or other
government entities in the alleged illegal wiretapping of public officials. 9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili,
retired justices of the Court of Appeals, filed before this Court a Petition for
Prohibition with Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction,10 docketed as G.R. No. 179275, seeking
to bar the Senate from conducting its scheduled legislative inquiry. They
argued in the main that the intended legislative inquiry violates R.A. No. 4200
and Section 3, Article III of the Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its
public hearings on the "Hello Garci" tapes on September 7,12 1713 and
October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno
Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda,
M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed their Comment16 on
the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and
one of the resource persons summoned by the Senate to appear and testify
at its hearings, moved to intervene as petitioner in G.R. No. 179275.18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338
and 179275.19
It may be noted that while both petitions involve the "Hello Garci" recordings,
they have different objectives–the first is poised at preventing the playing of
the tapes in the House and their subsequent inclusion in the committee
reports, and the second seeks to prohibit and stop the conduct of the Senate
inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the
second, G.R. No. 179275.
-I-
Before delving into the merits of the case, the Court shall first resolve the
issue on the parties’ standing, argued at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "‘[l]egal standing’ or locus
standi refers to a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury because of the challenged
governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened
injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the
injury is likely to be redressed by a favorable action.21
The gist of the question of 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."22
However, considering that locus standi is a mere procedural technicality, the
Court, in recent cases, has relaxed the stringent direct injury test. David v.
Macapagal-Arroyo23 articulates that a "liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations
and rulings."24 The fairly recent Chavez v. Gonzales25 even permitted a non-
member of the broadcast media, who failed to allege a personal stake in the
outcome of the controversy, to challenge the acts of the Secretary of Justice
and the National Telecommunications Commission. The majority, in the said
case, echoed the current policy that "this Court has repeatedly and
consistently refused to wield procedural barriers as impediments to its
addressing and resolving serious legal questions that greatly impact on public
interest, in keeping with the Court’s duty under the 1987 Constitution to
determine whether or not other branches of government have kept
themselves within the limits of the Constitution and the laws, and that they
have not abused the discretion given to them."26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the
petition by alleging that he is the person alluded to in the "Hello Garci" tapes.
Further, his was publicly identified by the members of the respondent
committees as one of the voices in the recordings.27 Obviously, therefore,
petitioner Garcillano stands to be directly injured by the House committees’
actions and charges of electoral fraud. The Court recognizes his standing to
institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by
alleging that they are concerned citizens, taxpayers, and members of the
IBP. They are of the firm conviction that any attempt to use the "Hello Garci"
tapes will further divide the country. They wish to see the legal and proper
use of public funds that will necessarily be defrayed in the ensuing public
hearings. They are worried by the continuous violation of the laws and
individual rights, and the blatant attempt to abuse constitutional processes
through the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that
he is summoned to attend the Senate hearings without being apprised not
only of his rights therein through the publication of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation, but also of the intended
legislation which underpins the investigation. He further intervenes as a
taxpayer bewailing the useless and wasteful expenditure of public funds
involved in the conduct of the questioned hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in the execution
of the laws and that intervenor Sagge asserts his constitutional right to due
process,30 they satisfy the requisite personal stake in the outcome of the
controversy by merely being citizens of the Republic.
Following the Court’s ruling in Francisco, Jr. v. The House of
Representatives,31 we find sufficient petitioners Ranada’s and Agcaoili’s and
intervenor Sagge’s allegation that the continuous conduct by the Senate of
the questioned legislative inquiry will necessarily involve the expenditure of
public funds.32 It should be noted that in Francisco, rights personal to then
Chief Justice Hilario G. Davide, Jr. had been injured by the alleged
unconstitutional acts of the House of Representatives, yet the Court granted
standing to the petitioners therein for, as in this case, they invariably invoked
the vindication of their own rights–as taxpayers, members of Congress,
citizens, individually or in a class suit, and members of the bar and of the
legal profession–which were also supposedly violated by the therein assailed
unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that the
petitioners and intervenor Sagge advance constitutional issues which
deserve the attention of this Court in view of their seriousness, novelty and
weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and
should be resolved for the guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal attitude it
has shown in prior cases climaxing in the more recent case of Chavez, the
Court recognizes the legal standing of petitioners Ranada and Agcaoili and
intervenor Sagge.
- II -
The Court, however, dismisses G.R. No. 170338 for being moot and
academic. Repeatedly stressed in our prior decisions is the principle that the
exercise by this Court of judicial power is limited to the determination and
resolution of actual cases and controversies.35 By actual cases, we mean
existing conflicts appropriate or ripe for judicial determination, not conjectural
or anticipatory, for otherwise the decision of the Court will amount to an
advisory opinion. The power of judicial inquiry does not extend to hypothetical
questions because any attempt at abstraction could only lead to dialectics
and barren legal questions and to sterile conclusions unrelated to
actualities.36 Neither will the Court determine a moot question in a case in
which no practical relief can be granted. A case becomes moot when its
purpose has become stale.37 It is unnecessary to indulge in academic
discussion of a case presenting a moot question as a judgment thereon
cannot have any practical legal effect or, in the nature of things, cannot be
enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as
aforementioned, the issuance of an injunctive writ to prohibit the respondent
House Committees from playing the tape recordings and from including the
same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that
the recordings were already played in the House and heard by its
members.39 There is also the widely publicized fact that the committee
reports on the "Hello Garci" inquiry were completed and submitted to the
House in plenary by the respondent committees.40 Having been overtaken by
these events, the Garcillano petition has to be dismissed for being moot and
academic. After all, prohibition is a preventive remedy to restrain the doing of
an act about to be done, and not intended to provide a remedy for an act
already accomplished.41
- III -
As to the petition in G.R. No. 179275, the Court grants the same. The Senate
cannot be allowed to continue with the conduct of the questioned legislative
inquiry without duly published rules of procedure, in clear derogation of the
constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he
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 requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is
indeed imperative, for it will be the height of injustice to punish or otherwise
burden a citizen for the transgression of a law or rule of which he had no
notice whatsoever, not even a constructive one.43What constitutes publication
is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take
effect after 15 days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines." 44
The respondents in G.R. No. 179275 admit in their pleadings and even on
oral argument that the Senate Rules of Procedure Governing Inquiries in Aid
of Legislation had been published in newspapers of general circulation only in
1995 and in 2006.45 With respect to the present Senate of the 14th Congress,
however, of which the term of half of its members commenced on June 30,
2007, no effort was undertaken for the publication of these rules when they
first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri
v. Senate Committee on Accountability of Public Officers and
Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the
"duly published rules of procedure." We quote the OSG’s
explanation:
The phrase "duly published rules of procedure" requires the
Senate of every Congress to publish its rules of procedure
governing inquiries in aid of legislation because every
Senate is distinct from the one before it or after it. Since
Senatorial elections are held every three (3) years for one-
half of the Senate’s membership, the composition of the
Senate also changes by the end of each term. Each Senate
may thus enact a different set of rules as it may deem fit. Not
having published its Rules of Procedure, the subject
hearings in aid of legislation conducted by the
14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion,
reinforces this ruling with the following rationalization:
The present Senate under the 1987 Constitution is no longer a
continuing legislative body. The present Senate has twenty-four
members, twelve of whom are elected every three years for a term of
six years each. Thus, the term of twelve Senators expires every three
years, leaving less than a majority of Senators to continue into
the next Congress. The 1987 Constitution, like the 1935
Constitution, requires a majority of Senators to "constitute a quorum
to do business." Applying the same reasoning in Arnault v. Nazareno,
the Senate under the 1987 Constitution is not a continuing body
because less than majority of the Senators continue into the next
Congress. The consequence is that the Rules of Procedure must be
republished by the Senate after every expiry of the term of twelve
Senators.47
The subject was explained with greater lucidity in our Resolution48 (On the
Motion for Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees
fit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is "continuing," as it is not dissolved as an
entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the
Senate of each Congress acts separately and independently of the
Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session
shall be taken up at the next session in the same status.
All pending matters and proceedings shall terminate
upon the expiration of one (1) Congress, but may be
taken by the succeeding Congress as if present for the first
time.
Undeniably from the foregoing, all pending matters and proceedings,
i.e., unpassed bills and even legislative investigations, of the Senate
of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of
the succeeding Congress to take up such unfinished matters, not in
the same status, but as if presented for the first time. The logic
and practicality of such a rule is readily apparent considering that the
Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be
bound by the acts and deliberations of the Senate of which they had
no part. If the Senate is a continuing body even with respect to the
conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a matter of
course, continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of
the opposite nature of the conduct of its business is reflected in its
Rules. The Rules of the Senate (i.e. the Senate’s main rules of
procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators
elected in the preceding elections shall begin their term of
office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion
which should be presented at least one day before its
consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their
adoption and shall remain in force until they are amended or
repealed.
Section 136 of the Senate Rules quoted above takes into account the
new composition of the Senate after an election and the possibility of
the amendment or revision of the Rules at the start of each session
in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main
rules are intended to be valid from the date of their adoption until
they are amended or repealed. Such language is conspicuously
absent from the Rules. The Rules simply state "(t)hese Rules shall
take effect seven (7) days after publication in two (2) newspapers of
general circulation." The latter does not explicitly provide for the
continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of
Senate rules, it cannot be presumed that the Rules (on legislative
inquiries) would continue into the next Congress. The Senate of the
next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring
that the inquiry be conducted in accordance with the duly published
rules of procedure is categorical. It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall
be effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
 If it was the intention of the Senate for its present rules on legislative
inquiries to be effective even in the next Congress, it could have
easily adopted the same language it had used in its main rules
regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated
publication by arguing that the rules have never been amended since 1995
and, despite that, they are published in booklet form available to anyone for
free, and accessible to the public at the Senate’s internet web page.49
The Court does not agree. The absence of any amendment to the rules
cannot justify the Senate’s defiance of the clear and unambiguous language
of Section 21, Article VI of the Constitution. The organic law instructs, without
more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and
does not make any distinction whether or not these rules have undergone
amendments or revision. The constitutional mandate to publish the said rules
prevails over any custom, practice or tradition followed by the Senate.
Justice Carpio’s response to the same argument raised by the respondents is
illuminating:
The publication of the Rules of Procedure in the website of the
Senate, or in pamphlet form available at the Senate, is not sufficient
under the Tañada v. Tuvera ruling which requires publication either in
the Official Gazette or in a newspaper of general circulation.
The Rules of Procedure even provide that the rules "shall take effect
seven (7) days after publication in two (2) newspapers of general
circulation," precluding any other form of publication. Publication in
accordance with Tañada is mandatory to comply with the due
process requirement because the Rules of Procedure put a person’s
liberty at risk. A person who violates the Rules of Procedure could be
arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No.
8792,50 otherwise known as the Electronic Commerce Act of 2000, to support
their claim of valid publication through the internet is all the more incorrect.
R.A. 8792 considers an electronic data message or an electronic document
as the functional equivalent of a written document only for evidentiary
purposes.51 In other words, the law merely recognizes the admissibility in
evidence (for their being the original) of electronic data messages and/or
electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could
not, in violation of the Constitution, use its unpublished rules in the legislative
inquiry subject of these consolidated cases. The conduct of inquiries in aid of
legislation by the Senate has to be deferred until it shall have caused the
publication of the rules, because it can do so only "in accordance with its duly
published rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation in the October 31, 2008
issues of Manila Bulletin and Malaya. While we take judicial notice of this
fact, the recent publication does not cure the infirmity of the inquiry sought to
be prohibited by the instant petitions. Insofar as the consolidated cases are
concerned, the legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because no published
rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the
other issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the
petition in G.R. No. 179275 is GRANTED. Let a writ of prohibition be issued
enjoining the Senate of the Republic of the Philippines and/or any of its
committees from conducting any inquiry in aid of legislation centered on the
"Hello Garci" tapes.
SO ORDERED.
G.R. No. 169777* 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 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 April 20, 2006
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
G.R. No. 169660 April 20, 2006
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.
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 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
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 letter4 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.
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).
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);
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 letter 8 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 Arroyo’s 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.
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.
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 Senate’s 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 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.
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 letter15 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 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 memorandum 27 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 Like almost all powers conferred by the Constitution, the power of judicial
provisions: 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
Art. VI, Sec. 2130 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
Art. VI, Sec. 2231
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
Art. VI, Sec. 132 very lis mota of the case.39

Art. XI, Sec. 133 Except with respect to the requisites of standing and existence of an actual
case or controversy where the disagreement between the parties lies,
Art. III, Sec. 734 discussion of the rest of the requisites shall be omitted.

Art. III, Sec. 435 Standing

Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in
their consolidated memorandum 38 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
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 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 Muna’s 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

Before proceeding to resolve the issue of the constitutionality of E.O. 464, With regard to the petition filed by the Senate, respondents argue that in the
ascertainment of whether the requisites for a valid exercise of the Court’s absence of a personal or direct injury by reason of the issuance of E.O. 464,
power of judicial review are present is in order.
the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s 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
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 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 co-petitioners 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-Laban’s 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 President’s 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
Senate’s 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 Court’s 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 House’s 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.
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.
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.67Tribe, 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 informer’s 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
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
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 Black’s 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 intra-
governmental 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
Nixon’s 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 President’s
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 President’s
powers. The Court, nonetheless, rejected the President’s 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 Washington’s 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 President’s 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 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
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-à-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-à-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 Davide’s 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 Maambong’s 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.
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.
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 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."
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.
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 official’s 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 Ermita’s 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 claimant’s 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 claimant’s 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 claimant’s
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 Court’s 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 President’s 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 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.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 legislature’s 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,
Tañada 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 accomplish…was 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.
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG
KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN ("PKSK"),
ALLIANCE OF PROGRESSIVE LABOR ("APL"), VICENTE A. FABE,
ANGELITO R. MENDOZA, MANUEL P. QUIAMBAO, ROSE BEATRIX
CRUZ-ANGELES, CONG. LORENZO R. TANADA III, CONG. MARIO
JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J.
VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the
Department of Trade and Industry (DTI) and Chairman and Chief
Delegate of the Philippine Coordinating Committee (PCC) for the Japan-
Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in
his capacity as Undersecretary of the Department of Foreign Affairs
(DFA) and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in his
capacity as Chairman of the Tariff Commission and lead negotiator for
Competition Policy and Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as Assistant Director-General of
the National Economic Development Authority (NEDA) and lead
negotiator for Trade in Services and Cooperation of the JPEPA, MALOU
MONTERO, in her capacity as Foreign Service Officer I, Office of the
Undersecretary for International Economic Relations of the DFA and
lead negotiator for the General and Final Provisions of the JPEPA,
ERLINDA ARCELLANA, in her capacity as Director of the Board of
Investments and lead negotiator for Trade in Goods (General Rules) of
the JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for
Rules of Origin of the JPEPA, GALLANT SORIANO, in his official
capacity as Deputy Commissioner of the Bureau of Customs and lead
negotiator for Customs Procedures and Paperless Trading of the
JPEPA, MA. LUISA GIGETTE IMPERIAL, in her capacity as Director of
the Bureau of Local Employment of the Department of Labor and
Employment (DOLE) and lead negotiator for Movement of Natural
Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as
Director of the Board of Investments and lead negotiator for Investment
of the JPEPA, JESUS MOTOOMULL, in his capacity as Director for the
Bureau of Product Standards of the DTI and lead negotiator for Mutual
Recognition of the JPEPA, LOUIE CALVARIO, in his capacity as lead
negotiator for Intellectual Property of the JPEPA, ELMER H. DORADO,
in his capacity as Officer-in-Charge of the Government Procurement
Policy Board Technical Support Office, the government agency that is
leading the negotiations on Government Procurement of the JPEPA,
RICARDO V. PARAS, in his capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance
and Settlement of the JPEPA, ADONIS SULIT, in his capacity as lead
negotiator for the General and Final Provisions of the JPEPA,
EDUARDO R. ERMITA, in his capacity as Executive Secretary, and
ALBERTO ROMULO, in his capacity as Secretary of the
DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners – non-government organizations, Congresspersons, citizens and
taxpayers – seek via the present petition for mandamus and prohibition to
obtain from respondents the full text of the Japan-Philippines Economic
Partnership Agreement (JPEPA) including the Philippine and Japanese offers
submitted during the negotiation process and all pertinent attachments and
annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed
on January 25, 2005 House Resolution No. 551 calling for an inquiry into the
bilateral trade agreements then being negotiated by the Philippine
government, particularly the JPEPA. The Resolution became the basis of an
inquiry subsequently conducted by the House Special Committee on
Globalization (the House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein
respondent Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the
Philippine Coordinating Committee created under Executive Order No. 213
("Creation of A Philippine Coordinating Committee to Study the Feasibility of
the Japan-Philippines Economic Partnership Agreement")1 to study and
negotiate the proposed JPEPA, and to furnish the Committee with a copy of
the latest draft of the JPEPA. Usec. Aquino did not heed the request,
however.
Congressman Aguja later requested for the same document, but Usec.
Aquino, by letter of November 2, 2005, replied that the Congressman shall be
provided with a copy thereof "once the negotiations are completed and as
soon as a thorough legal review of the proposed agreement has been
conducted."
In a separate move, the House Committee, through Congressman Herminio
G. Teves, requested Executive Secretary Eduardo Ermita to furnish it with "all
documents on the subject including the latest draft of the proposed
agreement, the requests and offers etc."2 Acting on the request, Secretary
Ermita, by letter of June 23, 2005, wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of]
F[oreign] A[ffairs] explains that the Committee’s request to be furnished
all documents on the JPEPA may be difficult to accomplish at this time,
since the proposed Agreement has been a work in progress for about
three years. A copy of the draft JPEPA will however be forwarded to the
Committee as soon as the text thereof is settled and complete. (Emphasis
supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri
and Tariff Commission Chairman Edgardo Abon, by letter of July 1, 2005, for
copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff
Commission does not have a copy of the documents being requested, albeit
he was certain that Usec. Aquino would provide the Congressman with a
copy "once the negotiation is completed." And by letter of July 18, 2005,
NEDA Assistant Director-General Margarita R. Songco informed the
Congressman that his request addressed to Director-General Neri had been
forwarded to Usec. Aquino who would be "in the best position to respond" to
the request.
In its third hearing conducted on August 31, 2005, the House Committee
resolved to issue a subpoena for the most recent draft of the JPEPA, but the
same was not pursued because by Committee Chairman Congressman
Teves’ information, then House Speaker Jose de Venecia had requested him
to hold in abeyance the issuance of the subpoena until the President gives
her consent to the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine
government within December 2005, the present petition was filed on
December 9, 2005.4 The agreement was to be later signed on September 9,
2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister
Junichiro Koizumi in Helsinki, Finland, following which the President
endorsed it to the Senate for its concurrence pursuant to Article VII, Section
21 of the Constitution. To date, the JPEPA is still being deliberated upon by
the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be
entered into by the Philippines with another country in the event the Senate
grants its consent to it, covers a broad range of topics which respondents
enumerate as follows: trade in goods, rules of origin, customs procedures,
paperless trading, trade in services, investment, intellectual property rights,
government procurement, movement of natural persons, cooperation,
competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final provisions.5
While the final text of the JPEPA has now been made accessible to the public
since September 11, 2006,6respondents do not dispute that, at the time the
petition was filed up to the filing of petitioners’ Reply – when the JPEPA was
still being negotiated – the initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in
support of the petition, the Court finds it necessary to first resolve some
material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it
must be 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.7 Respondents deny that petitioners have such
standing to sue. "[I]n the interest of a speedy and definitive resolution of the
substantive issues raised," however, respondents consider it sufficient to cite
a portion of the ruling in Pimentel v. Office of Executive Secretary8 which
emphasizes the need for a "personal stake in the outcome of the
controversy" on questions of standing.
In a petition anchored upon the right of the people to information on matters
of public concern, which is a public right by its very nature, petitioners need
not show that they have any legal or special interest in the result, it being
sufficient to show that they are citizens and, therefore, part of the general
public which possesses the right.9 As the present petition is anchored on the
right to information and petitioners are all suing in their capacity as citizens
and groups of citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are praying for is
the disclosure of the contents of the JPEPA prior to its finalization between
the two States parties,"10 public disclosure of the text of the JPEPA after its
signing by the President, during the pendency of the present petition, has
been largely rendered moot and academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it
now stands cannot yet be considered as final and binding between the two
States. Article 164 of the JPEPA itself provides that the agreement does not
take effect immediately upon the signing thereof. For it must still go through
the procedures required by the laws of each country for its entry into force,
viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on
which the Governments of the Parties exchange diplomatic notes informing
each other that their respective legal procedures necessary for entry
into force of this Agreement have been completed. It shall remain in force
unless terminated as provided for in Article 165.11 (Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence
is part of the legal procedures which must be met prior to the agreement’s
entry into force.
The text of the JPEPA having then been made accessible to the public, the
petition has become moot and academic to the extent that it seeks the
disclosure of the "full text" thereof.
The petition is not entirely moot, however, because petitioners seek to obtain,
not merely the text of the JPEPA, but also the Philippine and Japanese offers
in the course of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’
demand for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the
documents bearing on the JPEPA negotiations violates their right to
information on matters of public concern13 and contravenes other
constitutional provisions on transparency, such as that on the policy of full
public disclosure of all transactions involving public interest.14 Second, they
contend that non-disclosure of the same documents undermines their right to
effective and reasonable participation in all levels of social, political, and
economic decision-making.15 Lastly, they proffer that divulging the contents of
the JPEPA only after the agreement has been concluded will effectively make
the Senate into a mere rubber stamp of the Executive, in violation of the
principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of
the latest text of the JPEPA are, except for the last, the same as those cited
for the disclosure of the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of
respondents’ claim of privilege shall be discussed. The last, being purely
speculatory given that the Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet
the threshold requirement that it be a matter of public concern. Apropos is the
teaching of Legaspi v. Civil Service Commission:
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.16(Underscoring
supplied)
From the nature of the JPEPA as an international trade agreement, it is
evident that the Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public concern. This,
respondents do not dispute. They only claim that diplomatic negotiations are
covered by the doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor
the policy of full public disclosure is absolute, there being matters which,
albeit of public concern or public interest, are recognized as privileged in
nature. The types of information which may be considered privileged have
been elucidated in Almonte v. Vasquez,17Chavez v. PCGG,18 Chavez v.
Public Estate’s Authority,19 and most recently in Senate v. Ermita20 where the
Court reaffirmed the validity of the doctrine of executive privilege in this
jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the ground
invoked to justify it and the context in which it is made.21 In the present case,
the ground for respondents’ claim of privilege is set forth in their Comment,
viz:
x x x The categories of information that may be considered privileged
includes matters of diplomatic character and under negotiation and review. In
this case, the privileged character of the diplomatic negotiations has been
categorically invoked and clearly explained by respondents particularly
respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject
to negotiations and legal review by the parties fall under the exceptions to the
right of access to information on matters of public concern and policy of
public disclosure. They come within the coverage of executive privilege. At
the time when the Committee was requesting for copies of such documents,
the negotiations were ongoing as they are still now and the text of the
proposed JPEPA is still uncertain and subject to change. Considering the
status and nature of such documents then and now, these are evidently
covered by executive privilege consistent with existing legal provisions and
settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure
of the "rolling texts" which may undergo radical change or portions of which
may be totally abandoned. Furthermore, the negotiations of the
representatives of the Philippines as well as of Japan must be allowed
to explore alternatives in the course of the negotiations in the same
manner as judicial deliberations and working drafts of opinions are
accorded strict confidentiality.22 (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information
sought involves a diplomatic matter, but that it pertains to diplomatic
negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in
this jurisdiction. In discussing valid limitations on the right to information, the
Court in Chavez v. PCGG held that "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."23 Even
earlier, the same privilege was upheld in People’s Movement for Press
Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons
for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from
the President’s representatives on the state of the then on-going negotiations
of the RP-US Military Bases Agreement.25 The Court denied the petition,
stressing that "secrecy of negotiations with foreign countries is not
violative of the constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went on to
state, thus:
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action. Another
essential characteristic of diplomacy is its confidential nature. Although
much has been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes and Stimson have
clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation . . . cannot be carried through without many,
many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and
tell you in confidence of their troubles at home and of their differences
with other countries and with other delegates; they tell you of what they
would do under certain circumstances and would not do under other
circumstances. . . If these reports . . . should become public . . . who
would ever trust American Delegations in another conference? (United
States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
xxxx
There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is claimed,
is incompatible with the substance of democracy. As expressed by one
writer, "It can be said that there is no more rigid system of silence anywhere
in the world." (E.J. Young, Looking Behind the Censorship, J. B. Lippincott
Co., 1938) President Wilson in starting his efforts for the conclusion of the
World War declared that we must have "open covenants, openly arrived at."
He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity
is possible. In the moment that negotiations are started, pressure groups
attempt to "muscle in." An ill-timed speech by one of the parties or a
frank declaration of the concession which are exacted or offered on
both sides would quickly lead to widespread propaganda to block the
negotiations. After a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion before it is
approved. (The New American Government and Its Works, James T. Young,
4th Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-
Wright Export Corp.26 that the President is the sole organ of the nation in its
negotiations with foreign countries, viz:
"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a
representative of the nation. He makes treaties with the advice and consent
of the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said
in his great argument of March 7, 1800, in the House of
Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign
nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring
in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while
the final text of the JPEPA may not be kept perpetually confidential – since
there should be "ample opportunity for discussion before [a treaty] is
approved" – the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable
to conclude that the Japanese representatives submitted their offers with the
understanding that "historic confidentiality"27 would govern the same.
Disclosing these offers could impair the ability of the Philippines to deal not
only with Japan but with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to
public scrutiny would discourage future Philippine representatives from
frankly expressing their views during negotiations. While, on first impression,
it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for
that matter, normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of lesser
importance in order to obtain more favorable terms in an area of greater
national interest. Apropos are the following observations of Benjamin S.
Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to "grandstanding," tends to freeze negotiating
positions, and inhibits the give-and-take essential to successful negotiation.
As Sissela Bok points out, if "negotiators have more to gain from being
approved by their own sides than by making a reasoned agreement with
competitors or adversaries, then they are inclined to 'play to the gallery . . .''
In fact, the public reaction may leave them little option. It would be a
brave, or foolish, Arab leader who expressed publicly a willingness for peace
with Israel that did not involve the return of the entire West Bank, or Israeli
leader who stated publicly a willingness to remove Israel's existing
settlements from Judea and Samaria in return for peace.28 (Emphasis
supplied)
Indeed, by hampering the ability of our representatives to compromise, we
may be jeopardizing higher national goals for the sake of securing less critical
ones.
Diplomatic negotiations, therefore, are recognized as privileged in this
jurisdiction, the JPEPA negotiations constituting no exception. It bears
emphasis, however, that such privilege is only presumptive. For as Senate
v. Ermita holds, recognizing a type of information as privileged does not
mean that it will be considered privileged in all instances. Only after a
consideration of the context in which the claim is made may it be determined
if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest
shall be discussed later. For now, the Court shall first pass upon the
arguments raised by petitioners against the application of PMPF v.
Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v.
Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the
present case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of
the treaty involved. They stress that PMPF v. Manglapus involved the Military
Bases Agreement which necessarily pertained to matters affecting national
security; whereas the present case involves an economic treaty that seeks to
regulate trade and commerce between the Philippines and Japan, matters
which, unlike those covered by the Military Bases Agreement, are not so vital
to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be
considered privileged, must involve national security. The recognition
in Senate v. Ermita29 that executive privilege has encompassed claims of
varying kinds, such that it may even be more accurate to speak of "executive
privileges," cautions against such generalization.
While there certainly are privileges grounded on the necessity of
safeguarding national security such as those involving military secrets, not all
are founded thereon. One example is the "informer’s privilege," or the
privilege of the Government not to disclose the identity of a person or
persons who furnish information of violations of law to officers charged with
the enforcement of that law.30 The suspect involved need not be so notorious
as to be a threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but the most
high-profile cases, in which case not only would this be contrary to long-
standing practice. It would also be highly prejudicial to law enforcement
efforts in general.
Also illustrative is the privilege accorded to presidential communications,
which are presumed privileged without distinguishing between those which
involve matters of national security and those which do not, the rationale for
the privilege being that
x x x [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. x x x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend
on the nature of the case deliberated upon, so presidential communications
are privileged whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that "the
Executive cannot, any more than the other branches of government, invoke a
general confidentiality privilege to shield its officials and employees from
investigations by the proper governmental institutions into possible criminal
wrongdoing." 32 This qualification applies whether the privilege is being
invoked in the context of a judicial trial or a congressional investigation
conducted in aid of legislation.33
Closely related to the "presidential communications" privilege is the
deliberative process privilege recognized in the United States. As discussed
by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,34 deliberative
process covers documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental
decisions and policies are formulated. Notably, the privileged status of such
documents rests, not on the need to protect national security but, on the
"obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page
news," the objective of the privilege being to enhance the quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1
975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-
1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSub
scription. 35
The diplomatic negotiations privilege bears a close resemblance to the
deliberative process and presidential communications privilege. It may be
readily perceived that the rationale for the confidential character of diplomatic
negotiations, deliberative process, and presidential communications is
similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for
diplomatic negotiations is meant to encourage a frank exchange of
exploratory ideas between the negotiating parties by shielding such
negotiations from public view. Similar to the privilege for presidential
communications, the diplomatic negotiations privilege seeks, through the
same means, to protect the independence in decision-making of the
President, particularly in its capacity as "the sole organ of the nation in its
external relations, and its sole representative with foreign nations." And, as
with the deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information per se,
but because the information is part of a process of deliberation which, in
pursuit of the public interest, must be presumed confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright &
Jaworski v. Department of the Treasury37enlightens on the close relation
between diplomatic negotiations and deliberative process privileges. The
plaintiffs in that case sought access to notes taken by a member of the U.S.
negotiating team during the U.S.-French tax treatynegotiations. Among the
points noted therein were the issues to be discussed, positions which the
French and U.S. teams took on some points, the draft language agreed on,
and articles which needed to be amended. Upholding the confidentiality of
those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true
example of a deliberative process. Much give-and-take must occur for
the countries to reach an accord. A description of the negotiations at any
one point would not provide an onlooker a summary of the discussions which
could later be relied on as law. It would not be "working law" as the points
discussed and positions agreed on would be subject to change at any date
until the treaty was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-
disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement positions of
the French negotiators might well offend foreign governments and
would lead to less candor by the U. S. in recording the events of the
negotiations process. As several months pass in between negotiations, this
lack of record could hinder readily the U. S. negotiating team. Further
disclosure would reveal prematurely adopted policies. If these policies should
be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the notes
state the tentative provisions and language agreed on. As drafts of
regulations typically are protected by the deliberative process
privilege, Arthur Andersen & Co. v. Internal Revenue Service, C.A. No. 80-
705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded the
same protection. (Emphasis and underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical
consequence from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law
(CIEL), et al. v. Office of U.S. Trade Representative38 – where the plaintiffs
sought information relating to the just-completed negotiation of a United
States-Chile Free Trade Agreement – the same district court, this time under
Judge Friedman, consciously refrained from applying the doctrine
in Fulbright and ordered the disclosure of the information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of
the doctrine in Fulbright, a discussion of why the district court did not apply
the same would help illumine this Court’s own reasons for deciding the
present case along the lines of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for
withholding information, namely, Exemption 5 of the Freedom of Information
Act (FOIA).39 In order to qualify for protection under Exemption 5, a document
must satisfy two conditions: (1) it must be either inter-agency or intra-
agency in nature, and (2) it must be both pre-decisional and part of the
agency's deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of
context" between the two cases, based his decision on what he perceived to
be a significant distinction: he found the negotiator’s notes that were sought
in Fulbright to be "clearly internal," whereas the documents being sought
in CIEL were those produced by or exchanged with an outside party, i.e.
Chile. The documents subject of Fulbright being clearly internal in character,
the question of disclosure therein turned not on the threshold requirement of
Exemption 5 that the document be inter-agency, but on whether the
documents were part of the agency's pre-decisional deliberative process. On
this basis, Judge Friedman found that "Judge Green's discussion [in
Fulbright] of the harm that could result from disclosure therefore is
irrelevant, since the documents at issue [in CIEL] are not inter-agency,
and the Court does not reach the question of deliberative process."
(Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the
same to be irrelevant in light of its distinct factual setting. Whether this
conclusion was valid – a question on which this Court would not pass – the
ruling in Fulbright that "[n]egotiations between two countries to draft a treaty
represent a true example of a deliberative process" was left standing, since
the CIEL court explicitly stated that it did not reach the question of
deliberative process.
Going back to the present case, the Court recognizes that the information
sought by petitioners includes documents produced and communicated by a
party external to the Philippine government, namely, the Japanese
representatives in the JPEPA negotiations, and to that extent this case is
closer to the factual circumstances of CIELthan those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes
the principle articulated in Fulbrightthat the public policy underlying the
deliberative process privilege requires that diplomatic negotiations should
also be accorded privileged status, even if the documents subject of the
present case cannot be described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of
information based on its finding that the first requirement of FOIA Exemption
5 – that the documents be inter-agency – was not met. In determining
whether the government may validly refuse disclosure of the exchanges
between the U.S. and Chile, it necessarily had to deal with this requirement, it
being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there
any statutory requirement similar to FOIA Exemption 5 in particular. Hence,
Philippine courts, when assessing a claim of privilege for diplomatic
negotiations, are more free to focus directly on the issue of whether the
privilege being claimed is indeed supported by public policy, without having to
consider – as the CIEL court did – if these negotiations fulfill a formal
requirement of being "inter-agency." Important though that requirement may
be in the context of domestic negotiations, it need not be accorded the same
significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations
for the reasons explained above, the Court sees no reason to modify, much
less abandon, the doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v.
Manglapus from the present case is the fact that the petitioners therein
consisted entirely of members of the mass media, while petitioners in the
present case include members of the House of Representatives who invoke
their right to information not just as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members
of Congress to demand information on negotiations of international trade
agreements from the Executive branch, a matter which was not raised
in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of
members of the mass media, it would be incorrect to claim that the doctrine
laid down therein has no bearing on a controversy such as the present,
where the demand for information has come from members of Congress, not
only from private citizens.
The privileged character accorded to diplomatic negotiations does not
ipso facto lose all force and effect simply because the same privilege is
now being claimed under different circumstances. The probability of the
claim succeeding in the new context might differ, but to say that the privilege,
as such, has no validity at all in that context is another matter altogether.
The Court’s statement in Senate v. Ermita that "presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of
considerations [state secrets privilege, informer’s privilege, and a generic
privilege for internal deliberations], and may be asserted, with differing
degrees of success, in the context of either judicial or legislative
investigations,"41 implies that a privilege, once recognized, may be invoked
under different procedural settings. That this principle holds true particularly
with respect to diplomatic negotiations may be inferred from PMPF v.
Manglapus itself, where the Court held that it is the President alone who
negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only
against citizens’ demands for information, but also in the context of legislative
investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged
character of diplomatic negotiations cannot be considered irrelevant in
resolving the present case, the contextual differences between the two cases
notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in
this case, petitioners proffer that "the socio-political and historical contexts of
the two cases are worlds apart." They claim that the constitutional traditions
and concepts prevailing at the time PMPF v. Manglapus came about,
particularly the school of thought that the requirements of foreign policy and
the ideals of transparency were incompatible with each other or the
"incompatibility hypothesis," while valid when international relations were still
governed by power, politics and wars, are no longer so in this age of
international cooperation.42
Without delving into petitioners’ assertions respecting the "incompatibility
hypothesis," the Court notes that the ruling in PMPF v. Manglapus is
grounded more on the nature of treaty negotiations as such than on a
particular socio-political school of thought. If petitioners are suggesting that
the nature of treaty negotiations have so changed that "[a]n ill-timed speech
by one of the parties or a frank declaration of the concession which are
exacted or offered on both sides" no longer "lead[s] to widespread
propaganda to block the negotiations," or that parties in treaty
negotiations no longer expect their communications to be governed by
historic confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation
process
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a
reasonable amount of confidentiality so as not to jeopardize the diplomatic
process." They argue, however, that the same is privileged "only at certain
stages of the negotiating process, after which such information must
necessarily be revealed to the public."43 They add that the duty to disclose
this information was vested in the government when the negotiations moved
from the formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v.
PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the
doctrine in both that case and Chavez v. PCGG with regard to the duty to
disclose "definite propositions of the government" does not apply to
diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official
information on on-going negotiationsbefore 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. x x x46 (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the government
may not be disclosed if they fall under "recognized exceptions." The privilege
for diplomatic negotiations is clearly among the recognized exceptions, for
the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself
as an authority.
Whether there is sufficient public interest to overcome the claim of
privilege
It being established that diplomatic negotiations enjoy a presumptive privilege
against disclosure, even against the demands of members of Congress for
information, the Court shall now determine whether petitioners have shown
the existence of a public interest sufficient to overcome the privilege in this
instance.
To clarify, there are at least two kinds of public interest that must be taken
into account. One is the presumed public interest in favor of keeping the
subject information confidential, which is the reason for the privilege in the
first place, and the other is the public interest in favor of disclosure, the
existence of which must be shown by the party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public
interest in favor of disclosure may be gathered from cases such as U.S. v.
Nixon,48 Senate Select Committee on Presidential Campaign Activities v.
Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications
privilege against the subpoena duces tecum of a district court in a criminal
case, emphasized the need to balance such claim of privilege against the
constitutional duty of courts to ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic function
of the courts. A President’s acknowledged need for confidentiality in
the communications of his office is general in nature, whereas
the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular
criminal case in the administration of justice. Without access to specific
facts a criminal prosecution may be totally frustrated. The President’s broad
interest in confidentiality of communications will not be vitiated by disclosure
of a limited number of conversations preliminarily shown to have some
bearing on the pending criminal cases. (Emphasis, italics and underscoring
supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the
presidential communications privilege against the subpoena duces tecum of
a Senate committee, spoke of the need to balance such claim with the duty of
Congress to perform its legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed
to ensure that the President and those upon whom he directly relies in the
performance of his duties could continue to work under a general assurance
that their deliberations would remain confidential. So long as the
presumption that the public interest favors confidentiality can be
defeated only by a strong showing of need by another institution of
government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the
President's deliberations- we believed in Nixon v. Sirica, and continue to
believe, that the effective functioning of the presidential office will not be
impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative functions. x x x
(Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and
presidential communications privileges against a subpoena duces tecum of a
grand jury. On the claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be
overcome by a sufficient showing of need. This need determination is
to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
deliberative process privilege] is asserted the district court must undertake a
fresh balancing of the competing interests," taking into account factors
such as "the relevance of the evidence," "the availability of other
evidence," "the seriousness of the litigation," "the role of the
government," and the "possibility of future timidity by government
employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and "sufficient showing of need"
referred to in the immediately cited cases. The arguments they proffer to
establish their entitlement to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in
the JPEPA negotiation process effectively results in the bargaining away of
their economic and property rights without their knowledge and participation,
in violation of the due process clause of the Constitution. They claim,
moreover, that it is essential for the people to have access to the initial offers
exchanged during the negotiations since only through such disclosure can
their constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in
the JPEPA negotiations is a question of fact which this Court need not
resolve. Suffice it to state that respondents had presented documents
purporting to show that public consultations were conducted on the JPEPA.
Parenthetically, petitioners consider these "alleged consultations" as
"woefully selective and inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the
Philippine and Japanese representatives have not been disclosed to the
public, the Court shall pass upon the issue of whether access to the
documents bearing on them is, as petitioners claim, essential to their right to
participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the
disclosure of the full text of the JPEPA to the public since September 11,
2006, even as it is still being deliberated upon by the Senate and, therefore,
not yet binding on the Philippines. Were the Senate to concur with the validity
of the JPEPA at this moment, there has already been, in the words of PMPF
v. Manglapus, "ample opportunity for discussion before [the treaty] is
approved."
The text of the JPEPA having been published, petitioners have failed to
convince this Court that they will not be able to meaningfully exercise their
right to participate in decision-making unless the initial offers are also
published.
It is of public knowledge that various non-government sectors and private
citizens have already publicly expressed their views on the JPEPA, their
comments not being limited to general observations thereon but on its
specific provisions. Numerous articles and statements critical of the JPEPA
have been posted on the Internet.54 Given these developments, there is no
basis for petitioners’ claim that access to the Philippine and Japanese offers
is essential to the exercise of their right to participate in decision-making.
Petitioner-members of the House of Representatives additionally anchor their
claim to have a right to the subject documents on the basis of Congress’
inherent power to regulate commerce, be it domestic or international. They
allege that Congress cannot meaningfully exercise the power to regulate
international trade agreements such as the JPEPA without being given
copies of the initial offers exchanged during the negotiations thereof. In the
same vein, they argue that the President cannot exclude Congress from the
JPEPA negotiations since whatever power and authority the President has to
negotiate international trade agreements is derived only by delegation of
Congress, pursuant to Article VI, Section 28(2) of the Constitution and
Sections 401 and 402 of Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to
negotiate treaties and international agreements, but the power to fix tariff
rates, import and export quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified
limits, and subject to such limitations and restrictions as it may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and other
duties or imposts within the framework of the national development program
of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is
Section 21 of Article VII – the article on the Executive Department – which
states:
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive
to the President, being the sole organ of the nation in its external relations,
was echoed in BAYAN v. Executive Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as
head of State, is the sole organ and authority in the external affairs of the
country. In many ways, the President is the chief architect of the nation's
foreign policy; his "dominance in the field of foreign relations is (then)
conceded." Wielding vast powers and influence, his conduct in the external
affairs of the nation, as Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international agreements,
the Constitution vests the same in the President, subject only to the
concurrence of at least two thirds vote of all the members of the
Senate. In this light, the negotiation of the VFA and the subsequent
ratification of the agreement are exclusive acts which pertain solely to the
President, in the lawful exercise of his vast executive and diplomatic
powers granted him no less than by the fundamental law itself. Into the
field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x (Italics in the original; emphasis and
underscoring supplied)
The same doctrine was reiterated even more recently in Pimentel v.
Executive Secretary57 where the Court ruled:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is the
country's sole representative with foreign nations. As the chief architect
of foreign policy, the President acts as the country's mouthpiece with respect
to international affairs. Hence, the President is vested with the authority
to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the
business of foreign relations. In the realm of treaty-making, the President
has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and
enter into treaties, the Constitution provides a limitation to his power by
requiring the concurrence of 2/3 of all the members of the Senate for
the validity of the treaty entered into by him. x x x (Emphasis and
underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to
Congress, and is exercised by the President only by delegation of that body,
it has long been recognized that the power to enter into treaties is vested
directly and exclusively in the President, subject only to the concurrence of at
least two-thirds of all the Members of the Senate for the validity of the treaty.
In this light, the authority of the President to enter into trade agreements with
foreign nations provided under P.D. 146458 may be interpreted as an
acknowledgment of a power already inherent in its office. It may not be used
as basis to hold the President or its representatives accountable to Congress
for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties
is unlimited but for the requirement of Senate concurrence, since the
President must still ensure that all treaties will substantively conform to all the
relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast
legislative powers, may not interfere in the field of treaty negotiations. While
Article VII, Section 21 provides for Senate concurrence, such pertains only to
the validity of the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is not even Congress as
a whole that has been given the authority to concur as a means of checking
the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens,
petitioners-members of the House of Representatives fail to present a
"sufficient showing of need" that the information sought is critical to the
performance of the functions of Congress, functions that do not include
treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same
defective, not having been done seasonably as it was raised only in their
Comment to the present petition and not during the House Committee
hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of privilege
should not be credited. Petitioners’ position presupposes that an assertion of
the privilege should have been made during the House Committee
investigations, failing which respondents are deemed to have waived it.
When the House Committee and petitioner-Congressman
Aguja requested respondents for copies of the documents subject of this
case, respondents replied that the negotiations were still on-going and that
the draft of the JPEPA would be released once the text thereof is settled and
complete. There was no intimation that the requested copies are confidential
in nature by reason of public policy. The response may not thus be deemed a
claim of privilege by the standards of Senate v. Ermita, which recognizes as
claims of privilege only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information being sought.
Respondents’ failure to claim the privilege during the House Committee
hearings may not, however, be construed as a waiver thereof by the
Executive branch. As the immediately preceding paragraph indicates, what
respondents received from the House Committee and petitioner-
Congressman Aguja were mere requests for information. And as priorly
stated, the House Committee itself refrained from pursuing its earlier
resolution to issue a subpoena duces tecum on account of then Speaker
Jose de Venecia’s alleged request to Committee Chairperson Congressman
Teves to hold the same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing
subpoenas to executive officials – out of respect for their office – until resort
to it becomes necessary, the fact remains that such requests are not a
compulsory process. Being mere requests, they do not strictly call for an
assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry.59 So long as
Congress itself finds no cause to enforce such power, there is no strict
necessity to assert the privilege. In this light, respondents’ failure to invoke
the privilege during the House Committee investigations did not amount to a
waiver thereof.
The Court observes, however, that the claim of privilege appearing in
respondents’ Comment to this petition fails to satisfy in full the requirement
laid down in Senate v. Ermita that the claim should be invoked by the
President or through the Executive Secretary "by order of the
President."60 Respondents’ claim of privilege is being sustained, however, its
flaw notwithstanding, because of circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who is one of
the respondents herein, without him adding the phrase "by order of the
President," shall be considered as partially complying with the requirement
laid down in Senate v. Ermita. The requirement that the phrase "by order of
the President" should accompany the Executive Secretary’s claim of privilege
is a new rule laid down for the first time in Senate v. Ermita, which was not
yet final and executory at the time respondents filed their Comment to the
petition.61 A strict application of this requirement would thus be unwarranted
in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal
to protect our people’s right to information against any abuse of executive
privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive
privilege, should be careful not to veer towards the opposite extreme, to the
point that it would strike down as invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which
have not yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international
trade agreements in the United States, the dissent concludes that "it will be
turning somersaults with history to contend that the President is the sole
organ for external relations" in that jurisdiction. With regard to this opinion,
We make only the following observations:
There is, at least, a core meaning of the phrase "sole organ of the nation in
its external relations" which is not being disputed, namely, that the power
to directly negotiate treaties and international agreements is vested by our
Constitution only in the Executive. Thus, the dissent states that "Congress
has the power to regulate commerce with foreign nations but does not have
the power to negotiate international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives,
by asking for the subject JPEPA documents, are not seeking
to directly participate in the negotiations of the JPEPA, hence, they cannot be
prevented from gaining access to these documents.
On the other hand, We hold that this is one occasion where the following
ruling in Agan v. PIATCO63 – and in other cases both before and since –
should be applied:
This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. To declare
the PIATCO contracts valid despite the clear statutory prohibition against a
direct government guarantee would not only make a mockery of what the
BOT Law seeks to prevent -- which is to expose the government to the risk of
incurring a monetary obligation resulting from a contract of loan between the
project proponent and its lenders and to which the Government is not a party
to -- but would also render the BOT Law useless for what it seeks to
achieve –- to make use of the resources of the private sector in the
"financing, operation and maintenance of infrastructure and development
projects" which are necessary for national growth and development but which
the government, unfortunately, could ill-afford to finance at this point in time.64
Similarly, while herein petitioners-members of the House of Representatives
may not have been aiming to participate in the negotiations directly, opening
the JPEPA negotiations to their scrutiny – even to the point of giving them
access to the offers exchanged between the Japanese and Philippine
delegations – would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when it vested
the power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve in
defining the treaty-making power of the President, which our Constitution
similarly defines, may be gathered from Hamilton’s explanation of why the
U.S. Constitution excludes the House of Representatives from the treaty-
making process:
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those qualities
which are essential to the proper execution of such a trust. Accurate and
comprehensive knowledge of foreign politics; a steady and systematic
adherence to the same views; a nice and uniform sensibility to national
character, decision, secrecy and dispatch; are incompatible with a body so
variable and so numerous. The very complication of the business by
introducing a necessity of the concurrence of so many different bodies, would
of itself afford a solid objection. The greater frequency of the calls upon the
house of representatives, and the greater length of time which it would often
be necessary to keep them together when convened, to obtain their sanction
in the progressive stages of a treaty, would be source of so great
inconvenience and expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine
Constitution, unlike that of the U.S., does not even grant the Senate the
power to advise the Executive in the making of treaties, but only vests in that
body the power to concur in the validity of the treaty after negotiations have
been concluded.66 Much less, therefore, should it be inferred that the House
of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access
to the subject JPEPA documents would set a precedent for future
negotiations, leading to the contravention of the public interests articulated
above which the Constitution sought to protect, the subject documents should
not be disclosed.
2. The dissent also asserts that respondents can no longer claim the
diplomatic secrets privilege over the subject JPEPA documents now that
negotiations have been concluded, since their reasons for nondisclosure
cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment,
necessarily apply only for as long as the negotiations were still pending;
In their Comment, respondents contend that "the negotiations of the
representatives of the Philippines as well as of Japan must be allowed to
explore alternatives in the course of the negotiations in the same manner as
judicial deliberations and working drafts of opinions are accorded strict
confidentiality." That respondents liken the documents involved in the
JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not
only until, but even after, the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision
has been promulgated by the courts. The same holds true with respect to
working drafts of opinions, which are comparable to intra-
agencyrecommendations. Such intra-agency recommendations are privileged
even after the position under consideration by the agency has developed into
a definite proposition, hence, the rule in this jurisdiction that agencies have
the duty to disclose only definite propositions, and not the inter-agency and
intra-agency communications during the stage when common assertions are
still being formulated.67
3. The dissent claims that petitioner-members of the House of
Representatives have sufficiently shown their need for the same documents
to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not
pursue its earlier intention to subpoena the documents. This strongly
undermines the assertion that access to the same documents by the House
Committee is critical to the performance of its legislative functions. If the
documents were indeed critical, the House Committee should have, at the
very least, issued a subpoena duces tecum or, like what the Senate did
in Senate v. Ermita, filed the present petition as a legislative body, rather than
leaving it to the discretion of individual Congressmen whether to pursue an
action or not. Such acts would have served as strong indicia that Congress
itself finds the subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-
members of the House of Representatives should have, at least,
shown how its lack of access to the Philippine and Japanese offers would
hinder the intelligent crafting of legislation. Mere assertion that the JPEPA
covers a subject matter over which Congress has the power to legislate
would not suffice. As Senate Select Committee v. Nixon68 held, the showing
required to overcome the presumption favoring confidentiality turns, not only
on the nature and appropriateness of the function in the performance of
which the material was sought, but also the degree to which the material was
necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes
and attachments was published, petitioner-members of the House of
Representatives have been free to use it for any legislative purpose they may
see fit. Since such publication, petitioners’ need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has
become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the
JPEPA documents, the dissent contends that the Executive has failed to
show how disclosing them after the conclusion of negotiations would impair
the performance of its functions. The contention, with due respect, misplaces
the onus probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide precise and
certain reasons for upholding its claim of privilege, once the Executive is able
to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the
privilege by a strong showing of need.
When it was thus established that the JPEPA documents are covered by the
privilege for diplomatic negotiations pursuant to PMPF v. Manglapus, the
presumption arose that their disclosure would impair the performance of
executive functions. It was then incumbent on petitioner- requesting parties to
show that they have a strong need for the information sufficient to overcome
the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he
is claiming the privilege "by order of the President," the same may not be
strictly applied to the privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege
to the President alone, it was laying down a new rule for which there is no
counterpart even in the United States from which the concept of executive
privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v.
Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a
President must personally invoke the [presidential communications] privilege
remains an open question." U.S. v. Reynolds,71 on the other hand, held that
"[t]here 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 rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of the
privilege in light of its highly exceptional nature. The Court’s recognition that
the Executive Secretary also bears the power to invoke the privilege,
provided he does so "by order of the President," is meant to avoid laying
down too rigid a rule, the Court being aware that it was laying down a new
restriction on executive privilege. It is with the same spirit that the Court
should not be overly strict with applying the same rule in this peculiar
instance, where the claim of executive privilege occurred before the judgment
in Senate v. Ermitabecame final.
5. To show that PMPF v. Manglapus may not be applied in the present case,
the dissent implies that the Court therein erred in citing US v. Curtiss
Wright72 and the book entitled The New American Government and Its
Work73since these authorities, so the dissent claims, may not be used to
calibrate the importance of the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between
the executive and legislative branches of government, the factual setting
thereof was different from that of PMPF v. Manglapus which involved a
collision between governmental power over the conduct of foreign affairs and
the citizen’s right to information.
That the Court could freely cite Curtiss-Wright – a case that upholds the
secrecy of diplomatic negotiations against congressional demands for
information – in the course of laying down a ruling on the public right to
information only serves to underscore the principle mentioned earlier that the
privileged character accorded to diplomatic negotiations does not ipso
facto lose all force and effect simply because the same privilege is now being
claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private
citizens and not an executive-legislative conflict, but so did Chavez v.
PEA74 which held that "the [public’s] right to information . . . does not extend
to matters recognized as privileged information under the separation of
powers." What counts as privileged information in an executive-legislative
conflict is thus also recognized as such in cases involving the public’s right to
information.
Chavez v. PCGG75 also involved the public’s right to information, yet the
Court recognized as a valid limitation to that right the same privileged
information based on separation of powers – closed-door Cabinet meetings,
executive sessions of either house of Congress, and the internal
deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege,
whether in the context of an executive-legislative conflict or a citizen’s
demand for information, as closely intertwined, such that the principles
applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to be
assessed by entirely different criteria in each context, this may give rise to the
absurd result where Congress would be denied access to a particular
information because of a claim of executive privilege, but the general
public would have access to the same information, the claim of privilege
notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the
"clear and present danger" test for the assessment of claims of privilege
against citizens’ demands for information. If executive information, when
demanded by a citizen, is privileged only when there is a clear and present
danger of a substantive evil that the State has a right to prevent, it would be
very difficult for the Executive to establish the validity of its claim in each
instance. In contrast, if the demand comes from Congress, the Executive
merely has to show that the information is covered by a recognized privilege
in order to shift the burden on Congress to present a strong showing of need.
This would lead to a situation where it would be more difficult for Congress to
access executive information than it would be for private citizens.
We maintain then that when the Executive has already shown that an
information is covered by executive privilege, the party demanding the
information must present a "strong showing of need," whether that party is
Congress or a private citizen.
The rule that the same "showing of need" test applies in both these contexts,
however, should not be construed as a denial of the importance of analyzing
the context in which an executive privilege controversy may happen to be
placed. Rather, it affirms it, for it means that the specific need being shown
by the party seeking information in every particular instance is highly
significant in determining whether to uphold a claim of privilege. This "need"
is, precisely, part of the context in light of which every claim of privilege
should be assessed.
Since, as demonstrated above, there are common principles that should be
applied to executive privilege controversies across different contexts, the
Court in PMPF v. Manglapus did not err when it cited the Curtiss-Wrightcase.
The claim that the book cited in PMPF v. Manglapus entitled The New
American Government and Its Work could not have taken into account the
expanded statutory right to information in the FOIA assumes that the
observations in that book in support of the confidentiality of treaty
negotiations would be different had it been written after the FOIA. Such
assumption is, with due respect, at best, speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same book be
used to calibrate the importance of the right of access to information in the
Philippine setting considering its elevation as a constitutional right," we
submit that the elevation of such right as a constitutional right did not set it
free from the legitimate restrictions of executive privilege which is itself
constitutionally-based.76 Hence, the comments in that book which were cited
in PMPF v. Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used "need" as a test
to uphold or allow inroads into rights guaranteed under the Constitution. With
due respect, we assert otherwise. The Court has done so before, albeit
without using the term "need."
In executive privilege controversies, the requirement that parties present a
"sufficient showing of need" only means, in substance, that they should
show a public interest in favor of disclosure sufficient in degree to overcome
the claim of privilege.77 Verily, the Court in such cases engages in
a balancing of interests. Such a balancing of interests is certainly not new
in constitutional adjudication involving fundamental rights. Secretary of
Justice v. Lantion,78 which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the "clear
and present danger" test to the present controversy, but the balancing test,
there seems to be no substantial dispute between the position laid down in
this ponencia and that reflected in the dissent as to what test to apply. It
would appear that the only disagreement is on the results of applying that test
in this instance.
The dissent, nonetheless, maintains that "it suffices that information is of
public concern for it to be covered by the right, regardless of the public’s
need for the information," and that the same would hold true even "if they
simply want to know it because it interests them." As has been stated earlier,
however, there is no dispute that the information subject of this case is a
matter of public concern. The Court has earlier concluded that it is a matter of
public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.
However, when the Executive has – as in this case – invoked the privilege,
and it has been established that the subject information is indeed covered by
the privilege being claimed, can a party overcome the same by merely
asserting that the information being demanded is a matter of public concern,
without any further showing required? Certainly not, for that would render the
doctrine of executive privilege of no force and effect whatsoever as a
limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by
disclosing the documents of the JPEPA negotiations, the Philippine
government runs the grave risk of betraying the trust reposed in it by the
Japanese representatives, indeed, by the Japanese government itself. How
would the Philippine government then explain itself when that happens?
Surely, it cannot bear to say that it just had to release the information
because certain persons simply wanted to know it "because it interests
them."
Thus, the Court holds that, in determining whether an information is covered
by the right to information, a specific "showing of need" for such information
is not a relevant consideration, but only whether the same is a matter
of public concern. When, however, the government has claimed executive
privilege, and it has established that the information is indeed covered by the
same, then the party demanding it, if it is to overcome the privilege, must
show that that the information is vital, not simply for the satisfaction of its
curiosity, but for its ability to effectively and reasonably participate in social,
political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage
where the people can exercise their right to participate in the discussion
whether the Senate should concur in its ratification or not." (Emphasis
supplied) It adds that this right "will be diluted unless the people can have
access to the subject JPEPA documents". What, to the dissent, is a dilution
of the right to participate in decision-making is, to Us, simply a recognition of
the qualified nature of the public’s right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive
privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-
making would be diluted, We reiterate that our people have been
exercising their right to participate in the discussion on the issue of the
JPEPA, and they have been able to articulate their different opinions without
need of access to the JPEPA negotiation documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate
Select Committee case, and In re Sealed Case, are similarly applicable to the
present controversy, the dissent cites the caveat in the Nixon case that the
U.S. Court was there addressing only the President’s assertion of privilege in
the context of a criminal trial, not a civil litigation nor a congressional demand
for information. What this caveat means, however, is only that courts must be
careful not to hastily apply the ruling therein to other contexts. It does not,
however, absolutely mean that the principles applied in that case may never
be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on
claims of executive privilege in contexts other than a criminal trial, as in the
case of Nixon v. Administrator of General Services80 – which involved former
President Nixon’s invocation of executive privilege to challenge the
constitutionality of the "Presidential Recordings and Materials Preservation
Act"81 – and the above-mentioned In re Sealed Case which involved a claim
of privilege against a subpoena duces tecum issued in a grand jury
investigation.
Indeed, in applying to the present case the principles found in U.S. v.
Nixon and in the other cases already mentioned, We are merely affirming
what the Chief Justice stated in his Dissenting Opinion in Neri v. Senate
Committee on Accountability82 – a case involving an executive-legislative
conflict over executive privilege. That dissenting opinion stated that,
while Nixon was not concerned with the balance between the President’s
generalized interest in confidentiality and congressional demands for
information, "[n]onetheless the [U.S.] Court laid down principles and
procedures that can serve as torch lights to illumine us on the scope
and use of Presidential communication privilege in the case at
bar."83 While the Court was divided in Neri, this opinion of the Chief Justice
was not among the points of disagreement, and We similarly hold now that
the Nixon case is a useful guide in the proper resolution of the present
controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive
privilege, it should also give full recognition to the validity of the
privilege whenever it is claimed within the proper bounds of executive
power, as in this case. Otherwise, the Court would undermine its own
credibility, for it would be perceived as no longer aiming to strike a balance,
but seeking merely to water down executive privilege to the point of
irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text
of the JPEPA has become moot and academic, it having been made
accessible to the public since September 11, 2006. As for their demand for
copies of the Philippine and Japanese offers submitted during the JPEPA
negotiations, the same must be denied, respondents’ claim of executive
privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in
PMPF v. Manglapus on September 13, 1988, been recognized as privileged
in this jurisdiction and the reasons proffered by petitioners against the
application of the ruling therein to the present case have not persuaded the
Court. Moreover, petitioners – both private citizens and members of the
House of Representatives – have failed to present a "sufficient showing of
need" to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents’ Comment to
the present petition, and not during the hearings of the House Special
Committee on Globalization, is of no moment, since it cannot be interpreted
as a waiver of the privilege on the part of the Executive branch.

For reasons already explained, this Decision shall not be interpreted as

departing from the ruling in Senate v. Ermitathat executive privilege should
be invoked by the President or through the Executive Secretary "by order of
the President."

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
 EN BANC
[G.R. NO. 170165 : August 15, 2006]
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F.
BALUTAN Petitioners, v.LT./GEN. GENEROSO S. SENGA CORONA, AS
CHIEF OF STAFF OF THE CARPIO-MORALES, ARMED FORCES OF THE
CALLEJO, SR., PHILIPPINES, COL. GILBERTO AZCUNA, JOSE C. ROA
AS THE PRE-TRIAL TINGA, INVESTIGATING OFFICER, THE CHICO-
NAZARIO, PROVOST MARSHALL GENERAL GARCIA, and OF THE
ARMED FORCES OF THE PHILIPPINES AND THE GENERAL COURT-
MARTIAL, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court - that soldiers
who defy orders of their superior officers are exempt
from the strictures of military law and discipline if such defiance is predicated
on an act otherwise valid under civilian law. Obedience and deference to the
military chain of command and the President as commander-in-chief are the
cornerstones of a professional military in the firm cusp of civilian control.
These values of obedience and deference expected of military officers are
content-neutral, beyond the sway of the officer's own sense of what is
prudent or rash, or more elementally, of right or wrong. A self-righteous
military invites itself as the scoundrel's activist solution to the "ills" of
participatory democracy.
Petitioners seek the annulment of a directive from President Gloria
Macapagal-Arroyo1 enjoining them and other military officers from testifying
before Congress without the President's consent. Petitioners also pray for
injunctive relief against a pending preliminary investigation against them, in
preparation for possible court-martial proceedings, initiated within the military
justice system in connection with petitioners' violation of the aforementioned
directive.
The Court is cognizant that petitioners, in their defense, invoke weighty
constitutional principles that center on fundamental freedoms enshrined in
the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these
values as of paramount importance to our civil society, even if not
determinative of the resolution of this petition. Had the relevant issue before
us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a
scenario could have very well been presented to the Court in such manner,
without the petitioners having had to violate a direct order from their
commanding officer. Instead, the Court has to resolve whether petitioners
may be subjected to military discipline on account of their defiance of a direct
order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must
be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the
Philippines (AFP). Both petitioners, Brigadier General Francisco Gudani
(Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col. Balutan),
belonged to the Philippine Marines. At the time of the subject incidents, both
Gen. Gudani and Col. Balutan were assigned to the Philippine Military
Academy (PMA) in Baguio City, the former as the PMA Assistant
Superintendent, and the latter as the Assistant Commandant of Cadets. 2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited
several senior officers of the AFP to appear at a public hearing before the
Senate Committee on National Defense and Security (Senate Committee)
scheduled on 28 September 2005. The hearing was scheduled after topics
concerning the conduct of the 2004 elections emerged in the public eye,
particularly allegations of massive cheating and the surfacing of copies of an
audio excerpt purportedly of a phone conversation between President Gloria
Macapagal Arroyo and an official of the Commission on Elections
(COMELEC) widely reputed as then COMELEC Commissioner Virgilio
Garcillano. At the time of the 2004 elections, Gen. Gudani had been
designated as commander, and Col. Balutan a member, of "Joint Task Force
Ranao" by the AFP Southern Command. "Joint Task Force Ranao" was
tasked with the maintenance of peace and order during the 2004 elections in
the provinces of Lanao del Norte and Lanao del Sur.3 `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General
Generoso Senga (Gen. Senga) were among the several AFP officers who
received a letter invitation from Sen. Biazon to attend the 28 September 2005
hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen.
Biazon that he would be unable to attend the hearing due to a previous
commitment in Brunei, but he nonetheless "directed other officers from the
AFP who were invited to attend the hearing."4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P.
Baloing (Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in
behalf of Gen. Senga.5 Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the
Memorandum directed the two officers to attend the hearing. 6 Conformably,
Gen. Gudani and Col. Balutan filed their respective requests for travel
authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon,
requesting the postponement of the hearing scheduled for the following day,
since the AFP Chief of Staff was himself unable to attend said hearing, and
that some of the invited officers also could not attend as they were "attending
to other urgent operational matters." By this time, both Gen. Gudani and Col.
Balutan had already departed Baguio for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a
message was transmitted to the PMA Superintendent from the office of Gen.
Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL
SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING
WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP
AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time
informing the senator that "no approval has been granted by the President to
any AFP officer to appear" before the hearing scheduled on that day.
Nonetheless, both Gen. Gudani and Col. Balutan were present as the
hearing started, and they both testified as to the conduct of the 2004
elections.
The Office of the Solicitor General (OSG), representing the respondents
before this Court, has offered additional information surrounding the
testimony of Gen. Gudani and Col. Balutan. The OSG manifests that the
couriers of the AFP Command Center had attempted to deliver the radio
message to Gen. Gudani's residence in a subdivision in Parañaque City late
in the night of 27 September 2005, but they were not permitted entry by the
subdivision guards. The next day, 28 September 2005, shortly before the
start of the hearing, a copy of Gen. Senga's letter to Sen. Biazon sent earlier
that day was handed at the Senate by Commodore Amable B. Tolentino of
the AFP Office for Legislative Affairs to Gen. Gudani, who replied that he
already had a copy. Further, Gen. Senga called Commodore Tolentino on the
latter's cell phone and asked to talk to Gen. Gudani, but Gen. Gudani
refused. In response, Gen. Senga instructed Commodore Tolentino to inform
Gen. Gudani that "it was an order," yet Gen. Gudani still refused to take Gen.
Senga's call.8
A few hours after Gen. Gudani and Col. Balutan had concluded their
testimony, the office of Gen. Senga issued a statement which noted that the
two had appeared before the Senate Committee "in spite of the fact that a
guidance has been given that a Presidential approval should be sought prior
to such an appearance;" that such directive was "in keeping with the time[-
]honored principle of the Chain of Command;" and that the two officers
"disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully
Disobeying Superior Officer), hence they will be subjected to General Court
Martial proceedings x x x" Both Gen. Gudani and Col. Balutan were likewise
relieved of their assignments then.9
On the very day of the hearing, 28 September 2005, President Gloria-
Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG
notes that the E.O. "enjoined officials of the executive department including
the military establishment from appearing in any legislative inquiry without her
approval."10This Court subsequently ruled on the constitutionality of the said
executive order in Senate v. Ermita.11The relevance of E.O. 464
and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by
General Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal
General, to appear before the Office of the Provost Marshal General (OPMG)
on 3 October 2005 for investigation. During their appearance before Col.
Galarpe, both petitioners invoked their right to remain silent.12 The following
day, Gen. Gudani was compulsorily retired from military service, having
reached the age of 56.13
In an Investigation Report dated 6 October 2005, the OPMG recommended
that petitioners be charged with violation of Article of War 65, on willfully
disobeying a superior officer, in relation to Article of War 97, on conduct
prejudicial to the good order and military discipline.14 As recommended, the
case was referred to a Pre-Trial Investigation Officer (PTIO) preparatory to
trial by the General Court Martial (GCM).15 Consequently, on 24 October
2005, petitioners were separately served with Orders respectively addressed
to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial
Investigating Officer of the PTIO. The Orders directed petitioners to appear in
person before Col. Roa at the Pre-Trial Investigation of the Charges for
violation of Articles 6516 and 9717 of Commonwealth Act No. 408,18 and to
submit their counter-affidavits and affidavits of witnesses at the Office of the
Judge Advocate General.19 The Orders were accompanied by respective
charge sheets against petitioners, accusing them of violating Articles of War
65 and 97.
It was from these premises that the present petition for certiorari and
prohibition was filed, particularly seeking that (1) the order of President
Arroyo coursed through Gen. Senga preventing petitioners from testifying
before Congress without her prior approval be declared unconstitutional; (2)
the charges stated in the charge sheets against petitioners be quashed; and
(3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest or
persons acting for and on their behalf or orders, be permanently enjoined
from proceeding against petitioners, as a consequence of their having
testified before the Senate on 28 September 2005.20
Petitioners characterize the directive from President Arroyo requiring her prior
approval before any AFP personnel appear before Congress as a "gag
order," which violates the principle of separation of powers in government as
it interferes with the investigation of the Senate Committee conducted in aid
of legislation. They also equate the "gag order" with culpable violation of the
Constitution, particularly in relation to the public's constitutional right to
information and transparency in matters of public concern. Plaintively,
petitioners claim that "the Filipino people have every right to hear the
[petitioners'] testimonies," and even if the "gag order" were unconstitutional, it
still was tantamount to "the crime of obstruction of justice." Petitioners further
argue that there was no law prohibiting them from testifying before the
Senate, and in fact, they were appearing in obeisance to the authority of
Congress to conduct inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to
military jurisdiction on account of his compulsory retirement on 4 October
2005. It is pointed out that Article 2, Title I of the Articles of War defines
persons subject to military law as "all officers and soldiers in the active
service" of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or
innocence of petitioners in violating Articles 65 and 97 of the Articles of War
is not an issue before this Court, especially considering that per records,
petitioners have not yet been subjected to court martial proceedings. Owing
to the absence of such proceedings, the correct inquiry should be limited to
whether respondents could properly initiate such proceedings preparatory to
a formal court-martial, such as the aforementioned preliminary investigation,
on the basis of petitioners' acts surrounding their testimony before the Senate
on 28 September 2005. Yet this Court, consistent with the principle that it is
not a trier of facts at first instance,21 is averse to making any authoritative
findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the
Court, having been commonly alleged by petitioners and the OSG (for
respondents). Petitioners were called by the Senate Committee to testify in
its 28 September 2005 hearing. Petitioners attended such hearing and
testified before the Committee, despite the fact that the day before, there was
an order from Gen. Senga (which in turn was sourced "per instruction" from
President Arroyo) prohibiting them from testifying without the prior approval of
the President. Petitioners do not precisely admit before this Court that they
had learned of such order prior to their testimony, although the OSG asserts
that at the very least, Gen. Gudani already knew of such order before he
testified.22 Yet while this fact may be ultimately material in the court-martial
proceedings, it is not determinative of this petition, which as stated earlier,
does not proffer as an issue whether petitioners are guilty of violating the
Articles of War.
What the Court has to consider though is whether the violation of the
aforementioned order of Gen. Senga, which emanated from the President,
could lead to any investigation for court-martial of petitioners. It has to be
acknowledged as a general principle23 that AFP personnel of whatever rank
are liable under military law for violating a direct order of an officer superior in
rank. Whether petitioners did violate such an order is not for the Court to
decide, but it will be necessary to assume, for the purposes of this petition,
that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court's ruling
in Senate on the present petition. Notably, it is not alleged that petitioners
were in any way called to task for violating E.O. 464, but instead, they
were charged for violating the direct order of Gen. Senga not to appear
before the Senate Committee, an order that stands independent of the
executive order. Distinctions are called for, since Section 2(b) of E.O. 464
listed "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," as among those public officials required in Section 3
of E.O. 464 "to secure prior consent of the President prior to appearing
before either House of Congress." The Court in Senatedeclared both Section
2(b) and Section 3 void,24 and the impression may have been left
following Senatethat it settled as doctrine, that the President is prohibited
from requiring military personnel from attending congressional hearings
without having first secured prior presidential consent. That impression is
wrong.
Senate turned on the nature of executive privilege, a presidential prerogative
which is encumbered by significant limitations. Insofar as E.O. 464 compelled
officials of the executive branch to seek prior presidential approval before
appearing before Congress, the notion of executive control also comes into
consideration.25 However, the ability of the President to require a military
official to secure prior consent before appearing before Congress pertains to
a wholly different and independent specie of presidential authority the
commander-in-chief powers of the President. By tradition and jurisprudence,
the commander-in-chief powers of the President are not encumbered by the
same degree of restriction as that which may attach to executive privilege or
executive control.
During the deliberations in Senate, the Court was very well aware of the
pendency of this petition as well as the issues raised herein. The decision
in Senate was rendered with the comfort that the nullification of portions of
E.O. 464 would bear no impact on the present petition since petitioners
herein were not called to task for violating the executive order. Moreover, the
Court was then cognizant that Senate and this case would ultimately hinge
on disparate legal issues. Relevantly, Senate purposely did not touch upon or
rule on the faculty of the President, under the aegis of the commander-in-
chief powers26 to require military officials from securing prior consent before
appearing before Congress. The pertinent factors in considering that question
are markedly outside of those which did become relevant in adjudicating the
issues raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike
at the heart of the matter. General Gudani argues that he can no longer fall
within the jurisdiction of the court-martial, considering his retirement last 4
October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which
defines persons subject to military law as, among others, "all officers and
soldiers in the active service of the [AFP]," and points out that he is no longer
in the active service.
This point was settled against Gen. Gudani's position in Abadilla v.
Ramos,27 where the Court declared that an officer whose name was dropped
from the roll of officers cannot be considered to be outside the jurisdiction of
military authorities when military justice proceedings were initiated against
him before the termination of his service. Once jurisdiction has been acquired
over the officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at
the time of the alleged offenses. This jurisdiction having been vested in the
military authorities, it is retained up to the end of the proceedings against
Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not
lost upon the instance of the parties but continues until the case is
terminated.28
Citing Colonel Winthrop's treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the
following passage which goes against the contention of the petitioners, viz'
3. Offenders in general - Attaching of jurisdiction. It has further been held,
and is now settled law, in regard to military offenders in general, that if the
military jurisdiction has once duly attached to them previous to the date of the
termination of their legal period of service, they may be brought to trial by
court-martial after that date, their discharge being meanwhile withheld. This
principle has mostly been applied to cases where the offense was committed
just prior to the end of the term. In such cases the interests of discipline
clearly forbid that the offender should go unpunished. It is held therefore
that if before the day on which his service legally terminates and his
right to a discharge is complete, proceedings with a view to trial are
commenced against him - as by arrest or the service of charges, - the
military jurisdiction will fully attach and once attached may be
continued by a trial by court-martial ordered and held after the end of
the term of the enlistment of the accused x x x 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both
the acts complained of and the initiation of the proceedings against him
occurred before he compulsorily retired on 4 October 2005. We see no
reason to unsettle the Abadilla doctrine. The OSG also points out that under
Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or
enlisted man carried in the retired list [of the Armed Forces of the Philippines]
shall be subject to the Articles of War x x x"30 To this citation, petitioners do
not offer any response, and in fact have excluded the matter of Gen.
Gudani's retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure
presidential consent prior to their appearance before the Senate, claiming
that it violates the constitutional right to information and transparency in
matters of public concern; or if not, is tantamount at least to the criminal acts
of obstruction of justice and grave coercion. However, the proper perspective
from which to consider this issue entails the examination of the basis and
authority of the President to issue such an order in the first place to members
of the AFP and the determination of whether such an order is subject to any
limitations.
The vitality of the tenet that the President is the commander-in-chief of the
Armed Forces is most crucial to the democratic way of life, to civilian
supremacy over the military, and to the general stability of our representative
system of government. The Constitution reposes final authority, control and
supervision of the AFP to the President, a civilian who is not a member of the
armed forces, and whose duties as commander-in-chief represent only a part
of the organic duties imposed upon the office, the other functions being
clearly civil in nature.31 Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities,
such as civil courts, on matters such as conducting warrantless searches and
seizures.32
Pursuant to the maintenance of civilian supremacy over the military, the
Constitution has allocated specific roles to the legislative and executive
branches of government in relation to military affairs. Military appropriations,
as with all other appropriations, are determined by Congress, as is the power
to declare the existence of a state of war.33 Congress is also empowered to
revoke a proclamation of martial law or the suspension of the writ of habeas
corpus.34 The approval of the Commission on Appointments is also required
before the President can promote military officers from the rank of colonel or
naval captain.35 Otherwise, on the particulars of civilian dominance and
administration over the military, the Constitution is silent, except for the
commander-in-chief clause which is fertile in meaning and
implication as to whatever inherent martial authority the President may
possess.36
The commander-in-chief provision in the Constitution is denominated as
Section 18, Article VII, which begins with the simple declaration that "[t]he
President shall be the Commander-in-Chief of all armed forces of the
Philippines x x x"37 Outside explicit constitutional limitations, such as those
found in Section 5, Article XVI, the commander-in-chief clause vests on the
President, as commander-in-chief, absolute authority over the persons and
actions of the members of the armed forces. Such authority includes the
ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa38 is useful in this regard. Lt. Col.
Kapunan was ordered confined under "house arrest" by then Chief of Staff
(later President) Gen. Fidel Ramos. Kapunan was also ordered, as a
condition for his house arrest, that he may not issue any press statements or
give any press conference during his period of detention. The Court
unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military
discipline. It cannot be gainsaid that certain liberties of persons in the
military service, including the freedom of speech, may be
circumscribed by rules of military discipline. Thus, to a certain degree,
individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on
the maintenance of discipline within its ranks. Hence, lawful orders
must be followed without question and rules must be faithfully
complied with, irrespective of a soldier's personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner
Kapunan, an officer in the AFP, have to be considered.39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the
military way of life circumscribes several of the cherished freedoms of civilian
life. It is part and parcel of the military package. Those who cannot abide by
these limitations normally do not pursue a military career and instead find
satisfaction in other fields; and in fact many of those discharged from the
service are inspired in their later careers precisely by their rebellion against
the regimentation of military life. Inability or unwillingness to cope with military
discipline is not a stain on character, for the military mode is a highly
idiosyncratic path which persons are not generally conscripted into, but
volunteer themselves to be part of. But for those who do make the choice to
be a soldier, significant concessions to personal freedoms are expected.
After all, if need be, the men and women of the armed forces may be
commanded upon to die for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it
has been fully integrated into the democratic system of governance. The
constitutional role of the armed forces is as protector of the people and of the
State.40 Towards this end, the military must insist upon a respect for duty and
a discipline without counterpart in civilian life.41 The laws and traditions
governing that discipline have a long history; but they are founded on unique
military exigencies as powerful now as in the past.42 In the end, it must be
borne in mind that the armed forces has a distinct subculture with unique
needs, a specialized society separate from civilian society.43 In the elegant
prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of
politicians and diplomats. They are those of a world apart, a very ancient
world, which exists in parallel with the everyday world but does not belong to
it. Both worlds change over time, and the warrior world adopts in step to the
civilian. It follows it, however, at a distance. The distance can never be
closed, for the culture of the warrior can never be that of civilization itself'. 44
Critical to military discipline is obeisance to the military chain of command.
Willful disobedience of a superior officer is punishable by court-martial under
Article 65 of the Articles of War.45 "An individual soldier is not free to ignore
the lawful orders or duties assigned by his immediate superiors. For there
would be an end of all discipline if the seaman and marines on board a ship
of war [or soldiers deployed in the field], on a distant service, were permitted
to act upon their own opinion of their rights [or their opinion of the
President's intent], and to throw off the authority of the
commander whenever they supposed it to be unlawfully exercised."46
Further traditional restrictions on members of the armed forces are those
imposed on free speech and
mobility.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Kapunan is ample precedent in justifying that a soldier may be restrained by
a superior officer from speaking out on certain matters. As a general rule, the
discretion of a military officer to restrain the speech of a soldier under his/her
command will be accorded deference, with minimal regard if at all to the
reason for such restraint. It is integral to military discipline that the soldier's
speech be with the consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The
Constitution requires that "[t]he armed forces shall be insulated from partisan
politics," and that '[n]o member of the military shall engage directly or
indirectly in any partisan political activity, except to vote."47 Certainly, no
constitutional provision or military indoctrination will eliminate a soldier's
ability to form a personal political opinion, yet it is vital that such opinions be
kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of
fulfilling its constitutional function as protectors of the people and of the State.
For another, it is ruinous to military discipline to foment an atmosphere that
promotes an active dislike of or dissent against the President, the
commander-in-chief of the armed forces. Soldiers are constitutionally obliged
to obey a President they may dislike or distrust. This fundamental principle
averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country's
recent past is marked by regime changes wherein active military dissent from
the chain of command formed a key, though not exclusive, element. The
Court is not blind to history, yet it is a judge not of history but of the
Constitution. The Constitution, and indeed our modern democratic order,
frown in no uncertain terms on a politicized military, informed as they are on
the trauma of absolute martial rule. Our history might imply that a political
military is part of the natural order, but this view cannot be affirmed by the
legal order. The evolutionary path of our young democracy necessitates a
reorientation from this view, reliant as our socio-political culture has become
on it. At the same time, evolution mandates a similar demand that our system
of governance be more responsive to the needs and aspirations of the
citizenry, so as to avoid an environment vulnerable to a military apparatus
able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that
mobility of travel is another necessary restriction on members of the military.
A soldier cannot leave his/her post without the consent of the commanding
officer. The reasons are self-evident. The commanding officer has to be
aware at all times of the location of the troops under command, so as to be
able to appropriately respond to any exigencies. For the same reason,
commanding officers have to be able to restrict the movement or travel of
their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences,
such as a soldier being denied permission to witness the birth of his first-
born, or to attend the funeral of a parent. Yet again, military life calls for
considerable personal sacrifices during the period of conscription, wherein
the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from
the commanding officer before he/she may leave his destination. A soldier
who goes from the properly appointed place of duty or absents from his/her
command, guard, quarters, station, or camp without proper leave is subject to
punishment by court-martial.48 It is even clear from the record that petitioners
had actually requested for travel authority from the PMA in Baguio City to
Manila, to attend the Senate Hearing.49 Even petitioners are well aware that it
was necessary for them to obtain permission from their superiors before they
could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice
for having traveled to the Senate to testify before the Senate Committee
against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners' position is affirmed, a considerable exception would be carved
from the unimpeachable right of military officers to restrict the speech and
movement of their juniors. The ruinous consequences to the chain of
command and military discipline simply cannot warrant the
Court's imprimatur on petitioner's position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on
generalities surrounding military discipline. After all, petitioners seek to
impress on us that their acts are justified as they were responding to an
invitation from the Philippine Senate, a component of the legislative branch of
government. At the same time, the order for them not to testify ultimately
came from the President, the head of the executive branch of government
and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a
member of the armed forces from testifying before a legislative inquiry? We
hold that the President has constitutional authority to do so, by virtue of her
power as commander-in-chief, and that as a consequence a military officer
who defies such injunction is liable under military justice. At the same time,
we also hold that any chamber of Congress which seeks the appearance
before it of a military officer against the consent of the President has
adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by
the President. If the President is not so inclined, the President may be
commanded by judicial order to compel the attendance of the military officer.
Final judicial orders have the force of the law of the land which the President
has the duty to faithfully execute.50
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a
blanket requirement of prior consent on executive officials summoned by the
legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed
that the privilege must be formally invoked on specified grounds. However,
the ability of the President to prevent military officers from testifying
before Congress does not turn on executive privilege, but on the Chief
Executive's power as commander-in-chief to control the actions and
speech of members of the armed forces. The President's prerogatives
as commander-in-chief are not hampered by the same limitations as in
executive privilege.
Our ruling that the President could, as a general rule, require military officers
to seek presidential approval before appearing before Congress is based
foremost on the notion that a contrary rule unduly diminishes the prerogatives
of the President as commander-in-chief. Congress holds significant control
over the armed forces in matters such as budget appropriations and the
approval of higher-rank promotions,51 yet it is on the President that the
Constitution vests the title as commander-in-chief and all the prerogatives
and functions appertaining to the position. Again, the exigencies of military
discipline and the chain of command mandate that the President's ability to
control the individual members of the armed forces be accorded the utmost
respect. Where a military officer is torn between obeying the President and
obeying the Senate, the Court will without hesitation affirm that the officer has
to choose the President. After all, the Constitution prescribes that it is the
President, and not the Senate, who is the commander-in-chief of the armed
forces.52
At the same time, the refusal of the President to allow members of the
military to appear before Congress is still subject to judicial relief. The
Constitution itself recognizes as one of the legislature's functions is the
conduct of inquiries in aid of legislation.53 Inasmuch as it is ill-advised for
Congress to interfere with the President's power as commander-in-chief, it is
similarly detrimental for the President to unduly interfere with Congress's right
to conduct legislative inquiries. The impasse did not come to pass in this
petition, since petitioners testified anyway despite the presidential prohibition.
Yet the Court is aware that with its pronouncement today that the President
has the right to require prior consent from members of the armed forces, the
clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a
modality by which members of the military may be compelled to attend
legislative inquiries even if the President desires otherwise, a modality which
does not offend the Chief Executive's prerogatives as commander-in-
chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of
government to the legislative creates a wrinkle to any basic rule that persons
summoned to testify before Congress must do so. There is considerable
interplay between the legislative and executive branches, informed by due
deference and respect as to their various constitutional functions. Reciprocal
courtesy idealizes this relationship; hence, it is only as a last resort that one
branch seeks to compel the other to a particular mode of behavior. The
judiciary, the third coordinate branch of government, does not enjoy a similar
dynamic with either the legislative or executive branches. Whatever
weakness inheres on judicial power due to its inability to originate national
policies and legislation, such is balanced by the fact that it is the branch
empowered by the Constitution to compel obeisance to its rulings by the
other branches of government.
As evidenced by Arnault v. Nazareno54 and Bengzon v. Senate Blue Ribbon
Committee,55 among others, the Court has not shirked from reviewing the
exercise by Congress of its power of legislative inquiry.56Arnault recognized
that the legislative power of inquiry and the process to enforce it, "is an
essential and appropriate auxiliary to the legislative function."57 On the other
hand, Bengzon acknowledged that the power of both houses of Congress to
conduct inquiries in aid of legislation is not "absolute or unlimited", and its
exercise is circumscribed by Section 21, Article VI of the Constitution.58 From
these premises, the Court enjoined the Senate Blue Ribbon Committee from
requiring the petitioners in Bengzon from testifying and producing evidence
before the committee, holding that the inquiry in question did not involve any
intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the
constitutional scope and limitations on the constitutional power of
congressional inquiry. Thus:
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 inquirites 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
Court's certioraripowers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 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 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 critical safeguards that proscribe
the legislative power of inquiry. The provision requires that the inquiry be
done in accordance with the Senate or House's 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' 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 sanction59 .
In Senate, the Court ruled that the President could not impose a blanket
prohibition barring executive officials from testifying before Congress without
the President's consent notwithstanding the invocation of executive privilege
to justify such prohibition. The Court did not rule that the power to conduct
legislative inquiry ipso facto superseded the claim of executive privilege,
acknowledging instead that the viability of executive privilege stood on a case
to case basis. Should neither branch yield to the other branch's assertion, the
constitutional recourse is to the courts, as the final arbiter if the dispute. It is
only the courts that can compel, with conclusiveness, attendance or non-
attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff
refuses to allow a member of the AFP to appear before Congress, the
legislative body seeking such testimony may seek judicial relief to compel the
attendance. Such judicial action should be directed at the heads of the
executive branch or the armed forces, the persons who wield authority and
control over the actions of the officers concerned. The legislative purpose of
such testimony, as well as any defenses against the same - whether
grounded on executive privilege, national security or similar concerns - would
be accorded due judicial evaluation. All the constitutional considerations
pertinent to either branch of government may be raised, assessed, and
ultimately weighed against each other. And once the courts speak with
finality, both branches of government have no option but to comply with the
decision of the courts, whether the effect of the decision is to their liking or
disfavor.
Courts are empowered, under the constitutional principle of judicial review, to
arbitrate disputes between the legislative and executive branches of
government on the proper constitutional parameters of power.60This is the fair
and workable solution implicit in the constitutional allocation of powers among
the three branches of government. The judicial filter helps assure that the
particularities of each case would ultimately govern, rather than any
overarching principle unduly inclined towards one branch of government at
the expense of the other. The procedure may not move as expeditiously as
some may desire, yet it ensures thorough deliberation of all relevant and
cognizable issues before one branch is compelled to yield to the other.
Moreover, judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the impasse.
After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns
in their relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the
shoulders of the President, as commander-in-chief, to authorize the
appearance of the military officers before Congress. Even if the
President has earlier disagreed with the notion of officers appearing
before the legislature to testify, the Chief Executive is nonetheless
obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom
of the President's order on them and other military officers not to testify
before Congress without the President's consent. Yet these issues ultimately
detract from the main point - that they testified before the Senate despite an
order from their commanding officer and their commander-in-chief for them
not to do so,61 in contravention of the traditions of military discipline which we
affirm today.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
The issues raised by petitioners could have very well been raised and
properly adjudicated if the proper procedure was observed. Petitioners could
have been appropriately allowed to testify before the Senate without having
to countermand their Commander-in-chief and superior officer under the
setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the
resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct
order of their Commander-in-Chief and Commanding General in obeisance to
a paramount idea formed within their consciences, which could not be lightly
ignored. Still, the Court, in turn, is guided by the superlative principle that is
the Constitution, the embodiment of the national conscience. The
Constitution simply does not permit the infraction which petitioners have
allegedly committed, and moreover, provides for an orderly manner by which
the same result could have been achieved without offending constitutional
principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED
G.R. No. 232395
PEDRO S. AGCAOILI, JR., ENCARNACION A. GAOR, JOSEPHINE P.
CALAJATE, GENEDINE D. JAMBARO, EDEN C. BATTULAYAN,
EVANGELINE C. TABULOG, Petitioners
x-----------------------x
MARIA IMELDA JOSEFA "IMEE" R. MARCOS, Co-petitioner
vs.
THE HONORABLE REPRESENTATIVE RODOLFO C. FARINAS, THE
HONORABLE REPRESENTATIVE JOHNNY T. PIMENTEL, Chairman of
the Committee on Good Government and Public Accountability, and LT.
GEN. ROLAND DETABALI (RET.), in his capacity as Sergeant-at-Arms of
the House of Representatives, Respondents
THE COMMITTEE ON GOOD GOVERNMENT AND PUBLIC
ACCOUNTABILITY, Co-respondent
DECISION
TIJAM, J.:
Styled as an Omnibus Petition, 1 petitioners Pedro S. Agcaoili, Jr. (Agcaoili,
Jr.), Encarnacion A. Gaor (Gaor), Josephine P. Calajate (Calajate ),
Genedine D. Jambaro (Jambaro ), Eden C. Battulayan (Battulayan),
Evangeline C. Tabulog (Tabulog) - all employees2 of the Provincial
Government of Ilocos Norte and storied as "Ilocos 6" - seek that the Court
assume jurisdiction over the Habeas Corpus Petition3 earlier filed by
petitioners before the Court of Appeals (CA),4 and upon assumption, to direct
the CA to forward the records of the case to the Court for proper disposition
and resolution.
Co-petitioner Maria Imelda Josefa "Imee" Marcos - the incumbent Governor
of the Province of Ilocos Norte - joins the present petition by seeking the
issuance of a writ of prohibition under Rule 65 of the Rules of Court for
purposes of declaring the legislative investigation into House Resolution No.
8825 illegal and in excess of jurisdiction, and to enjoin respondents
Representatives Rodolfo C. Fariñas (Fariñas) and Johnny T. Pimentel and
co-respondent Committee on Good Government and Public Accountability
(House Committee) from further proceeding with the same. Co-petitioner
prays for the issuance of a temporary restraining order and/or issuance of a
writ of preliminary injunction, to restrain and enjoin respondents and co-
respondent from conducting any further hearings or proceedings relative to
the investigation pending resolution of the instant petition.
In common, petitioners and co-petitioner seek the issuance of a writ
of Amparo to protect them from alleged actual and threatened violations of
their rights to liberty and security of person.
The Antecedents
On March 14, 2017, House Resolution No. 882 was introduced by
respondent Farinas, along with Representatives Pablo P. Bondoc and Aurelio
D. Gonzales, Jr., directing House Committee to conduct an inquiry, in aid of
legislation, pertaining to the use by the Provincial Government of Ilocos Norte
of its shares from the excise taxes on locally manufactured virginia-type
cigarettes for a purpose other than that provided for by Republic Act (R.A.)
No. 7171.6The "whereas clause" of House Resolution No. 882 states that the
following purchases by the Provincial Government of Ilocos Norte of vehicles
in three separate transactions from the years 2011 to 2012 in the aggregate
amount of ₱66,450,000.00 were in violation of R.A. No. 7171 as well as of
R.A. No. 91847 and Presidential Decree (P.D.) No. 1445:8
a. Check dated December 1, 2011, "to cash advance the amount needed for
the purchase of 40 units Mini cab for distribution to the different barangays of
Ilocos Norte as per supporting papers hereto attached to the amount of ...."
EIGHTEEN MILLION SIX HUNDRED THOUSAND PESOS
(PhP18,000,000.00);
b. Check dated May 25, 2012, "to cash advance the amount needed for the
purchase of 5 units Buses as per supporting papers hereto attached to the
amount of ... " FIFTEEN MILLION THREE HUNDRED THOUSAND PESOS
(PhP15,300,000.00), which were all second hand units; and
c. Check dated September 12, 2012, "to cash advance payment of 70 units
Foton Mini Truck for distribution to different municipalities of Ilocos Norte as
per supporting papers hereto attached in the amount of ...." THIRTY TWO
MILLION FIVE HUNDRED FIFTY THOUSAND PESOS (PhP32,550,000.00).9
Invitation Letters 10 dated April 6, 2017 were individually sent to petitioners for
them to attend as resource persons the initial hearing on House Resolution
No. 882 scheduled on May 2, 2017. In response, petitioners sent similarly-
worded Letters11 dated April 21, 2017 asking to be excused from the inquiry
pending official instructions from co-petitioner Marcos as head of the agency.
Because of petitioners' absence at the May 2, 201 7 hearing, a subpoena ad
testificandum was issued by co-respondent House Committee on May 3, 201
7 directing petitioners to appear and testify under oath at a hearing set on
May 16, 2017. 12 Likewise, an invitation was sent to co-petitioner Marcos to
appear on said hearing. 13
Since the subpoena was received by petitioners only one day prior to the
scheduled hearing, petitioners requested that their appearance be deferred to
a later date to give them time to prepare. In their letters also, petitioners
requested clarification as to what information co-respondent House
Committee seeks to elicit and its relevance to R.A. No. 7171. 14 Copetitioner
Marcos, on the other hand, submitted a Letter15 dated May 15, 2017 seeking
clarification on the legislative objective of House Resolution No. 882 and its
discriminatory application to the Province of Ilocos Norte to the exclusion of
other virginia-type tobacco producing provinces.
Petitioners failed to attend the hearing scheduled on May 16, 201 7. As such,
the House Committee issued a Show Cause Order16 why they should not be
cited in contempt for their refusal without legal excuse to obey summons.
Additionally, petitioners and co-petitioner Marcos were notified of the next
scheduled hearing on May 29, 2017.17
In response to the Show Cause Order, petitioners reiterated that they
received the notice only one day prior to the scheduled hearing date in
alleged violation of the three-day notice rule under Section 818 of the House
Rules Governing Inquiries.19 Co-petitioner Marcos, on the other hand,
reiterated the queries she raised in her earlier letter.
Nevertheless, at the scheduled committee hearing on May 29, 2017, all the
petitioners appeared.20 It is at this point of the factual narrative where the
parties' respective interpretations of what transpired during the May 29, 201 7
begin to differ.
Legislative hearing on May 29, 2017
and the contempt citation
On one hand, petitioners allege that at the hearing of May 29, 2017, they
were subjected to threats and intimidation.21 According to petitioners, they
were asked "leading and misleading questions" and that regardless of their
answers, the same were similarly treated as evasive.22
Specifically, Jambaro claims that because she could not recall the
transactions Farinas alluded to and requested to see the original copy of a
document presented to her for identification, she was cited in contempt and
ordered detained.23 Allegedly, the same inquisitorial line of questioning was
used in the interrogation of Gaor. When Gaor answered that she could no
longer remember if she received a cash advance of ₱18,600,000.00 for the
purchase of 40 units of minicab, Gaor was likewise cited in contempt and
ordered detained. 24
The same threats, intimidation and coercion were likewise supposedly
employed on Calajate when she was asked by Farinas if she signed a cash
advance voucher in the amount of ₱18,600,000.00 for the purchase of the 40
units of minicabs. When Calajate refused to answer, she was also cited in
contempt and ordered detained. 25
Similarly, when Battulayan could no longer recall having signed a cash
advance voucher for the purchase of minicabs, she was also cited in
contempt and ordered detained. 26
Agcaoili, Jr. was likewise cited in contempt and ordered detained when he
failed to answer Fariñas's query regarding the records of the purchase of the
vehicles.27 Allegedly, the same threats and intimidation were employed by
Farinas in the questioning of Tabulog who was similarly asked if she
remembered the purchase of 70 mini trucks. When Tabulog replied that she
could no longer remember such transaction, she was also cited in contempt
and ordered detained. 28
On the other hand, respondents aver that petitioners were evasive in
answering questions and simply claimed not to remember the specifics of the
subject transactions. According to respondents, petitioners requested to be
confronted with the original documents to refresh their memories when they
knew beforehand that the Commission on Audit (COA) to which the original
vouchers were submitted could no longer find the same.29
Proceedings before the CA
The next day, or on May 30, 2017, petitioners filed a Petition for Habeas
Corpus against respondent House Sergeant-at-Arms Lieutenant General
Detabali (Detabali) before the CA. The CA scheduled the petition for hearing
on June 5, 2017 where the Office of the Solicitor General (OSG) entered its
special appearance for Detabali, arguing that the latter was not personally
served with a copy of the petition. 30 On June 2, 2017, the CA in its
Resolution31 issued a writ of Habeas Corpus ordering Detabali to produce the
bodies of the petitioners before the court on June 5, 2017.
On June 5, 2017, Detabali again failed to attend. Instead, the Deputy
Secretary General of the House of Representatives appeared to explain that
Detabali accompanied several members of the House of Representatives on
a Northern Luzon trip, thus his inability to attend the scheduled hearing. 32 A
motion to dissolve the writ of Habeas Corpus was also filed on the ground
that the CA had no jurisdiction over the petition.33
On June 6, 2017, petitioners filed a Motion for Provisional Release based on
petitioners' constitutional right to bail. Detabali, through the OSG, opposed
the motion.34
At the hearing set on June 8, 2017, Detabali again failed to attend. On June
9, 2017, the CA issued a Resolution35denying Detabali's motion to dissolve
the writ of Habeas Corpus and granting petitioners' Motion for Provisional
Release upon posting of a bond. Accordingly, the CA issued an Order of
Release Upon Bond. 36 Attempts to serve said Resolution and Order of
Release Upon Bond to Detabali were made but to no avail.37
On June 20, 2017, the House of Representatives called a special session for
the continuation of the legislative inquiry.38 Thereat, a subpoena ad
testificandum was issued to compel co-petitioner Marcos to appear at the
scheduled July 25, 2017 hearing.39
The tension between the House of
Representatives and the CA
During the June 20, 2017 hearing, House Committee unanimously voted to
issue a Show Cause Order against the three Justices of the CA's Special
Fourth Division,40 directing them to explain why they should not be cited in
contempt by the House of Representatives. 41 The House of Representatives
was apparently dismayed over the CA's actions in the Habeas
Corpus Petition, with House Speaker Pantaleon Alvarez quoted as calling the
involved CA Justices "mga gago" and threatening to dissolve the
CA.42 Disturbed by this turn of events, the involved CA Justices wrote a letter
dated July 3, 2017 addressed to the Court En Banc deferring action on
certain pending motions43 and administratively referring the same to the
Court for advice and/or appropriate action.
Meanwhile, in the Habeas Corpus Petition, Detabali moved for the inhibition
of CA Justices Stephen Cruz and Nina Antonio-Valenzuela while CA Justice
Edwin Sorongon voluntarily inhibited himself.44
Subsequent Release of Petitioners
and Dismissal of the Habeas Corpus
Petition by the CA
On July 13, 2017 and while the Habeas Corpus Petition was still pending
before the CA, petitioners and co-petitioner Marcos filed the instant Omnibus
Petition.
During the congressional hearing on July 25, 2017 which petitioners and co-
petitioner Marcos attended, and while the present Omnibus Petition is
pending final resolution by the Court, respondent House Committee lifted the
contempt order and ordered the release of petitioners. Consequently,
petitioners were released on the same date. 45Respondent House Committee
held the continuance of the legislative hearings on August 9, 2017 and
August 23, 2017.46
On August 31, 2017, the CA issued a Resolution in the Habeas
Corpus Petition considering the case as closed and terminated on the ground
of mootness.47
The Arguments
For the assumption of jurisdiction over
the Habeas Corpus Petition
Petitioners insist that the Habeas Corpus Petition then pending before the CA
can be transferred to the Court on the strength of the latter's power to
promulgate rules concerning the pleading, practice and procedure in all
courts and its authority to exercise jurisdiction over all courts as provided
under Sections 148 and 5(5),49 Article VIII of the Constitution.
Additionally, petitioners stress that the Court exercises administrative
supervision over all courts as provided under Section 6, 50 Article VIII of the
Constitution, and pursuant to its authority as such, the Court has the power to
transfer cases from one court to another which power it implements through
Rule 4, Section 3(c)51 of AM No. 10-4-20-SC. 52
Citing People of the Philippines v. Gutierrez, et al.,53 petitioners likewise
argue that the administrative power of the Court to transfer cases from one
court to another is based on its inherent power to protect the judiciary and
prevent a miscarriage of justice. 54
Respondents counter that the Omnibus Petition should be dismissed on the
ground of mootness as petitioners were released from detention.
In any case, respondents argue that petitioners cannot compel the Court to
assume jurisdiction over the Habeas Corpus Petition pending before the CA
as assumption of jurisdiction is conferred by law. Respondents also argue
that the Omnibus Petition is dismissible on the grounds of misjoinder of
action and for failure to implead indispensable parties, i.e., the CA in the
petition to assume jurisdiction over the Habeas Corpus Petition and the
Congress in the prohibition and Amparo petitions. Respondents also argue
that petitioners committed forum shopping when they filed the present
Omnibus Petition at a time when a motion for reconsideration before the CA
was still pending resolution.
For the issuance of a Writ of
Prohibition
Co-petitioner Marcos assails the nature of the legislative inquiry as a fishing
expedition in violation of petitioners' right to due process and is allegedly
discriminatory to the Province of Ilocos Norte.
Respondents counter that a petition for prohibition is not the proper remedy
to enjoin legislative actions. House Committee is not a tribunal, corporation,
board or person exercising judicial or ministerial function but a separate and
independent branch of government. Citing Holy Spirit Homeowners
Association, Inc. v. Defensor,55 and The Senate Blue Ribbon Committee v.
Hon. Majaducon,56 respondents argue that prohibition does not lie against
legislative or quasi-legislative functions.
For the issuance of a Writ of
Amparo
Petitioners contend that their rights to liberty and personal security were
violated as they have been detained, while co-petitioner Marcos is
continuously being threatened of arrest.57
In opposition, respondents maintain that the writ of Amparo and writ
of Habeas Corpus are two separate remedies which are incompatible and
therefore cannot co-exist in a single petition. Further, respondents argue that
the issuance of a writ of Amparo is limited only to cases of extrajudicial
killings and enforced disappearances which are not extant in the instant case.
The Issues
Encapsulated, the issues for resolution are:
1. Whether or not the instant Omnibus Petition which seeks the release of
petitioners from detention was rendered moot by their subsequent release
from detention?
2. Whether or not the Court can assume jurisdiction over the Habeas
Corpus Petition then pending before the CA?
3. Whether or not the subject legislative inquiry on House Resolution No. 882
may be enjoined by a writ of prohibition?
4. Whether or not the instant Omnibus Petition sufficiently states a cause of
action for the issuance of a writ of Amparo?58
Ruling of the Court
We dismiss the Omnibus Petition.
I.
The Petition to Assume Jurisdiction over Habeas Corpus Petition
The release of persons in whose
behalf the application for a Writ of
Habeas Corpus was filed renders the
petition for the issuance thereof
moot and academic
The writ of Habeas Corpus or the "great writ of liberty" 59 was devised as a
"speedy and effectual remedy to relieve persons from unlawful restraint, and
as the best and only sufficient defense of personal freedom." 60 The primary
purpose of the writ "is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal."61 Under the Constitution, the privilege of the writ
of Habeas Corpus cannot be suspended except in cases of invasion or
rebellion when the public safety requires it. 62
As to what kind of restraint against which the writ is effective, case
law63 deems any restraint which will preclude freedom of action as sufficient.
Thus, as provided in the Rules of Court under Section 1, Rule 102 thereof, a
writ of Habeas Corpus "shall extend to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto."
On the other hand, Section 4, Rule 102 spells the instances when the writ
of Habeas Corpus is not allowed or when the discharge thereof is authorized:
Sec. 4. When writ not allowed or discharge authorized. - If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer
under process issued by a court or judge or by virtue of a judgment or order
of a court of record, and that the court or judge had jurisdiction to issue the
process, render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall
not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
Accordingly, a Writ of Habeas Corpus may no longer be issued if the person
allegedly deprived of liberty is restrained under a lawful process or order of
the court64 because since then, the restraint has become legal. 65 In the
illustrative case of Ilagan v. Hon. Ponce Enrile, 66 the Court dismissed the
petition for habeas corpus on the ground of mootness considering the filing of
an information before the court. The court pronounced that since the
incarceration was now by virtue of a judicial order, the remedy of habeas
corpus no longer lies.
Like so, in Duque v. Capt. Vinarao,67 the Court held that a petition for habeas
corpus can be dismissed upon voluntary withdrawal of the petitioner. Further,
in Pestano v. Corvista,68 it was pronounced that where the subject person
had already been released from the custody complained of, the petition
for habeas corpus then still pending was considered already moot and
academic and should be dismissed. This pronouncement was carried on
in Olaguer v. Military Commission No. 34,69 where the Court reiterated that
the release of the persons in whose behalf the application for a writ of habeas
corpus was filed is effected, the petition for the issuance of the writ becomes
moot and academic. 70 Thus, with the subsequent release of all the
petitioners from detention, their petition for habeas corpus has been rendered
moot. The rule is that courts of justice constituted to pass upon substantial
rights will not consider questions where no actual interests are involved and
thus, will not determine a moot question as the resolution thereof will be of no
practical value. 71
Far compelling than the question of mootness is that the element of illegal
deprivation of freedom of movement or illegal restraint is jurisdictional in
petitions for habeas corpus. Consequently, in the absence of confinement
and custody, the courts lack the power to act on the petition for habeas
corpus and the issuance of a writ thereof must be refused.
Any lingering doubt as to the justiciability of the petition to assume jurisdiction
over the Habeas Corpus Petition before the CA is ultimately precluded by the
CA Resolution considering the petition closed and terminated. With the
termination of the Habeas Corpus Petition before the CA, petitioners' plea
that the same be transferred to this Court, or that the Court assume
jurisdiction thereof must necessarily be denied.
Nevertheless, the Court, in
exceptional cases, decides moot
questions
Although as above-enunciated, the general rule is that mootness of the issue
warrants a dismissal, the same admits of certain exceptions.
In Prof. David v. Pres. Macapagal-Arroyo, 72 the Court summed up the four
exceptions to the rule when Courts will decide cases, otherwise moot,
thus: first, there is a grave violation of the Constitution; second, the
exceptional character of the situation and the paramount public interest is
involved; third, when constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and the public; and
fourth, the case is capable of repetition yet evading review. 73 At the least, the
presence of the second and fourth exceptions to the general rule in the
instant case persuades us to proceed.
The Court's administrative
supervision over lower courts does
not equate to the power to usurp
jurisdiction already acquired by
lower courts
Jurisdiction over petitions for habeas corpus and the adjunct authority to
issue the writ are shared by this Court and the lower courts.
The Constitution vests upon this Court original jurisdiction over petitions
for .habeas corpus. 74 On the other hand, Batas Pambansa (B.P.) Big.
129,75 as amended, gives the CA original jurisdiction to issue a writ of habeas
corpuswhether or not in aid of its appellate jurisdiction. 76 The CA's original
jurisdiction over Habeas Corpus petitions was re-stated in R.A. No.
7902.77 Similarly, B.P. Blg. 129 gives the RTCs original jurisdiction in the
issuance of a writ of Habeas Corpus.78 Family courts have concurrent
jurisdiction with this Court and the CA in petitions for habeas corpus where
the custody of minors is at issue, 79 with the Family courts having exclusive
jurisdiction to issue the ancillary writ of Habeas Corpus in a petition for
custody of minors filed before it.80 In the absence of all RTC judges in a
province or city, special jurisdiction is likewise conferred to any Metropolitan
Trial Judge, Municipal Trial Judge or Municipal Circuit Trial Judge to hear and
decide petitions for a writ of Habeas Corpus.81
These conferment of jurisdiction finds procedural translation in Rule 102,
Section 2 which provides that an application for a writ of Habeas Corpus may
be made before this Court, or any member thereof, or the Court of Appeals or
any member thereof, and if so granted, the same shall be enforceable
anywhere in the Philippines. 82 An application for a writ of Habeas
Corpus may also be made before the RTCs, or any of its judges, but if so
granted, is enforceable only within the RTC's judicial district.83 The writ
of Habeas Corpus granted by the Court or by the CA may be made
returnable before the court or any member thereof, or before the RTC or any
judge thereof for hearing and decision on the merits. 84
It is clear from the foregoing that this Court, the CA and the RTC enjoy
concurrent jurisdiction over petitions for habeas corpus. As the Habeas
Corpus Petition was filed by petitioners with the CA, the latter has acquired
jurisdiction over said petition to the exclusion of all others, including this
Court. This must be so considering the basic postulate that jurisdiction once
acquired by a court is not lost upon the instance of the parties but continues
until the case is terminated. 85 A departure from this established rule is to run
the risk of having conflicting decisions from courts of concurrent jurisdiction
and would unwittingly promote judicial interference and instability.
Rule 102 in fact supports this interpretation. Observe that under Section 6,
Rule 102, the return of the writ of Habeas Corpus may be heard by a court
apart from that which issued the writ. 86 In such case, the lower court to which
the writ is made returnable by the issuing court shall proceed to decide the
petition for habeas corpus. In Medina v. Gen. Yan87 and Saulo v. Brig. Gen.
Cruz, etc., 88 the Court held that by virtue of such designation, the lower court
"acquire[s] the power and authority to determine the merits of the [petition
for habeas corpus.]" Indeed, when a court acquires jurisdiction over the
petition for habeas corpus, even if merely designated to hear the return of the
writ, such court has the power and the authority to carry the petition to its
conclusion.
Petitioners are without unbridled freedom to choose which between this Court
and the CA should decide the habeas corpus petition. Mere concurrency of
jurisdiction does not afford the parties absolute freedom to choose the court
to which the petition shall be filed. After all, the hierarchy of courts "also
serves as a general determinant of the appropriate forum for petitions for the
extraordinary writs."89
Further, there appears to be no basis either in fact or in law for the Court to
assume or wrest jurisdiction over the Habeas Corpus Petition filed with the
CA.
Petitioners' fear that the CA will be unable to decide the Habeas
Corpus petition because of the assault90 it suffered from the House of
Representatives is unsubstantiated and therefore insufficient to justify their
plea for the Court to over-step into the jurisdiction acquired by the CA. There
is no showing that the CA will be or has been rendered impotent by the
threats it received from the House of Representatives.91 Neither was there
any compelling reason advanced by petitioners that the non assumption by
this Court of the habeas corpus petition will result to an iniquitous situation for
any of the parties.
Neither can the Court assume jurisdiction over the then pending Habeas
Corpus Petition by invoking Section 6, Article VIII of the Constitution and
Section 3(c), Rule 4 of A.M. No. 10-4-20-SC which both refer to the Court's
exercise of administrative supervision over all courts.
Section 6, Article VIII of the Constitution provides:
Sec. 6. The Supreme Court shall have administrative supervision over all
courts and the personnel thereof.
This Constitutional provision refers to the administrative supervision that the
Department of Justice previously exercised over the courts and their
personnel. The deliberations of the Constitutional Commission enlighten:
MR. GUINGONA: x x x.
The second question has reference to Section 9, about the administrative
supervision over all courts to be retained in the Supreme Court. I was
wondering if the Committee had taken into consideration the proposed
resolution for the transfer of the administrative supervision from the Supreme
Court to the Ministry of Justice. But as far as I know, none of the proponents
had been invited to explain or defend the proposed resolution.
Also, I wonder if the Committee also took into consideration the fact that the
UP Law Constitution Project in its Volume I, entitled: Annotated Provision
had, in fact, made this an alternative proposal, the transfer of administrative
supervision from the Supreme Court to the Ministry of Justice.
Thank you.
MR. CONCEPCION: May I refer the question to Commissioner Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is
recognized.
MR. REGALADO: Thank you, Mr. Presiding Officer.
We did invite Minister Neptali Gonzales, who was the proponent for the
transfer of supervision of the lower courts to the Ministry of Justice. I even
personally called up and sent a letter or a short note inviting him, but the
good Minister unfortunately was enmeshed in a lot of official commitments.
We wanted to hear him because the Solicitor General of his office, Sedfrey
Ordofiez, appeared before us, and asked for the maintenance of the present
arrangement wherein the supervision over lower courts is with the Supreme
Court. But aside from that, although there were no resource persons, we did
further studies on the feasibility of transferring the supervision over the lower
courts to the Ministry of Justice. All those things were taken into
consideration motu proprio.92
Administrative Supervision in Section 38, paragraph 2, Chapter 7, Book IV of
the Administrative Code is defined as follows:
(2) Administrative Supervision.-(a) Administrative supervision which shall
govern the administrative relationship between a department or its equivalent
and regulatory agencies or other agencies as may be provided by law, shall
be limited to the authority of the department or its equivalent to generally
oversee the operations of such agencies and to insure that they are managed
effectively, efficiently and economically but without interference with day-to-
day activities; or require the submission of reports and cause the conduct of
management audit, performance evaluation and inspection to determine
compliance with policies, standards and guidelines of the department; to take
such action as may be necessary for the proper performance of official
functions, including rectification of violations, abuses and other forms of
maladministration; and to review and pass upon budget proposals of such
agencies but may not increase or add to them[.]
Thus, administrative supervision merely involves overseeing the operations
of agencies to ensure that they are managed effectively, efficiently and
economically, but without interference with day-to-day activities.93
Thus, to effectively exercise its power of administrative supervision over all
courts as prescribed by the Constitution, Presidential Decree No. 828, as
amended by Presidential Decree No. 842, created the Office of the Court
Administrator. Nowhere in the functions of the several offices in the Office of
the Court Administrator is it provided that the Court can assume jurisdiction
over a case already pending with another court.94
Rule 4, Section 3(c) of A.M. No. 10-4-20-SC, on the other hand provides:
Sec. 3. Administrative Functions of the Court. - The administrative functions
of the Court en baneconsist of, but are not limited to, the following:
xxxx
(c) the transfer of cases, from one court, administrative area or judicial
region, to another, or the transfer of venue of the trial of cases to avoid
miscarriage of justice[.] (Emphasis ours)
Clearly, the administrative function of the Court to transfer cases is a matter
of venue, rather than jurisdiction. As correctly pointed out by respondents, the
import of the Court's pronouncement in Gutierrez95 is the recognition of the
incidental and inherent power of the Court to transfer the trial of cases from
one court to another of equal rank in a neighboring site, whenever the
imperative of securing a fair and impartial trial, or of preventing a miscarriage
of justice, so demands. 96 Such incidental and inherent power cannot be
interpreted to mean an authority on the part of the Court to determine which
court should hear specific cases without running afoul with the doctrine of
separation of powers between the Judiciary and the Legislative.
II.
The Petition for Prohibition
Under the Court's expanded
jurisdiction, the remedy of
prohibition may be issued to correct
errors of jurisdiction by any branch
or instrumentality of the Government
Respondents principally oppose co-petitioner Marcos' petition for prohibition
on the ground that a writ of prohibition does not lie to enjoin legislative or
quasi-legislative actions. In support thereof, respondents cite the cases
of Holy Spirit Homeowners Association97 and The Senate Blue Ribbon
Committee. 98
Contrary to respondents' contention, nowhere in The Senate Blue Ribbon
Committee did the Court finally settle that prohibition does not lie against
legislative functions.99 The import of the Court's decision in said case is the
recognition of the Constitutional authority of the Congress to conduct
inquiries in aid of legislation in accordance with its duly published rules of
procedure and provided that the rights of persons appearing in or affected by
such inquiries shall be respected. Thus, if these Constitutionally-prescribed
requirements are met, courts have no authority to prohibit Congressional
committees from requiring the attendance of persons to whom it issues a
subpoena.
On the other hand, the Court's pronouncement in Holy Spirit Homeowners
Association should be taken in its proper context. The principal relief sought
by petitioners therein was the invalidation of the implementing rules issued by
the National Government Center Administration Committee pursuant to its
quasi-legislative power. Hence, the Court therein stated that prohibition is not
the proper remedy but an ordinary action for nullification, over which the
Court generally exercises not primary, but appellate jurisdiction.100
In any case, the availability of the remedy of prohibition for determining and
correcting grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the Legislative and Executive branches has been
categorically affirmed by the Court in Judge Villanueva v. Judicial and Bar
Council, 101 thus:
With respect to the Court, however, the remedies of certiorari and prohibition
are necessarily broader in scope and reach, and the writ of certiorari or
prohibition may be issued to correct errors of jurisdiction committed not only
by a tribunal, corporation, board or officer exercising judicial, quasi-judicial or
ministerial functions but also to set right, undo and restrain any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch
or instrumentality of the Government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions. This application is expressly
authorized by the text of the second paragraph of Section 1, supra
Thus, petitions for certiorari and prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit or nullify the acts of
legislative and executive officials.102 (Citation omitted and emphasis ours)
The above pronouncement is but an application of the Court's judicial power
which Section 1, 103 Article VIII of the Constitution defines as the duty of the
courts of justice ( 1) to settle actual controversies involving rights which are
legally demandable and enforceable, and (2) to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.
Such innovation under the 1987 Constitution later on became known as the
Court's "traditional jurisdiction" and "expanded jurisdiction," respectively. 104
While the requisites for the court's exercise of either concept of jurisdiction
remain constant, note that the exercise by the Court of its "expanded
jurisdiction" is not limited to the determination of grave abuse of discretion to
quasi-judicial or judicial acts, but extends to any act involving the exercise of
discretion on the part of the government. Indeed, the power of the Court to
enjoin a legislative act is beyond cavil as what the Court did in Garcillano v.
The House of Representatives Committees on Public Information, et
al. 105 when it enjoined therein respondent committees from conducting an
inquiry in aid of legislation on the notorious "Hello Garci" tapes for failure to
comply with the requisite publication of the rules of procedure.
Co-petitioner Marcos failed to show
that the subject legislative inquiry
violates the Constitution or that the
conduct thereof was attended by
grave abuse of discretion amounting
to lack or in excess of jurisdiction
While there is no question that a writ of prohibition lies against legislative
functions, the Court finds no justification for the issuance thereof in the
instant case.
The power of both houses of Congress to conduct inquiries in aid of
legislation is expressly provided by the Constitution under Section 21, Article
VI thereof, which provides:
Sec. 21. The Senate or the House of Representatives or any of its respective
committee 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. (Emphasis ours)
Even before the advent of the 1987 Constitution, the Court in Arnault v.
Nazareno106 recognized that the power of inquiry is an "essential and
appropriate auxiliary to the legislative function." 107 In Senate of the
Philippines v. Exec. Sec. Ermita, 108 the Court categorically pronounced that
the power of inquiry is broad enough to cover officials of the executive
branch, as in the instant case. 109
Although expansive, the power of both houses of Congress to conduct
inquiries in aid of legislation is not without limitations. Foremost, the inquiry
must be in furtherance of a legitimate task of the Congress, i.e., legislation,
and as such, "investigations conducted solely to gather incriminatory
evidence and punish those investigated" should necessarily be struck
down. 110 Further, the exercise of the power of inquiry is circumscribed by the
above-quoted Constitutional provision, such that the investigation must be "in
aid of legislation in accordance with its duly published rules of procedure" and
that "the rights of persons appearing in or affected by such inquiries shall be
respected."111 It is jurisprudentially settled that the rights of persons under the
Bill of Rights must be respected, including the right to due process and the
right not to be compelled to testify against one's self.
In this case, co-petitioner Marcos primordially assails the nature of the
legislative inquiry as a fishing expedition in alleged violation of her right to
due process and to be discriminatory to the Province of Ilocos Norte.
However, a perusal of the minutes of legislative hearings so far conducted
reveals that the same revolved around the use of the Province of Ilocos
Norte's shares from the excise tax on locally manufactured virginia-type
cigarettes through cash advances which co-petitioner Marcos herself
admits 112 to be the "usual practice" and was actually allowed by the
Commission on Audit (COA). 113 In fact, the cause of petitioners' detention
was not the perceived or gathered illegal use of such shares but the rather
unusual inability of petitioners to recall the transactions despite the same
having involved considerable sums of money.
Like so, co-petitioner Marcos' plea for the prevention of the legislative inquiry
was anchored on her apprehension that she, too, will be arrested and
detained by House Committee. However, such remains to be an
apprehension which does not give cause for the issuance of the extraordinary
remedy of prohibition. Consequently, co-petitioner Marcos' prayer for the
ancillary remedy of a preliminary injunction cannot be granted, because her
right thereto has not been proven to be clear and unmistakable. In any event,
such injunction would be of no useful purpose given that the instant Omnibus
Petition has been decided on the merits. 114
III.
The Petition for the Issuance of a
Writ of Amparo
The filing of the petition for the
issuance of a writ of Amparo before
this Court while the Habeas Corpus
Petition before the CA was still
pending is improper
Even in civil cases pending before the trial courts, the Court has no authority
to separately and directly intervene through the writ of Amparo, as elucidated
in Tapuz, et al. v. Hon. Judge Del Rosario, et al., 115 thus:
Where, as in this case, there is an ongoing civil process dealing directly with
the possessory dispute and the reported acts of violence and harassment, we
see no point in separately and directly intervening through a writ of Amparo in
the absence of any clear prima facie showing that the right to life, liberty or
security - the personal concern that the writ is intended to protect - is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the issuance
of the writ, in a proper case, by motion in a pending case on appeal or
on certiorari, applying by analogy the provisions on the co-existence of the
writ with a separately filed criminal case. 116 (Italics in the original)
Thus, while there is no procedural and legal obstacle to the joining of a
petition for habeas corpus and a petition for Amparo, 117 the peculiarity of the
then pendency of the Habeas Corpus Petition before the CA renders the
direct resort to this Court for the issuance of a writ of Amparo inappropriate.
The privilege of the writ of Amparo
is confined to instances of extralegal
killings and enforced
disappearances, or threats thereof
Even if the Court sets aside this procedural/aux pas, petitioners and co-
petitioner Marcos failed to show, by prima facie evidence, entitlement to the
issuance of the writ. Much less have they exhibited, by substantial evidence,
meritorious grounds to the grant of the petition.
Section 1 of the Rule on the writ of Amparo provides:
SECTION 1. Petition. The petition for a writ of Amparo is a remedy available
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee,
or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et
al., 118 the Court categorically pronounced that the Amparo Rule, as it
presently stands, is confined to extralegal killings and enforced
disappearances, or to threats thereof, and jurisprudentially defined these two
instances, as follows:
[T]he Amparo Rule was intended to address the intractable problem of
"extralegal killings" and "enforced disappearances," its coverage, in its
present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are killings committed without due process of
law, i.e., without legal safeguards or judicial proceedings. On the other hand,
enforced disappearances are attended by the following characteristics: an
arrest, detention or abduction of a person by a government official or
organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law.119 (Citations omitted)
The above definition of "enforced disappearance" appears in the Declaration
on the Protection of All Persons from Enforced Disappearances 120 and is as
statutorily defined in Section 3(g)121 of R. A. No. 9851.122 Thus, in Navia, et
al. v. Pardico, 123 the elements constituting "enforced disappearance," are
enumerated as follows:
(a) that there be an arrest, detention, abduction or any form of deprivation of
liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State or a political organization;
(c) that it be followed by the State or political organization's refusal to
acknowledge or give information on the fate or whereabouts of the person
subject of the Amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time.124
In Lozada, Jr., et al. v. President Macapagal-Arroyo, et al., 125 the Court
reiterates that the privilege of the writ of Amparo is a remedy available to
victims of extra-judicial killings and enforced disappearances or threats of a
similar nature, regardless of whether the perpetrator of the unlawful act or
omission is a public official or employee or a private individual.126
Here, petitioners and co-petitioner Marcos readily admit that the instant
Omnibus Petition does not cover extralegal killings or enforced
disappearances, or threats thereof. Thus, on this ground alone, their petition
for the issuance of a writ of Amparo is dismissible.
Despite this, petitioners insist that their rights to liberty and security were
violated because of their unlawful detention. On the other hand, co-petitioner
Marcos seeks the protective writ of Amparo on the ground that her right to
liberty and security are being threatened by the conduct of the legislative
inquiry on House Resolution No. 882. But even these claims of actual and
threatened violations of the right to liberty and security fail to impress.
To reiterate, the writ of Amparo is designed to protect and guarantee the (1)
right to life; (2) right to liberty; and (3) right to security of persons, free from
fears and threats that vitiate the quality of life. In Rev. Fr. Reyes v. Court of
Appeals, et al., 127 the Court had occasion to expound on the rights falling
within the protective mantle of the writ of Amparo, thus:
The rights that fall within the protective mantle of the Writ of Amparo under
Section 1 of the Rules thereon are the following: ( 1) right to life; (2) right to
liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et al., the Court explained
the concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees essentially the
right to be alive- upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a guarantee of the secure
quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a
powerful ruler. Rather, it is a life lived with the assurance that the government
he established and consented to, will protect the security of his person and
property. The ideal of security in life and property ... pervades the whole
history of man. It touches every aspect of man's existence." In a broad sense,
the right to security of person "emanates in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those
things which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual."
The right to liberty, on the other hand, was defined in the City of Manila, et al.
v. Hon. Laguio, Jr., in this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to
include "the right to exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the right of
man to enjoy the facilities with which he has been endowed by his Creator,
subject only to such restraint as are necessary for the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al., thoroughly expounded
on the import of the right to security, thus:
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its
"whereas" clauses, the Universal Declaration of Human Rights (UDHR)
enunciates that "a world in which human beings shall enjoy freedom of
speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people." x x x Some scholars postulate
that "freedom from fear" is not only an aspirational principle, but essentially
an individual international human right. It is the "right to security of person" as
the word "security" itself means "freedom from fear." Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of person.
xxxx
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the
right and any threat to the rights to life, liberty or security is
the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can range
from being baseless to well-founded as people react differently. The degree
of fear can vary from one person to another with the variation of the
prolificacy of their imagination, strength of character or past experience with
the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light,
the "threatened with violation" Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be
searched or invaded without a search warrant. Physical injuries inflicted in
the context of extralegal killings and enforced disappearances constitute
more than a search or invasion of the body. It may constitute
dismemberment, physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself escalates.
Notably, in criminal law, physical injuries constitute a crime against persons
because they are an affront to the bodily integrity or security of a person.
 xxxx
Third, the right to security of person is a guarantee of protection of
ones rights by the government. In the context of the writ of Amparo, this
right is built into the guarantees of the right to life and liberty under
Article III, Section 1 of the 1987 Constitution and the right to security of
person (as freedom from threat and guarantee of bodily and psychological
integrity) under Article III, Section 2. The right to security of person in this
third sense is a corollary of the policy that the State guarantees full respect
for human rights under Article II, Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially
when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection
to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. x x
x. 128 (Citations omitted and emphasis and italics in the original)
Nevertheless, and by way of caution, the rule is that a writ of Amparo shall
not issue on amorphous and uncertain grounds. Consequently, every petition
for the issuance of a writ of Amparo should be supported by justifying
allegations of fact, which the Court in Tapuz129 laid down as follows:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for
the threat, act or omission, or, if the name is unknown or uncertain, the
respondent may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent,
and how such threat or violation is committed with the attendant
circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or individuals, as
well as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs."
The writ shall issue if the Court is preliminarily satisfied with the prima
facie existence of the ultimate facts determinable from the supporting
affidavits that detail the circumstances of how and to what extent a threat to
or violation of the rights to life, liberty and security of the aggrieved party was
or is being committed.130 (Citations omitted and italics in the original)
Even more telling is the rule that the writ of Amparo cannot be issued in
cases where the alleged threat has ceased and is no longer imminent or
continuing.131
In this case, the alleged unlawful restraint on petitioners' liberty has
effectively ceased upon their subsequent release from detention. On the
other hand, the apprehension of co-petitioner Marcos that she will be
detained is, at best, merely speculative. In other words, co-petitioner Marcos
has failed to show any clear threat to her right to liberty actionable through a
petition for a writ of Amparo.
In Mayor William N. Mamba, et al. v. Leomar Bueno, 132 the Court held that:
Neither did petitioners and co-petitioner successfully establish the existence
of a threat to or violation of their right to security. In an Amparo action, the
parties must establish their respective claims by substantial evidence.
Substantial evidence is that amount of evidence which a reasonable mind
might accept as adequate to support a conclusion. It is more than a mere
imputation of wrongdoing or violation that would warrant a finding of liability
against the person charged. 133
Here, it appears that petitioners and co-petitioner Marcos even attended and
participated in the subsequent hearings on House Resolution No. 882 without
any untoward incident. Petitioners and co-petitioner Marcos thus failed to
establish that their attendance at and participation in the legislative inquiry as
resource persons have seriously violated their right to liberty and security, for
which no other legal recourse or remedy is available. Perforce, the petition for
the issuance of a writ of Amparo must be dismissed.
 IV.
Congress' Power to Cite in Contempt
and to Compel Attendance of Court Justices
It has not escaped the attention of the Court that the events surrounding the
filing of the present Omnibus Petition bear the unsavory impression that a
display of force between the CA and the Congress is impending. Truth be
told, the letter of the CA Justices to the Court En Banc betrays the struggle
these CA Justices encountered in view of the Congressional power to cite in
contempt and consequently, to arrest and detain. These Congressional
powers are indeed awesome. Yet, such could not be used to deprive the
Court of its Constitutional duty to supervise judges of lower courts in the
performance of their official duties. The fact remains that the CA Justices are
non-impeachable officers. As such, authority over them primarily belongs to
this Court and to no other.
To echo the Court's ruling in Maceda v. Ombudsman Vasquez: 134 [T]he
Supreme Court [has] administrative supervision over all courts and court
personnel, from the Presiding Justice of the Court of Appeals down to the
lowest municipal trial court clerk. By virtue of this power, it is only the
Supreme Court that can oversee the judges' and court personnel's
compliance with all laws, and take the proper administrative action against
them if they commit any violation thereof. No other branch of government
may intrude into this power, without running afoul of the doctrine of
separation of powers.135
It is this very principle of the doctrine of separation of powers as enshrined
under the Constitution that urges the Court to carefully tread on areas falling
under the sole discretion of the legislative branch of the government. In point
is the power of legislative investigation which the Congress exercises as a
Constitutional prerogative.1awp++i1
Concomitantly, the principle of separation of powers also serves as one of
the basic postulates for exempting the Justices, officials and employees of
the Judiciary and for excluding the Judiciary's privileged and confidential
documents and information from any compulsory processes which very well
includes the Congress' power of inquiry in aid of legislation. 136 Such
exemption has been jurisprudentially referred to as judicial privilege as
implied from the exercise of judicial power expressly vested in one Supreme
Court and lower courts created by law. 137
However, as in all privileges, the exercise thereof is not without limitations.
The invocation of the Court's judicial privilege is understood to be limited to
matters that are part of the internal deliberations and actions of the Court in
the exercise of the Members' adjudicatory functions and duties. For the
guidance of the bench, the Court herein reiterates its Per
Curiam Resolution138 dated February 14, 2012 on the production of court
records and attendance of court officials and employees as witnesses in the
then impeachment complaint against former Chief Justice Renato C. Corona,
insofar as it summarized the documents or communications considered as
privileged as follows:
(1) Court actions such as the result of the raffle of cases and the actions
taken by the Court on each case included in the agenda of the Court's
session on acts done material to pending cases, except where a party litigant
requests information on the result of the raffle of the case, pursuant to Rule 7,
Section 3 of the Internal Rules of the Supreme Court (IRSC);
(2) Court deliberations or the deliberations of the Members in court sessions
on cases and matters pending before the Court;
(3) Court records which are "predecisional" and "deliberative" in nature, in
particular, documents and other communications which are part of or related
to the deliberative process, i.e, notes, drafts, research papers, internal
discussions, internal memoranda, records of internal deliberations, and
similar papers;
(4) Confidential information secured by justices, judges, court officials and
employees in the course of their official functions, mentioned in (2) and (3)
above, are privileged even after their term of office.
(5) Records of cases that are still pending for decision are privileged
materials that cannot be disclosed, except only for pleadings, orders and
resolutions that have been made available by the court to the general public.
xxxx
By way of qualification, judicial privilege is unavailing on matters external to
the Judiciary's deliberative adjudicatory functions and duties. Justice Antonio
T. Carpio discussed in his Separate Opinion to the Per Curiam Resolution, by
way of example, the non-confidential matters as including those "information
relating to the commission of crimes or misconduct, or violations of the Code
of Judicial Conduct, or any violation of a law or regulation," and those outside
the Justices' adjudicatory functions such as "financial, budgetary, personnel WHEREFORE, the Omnibus Petition is DISMISSED.
and administrative matters relating to the operations of the Judiciary."
SO ORDERED.
As a guiding principle, the purpose of judicial privilege, as a child of judicial
power, is principally for the effective discharge of such judicial power. If the
matter upon which Members of the Court, court officials and employees privy
to the Court's deliberations, are called to appear and testify do not relate to
and will not impair the Court's deliberative adjudicatory judicial power, then
judicial privilege may not be successfully invoked.

The Court had occasion to illustrate the application of the rule on judicial
privilege and its qualifications to impeachment proceedings as follows:

[W]here the ground cited in an impeachment complaint is bribery, a Justice

may be called as a witness in the impeachment of another Justice, as bribery
is a matter external to or is not connected with the adjudicatory functions and
duties of a magistrate. A Justice, however, may not be called to testify on the
arguments the accused Justice presented in the internal debates as these
constitute details of the deliberative process. 139

Nevertheless, the traditional application of judicial privilege cannot be invoked

to defeat a positive Constitutional duty. Impeachment proceedings, being sui
generis, 140 is a Constitutional process designed to ensure accountability of
impeachable officers, the seriousness and exceptional importance of which
outweighs the claim of judicial privilege.

To be certain, the Court, in giving utmost importance to impeachment

proceedings even as against its own Members, recognizes not the superiority
of the power of the House of Representatives to initiate impeachment cases
and the power of the Senate to try and decide the same, but the superiority of
the impeachment proceedings as a Constitutional process intended to
safeguard public office from culpable abuses. In the words of Chief Justice
Maria Lourdes P. A. Sereneo in her Concurring and Dissenting Opinion to
the Per Curiam Resolution, the matter of impeachment is of such paramount
societal importance that overrides the generalized claim of judicial privilege
and as such, the Court should extend respect to the Senate acting as an
Impeachment Court and give it wide latitude in favor of its function of exacting
accountability as required by the Constitution.

With the foregoing disquisition, the Court finds it unnecessary to discuss the
other issues raised in the Omnibus Petition.
G.R. No. L-3820 July 18, 1950
JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and
EUSTAQUIO BALAGTAS, Director of Prisons,respondents.
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.
Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong,
Lorenzo Tañada, and Vicente J. Francisco for respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his
confinement in the New Bilibid Prison to which he has been committed by
virtue of a resolution adopted by the Senate on May 15, 1950, which reads as
follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to
whom he gave the P440,000, as well as answer other pertinent
questions related to the said amount; Now, therefore, be it.
Resolved, that for his refusal to reveal the name of the person to
whom he gave the P440,000 Jean L. Arnault be committed to the
custody of the Sergeant-at-Arms and imprisoned in the New Bilibid
Prison, Muntinlupa, Rizal, until discharged by further order of the
Senate or by the special committee created by Senate Resolution
No. 8, such discharge to be ordered when he shall have purged the
contempt by revealing to the Senate or to the said special committee
the name of the person to whom he gave the P440,000, as well as
answer other pertinent questions in connection therewith.
The facts that gave rise to the adoption of said resolution, insofar as pertinent
here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government, through the
Rural Progress Administration, bought two estates known as Buenavista and
Tambobong for the sums of P4,500,000 and P500,000, respectively. Of the
first sum, P1,000,000 was paid to Ernest H. Burt, a nonresident American,
thru his attorney-in-fact in the Philippines, the Associated Estates, Inc.,
represented by Jean L. Arnault, for alleged interest of the said Burt in the
Buenavista Estate. The second sum of P500,000 was all paid to the same
Ernest H. Burt through his other attorney-in-fact, the North Manila
Development Co., Inc., also represented by Jean L. Arnault, for the alleged
interest of the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios
Hospital. The Philippine Government held a 25-year lease contract on said
estate, with an option to purchase it for P3,000,000 within the same period of
25 years counted from January 1, 1939. The occupation Republic of the
Philippines purported to exercise that option by tendering to the owner the
sum of P3,000,000 and, upon its rejection, by depositing it in court on June
21, 1944, together with the accrued rentals amounting to P3224,000. Since
1939 the Government has remained in possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate
for P5,000,000 to Ernest H. Burt, who made a down payment of P10,000 only
and agreed to pay P5000,000 within one year and the remainder in annual
installments of P500,000 each, with the stipulation that failure on his part to
make any of said payments would cause the forfeiture of his down payment
of P10,000 and would entitle the Hospital to rescind to sale to him. Aside
from the down payment of P10,000, Burt has made no other payment on
account of the purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine Trust
Company. On May 14, 1946, the Philippine Trust Company sold estate for
the sum of P1,200,000 to Ernest H. Burt, who paid P10,000 down and
promise to pay P90,000 within nine months and the balance of P1,100,000 in
ten successive installments of P110,000 each. The nine-month period within
which to pay the first installment of P90,000 expired on February 14, 1947,
without Burt's having paid the said or any other amount then or afterwards.
On September 4, 1947, the Philippine Trust Company sold, conveyed, and
delivered the Tambobong Estate to the Rural Progress Administration by an
absolute deed of sale in consideration of the sum of P750,000. On February
5, 1948, the Rural Progress Administration made, under article 1504 of the
Civil Code, a notarial demand upon Burt for the resolution and cancellation of
his contract of purchase with the Philippine Trust Company due to his failure
to pay the installment of P90,000 within the period of nine months.
Subsequently the Court of First Instance of Rizal ordered the cancellation of
Burt's certificate of title and the issuance of a new one in the name of the
Rural Progress Administration, from which order he appealed to the Supreme
Court.1
It was in the face of the antecedents sketched in the last three preceding
paragraphs that the Philippine Government, through the Secretary of Justice
as Chairman of the Board of Directors of the Rural Progress Administration
and as Chairman of the Board of Directors of the Philippine National Bank,
from which the money was borrowed, accomplished the purchase of the two
estates in the latter part of October, 1949, as stated at the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads
as follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO
INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG
ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the
Rural Progress Administration, has bought the Buenavista and the
Tambobong Estates for the aggregate sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme
Court dated October 31, 1949, the Buenavista Estate could have
been bought for three million pesos by virtue of a contract entered
into between the San Juan de Dios Hospital and Philippine
Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did not
have to purchase the Buenavista Estate because the occupation
government had made tender of payment in the amount of three
million pesos, Japanese currency, which fact is believed sufficient to
vest title of Ownership in the Republic of the Philippines pursuant to
decisions of the Supreme Court sustaining the validity of payments
made in Japanese military notes during the occupation;
WHEREAS, it is reported that the Philippine Government did not
have to pay a single centavo for the Tambobong Estate as it was
already practically owned by virtue of a deed of sale from the
Philippine Trust Company dated September 3, 194, for seven
hundred and fifty thousand pesos, and by virtue of the recission of
the contract through which Ernest H. Burt had an interest in the
estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created,
composed of five members to be appointed by the President of the
Senate to investigate the Buenavista and Tambobong Estate deals. It
shall be the duty of the said Committee to determine whether the
said purchase was honest, valid, and proper and whether the price
involved in the deal was fair and just, the parties responsible therefor,
and any other facts the Committee may deem proper in the
premises. Said Committee shall have the power to conduct public
hearings; issue subpoena or subpoena duces tecum to compel the
attendance of witnesses or the production of documents before it;
and may require any official or employee of any bureau, office,
branch, subdivision, agency, or instrumentality of the Government to
assist or otherwise cooperate with the Special Committee in the
performance of its functions and duties. Said Committee shall submit
its report of findings and recommendations within two weeks from the
adoption of this Resolution.
The special committee created by the above resolution called and examined
various witnesses, among the most important of whom was the herein
petitioner, Jean L. Arnault. An intriguing question which the committee sought
to resolve was that involved in the apparent unnecessariness and irregularity
of the Government's paying to Burt the total sum of P1,500,000 for his
alleged interest of only P20,000 in the two estates, which he seemed to have
forfeited anyway long before October, 1949. The committee sought to
determine who were responsible for and who benefited from the transaction
at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000
were delivered to him on the afternoon of October 29, 1949; that on the same
date he opened a new account in the name of Ernest H. Burt with the
Philippine National Bank in which he deposited the two checks aggregating
P1,500,000; and that on the same occasion he draw on said account two
checks; one for P500,000, which he transferred to the account of the
Associated Agencies, Inc., with the Philippine National Bank, and another for
P440,000 payable to cash, which he himself cashed. It was the desire of the
committee to determine the ultimate recipient of this sum of P440,000 that
gave rise to the present case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions
involving the disposition of funds, I take the position that the
transactions were legal, that no laws were being violated, and that all
requisites had been complied with. Here also I acted in a purely
 functional capacity of representative. I beg to be excused from
making answer which might later be used against me. I have been
assured that it is my constitutional right to refuse to incriminate
myself, and I am certain that the Honorable Members of this
Committee, who, I understand, are lawyers, will see the justness of
my position.
But when in the same session the chairman of the committee, Senator
Sumulong, interrogated the petitioner, the latter testified as follows:
The CHAIRMAN. The other check of P440,000 which you also made
on October 29, 1949, is payable to cash; and upon cashing this
P440,000 on October 29, 1949, what did you do with that amount?

At as subsequent session of the committee (March 16) Senator De Vera, a Mr. ARNAULT. I turned it over to a certain person.
member of the committee, interrogated him as follows:
The CHAIRMAN. The whole amount of P440,000?
Senator DE VERA. Now these transactions, according to your own
typewritten statement, were legal? Mr. ARNAULT. Yes.

Mr. ARNAULT. I believe so.

The CHAIRMAN. Who was that certain person to whom you
delivered these P440,000 which you cashed on October 29, 1949?
Senator DE VERA. And the disposition of that fund involved,
according to your own statement, did not violate any law?
Mr. ARNAULT. I don't remember the name; he was a representative
of Burt.
Mr. ARNAULT. I believe so.
The CHAIRMAN. That representative of Burt to whom you delivered
xxx xxx xxx the P440,000 was a Filipino?

Senator DE VERA. So that if the funds were disposed of in such a Mr. ARNAULT. I don't know.
manner that no laws were violated, how is it that when you were
asked by the Committee to tell what steps you took to have this The CHAIRMAN. You do not remember the name of that
money delivered to Burt, you refused to answer the questions, saying
representative of Burt to whom you delivered this big amount of
that it would incriminate you?
P440,000?

Mr. ARNAULT. Because it violates the rights of a citizen to privacy in Mr. ARNAULT. I am not sure; I do not remember the name.
his dealings with other people.
The CHAIRMAN. That certain person who represented Burt to whom
xxx xxx xxx
you delivered the big amount on October 29, 1949, gave you a
receipt for the amount?
Senator DE VERA. Are you afraid to state how the money was
disposed of because you would be incriminated, or you would be
Mr. ARNAULT. No.
incriminating somebody?
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to
dispose of the money that has been paid to me as a result of a legal
transaction without having to account for any use of it. Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person,
representative of Burt, this big amount of P440,000 which forms part
of the P1-½ million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.
The CHAIRMAN. Who gave you the instruction?
Mr. ARNAULT. Burt.
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. No.
The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.
The CHAIRMAN. When did you receive this verbal instruction from
Burt to deliver these P440,000 to a certain person whose name you
do not like to reveal?
Mr. ARNAULT. I have instruction to comply with the request of the
person.
The CHAIRMAN. Now, you said that instruction given to you by Burt
was verbal?
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal
instruction; when Burt was still here in the Philippines?
Mr. ARNAULT. Yes.
The CHAIRMAN. But at that time Burt already knew that he would
receive the money?
Mr. ARNAULT. No.
The CHAIRMAN. In what year was that when Burt while he was here
in the Philippines gave you the verbal instruction?
Mr. ARNAULT. In 1946.
The CHAIRMAN. And what has that certain person done for Burt to
merit receiving these P440,000?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the verbal
instruction why that certain person should receive these P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big
amount to that certain person without receipt?
Mr. ARNAULT. He told me that a certain person would represent him
and where could I meet him.
The CHAIRMAN. Did Burt know already that certain person as early
as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in the
prosecution of the two cases involving the Buenavista and
Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high
government official?
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Why can you not tell us the name of that certain
person?
Mr. ARNAULT. Because I am not sure of his name; I cannot
remember the name.
The CHAIRMAN. When gave that certain person that P440,000 on
October 29, 1949, you knew already that person?
Mr. ARNAULT. Yes, I have seen him several times.
The CHAIRMAN. And the name of that certain person is a Filipino
name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a
Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to
your recollection is Spanish; can you remember the first letter with
which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have
delivered this P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two
or three times, you never were able to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta
knows my name; of course, we have not done business. Lots of
people in Manila know me, but they don't know my name, and I don't
know them. They sa{ I am "chiflado" because I don't know their
names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of that
certain person? What is his complexion: light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator
Cabili), but smaller. He walks very straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person
to whom you gave the P440,000?
 Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that
certain person, you never came to know his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of the Senate,
which approved and read to him the following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for
contempt consisting of contumacious acts committed by him during
the investigation conducted by the Special Committee created by
Senate Resolution No. 8 to probe the Tambobong and Buenavista
estates deal of October 21, 1949, and that the President of the
Senate propounded to him the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name
of the person to whom you gave the P440,000 on October 29, 1949,
a person whose name it is impossible for you not to remember not
only because of the big amount of money you gave to him without
receipt, but also by your own statements you knew him as early as
1946 when General Ernest H. Burt was still in the Philippines, you
made two other deliveries of money to him without receipt, and the
last time you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written
answer alleging that the questions were incriminatory in nature and begging
leave to be allowed to stand on his constitutional right not to be compelled to
be a witness against himself. Not satisfied with that written answer Senator
Sumulong, over the objection of counsel for the petitioner, propounded to the
latter the following question:
Sen. SUMULONG. During the investigation, when the Committee
asked you for the name of that person to whom you gave the
P440,000, you said that you can [could] not remember his name.
That was the reason then for refusing to reveal the name of the
person. Now, in the answer that you have just cited, you are refusing
to reveal the name of that person to whom you gave the P440,000 on
the ground that your answer will be self-incriminating. Now, do I
understand from you that you are abandoning your former claim that
you cannot remember the name of that person, and that your reason
now for your refusal to reveal the name of that person is that your
answer might be self-incriminating? In other words, the question is
this: What is your real reason for refusing to reveal the name of that
person to whom you gave the P440,000: that you do not remember
his name or that your answer would be self-incriminating?
xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of
procedure that the accused should not be required to testify unless
he so desires.
The PRESIDENT. It is the duty of the respondent to answer the
question. The question is very clear. It does not incriminate him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made before
the Senate Committee on the first, second, and third hearings to
which I was made in my letter to this Senate of May 2, 1950, in which
I gave all the reasons that were in my powers to give, as requested. I
cannot change anything in those statements that I made because
they represent the best that I can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer
has nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the
reason that you gave during the investigation for not revealing the
name of the person to whom you gave the P440,000 is not the same
reason that you are now alleging because during the investigation
you told us: "I do not remember his name." But, now, you are now
saying: "My answer might incriminate me." What is your real
position?
Mr. ARNAULT. I have just stated that I stand by my statements that I
made at the first, second, and third hearings. I said that I wanted to
be excused from answering the question. I beg to be excused from
making any answer that might be incriminating in nature. However, in
this answer, if the detail of not remembering the name of the person
has not been included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple
question: Do you remember or not the name of the person to whom
you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that
person, how can you say that your answer might be incriminating? If
you do not remember his name, you cannot answer the question; so
how could your answer be self-incriminating? What do you say to
that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do
not see how to answer those questions. That is why I asked for a
lawyer, so he can help me. I have no means of knowing what the
situation is about. I have been in jail 13 days without communication
with the outside. How could I answer the question? I have no
knowledge of legal procedure or rule, of which I am completely
ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be
answered.
The PRESIDENT. The witness is ordered to answer the question. It
is very clear. It does not incriminate the witness.
xxx xxx xxx
Mr. ARNAULT. I do not remember. I stand on my constitutional
rights. I beg to be excused from making further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent
addressed to the President of the Senate, dated May 2, 1950, you
stated there that you cannot reveal the name of the person to whom
you gave the P440,000 because if he is a public official you might
render yourself liable for prosecution for bribery, and that if he is a
private individual you might render yourself liable for prosecution for
slander. Why did you make those statements when you cannot even
tell us whether that person to whom you gave the P440,000 is a
public official or a private individual ? We are giving you this chance
to convince the Senate that all these allegations of yours that your
answers might incriminate you are given by you honestly or you are
just trying to make a pretext for not revealing the information desired
by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question
is restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me
and signed it. That is all I can say how I stand about this letter. I have
no knowledge myself enough to write such a letter, so I had to secure
the help of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to
show cause why he should not be adjudged guilty of contempt of the Senate,
Senator Sumulong propounded to the petitioner questions tending to elicit
information from him as to the identity of the person to whom he delivered the
P440,000; but the petitioner refused to reveal it by saying that he did not
remember. The President of the Senate then propounded to him various
questions concerning his past activities dating as far back as when witness
was seven years of age and ending as recently as the post liberation period,
all of which questions the witness answered satisfactorily. In view thereof, the
President of the Senate also made an attempt to illicit the desired information
from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good
memory. Answer: Did you deliver the P440,000 as a gift, or of any
consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that
person, that is all.
 The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least
remembrance of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that
happened a short time ago and, on the other hand, you remember
events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15
hereinabove quoted whereby the petitioner was committed to the custody of
the Sergeant-at-Arms and imprisoned until "he shall have purged the
contempt by revealing to the Senate or to the aforesaid Special Committee
the name of the person to whom he gave the P440,000, as well as answer
other pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to
wit:
That the Special Committee created by Senate Resolution No. 8 be
empowered and directed to continue its investigation of the
Tambobong and Buenavista Estates deal of October 21, 1949, more
particularly to continue the examination of Jean L. Arnault regarding
the name of the person to whom he gave the P440,000 and other
matters related therewith.
The first session of the Second Congress was adjourned at midnight on May
18, 1950.
The case was argued twice before us. We have given its earnest and
prolonged consideration because it is the first of its kind to arise since the
Constitution of the Republic of the Philippines was adopted. For the first time
this Court is called upon to define the power of either House of Congress to
punish a person not a member for contempt; and we are fully conscious that
our pronouncements here will set an important precedent for the future
guidance of all concerned.
Before discussing the specific issues raised by the parties, we deem it
necessary to lay down the general principles of law which form the
background of those issues.
Patterned after the American system, our Constitution vests the powers of
the Government in three independent but coordinate Departments —
Legislative, Executive, and Judicial. The legislative power is vested in the
Congress, which consists of the Senate and the House of Representatives.
(Section 1, Article VI.) Each house may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, expel a Member. (Section 10,
Article VI.) The judicial power is vested in the Supreme Court and in such
inferior courts as may be established by law. (Section 1, Article VIII.) Like the
Constitution of the United States, ours does not contain an express provision
empowering either of the two Houses of Congress to punish nonmembers for
contempt. It may also be noted that whereas in the United States the
legislative power is shared by and between the Congress of the United
States, on the one hand, and the respective legislatures of the different
States, on the other — the powers not delegated to the United States by the
Constitution nor prohibited by it to States being reserved to the States,
respectively, or to the people — in the Philippines, the legislative power is
vested in the Congress of the Philippines alone. It may therefore be said that
the Congress of the Philippines has a wider range of legislative field than the
Congress of the United States or any State Legislature. Our form of
Government being patterned after the American system — the framers of our
Constitution having drawn largely from American institutions and practices —
we can, in this case, properly draw also from American precedents in
interpreting analogous provisions of our Constitution, as we have done in
other cases in the past. 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 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 effect 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. (McGrain vs.Daugherty,
273 U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution
expressly gives to Congress the power to punish its Members for disorderly
behavior, does not by necessary implication exclude the power to punish for
contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed.,
242.) But no person can be punished for contumacy as a witness before
either House, unless his testimony is required in a matter into which that
House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a wider range
of legislative field than either the Congress of the United States or a State
Legislature, we think it is correct to say that the field of inquiry into which it
may enter is also wider. It would be difficult to define any limits by which the
subject matter of its inquiry can be bounded. It is not necessary to do so in
this case. Suffice it to say that it must be coextensive with the range of the
legislative power.
In the present case the jurisdiction of the Senate, thru the Special Committee
created by it, to investigate the Buenavista and Tambobong Estates deal is
not challenged by the petitioner; and we entertain no doubt as to the Senate's
authority to do so and as to the validity of Resolution No. 8 hereinabove
quoted. The transaction involved a questionable and allegedly unnecessary
and irregular expenditure of no less than P5,000,000 of public funds, of which
Congress is the constitutional guardian. It also involved government agencies
created by Congress to regulate or even abolish. As a result of the yet
uncompleted investigation, the investigating committee has recommended
and the Senate approved three bills (1) prohibiting the Secretary of Justice or
any other department head from discharging functions and exercising powers
other than those attached to his own office, without ]previous congressional
authorization; (2) prohibiting brothers and near relatives of any President of
the Philippines from intervening directly or indirectly and in whatever capacity
in transactions in which the Government is a party, more particularly where
the decision lies in the hands of executive or administrative officers who are
appointees of the President; and (3) providing that purchases of the Rural
Progress Administration of big landed estates at a price of P100,000 or more,
shall not become effective without previous congressional confirmation.2
We shall now consider and pass upon each of the questions raised by the
petitioner in support of his contention that his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt
for refusing to reveal the name of the person to whom he gave the P440,000,
because such information is immaterial to, and will not serve, any intended or
purported legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It is argued that
since the investigating committee has already rendered its report and has
made all its recommendations as to what legislative measures should be
taken pursuant to its findings, there is no necessity to force the petitioner to
give the information desired other than that mentioned in its report, to wit: "In
justice to Judge Quirino and to Secretary Nepomuceno, this atmosphere of
suspicion that now pervades the public mind must be dissipated, and it can
only be done if appropriate steps are taken by the Senate to compel Arnault
to stop pretending that he cannot remember the name of the person to whom
he gave the P440,000 and answer the questions which will definitely
establish the identity of that person . . ." Senator Sumulong, Chairman of the
Committee, who appeared and argued the case for the respondents, denied
that that was the only purpose of the Senate in seeking the information from
the witness. He said that the investigation had not been completed, because,
due to the contumacy of the witness, his committee had not yet determined
the parties responsible for the anomalous transaction as required by
Resolution No. 8; that, by Resolution No. 16, his committee was empowered
and directed to continue its investigation, more particularly to continue its
examination of the witness regarding the name of the person to whom he
gave the P440,000 and other matters related therewith; that the bills
recommended by his committee had not been approved by the House and
might not be approved pending the completion of the investigation; and that
those bills were not necessarily all the measures that Congress might deem it
necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the jurisdiction of a
legislative body to make, we think the investigating committee has the power
to require a witness to answer any question pertinent to that inquiry, subject
of course to his constitutional right against self-incrimination. The inquiry, to
be within the jurisdiction of the legislative body to make, must be material or
necessary to the exercise of a power in it vested by the Constitution, such as
to legislate, or to expel a Member; and every question which the investigator
is empowered to coerce a witness to answer must be material or pertinent to
the subject of the inquiry or investigation. So a witness may not be coerced to
answer a question that obviously has no relation to the subject of the inquiry.
But from this it does not follow that every question that may be propounded to
a witness must be material to any proposed or possible legislation. In other
words, the materiality of the question must be determined by its direct relation
to any proposed or possible legislation. The reason is, that the necessity or
lack of necessity for legislative action and the form and character of the
action itself are determined by the sum total of the information to be gathered
as a result of the investigation, and not by a fraction of such information
elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the
power of the Court is limited to determining whether the legislative body has
jurisdiction to institute the inquiry or investigation; that once that jurisdiction is
conceded, this Court cannot control the exercise of that jurisdiction; and it is
insinuated, that the ruling of the Senate on the materiality of the question
propounded to the witness is not subject to review by this Court under the
principle of the separation of powers. We have to qualify this proposition. As
was said by the Court of Appeals of New York: "We are bound to presume
that the action of the legislative body was with a legitimate object if it is
capable of being so construed, and we have no right to assume that the
contrary was intended." (People ex rel.McDonald vs. Keeler, 99 N.Y., 463; 52
Am. Rep., 49; 2 N.E., 615, quoted with approval by the Supreme Court of the
United States in the said case of McGrain vs. Daugherty, it is necessary
deduction from the decision in Re Chapman, 41 L. ed., 1154, that where the
questions are not pertinent to the matter under inquiry a witness rightfully
may refuse to answer. So we are of the opinion that where the alleged
immateriality of the information sought by the legislative body from a witness
is relied upon to contest its jurisdiction, the court is in duty bound to pass
upon the contention. The fact that the legislative body has jurisdiction or the
power to make the inquiry would not preclude judicial intervention to correct a
clear abuse of discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding paragraphs to the
resolution of the issue under consideration, we find that the question for the
refusal to answer which the petitioner was held in contempt by the Senate is
pertinent to the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not challenged by
the petitioner, requires the Special Committee, among other things, to
determine the parties responsible for the Buenavista and Tambobong estates
deal, and it is obvious that the name of the person to whom the witness gave
the P440,000 involved in said deal is pertinent to that determination — it is in
fact the very thing sought to be determined. The contention is not that the
question is impertinent to the subject of the inquiry but that it has no relation
or materiality to any proposed legislation. We have already indicated that it is
not necessary for the legislative body to show that every question
propounded to a witness is material to any proposed or possible legislation;
what is required is that is that it be pertinent to the matter under inquiry.
It is said that the Senate has already approved the three bills recommended
by the Committee as a result of the uncompleted investigation and that there
is no need for it to know the name of the person to whom the witness gave
the P440,000. But aside from the fact that those bills have not yet been
approved by the lower house and by the President and that they may be
withdrawn or modified if after the inquiry is completed they should be found
unnecessary or inadequate, there is nothing to prevent the Congress from
approving other measures it may deem necessary after completing the
investigation. We are not called upon, nor is it within our province, to
determine or imagine what those measures may be. And our inability to do so
is no reason for overruling the question propounded by the Senate to the
witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here.
The inquiry there in question was conducted under a resolution of the Senate
and related to charges, published in the press, that senators were yielding to
corrupt influences in considering a tariff bill then before the Senate and were
speculating in stocks the value of which would be affected by pending
amendments to the bill. Chapman, a member of a firm of stock brokers
dealing in the stock of the American Sugar Refining Company, appeared
before the committee in response to a subpoena and asked, among others,
the following questions:
Had the firm, during the month of March, 1894, bought or sold any
stock or securities, known as sugar stocks, for or in the interest,
directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit
of, or in the interest, directly or indirectly, of any United Senate
senator?
He refused to answer the questions and was prosecuted under an Act of
Congress for contempt of the Senate. Upon being convicted and sent to jail
he petitioned the Supreme Court of the United States for a writ of habeas
corpus. One of the questions decided by the Supreme Court of the United
States in that case was whether the committee had the right to compel the
witness to answer said questions, and the Court held that the committee did
have such right, saying:
The questions were undoubtedly pertinent to the subject-matter of
the inquiry. The resolution directed the committee to inquire whether
any senator has been, or is, speculating in what are known as sugar
stocks during the consideration of the tariff bill now before the
Senate." What the Senate might or might not do upon the facts when
 ascertained, we cannot say, nor are we called upon to
inquire whether such ventures might be defensible, as contended in
argument, but is plain that negative answers would have cleared that
body of what the Senate regarded as offensive imputations, while
affirmative answers might have led to further action on the part of the
Senate within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties responsible for the
deal is incumbent upon the judicial rather than upon the legislative branch.
But we think there is no basis in fact or in law for such assumption. The
petitioner has not challenged the validity of Senate Resolution No. 8, and that
resolution expressly requires the committee to determine the parties
responsible for the deal. We are bound to presume that the Senate has acted
in the due performance of its constitutional function in instituting the inquiry, if
the act is capable of being so construed. On the other hand, there is no
suggestion that the judiciary has instituted an inquiry to determine the parties
responsible for the deal. Under the circumstances of the case, it appearing
that the questioned transaction was affected by the head of the Department
of Justice himself, it is not reasonable to expect that the Fiscal or the Court of
First Instance of Manila will take the initiative to investigate and prosecute the
parties responsible for the deal until and unless the Senate shall determined
those parties are and shall taken such measures as may be within its
competence to take the redress the wrong that may have been committed
against the people as a result of the transaction. As we have said, the
transaction involved no less than P5,000,000 of public funds. That certainly is
a matter of a public concern which it is the duty of the constitutional guardian
of the treasury to investigate.
If the subject of investigation before the committee is within the range of
legitimate legislative inquiry and the proposed testimony of the witness called
relates to that subject, obedience, to its process may be enforced by the
committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40
Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied
upon by the petitioner, is not applicable here. In that case the inquiry
instituted by the House of Representatives of the United States related to a
private real-estate pool or partnership in the District of Columbia. Jay Cook
and Company had had an interest in the pool but become bankrupts, and
their estate was in course of administration in a federal bankruptcy court in
Pennsylvania. The United States was one of their creditors. The trustee in the
bankruptcy proceeding had effected a settlement of the bankrupts' interest in
the pool, and of course his action was subject to examination and approval or
disapproval by the bankruptcy court. Some of the creditors, including the
United States, were dissatisfied with the settlement. The resolution of the
House directed the Committee "to inquire into the nature and history of said
real-estate pool and the character of said settlement, with the amount of
property involve, in which Jay Cooke and Co. were interested, and the
amount paid or to be paid in said settlement, with power to send for persons
and papers, and report to this House." The Supreme Court of the United
States, speaking thru Mr. Justice Miller, pointed out that the resolution
contained no suggestion of contemplated legislation; that the matter was one
in respect of which no valid legislation could be had; that the bankrupts'
estate and the trustee's settlement were still pending in the bankruptcy court;
and that the United States and other creditors were free to press their claims
in that proceeding. And on these grounds the court held that in undertaking
the investigation "the House of Representatives not only exceeded the limit of
its own authority, but assumed a power which could only be properly
exercised by another branch of the government, because the power was in
its nature clearly judicial." The principles announced and applied in that case
are: that neither House of Congress possesses a "general power of making
inquiry into the private affairs of the citizen"; that the power actually
possessed is limited to inquires relating to matters of which the particular
House has jurisdiction, and in respect of which it rightfully may take other
action; that if the inquiry relates to a matter wherein relief or redress could be
had only by judicial proceeding, it is not within the range of this power , but
must be left to the court, conformably to the constitutional separation of
government powers.
That case differs from the present case in two important respects: (1) There
the court found that the subject of the inquiry, which related to a private real-
estate pool or partnership, was not within the jurisdiction of either House of
Congress; while here if it is not disputed that the subject of the inquiry, which
relates to a transaction involving a questionable expenditure by the
Government of P5,000,000 of public funds, is within the jurisdiction of the
Senate, (2) There the claim of the Government as a creditor of Jay Cooke
and Company, which had had an interest in the pool, was pending
adjudication by the court; while here the interposition of the judicial power on
the subject of the inquiry cannot be expected, as we have pointed out above,
until after the Senate shall have determined who the parties responsible are
and shall have taken such measures as may be within its competence to take
to redress the wrong that may have been committed against the people as a
result of the transaction.
It is interesting to note that the decision in the case of Killbourn vs. Thompson
has evoked strong criticisms from legal scholars. (See Potts, Power of
Legislative Bodies to Punish for Contempt [1926], 74 U. Pa. L. Rev., 692-699;
James L. Land is, Constitutional Limitations on the Congressional Power of
Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We quoted the
following from Professor Land is' criticism: "Mr. Justice Miller saw the case
purely as an attempt by the House to secure to the Government certain
priority rights as creditor of the bankrupt concern. To him it assumed the
character of a lawsuit between the Government and Jay Cooke and Co., with
the Government, acting through the House, attempting to override the
orderliness of established procedure and thereby prefer a creditors' bill not
before the courts but before Congress. That bankruptcy proceedings had
already been instituted against Jay Cooke and Co., in a federal court gave
added impetus to such a conception. The House was seeking to oust a court
of prior acquired jurisdiction by an extraordinary and unwarranted assumption
of "judicial power"! The broader aspect of the investigation had not been
disclosed to the Court. That Jay Cooke and Co.'s indebtedness and the
particular funds in question were only part of the great administrative problem
connected with the use and disposition of public monies, that the particular
failure was of consequence mainly in relation to the security demanded for all
government deposits, that the facts connected with one such default revealed
the possibility of other and greater maladministration, such considerations
had not been put before the Court. Nor had it been acquainted with the
every-day nature of the particular investigation and the powers there exerted
by the House, powers whose exercise was customary and familiar in
legislative practice. Instead of assuming the character of an extraordinary
judicial proceeding, the inquiry, place in its proper background, should have
been regarded as a normal and customary part of the legislative process.
Detailed definiteness of legislative purpose was thus made the demand of the
court in Killbourn vs. Thompson. But investigators cannot foretell the results
that may be achieved. The power of Congress to exercise control over a real-
estate pool is not a matter for abstract speculation but one to be determined
only after an exhaustive examination of the problem. Relationship, and not
their possibilities, determine the extent of congressional power.
Constitutionality depends upon such disclosures. Their presence, whether
determinative of legislative or judicial power, cannot be relegated to
guesswork. Neither Congress nor the Court can predict, prior to the event,
the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S.,
521; 61. ed., 881. The question there was whether the House of
Representatives exceeded its power in punishing, as for contempt of its
authority, the District Attorney of the Southern District of New York, who had
written, published, and sent to the chairman of one of its committees an ill-
tempered and irritating letter respecting the action and purposes of the
committee in interfering with the investigation by the grand jury of alleged
illegal activities of a member of the House of Representatives. Power to
make inquires and obtain evidence by compulsory process was not involved.
The court recognized distinctly that the House of Representatives had implied
power to punish a person not a member for contempt, but held that its action
in this instance was without constitutional justification. The decision was put
on the ground that the letter, while offensive and vexatious, was not
calculated or likely to affect the House in any of its proceedings or in the
exercise of any of its functions. This brief statement of the facts and the
issues decided in that case is sufficient to show the inapplicability thereof to
the present case. There the contempt involved consisted in the district
attorney's writing to the chairman of the committee an offensive and
vexatious letter, while here the contempt involved consists in the refusal of
the witness to answer questions pertinent to the subject of an inquiry which
the Senate has the power and jurisdiction to make . But in that case, it was
recognized that the House of Representatives has implied power to punish a
person not a member of contempt. In that respect the case is applicable here
in favor of the Senate's (and not of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate lacks authority
to commit him for contempt for a term beyond its period of legislative session,
which ended on May 18, 1950. This contention is based on the opinion of Mr.
Justice Malcolm, concurred in by Justices Street and Villa-Real, in the case
of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears that
on October 23, 1929, Candido Lopez assaulted a member of the House of
Representatives while the latter was going to the hall of the House of
Representatives to attend the session which was then about to begin, as a
result of which assault said representative was unable to attend the sessions
on that day and those of the two days next following by reason of the threats
which Candido Lopez made against him. By the resolution of the House
adopted November 6, 1929, Lopez was declared guilty of contempt of the
House of Representatives and ordered punished by confinement in Bilibid
Prison for a period of twenty-four hours. That resolution was not complied
with because the session of the House of Representatives adjourned at
midnight on November 8, 1929, and was reiterated at the next session on
September 16, 1930. Lopez was subsequently arrested, whereupon he
applied for the writ of habeas corpus in the Court of First Instance of Manila,
which denied the application. Upon appeal to the Supreme Court, six justices
voted to grant the writ: Justice Malcolm, Street, and Villa-real, on the ground
that the term of imprisonment meted out to the petitioner could not legally be
extended beyond the session of the body in which the contempt occurred;
and Justices Johns, Villamor, and Ostrand, on the ground that the Philippine
Legislature had no power to punish for contempt because it was a creature
merely of an Act of the Congress of the United States and not of a
Constitution adopted by the people. Chief Justice Avanceña, Justice
Johnson, and Justice Romualdez wrote separate opinions, concurring with
Justice Malcolm, Street, and Villa-Real, that the Legislature had inherent
power to punish for contempt but dissenting from the opinion that the order of
commitment could only be executed during the particular session in which the
act of contempt was committed.
Thus, on the question under consideration, the Court was equally divided and
no decisive pronouncement was made. The opinion of Mr. Justice Malcolm is
based mainly on the following passage in the case of
Anderson vs.Dunn, supra:
And although the legislative power continues perpetual, the
legislative body ceases to exist on the moment of its adjournment or
periodical dissolution. It follows that imprisonment must terminate
with that adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency
and application of the two limitations which were expressly pointed
out in Anderson vs. Dunn, supra, that is, that the power even when
applied to subjects which justified its exercise is limited to
imprisonment and such imprisonment may not be extended beyond
the session of the body in which the contempt occurred.
Interpreting the above quotations, Chief Justice Avanceña held:
From this doctrine it follows, in my judgement, that the imposition of
the penalty is limited to the existence of the legislative body, which
ceases to function upon its final periodical dissolution. The doctrine
refers to its existence and not to any particular session thereof. This
must be so, inasmuch as the basis of the power to impose such
penalty is the right which the Legislature has to self-preservation, and
which right is enforceable during the existence of the legislative body.
Many causes might be conceived to constitute contempt to the
Legislature, which would continue to be a menace to its preservation
during the existence of the legislative body against which contempt
was committed.
If the basis of the power of the legislature to punish for contempt
exists while the legislative body exercising it is in session, then that
power and the exercise thereof must perforce continue until the final
adjournment and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from
Cooley's Constitutional Limitations and from Jefferson's Manual, is to the
same effect. Mr. Justice Romualdez said: "In my opinion, where as in the
case before us, the members composing the legislative body against which
the contempt was committed have not yet completed their three-year term,
the House may take action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and
Marshall vs. Gordon relied upon by Justice Malcolm are obiter dicta.
Anderson vs. Dunn was an action of trespass against the Sergeant-at-Arms
of the House of Representatives of the United States for assault and battery
and false imprisonment. The plaintiff had been arrested for contempt of the
House, brought before the bar of the House, and reprimanded by the
Speaker, and then discharged from custody. The question as to the duration
of the penalty was not involved in that case. The question there was "whether
the House of Representatives can take cognizance of contempt committed
against themselves, under any circumstances." The court there held that the
House of Representatives had the power to punish for contempt, and
affirmed the judgment of the lower court in favor of the defendant. In
Marshall vs. Gordon, the question presented was whether the House had the
power under the Constitution to deal with the conduct of the district attorney
in writing a vexatious letter as a contempt of its authority, and to inflict
punishment upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power because the writing
of the letter did not obstruct the performance of legislative duty and did not
endanger the preservation of the power of the House to carry out its
legislative authority. Upon that ground alone, and not because the House had
adjourned, the court ordered the discharge of the petitioner from custody.
The case where the question was squarely decided is
McGrain vs. Daugherty, supra. There it appears that the Senate had adopted
a resolution authorizing and directing a select committee of five senators to
investigate various charges of misfeasance and nonfeasance in the
Department of Justice after Attorney General Harry M. Daugherty became its
supervising head. In the course of the investigation the committee caused to
be served on Mally S. Daugherty, brother of Harry M. Daugherty and
president of the Midland National Bank of Washington Court House, Ohio, a
subpoena commanding him to appear before it for the purpose of giving
testimony relating to the subject under consideration. The witness failed to
appear without offering any excuse for his failure. The committee reported
the matter to the Senate and the latter adopted a resolution, "That the
President of the Senate pro tempore issue his warrant commanding the
Sergeant-at-Arms or his deputy to take into custody the body of the said M.S.
Daugherty wherever found, and to bring the said M.S. Daugherty before the
bar of the Senate, then and there to answer such questions pertinent to the
matter under inquiry as the Senate may order the President of the Senate pro
tempore to propound; and to keep the said M.S. Daugherty in custody to
await the further order of the Senate." Upon being arrested, the witness
petitioned the federal court in Cincinnati for a writ of habeas corpus. The
federal court granted the writ and discharged the witness on the ground that
the Senate, in directing the investigation and in ordering the arrest, exceeded
its power under the Constitution. Upon appeal to the Supreme Court of the
United States, one of the contentions of the witness was that the case ha
become moot because the investigation was ordered and the committee was
appointed during the Sixty-eighth Congress, which expired on March 4, 1926.
In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited the
committee's authority to the period of the Sixty-eighth Congress; but
this apparently was changed by a later and amendatory resolution
authorizing the committee to sit at such times and places as it might
deem advisable or necessary. It is said in Jefferson's Manual:
"Neither House can continue any portion of itself in any parliamentary
function beyond the end of the session without the consent of the
other two branches. When done, it is by a bill constituting them
commissioners for the particular purpose." But the context shows that
the reference is to the two houses of Parliament when adjourned by
prorogation or dissolution by the King. The rule may be the same
with the House of Representatives whose members are all elected
for the period of a single Congress: but it cannot well be the same
with the Senate, which is a continuing body whose members are
elected for a term of six years and so divided into classes that the
seats of one third only become vacant at the end of each Congress,
two thirds always continuing into the next Congress, save as
vacancies may occur through death or resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a
continuing body, may continue its committees through the recess
following the expiration of a Congress;" and, after quoting the above
statement from Jefferson's Manual, he says: "The Senate, however
being a continuing body, gives authority to its committees during the
recess after the expiration of a Congress." So far as we are advised
the select committee having this investigation in charge has neither
made a final report nor been discharged; nor has been continued by
an affirmative order. Apparently its activities have been suspended
pending the decision of this case. But, be this as it may, it is certain
that the committee may be continued or revived now by motion to
that effect, and if, continued or revived, will have all its original
powers. This being so, and the Senate being a continuing body, the
case cannot be said to have become moot in the ordinary sense. The
situation is measurably like that in Southern P. Terminal
Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-516;
55 L. ed., 310, 315, 316; 31 Sup. Ct. Rep., 279, where it was held
that a suit to enjoin the enforcement of an order of the Interstate
Commerce Commission did not become moot through the expiration
of the order where it was capable of repetition by the Commission
and was a matter of public interest. Our judgment may yet be carried
into effect and the investigation proceeded with from the point at
which it apparently was interrupted by reason of the habeas
corpus proceedings. In these circumstances we think a judgment
should be rendered as was done in the case cited.
What has been said requires that the final order in the District Court
discharging the witness from custody be reversed.
Like the Senate of the United States , the Senate of the Philippines is a
continuing body whose members are elected for a term of six years and so
divided that the seats of only one-third become vacant every two years, two-
thirds always continuing into the next Congress save as vacancies may occur
thru death or resignation. Members of the House of Representatives are all
elected for a term of four years; so that the term of every Congress is four
years. The Second Congress of the Philippines was constituted on December
30, 1949, and will expire on December 30, 1953. The resolution of the
Senate committing the Petitioner was adopted during the first session of the
Second Congress, which began on the fourth Monday of January and ended
in May 18, 1950.
Had said resolution of commitment been adopted by the House of
Representatives, we think it could be enforced until the final adjournment of
the last session of the Second Congress in 1953. We find no sound reason to
limit the power of the legislative body to punish for contempt to the end of
every session and not to the end of the last session terminating the existence
of that body. The very reason for the exercise of the power to punish for
contempt is to enable the legislative body to perform its constitutional function
without impediment or obstruction. Legislative functions may be and in
practice are performed during recess by duly constituted committees charged
with the duty of performing investigations or conducting hearing relative to
any proposed legislation. To deny to such committees the power of inquiry
with process to enforce it would be to defeat the very purpose for which that
the power is recognized in the legislative body as an essential and
appropriate auxiliary to is legislative function. It is but logical to say that the
power of self-preservation is coexistent with the life to be preserved.
But the resolution of commitment here in question was adopted by the
Senate, which is a continuing body and which does not cease exist upon the
periodical dissolution of the Congress or of the House of Representatives.
There is no limit as to time to the Senate's power to punish for contempt in
cases where that power may constitutionally be exerted as in the present
case.
Mere reflection upon the situation at hand convinces us of the soundness of
this proposition. The Senate has ordered an investigation of the Buenavista
and Tambobong estates deal, which we have found it is within its
competence to make. That investigation has not been completed because of
the refusal of the petitioner as a witness to answer certain questions pertinent
to the subject of the inquiry. The Senate has empowered the committee to
continue the investigation during the recess. By refusing to answer the
questions, the witness has obstructed the performance by the Senate of its
legislative function, and the Senate has the power to remove the obstruction
by compelling the witness to answer the questions thru restraint of his liberty
until he shall have answered them. That power subsists as long as the
Senate, which is a continuing body, persists in performing the particular
legislative function involved. To hold that it may punish the witness for
contempt only during the session in which investigation was begun, would be
to recognize the right of the Senate to perform its function but at the same
time to deny to it an essential and appropriate means for its performance.
Aside from this, if we should hold that the power to punish for contempt
terminates upon the adjournment of the session, the Senate would have to
resume the investigation at the next and succeeding sessions and repeat the
contempt proceedings against the witness until the investigation is
completed-an absurd, unnecessary, and vexatious procedure, which should
be avoided.
As against the foregoing conclusion it is argued for the petitioner that the
power may be abusively and oppressively exerted by the Senate which might
keep the witness in prison for life. But we must assume that the Senate will
not be disposed to exert the power beyond its proper bounds. And if, contrary
to this assumption, proper limitations are disregarded, the portals of this
Court are always open to those whose rights might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination. He
contends that he would incriminate himself if he should reveal the name of
the person to whom he gave the P440,000 if that person be a public official
be (witness) might be accused of bribery, and if that person be a private
individual the latter might accuse him of oral defamation.
The ground upon which the witness' claim is based is too shaky, in firm, and
slippery to afford him safety. At first he told the Committee that the
transactions were legal, that no laws were violated, and that all requisites had
been replied with; but at the time he begged to be excused from making
answers "which might later be used against me." A little later he explained
that although the transactions were legal he refused to answer questions
concerning them "because it violates the right of a citizen to privacy in his
dealings with other people . . . I simply stand on my privilege to dispose of the
money that has been paid to me as a result of a legal transaction without
having to account for the use of it." But after being apparently convinced by
the Committee that his position was untenable, the witness testified that,
without securing any receipt, he turned over the P440,000 to a certain
person, a representative of Burt, in compliance with Burt's verbal instruction
made in 1946; that as far as he know, that certain person had nothing to do
with the negotiations for the settlement of the Buenavista and Tambobong
cases; that he had seen that person several times before he gave him the
P440,000 on October 29, 1949, and that since then he had seen him again
two or three times, the last time being in December, 1949, in Manila; that the
person was a male, 39 to 40 years of age, between 5 feet, 2 inches and 5
feet, 6 inches in height. Butt the witness would not reveal the name of that
person on these pretexts: " I don't remember the name; he was a
representative of Burt." "I am not sure; I don't remember the name."
We are satisfied that those answers of the witness to the important question,
what is the name of that person to whom you gave the P440,000? were
obviously false. His insistent claim before the bar of the Senate that if he
should reveal the name he would incriminate himself, necessarily implied that
he knew the name. Moreover, it is unbelievable that he gave the P440,000 to
a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to
testify and is punishable as contempt, assuming that a refusal to testify would
be so punishable." (12 Am. Jur., sec. 15, Contempt, pp. 399-400.) In the case
of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was called to testify
before a grand jury engaged in investigating a charge of gambling against six
other men. After stating that he was sitting at a table with said men when they
were arrested, he refused to answer two questions, claiming so to do might
tend to incriminate him: (1) "Was there a game of cards being played on this
particular evening at the table at which you are sitting?" (2) "Was there a
game of cards being played at another table at this time?" The foreman of the
grand jury reported the matter to the judge, who ruled "that each and all of
said questions are proper and that the answers thereto would not tend to
incriminate the witness." Mason was again called and refused to answer the
first question propounded to him, but, half yielding to frustration, he said in
response to the second question: "I don't know." In affirming the conviction
for contempt, the Supreme Court of the United States among other things
said:
In the present case, the witness certainly were not relieved from
answering merely because they declared that so to do might
incriminate them. The wisdom of the rule in this regard is well
illustrated by the enforced answer, "I don't know ," given by Mason to
the second question, after he had refused to reply under a claim of
constitutional privilege.
Since according to the witness himself the transaction was legal, and that he
gave the P440,000 to a representative of Burt in compliance with the latter's
verbal instruction, we find no basis upon which to sustain his claim that to
reveal the name of that person might incriminate him. There is no conflict of
authorities on the applicable rule, to wit:
Generally, the question whether testimony is privileged is for the
determination of the Court. At least, it is not enough for the witness to
say that the answer will incriminate him. as he is not the sole judge of
his liability. The danger of self-incrimination must appear reasonable
and real to the court, from all the circumstances, and from the whole
case, as well as from his general conception of the relations of the
witness. Upon the facts thus developed, it is the province of the court
to determine whether a direct answer to a question may criminate or
not. . . . The fact that the testimony of a witness may tend to show
that he has violated the law is not sufficient to entitle him to claim the
protection of the constitutional provision against self-incrimination,
unless he is at the same time liable to prosecution and punishment
for such violation. The witness cannot assert his privilege by reason
of some fanciful excuse, for protection against an imaginary danger,
or to secure immunity to a third person. ( 3 Wharton's Criminal
Evidence, 11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and
circumstances of the case whether the witness is justified in refusing
to answer. (People vs. Gonzo, 23 N.E. [2d], 210 [Ill. App., 1939].) A
witness is not relieved from answering merely on his own declaration
that an answer might incriminate him, but rather it is for the trial judge
to decide that question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed.,
1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional
right, is his clear duty as a citizen to give frank, sincere, and truthful testimony
before a competent authority. The state has the right to exact fulfillment of a
citizen's obligation, consistent of course with his right under the Constitution.
The witness in this case has been vociferous and militant in claiming
constitutional rights and privileges but patently recreant to his duties and
obligations to the Government which protects those rights under the law.
When a specific right and a specific obligation conflict with each other, and
one is doubtful or uncertain while the other is clear and imperative, the former
must give way to the latter. The right to life is one of the most sacred that the
citizen may claim, and yet the state may deprive him of it if he violates his
corresponding obligation to respect the life of others. As Mr. Justice Johnson
said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at
the fate which awaits him, and yet it is not certain that the laws under which
he suffers were made for the security." Paraphrasing and applying that
pronouncement here, the petitioner may not relish the restraint of his liberty
pending the fulfillment by him of his duty, but it is no less certain that the laws
under which his liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so
ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.
 EN BANC
G.R. No. 234608, July 03, 2018
ARVIN R. BALAG, Petitioner, v. SENATE OF THE PHILIPPINES, SENATE
COMMITTEE ON PUBLIC ORDER AND DANGEROUS DRUGS, SENATE
COMMITTEE ON JUSTICE AND HUMAN RIGHTS, SENATE COMMITTEE
ON CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES AND
MGEN. JOSE V. BALAJADIA, JR. (RET.) IN HIS CAPACITY AS SENATE
SERGEANT-AT-ARMS, Respondents.
DECISION
GESMUNDO, J.:
This is a petition for certiorari and prohibition with prayer for issuance of a
temporary restraining order (TRO) and/or writ of preliminary injunction
seeking to annul, set aside and enjoin the implementation of Senate P.S.
Reso1ution (SR) No. 5041 and the October 18, 2017 Order2 (Contempt
Order) of the Senate Committee on Public Order and Dangerous Drugs citing
Arvin Balag (petitioner) in contempt.
The Antecedents
On September 17, 2017, Horacio Tomas T. Castillo III (Horacio III),3 a first
year law student of the University of Sto. Tomas (UST), died allegedly due to
hazing conducted by the Aegis Juris Fraternity (AJ Fraternity) of the same
university.
On September 19, 2017, SR No. 504,4 was filed by Senator Juan Miguel
Zubiri (Senator Zubiri)5condemning the death of Horacio III and directing the
appropriate Senate Committee to conduct an investigation, in aid of
legislation, to hold those responsible accountable.
On September 20, 2017, SR No. 510, entitled: "A Resolution Directing the
Appropriate Senate Committees to Conduct An Inquiry, In Aid of Legislation,
into the Recent Death of Horacio Tomas Castillo III Allegedly Due to Hazing-
Related Activities" was filed by Senator Paolo Benigno Aquino IV.6
On the same day, the Senate Committee on Public Order and Dangerous
Drugs chaired by Senator Panfilo Lacson (Senator Lacson) together with the
Committees on Justice and Human Rights and Constitutional Amendment
and Revision of Codes, invited petitioner and several other persons to the
Joint Public Hearing on September 25, 2017 to discuss and deliberate the
following: Senate Bill Nos. 27,7199,8 223,9 1161,10 1591,11 and SR No. 504.
Petitioner, however, did not attend the hearing scheduled on September 25,
2017. Nevertheless, John Paul Solano, a member of AJ Fraternity, Atty. Nilo
T. Divina, Dean of UST Institute of Civil Law and Arthur Capili, UST Faculty
Secretary, attended the hearing and were questioned by the senate
committee members.
On the same date, Spouses Carmina T. Castillo and Horacio M. Castillo, Jr.
(Spouses Castillo), parents of Horacio III, filed a Criminal Complaint12 for
Murder and violation of Section 4 of Republic Act (R.A.) No. 8049,13 before
the Department of Justice (DOJ) against several members of the AJ
Fraternity, including petitioner. On October 9, 2017, Spouses Castillo filed a
Supplemental Complaint-Affidavit14 before the DOJ citing the relevant
transcripts of stenographic notes during the September 25, 2017 Senate
Hearing.
On October 11, 2017, Senator Lacson as Chairman of Senate Committee on
Public Order and Dangerous Drugs, and as approved by Senate President
Aquilino Pimentel III, issued a Subpoena Ad Testificandum15addressed to
petitioner directing him to appear before the committee and to testify as to the
subject matter under inquiry.16 Another Subpoena Ad Testificandum17 was
issued on October 17, 2017, which was received by petitioner on the same
day, requiring him to attend the legislative hearing on October 18, 2017.
On said date, petitioner attended the senate hearing. In the course of the
proceedings, at around 11:29 in the morning, Senator Grace Poe (Senator
Poe) asked petitioner if he was the president of AJ Fraternity but he refused
to answer the question and invoked his right against self-incrimination.
Senator Poe repeated the question but he still refused to answer. Senator
Lacson then reminded him to answer the question because it was a very
simple question, otherwise, he could be cited in contempt. Senator Poe
retorted that petitioner might still be clinging to the supposed "Code of
Silence" in his alleged text messages to his fraternity. She manifested that
petitioner's signature appeared on the application for recognition of the AJ
Fraternity and on the organizational sheet, indicating that he was the
president. Petitioner, again, invoked his right against self-incrimination.
Senator Poe then moved to cite him in contempt, which was seconded by
Senators Joel Villanueva (Senator Villanueva) and Zubiri. Senator Lacson
ruled that the motion was properly seconded, hence, the Senate Sergeant-at-
arms was ordered to place petitioner in detention after the committee
hearing. Allegedly, Senator Lacson threatened to order the detention of
petitioner in Pasay City Jail under the custody of the Senate Sergeant-at-
arms and told him not to be evasive because he would be merely affirming
school records.
A few minutes later, at around 12:09 in the afternoon, Senators Lacson and
Poe gave petitioner another chance to purge himself of the contempt charge.
Again, he was asked the same question twice and each time he refused to
answer.18
Thereafter, around 1:19 in the afternoon, Senator Villanueva inquired from
petitioner whether he knew whose decision it was to bring Horacio III to the
Chinese General Hospital instead of the UST Hospital. Petitioner apologized
for his earlier statement and moved for the lifting of his contempt. He
admitted that he was a member of the AJ Fraternity but he was not aware as
to who its president was because, at that time, he was enrolled in another
school.
Senator Villanueva repeated his question to petitioner but the latter, again,
invoked his right against self-incrimination. Petitioner reiterated his plea that
the contempt order be lifted because he had already answered the question
regarding his membership in the AJ Fraternity. Senator Villanueva replied
that petitioner's contempt would remain. Senator Lacson added that he had
numerous opportunities to answer the questions of the committee but he
refused to do so. Thus, petitioner was placed under the custody of the
Senate Sergeant-at-arms. The Contempt Order reads:
RE: PRIVILEGE SPEECH OF SEN. JUAN MIGUEL ZUBIRI ON THE DEATH
OF HORATIO "ATIO" CASTILLO III DUE TO HAZING DELIVERED ON 20
SEPTEMBER 2017;
PS RES. NO. 504: RESOLUTION CONDEMNING IN THE STRONGEST
SENSE THE DEATH OF FRESHMAN LAW STUDENT HORATIO TOMAS
CASTILLO III AND DIRECTING THE APPROPRIATE SENATE
COMMITTEES TO CONDUCT AN INVESTIGATION, IN AID OF
LEGISLATION, TO HOLD ACCOUNTABLE THOSE RESPONSIBLE FOR
THIS SENSELESS ACT (SEN. ZUBIRI); AND
SENATE BILLS NOS. 27, 199, 223, 1161, AND 1591.
xxx
For testifying falsely and evasively before the Committee on [October 18,
2017] and thereby delaying, impeding and obstructing the inquiry into the
death of Horacio "Atio" Castillo III. Thereupon the motion of Senator Grace
Poe and seconded by Senator Joel Villanueva and Senator Juan Miguel
Zubiri, the Committee hereby cites MR. ARVIN BALAG in contempt and
ordered arrested and detained at the Office of the Sergeant at-Arms until
such time that he gives his true testimony, or otherwise purges himself of that
contempt.
The Sergeant-at-Arms is hereby directed to carry out and implement this
Order and make a return hereof within twenty-four (24) hours from its
enforcement.
SO ORDERED.19
Hence, this petition.
ISSUE
WHETHER RESPONDENT SENATE COMMITTEES ACTED WITH GRAVE
ABUSE OF DISCRETION IN CONDUCTING THE LEGISLATIVE INQUIRY
AND CITING PETITIONER IN CONTEMPT.
Petitioner chiefly argues that the legislative inquiry conducted by respondent
committees was not in aid of legislation; rather, it was in aid of prosecution.
He posits that the purpose of SR No. 504 was to hold accountable those
responsible for the senseless act of killing Horacio III, and not to aid
legislation. Petitioner underscores that the transcripts during the September
25, 2017 committee hearing were used in the criminal complaint filed against
him, which bolsters that the said hearings were in aid of prosecution. He
insists that the senate hearings would violate his right to due process and
would pre-empt the findings of the DOJ with respect to the criminal complaint
filed against him.
Petitioner also asserts that he properly invoked his right against self
incrimination as the questions propounded by Senator Poe regarding the
officers, particularly the presidency of the AJ Fraternity, were incriminating
because the answer thereto involves an element of the crime of hazing.
Despite the questions being incriminating, he, nonetheless, answered them
by admitting that he was a member of the AJ Fraternity but he did not know
of its current president because he transferred to another school. He adds
that his right to equal protection of laws was violated because the other
resource persons who refused to answer the questions of the Senate
committees were not cited in contempt.
Finally, petitioner prays for the issuance of TRO and/or writ of preliminary
injunction because the Senate illegally enforced and executed SR No. 504
and the Contempt Order, which caused him grave and irreparable injury as
he was deprived of his liberty without due process of law. He contends that
respondents did not exercise their power of contempt judiciously and with
restraint.
In their Comment,20 respondents, through the Office of the Senate Legal
Counsel, countered that the purpose of the hearing was to re-examine R.A.
No. 8049; that several documents showed that the legislative hearing
referred to Senate Bill Nos. 27, 199, 223, 1161, and 1591; that the statement
of the senators during the hearing demonstrated that the legislative inquiry
was conducted in aid of legislation; and that the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation (Senate Rules) were duly published.
Respondents emphasized that petitioner was first asked on October 18,
2017, around 11:29 in the morning, whether he was the president of the AJ
Fraternity, based on school records, and he denied it; he was asked again at
12:09 in the afternoon whether he was the president of the AJ Fraternity but
he still refused to answer the question; at 1:19 in the afternoon, he admitted
that he was a member of the fraternity but still he refused to say whether or
not he was the president, only saying that he is already studying in another
school. On November 6, 2017, at the resumption of the hearing, petitioner
was still unresponsive. According to respondents, these acts were
contemptuous and were valid reasons to cite petitioner in contempt.
Respondents highlighted that there were numerous documents showing that
petitioner was the president of the AJ Fraternity but he continually refused to
answer. They added that petitioner cannot purge himself of contempt by
continually lying.
Further, respondents underscored that the question propounded to petitioner
was not incriminating because an admission that he was an officer of the AJ
Fraternity would not automatically make him liable under R.A. No. 8049. They
emphasized that the Senate respected petitioner's right to due process
because the hearing was conducted in aid of legislation; that the senators
explained why he would be cited in contempt; that he was given several
chances to properly purge himself from contempt; and that no incriminating
question was asked. Respondents concluded that there was no violation of
petitioner's right to equal protection of laws because the other resource
persons did not invoke their right against self-incrimination when asked if they
were the officers of the AJ Fraternity.
Respondents likewise explained that the legislative inquiry in aid of legislation
may still continue in spite of any pending criminal or administrative cases or
investigation. They countered that the actions for certiorari and prohibition
were not proper because there were existing remedies that petitioner could
have availed of, particularly: a motion to reverse the contempt charge filed
within 7 days under Section 18 of the Senate Rules; and a petition for habeas
corpus as petitioner ultimately would seek for his release from detention.
Finally, respondents asserted that the recourse for the issuance of TRO
and/or writ of preliminary injunction was not proper because petitioner was
actually asking to be freed from detention, and this was contemplated under
a status quo ante order. For invoking the wrong remedy, respondents
concluded that a TRO and/or writ of preliminary injunction should not be
issued.
In its Resolution21 dated December 12, 2017, the Court ordered in the interim
the immediate release of petitioner pending resolution of the instant petition.
In its Manifestation22 dated February 20, 2018, respondents stated that on
January 23, 2018, the Committees on Public Order and Dangerous Drugs
and Justice and Human Rights jointly submitted Committee Report Nos. 232
and 233 recommending that Senate Bill No. 1662 be approved in substitution
of Senate Bill Nos. 27, 199, 223, 1161, 1591, and 1609. The said committee
reports were approved by the majority of their members.23 On February 12,
2018, the Senate passed on 3rd reading Senate Bill No. 1662, entitled: An Act
Amending Republic Act No. 8049 to Strengthen the Law on Hazing and
Regulate Other Forms of Initiation Rites of Fraternities, Sororities, and Other
Organizations, Providing Penalties Therefor, and for Other Purposes, with its
short title as "Anti-Hazing Act of 2018."
The Court's Ruling
The petition is moot and academic.
The existence of an actual case or controversy is a necessary condition
precedent to the court's exercise of its power of adjudication. An actual case
or controversy exists when there is a conflict of legal rights or an assertion of
opposite legal claims between the parties that is susceptible or ripe for
judicial resolution. In the negative, a justiciable controversy must neither be
conjectural nor moot and academic. There must be a definite and concrete
dispute touching on the legal relations of the parties who have adverse legal
interests. The reason is that the issue ceases to be justiciable when a
controversy becomes moot and academic; otherwise, the court would engage
in rendering an advisory opinion on what the law would be upon a
hypothetical state of facts.24
In this case, the Court finds that there is no more justiciable controversy.
Petitioner essentially alleges that respondents unlawfully exercised their
power of contempt and that his detention was invalid. As discussed earlier, in
its resolution dated December 12, 2017, the Court ordered in the interim the
immediate release of petitioner pending resolution of the instant petition.
Thus, petitioner was no longer detained under the Senate's authority.
Then, on January 23, 2018, the Committees on Public Order and Dangerous
Drugs and Justice and Human Rights jointly adopted Committee Report Nos.
232 and 233 and submitted the same to the Senate. Committee Report No.
232 referred to the findings of respondent committees in the inquiry
conducted in aid of legislation; while Committee Report No. 233 referred to
the recommendation that Senate Bill No. 1662 be approved in substitution of
Senate Bill Nos. 27, 199, 223, 1161, 1591, and 1609. On February 12, 2018,
the Senate passed on yd reading Senate Bill No. 1662.
Evidently, respondent committees have terminated their legislative inquiry
upon the approval of Committee Report Nos. 232 and 233 by the majority of
its members. The Senate even went further by approving on its 3rd reading
the proposed bill, Senate Bill No. 1662, the result of the inquiry in aid of
legislation. As the legislative inquiry ends, the basis for the detention of
petitioner likewise ends.
Accordingly, there is no more justiciable controversy regarding respondents'
exercise of their constitutional power to conduct inquiries in aid of legislation,
their power of contempt, and the validity of petitioner's detention. Indeed, the
petition has become moot and academic.
Nevertheless, there were occasions in the past when the Court passed upon
issues although supervening events had rendered those petitions moot and
academic. After all, the moot and academic principle is not a magical formula
that can automatically dissuade the courts from resolving a case. Courts will
decide cases, otherwise moot and academic.25 This Court may assume
jurisdiction over a case that has been rendered moot and academic by
supervening events when any of the following instances are present:
(1)
Grave constitutional violations;
(2)
Exceptional character of the case;
(3)
Paramount public interest;
(4)
The case presents an opportunity to guide the bench, the bar, and the public;
or
(5)
The case is capable of repetition yet evading review.26
In David v. Arroyo,27 several petitions assailed the constitutionality of the
declaration of a state of national emergency by then President Gloria
Macapagal-Arroyo. During the pendency of the suits, the said declaration
was lifted. However, the Court still decided the cases on the merits because
the issues involved a grave violation of the Constitution and it affected public
interest.
Similarly, in Republic v. Principalia Management and Personnel Consultants,
Inc.,28 the controversy therein was whether the Regional Trial Court (RTC)
had jurisdiction over an injunction complaint filed against the Philippine
Overseas Employment Administration (POEA) regarding the cancellation of
the respondent's license. The respondent then argued that the case was
already moot and academic because it had continuously renewed its license
with the POEA. The Court ruled that although the case was moot and
academic, it could still pass upon the main issue for the guidance of both bar
and bench, and because the said issue was capable of repetition.
Recently, in Regulus Development, Inc. v. Dela Cruz,29 the issue therein was
moot and academic due to the redemption of the subject property by the
respondent. However, the Court ruled that it may still entertain the
jurisdictional issue of whether the RTC had equity jurisdiction in ordering the
levy of the respondent's property since it posed a situation capable of
repetition yet evading judicial review.
In this case, the petition presents a critical and decisive issue that must be
addressed by Court: what is the duration of the detention for a contempt
ordered by the Senate?
This issue must be threshed out as the Senate's exercise of its power of
contempt without a definite period is capable of repetition. Moreover, the
indefinite detention of persons cited in contempt impairs their constitutional
right to liberty. Thus, paramount public interest requires the Court to
determine such issue to ensure that the constitutional rights of the persons
appearing before a legislative inquiry of the Senate are protected.
The contempt order issued against petitioner simply stated that he would be
arrested and detained until such time that he gives his true testimony, or
otherwise purges himself of the contempt. It does not provide any definite
and concrete period of detention. Neither does the Senate Rules specify a
precise period of detention when a person is cited in contempt.
Thus, a review of the Constitution and relevant laws and jurisprudence must
be conducted to determine whether there is a limitation to the period of
detention when the Senate exercises its power of contempt during inquiries in
aid of legislation.
Period of imprisonment for
contempt during inquiries in
aid of legislation
The contempt power of the legislature under our Constitution is sourced from
the American system.30 A study of foreign jurisprudence reveals that the
Congress' inherent power of contempt must have a limitation. In the 1821
landmark case of Anderson v. Dunn,31 the Supreme Court of the United
States (SCOTUS) held that although the offense committed under the
inherent power of contempt by Congress may be undefinable, it is justly
contended that the punishment need not be indefinite. It held that as the
legislative body ceases to exist from the moment of its adjournment or
periodical dissolution, then it follows that imprisonment under the contempt
power of Congress must terminate with adjournment.
As the US Congress was restricted of incarcerating an erring witnesses
beyond their adjournment under its inherent power of contempt, it enacted a
statutory law that would fix the period of imprisonment under legislative
contempt. Section 102 of the Revised Statutes, enacted on January 24,
1857, provided that the penalty of imprisonment for legislative contempt was
a fine of not more than one thousand dollars nor less than one hundred
dollars, and imprisonment in a common jail for not less than one (1) month
nor more than twelve (12) months.32 The legislative contempt under the
statutes must be initiated for criminal prosecution and it must heard before
the courts in order to convict the contumacious witness.33
The case of In re Chapman34 involved the constitutionality of the statutory
power of contempt of the US Congress. There, the SCOTUS ruled that the
said statute was valid because Congress, by enacting this law, simply sought
to aid each of the Houses in the discharge of its constitutional functions.
Subsequently, in Jurney v. MacCracken,35 the SCOTUS clarified that the
power of either Houses of Congress to punish for contempt was not impaired
by the enactment of the 1857 statute. The said law was enacted, not because
the power of both Houses to punish for a past contempt was doubted, but
because imprisonment limited to the duration of the session was not
considered sufficiently drastic as a punishment for contumacious witnesses.
The purpose of the statutory contempt was merely to supplement the
inherent power of contempt by providing for additional punishment. On June
22, 1938, Section 102 of the Revised Statutes was codified in Section 192,
Title II of the U.S. Code.36
In our jurisdiction, the period of the imprisonment for contempt by Congress
was first discussed in Lopez v. De Los Reyes37 (Lopez). In that case, on
September 16, 1930, the petitioner therein was cited in contempt by the
House of Representatives for physically attacking their member. However,
the assault occurred during the Second Congress, which adjourned on
November 8, 1929. The Court ruled therein that there was no valid exercise
of the inherent power of contempt because the House of Representatives
already adjourned when it declared the petitioner in contempt.
It was held therein that imprisonment for a term not exceeding the session of
the deliberative body in which the contempt occurred was the limit of the
authority to deal directly by way of contempt, without criminal prosecution.
Citing foreign jurisprudence, it was thoroughly discussed therein that the
power of contempt was limited to imprisonment during the session of the
legislative body affected by the contempt. The Court also discussed the
nature of Congress' inherent power of contempt as follows:
xxx We have said that the power to find in contempt rests fundamentally
on the power of self-preservation. That is true even of contempt of court
where the power to punish is exercised on the preservative and not on the
vindictive principle. Where more is desired, where punishment as such is
to be imposed, a criminal prosecution must be brought, and in all
fairness to the culprit, he must have thrown around him all the
protections afforded by the Bill of Rights. Proceeding a step further, it is
evident that, while the legislative power is perpetual, and while one of the
bodies composing the legislative power disappears only every three years,
yet the sessions of that body mark new beginnings and abrupt endings,
which must be respected.38 (emphases supplied)
The Court ruled therein that if the House of Representatives desires to punish
the person cited in contempt beyond its adjournment, then criminal
prosecution must be brought. In that instance, the said person shall be given
an opportunity to defend himself before the courts.
Then came Arnault v. Nazareno39 (Arnault), where the Senate's power of
contempt was discussed. In that case, the Court held that the Senate "is a
continuing body and which does not cease to exist upon the periodical
dissolution of Congress or of the House of Representatives. There is no limit
as to time [with] the Senate's power to punish for contempt in cases where
that power may constitutionally be exerted xxx"40 It was ruled therein that had
contempt been exercised by the House of Representatives, the contempt
could be enforced until the final adjournment of the last session of the said
Congress.41
Notably, Arnault gave a distinction between the Senate and the House of
Representatives' power of contempt. In the former, since it is a continuing
body, there is no time limit in the exercise of its power to punish for contempt;
on the other hand, the House of Representatives, as it is not a continuing
body, has a limit in the exercise of its power to punish for contempt, which is
on the final adjournment of its last session. In the same case, the Court
addressed the possibility that the Senate might detain a witness for life, to
wit:
As against the foregoing conclusion it is argued for the petitioner that the
power may be abusively and oppressively exerted by the Senate which might
keep the witness in prison for life. But we must assume that the Senate will
not be disposed to exert the power beyond its proper bounds. And if, contrary
to this assumption, proper limitations are disregarded, the portals of this
Court are always open to those whose rights might thus be transgressed.42
Further, the Court refused to limit the period of imprisonment under the power
of contempt of the Senate because "[l]egislative functions may be performed
during recess by duly constituted committees charged with the duty of
performing investigations or conducting hearings relative to any proposed
legislation. To deny to such committees the power of inquiry with process to
enforce it would be to defeat the very purpose for which that power is
recognized in the legislative body as an essential and appropriate auxiliary to
its legislative function. xxx."43
Later, in Neri v. Senate44 (Neri), the Court clarified the nature of the Senate
as continuing body:
On the nature of the Senate as a "continuing body", this Court sees fit to
issue a clarification. Certainly, there is no debate that the Senate as an
institution is "continuing", as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at
the next session in the same status.
All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if
present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e.,
unpassed bills and even legislative investigations, of the Senate of a
particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if
presented for the first time. The logic and practicality of such a rule is readily
apparent considering that the Senate of the succeeding Congress (which will
typically have a different composition as that of the previous Congress)
should not be bound by the acts and deliberations of the Senate of which
they had no part. If the Senate is a continuing body even with respect to the
conduct of its business, then pending matters will not be deemed terminated
with the expiration of one Congress but will, as a matter of course, continue
into the next Congress with the same status.45
Based on the above-pronouncement, the Senate is a continuing institution.
However, in the conduct of its day-to-day business, the Senate of each
Congress acts separately and independently of the Senate of the Congress
before it. Due to the termination of the business of the Senate during the
expiration of one (1) Congress, all pending matters and proceedings,
such as unpassed bills and even legislative investigations, of the
Senate are considered terminated upon the expiration of that
Congressand it is merely optional on the Senate of the succeeding Congress
to take up such unfinished matters, not in the same status, but as if
presented for the first time.
The termination of the Senate's business and proceedings after the
expiration of Congress was utilized by the Court in ruling that the Senate
needs to publish its rules for its legislative inquiries in each Congress. The
pronouncement in Neri was reiterated in Garcillano v. House of
Representatives46 and Romero II v. Estrada.47
The period of detention under
the Senate's inherent power of
contempt is not indefinite.
The Court finds that there is a genuine necessity to place a limitation on the
period of imprisonment that may be imposed by the Senate pursuant to its
inherent power of contempt during inquiries in aid of legislation. Section 21,
Article VI of the Constitution states that Congress, in conducting
inquiries in aid of legislation, must respect the rights of persons
appearing in or affected therein. Under Arnault, however, a witness or
resource speaker cited in contempt by the Senate may be detained
indefinitely due to its characteristic as a continuing body. The said witness
may be detained for a day, a month, a year, or even for a lifetime depending
on the desire of the perpetual Senate. Certainly, in that case, the rights of
persons appearing before or affected by the legislative inquiry are in
jeopardy. The constitutional right to liberty that every citizen enjoys certainly
cannot be respected when they are detained for an indefinite period of time
without due process of law.
As discussed in Lopez, Congress' power of contempt rests solely upon the
right of self-preservation and does not extend to the infliction of punishment
as such. It is a means to an end and not the end itself.48Even arguendo that
detention under the legislative's inherent power of contempt is not entirely
punitive in character because it may be used by Congress only to secure
information from a recalcitrant witness or to remove an obstruction, it is still a
restriction to the liberty of the said witness. It is when the restrictions during
detention are arbitrary and purposeless that courts will infer intent to punish.
Courts will also infer intent to punish even if the restriction seems to be
related rationally to the alternative purpose if the restriction appears
excessive in relation to that purpose.49 An indefinite and unspecified period of
detention will amount to excessive restriction and will certainly violate any
person's right to liberty.
Nevertheless, it is recognized that the Senate's inherent power of contempt is
of utmost importance. A legislative body cannot legislate wisely or effectively
in the absence of information respecting the conditions which the legislations
are intended to affect or change. 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 through the power of contempt during legislative
inquiry.50 While there is a presumption of regularity that the Senate will not
gravely abuse its power of contempt, there is still a lingering and unavoidable
possibility of indefinite imprisonment of witnesses as long as there is no
specific period of detention, which is certainly not contemplated and
envisioned by the Constitution.
Thus, the Court must strike a balance between the interest of the Senate and
the rights of persons cited in contempt during legislative inquiries. The
balancing of interest requires that the Court take a conscious and detailed
consideration of the interplay of interests observable in a given situation or
type of situation. These interests usually consist in the exercise by an
individual of his basic freedoms on the one hand, and the government's
promotion of fundamental public interest or policy objectives on the other. 51
The Court finds that the period of imprisonment under the inherent
power of contempt by the Senate during inquiries in aid of legislation
should only last until the termination of the legislative inquiry under
which the said power is invoked. In Arnault, it was stated that obedience to
its process may be enforced by the Senate Committee if the subject of
investigation before it was within the range of legitimate legislative inquiry
and the proposed testimony called relates to that subject.52 Accordingly, as
long as there is a legitimate legislative inquiry, then the inherent power of
contempt by the Senate may be properly exercised. Conversely, once the
said legislative inquiry concludes, the exercise of the inherent power of
contempt ceases and there is no more genuine necessity to penalize the
detained witness.
Further, the Court rules that the legislative inquiry of the Senate terminates
on two instances:
First, upon the approval or disapproval of the Committee Report. Sections 22
and 23 of Senate Rules state:
Sec. 22. Report of Committee. Within fifteen (15) days after the
conclusion of the inquiry, the Committee shall meet to begin the
consideration of its Report.
The Report shall be approved by a majority vote of all its members.
Concurring and dissenting reports may likewise be made by the members
who do not sign the majority report within seventy-two (72) hours from the
approval of the report. The number of members who sign reports concurring
in the conclusions of the Committee Report shall be taken into account in
determining whether the Report has been approved by a majority of the
members: Provided, That the vote of a member who submits both a
concurring and dissenting opinion shall not be considered as part of the
majority unless he expressly indicates his vote for the majority position.
The Report, together with any concurring and/or dissenting opinions,
shall be filed with the Secretary of the Senate, who shall include the
same in the next Order of Business.
Sec. 23. Action on Report. The Report, upon inclusion in the Order of
Business, shall be referred to the Committee on Rules for assignment in the
Calendar. (emphases supplied)
As gleaned above, the Senate Committee is required to issue a Committee
Report after the conduct of the legislative inquiry. The importance of the
Committee Report is highlighted in the Senate Rules because it mandates
that the committee begin the consideration of its Report within fifteen (15)
days from the conclusion of the inquiry. The said Committee Report shall
then be approved by a majority vote of all its members; otherwise, it is
disapproved. The said Report shall be the subject matter of the next order of
business, and it shall be acted upon by the Senate. Evidently, the Committee
Report is the culmination of the legislative inquiry. Its approval or disapproval
signifies the end of such legislative inquiry and it is now up to the Senate
whether or not to act upon the said Committee Report in the succeeding
order of business. At that point, the power of contempt simultaneously
ceases and the detained witness should be released. As the legislative
inquiry ends, the basis for the detention of the recalcitrant witness likewise
ends.
Second, the legislative inquiry of the Senate also terminates upon the
expiration of one (1) Congress. As stated in Neri, all pending matters and
proceedings, such as unpassed bills and even legislative investigations, of
the Senate are considered terminated upon the expiration of that Congress
and it is merely optional on the Senate of the succeeding Congress to take
up such unfinished matters, not in the same status, but as if presented for the
first time. Again, while the Senate is a continuing institution, its proceedings
are terminated upon the expiration of that Congress at the final adjournment
of its last session. Hence, as the legislative inquiry ends upon that expiration,
the imprisonment of the detained witnesses likewise ends.
In Arnault, there have been fears that placing a limitation on the period of
imprisonment pursuant to the Senate's power of contempt would "deny to it
an essential and appropriate means for its performance."53Also, in view of the
limited period of imprisonment, "the Senate would have to resume the
investigation at the next and succeeding sessions and repeat the contempt
proceedings against the witness until the investigation is completed xxx."54
The Court is of the view that these fears are insufficient to permit an indefinite
or an unspecified period of imprisonment under the Senate's inherent power
of contempt. If Congress believes that there is a necessity to supplement its
power of contempt by extending the period of imprisonment beyond the
conduct of its legislative inquiry or beyond its final adjournment of the last
session, then it can enact a law or amend the existing law that penalizes the
refusal of a witness to testify or produce papers during inquiries in aid of
legislation. The charge of contempt by Congress shall be tried before the
courts, where the contumacious witness will be heard. More importantly, it
shall indicate the exact penalty of the offense, which may include a fine
and/or imprisonment, and the period of imprisonment shall be specified
therein. This constitutes as the statutory power of contempt, which is different
from the inherent power of contempt.
Congress' statutory power of contempt has been recognized in foreign
jurisdictions as reflected in the cases of In re Chapman and Jurney v.
MacCracken. Similarly, in this jurisdiction, the statutory power of contempt of
Congress was also acknowledged in Lopez. It was stated therein that in
cases that if Congress seeks to penalize a person cited in contempt beyond
its adjournment, it must institute a criminal proceeding against him. When his
case is before the courts, the culprit shall be afforded all the rights of the
accused under the Constitution. He shall have an opportunity to defend the persons appearing are respected because their detention shall not be
himself before he can be convicted and penalized by the State. indefinite.

Notably, there is an existing statutory provision under Article 150 of the
Revised Penal Code, which penalizes the refusal of a witness to answer any
legal inquiry before Congress, to wit:
Art. 150. Disobedience to summons issued by the National Assembly, its
committees or subcommittees, by the Constitutional Commissions, its
committees, subcommittees or divisions. — The penalty of arresto mayor or a
fine ranging from two hundred to one thousand pesos, or both such fine and
imprisonment shall be imposed upon any person who, having been duly
summoned to attend as a witness before the National Assembly, (Congress),
its special or standing committees and subcommittees, the Constitutional
Commissions and its committees, subcommittees, or divisions, or before any
commission or committee chairman or member authorized to summon
witnesses, refuses, without legal excuse, to obey such summons, or
being present before any such legislative or constitutional body or
official, refuses to be sworn or placed under affirmation or to answer
any legal inquiry or to produce any books, papers, documents, or
records in his possession, when required by them to do so in the
exercise of their functions. The same penalty shall be imposed upon any
person who shall restrain another from attending as a witness, or who shall
induce disobedience to a summon or refusal to be sworn by any such body or
official. (emphasis and underscoring supplied)
In fine, the interests of the Senate and the witnesses appearing in its
legislative inquiry are balanced. The Senate can continuously and effectively
exercise its power of contempt during the legislative inquiry against
recalcitrant witnesses, even during recess. Such power can be exercised by
the Senate immediately when the witness performs a contemptuous act,
subject to its own rules and the constitutional rights of the said witness.
In addition, if the Congress decides to extend the period of imprisonment for
the contempt committed by a witness beyond the duration of the legislative
inquiry, then it may file a criminal case under the existing statute or enact a
new law to increase the definite period of imprisonment.
WHEREFORE, the petition is DENIED for being moot and academic.
However, the period of imprisonment under the inherent power of contempt
of the Senate during inquiries in aid of legislation should only last until the
termination of the legislative inquiry.
The December 12, 2017 Resolution of the Court ordering the temporary
release of Arvin R. Balag from detention is hereby declared FINAL.
SO ORDERED.

Verily, the said law may be another recourse for the Senate to exercise its
statutory power of contempt. The period of detention provided therein is
definite and is not limited by the period of the legislative inquiry. Of course,
the enactment of a new law or the amendment of the existing law to augment
its power of contempt and to extend the period of imprisonment shall be in
the sole discretion of Congress.

Moreover, the apprehension in Arnault – that the Senate will be prevented

from effectively conducting legislative hearings during recess – shall be duly
addressed because it is expressly provided herein that the Senate may still
exercise its power of contempt during legislative hearings while on recess
provided that the period of imprisonment shall only last until the termination of
the legislative inquiry, specifically, upon the approval or disapproval of the
Committee Report. Thus, the Senate's inherent power of contempt is still
potent and compelling even during its recess. At the same time, the rights of
G.R. No. 72492 November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO
TORRES and ARTURO UMBAC, petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC
COMMITTEE OF THE SANGGUNIANG PANLUNGSOD OF DUMAGUETE
and ANTONIO S. RAMAS UYPITCHING, respondents.
CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the
respondent Sangguniang Panlungsod of Dumaguete to punish non-members
for legislative contempt was halted by this special civil action of certiorari
and Prohibition with Preliminary Injunction and/or Restraining Order
questioning the very existence of the power in that local legislative body or in
any of its committees. On November 7, 1985, this Court issued a Temporary
Restraining Order:
. . . enjoining respondents, their agents, representatives, and
police and other peace officers acting in their behalf, to
refrain from compelling the attendance and testimony of
Petitioners Paterio Torres and Arturo Umbac at any and all
future investigations to be conducted by aforesaid
respondents, and from issuing any contempt order if one has
not been issued yet or from executing any such contempt
order if one has already been issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A",
Petition) sent by the respondent Committee to the petitioners Paterio Torres
and Arturo Umbac, Chairman of the Board of Directors and the General
Manager, respectively, of petitioner Negros Oriental II Electric Cooperative
NORECO II), requiring their attendance and testimony at the Committee's
investigation on October 29, 1985. Similarly under fire is the Order issued by
the same Committee on the latter date, (Annex "D", Petition) directing said
petitioners to show cause why they should not be punished for legislative
contempt due to their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in
connection with pending legislation related to the operations of public
utilities" (Id.) in the City of Dumaguete where petitioner NORECO II, an
electric cooperative, had its principal place of business. Specifically, the
inquiry was to focus on the alleged installation and use by the petitioner
NORECO II of inefficient power lines in that city (Comment, Rollo, p. 50).
Respondent Antonio S. Ramas Uypitching, as Chairman of the Committee on
Public Utilities and Franchises and Co-Chairman of the respondent Ad Hoc
Committee, signed both the subpoena and the Order complained of.
Petitioners moved to quash the subpoena on the following grounds:
a. The power to investigate, and to order the improvement of,
alleged inefficient power lines to conform to standards is
lodged exclusively with the National Electrification
Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local
Government Code grants (the Sangguniang Panlungsod)
any specific power to investigate alleged inefficient power
lines of NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29, 1985
directing the petitioners Torres and Umbac to show cause why they should
not be punished for contempt. Hence this Petition for certiorari
and Prohibition with Preliminary Injunction and/or Restraining Order.
Petitioners contend that the respondent Sangguniang Panlungsod of
Dumaguete is bereft of the power to compel the attendance and testimony of
witnesses, nor the power to order the arrest of witnesses who fail to obey
its subpoena. It is further argued that assuming the power to compel the
attendance and testimony of witnesses to be lodged in said body, it cannot
be exercised in the investigation of matters affecting the terms and conditions
of the franchise granted to NORECO II which are beyond the jurisdiction of
the Sangguniang Panlungsod (Rollo pp. 7-8).
Respondents, for their part, claim that inherent in the legislative functions
performed by the respondent Sangguniang Panlungsod is the power to
conduct investigations in aid of legislation and with it, the power to punish for
contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It is also
the position of the respondents that the contempt power, if not expressly
granted, is necessarily implied from the powers granted the Sangguniang
Panlungsod (Rollo, pp. 48-49). Furthermore, the respondents assert that an
inquiry into the installation or use of inefficient power lines and its effect on
the power consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the repository
of the legislative power under the Constitution, and those that may be
exercised by the legislative bodies of local government unit, e.g.
the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law,
possess delegated legislative power.While the Constitution does not
expressly vest Congress with the power to punish non-members for
legislative contempt, the power has nevertheless been invoked by the
legislative body as a means of preserving its authority and dignity (Arnault v.
Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the
same way that courts wield an inherent power to "enforce their authority,
preserve their integrity, maintain their dignity, and ensure the effectiveness of
the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716, 723
[1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by
Congress of this awesome power was questioned for the first time in the
leading case of Arnault v. Nazareno, (87 Phil. 29 [1950]) where this Court
held that the legislative body indeed possessed the contempt power.
That case arose from the legislative inquiry into the acquisition by the
Philippine Government of the Buenavista and Tambobong estates sometime
in 1949. Among the witnesses called and examined by the special committee
created by a Senate resolution was Jean L. Arnault, a lawyer who delivered a
portion of the purchase price to a representative of the vendor. During the
Senate, investigation, Amault refused to reveal the Identity of said
representative, at the same time invoking his constitutional right against self-
incrimination. The Senate adopted a resolution committing Arnault to the
custody of the Sergeant at Arms and imprisoned "until he shall have purged
the contempt by revealing to the Senate . . . the name of the person to whom
he gave the P440,000, as wen as answer other pertinent questions in
connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43 [1950]). Arnault
petitioned for a writ of Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy the
Court began with a discussion of the distribution of the three powers of
government under the 1935 Constitution. Cognizant of the fact that the
Philippines system of government under the 1935 Constitution was patterned
after the American system, the Court proceeded to resolve the issue
presented, partly by drawing from American precedents, and partly by
acknowledging the broader legislative power of the Philippine Congress as
compared to the U.S. Federal Congress which shares legislative power with
the legislatures of the different states of the American union (Id., pp. 44-45).
The Court held:
xxx xxx xxx
... (T)he 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 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. (McGrain vs. Daugherty
273 U.S., 135; 71 L. ed., 580; 50 ALR 1) The fact that the
Constitution expressly gives to Congress the power to punish
its Members for disorderly behaviour, does not by necessary
implication exclude the power to punish for contempt by any
person. (Anderson vs. Dunn, 6 Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness
before either House, unless his testimony is required in a
matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26, L.ed., 377.)
The Court proceeded to delve deeper into the essence of the contempt
power of the Philippine Congress in a subsequent decision (Arnault v.
Balagtas, 97 Phil. 358 [1955]) arising from the same factual antecedents:
The principle that Congress or any of its bodies has the
power to punish recalcitrant witnesses is founded upon
reason and policy. Said power must be considered implied or
incidental to the exercise of legislative power. How could a
legislative body obtain the knowledge and information on
which to base intended legislation if it cannot require and
compel the disclosure of such knowledge and information, if
it is impotent to punish a defiance of its power and authority?
When the framers of the Constitution adopted the principle of
separation of powers, making each branch supreme within
 the real of its respective authority, it must have intended
each department's authority to be full and complete,
independently of the other's authority or power. And how
could the authority and power become complete if for every
act of refusal every act of defiance, every act of contumacy
against it, the legislative body must resort to the judicial
department for the appropriate remedy, because it is
impotent by itself to punish or deal therewith, with the
affronts committed against its authority or dignity. . . (Arnault
v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).
The aforequoted pronouncements in the two Arnault cases, supra, broke
ground in what was then an unexplored area of jurisprudence, and
succeeded in supplying the raison d' etre of this power of Congress even in
the absence of express constitutional grant. Whether or not the reasons for
upholding the existence of said power in Congress may be applied mutatis
mutandis to a questioned exercise of the power of contempt by the
respondent committee of a city council is the threshold issue in the present
controversy.
3. The exercise by the legislature of the contempt power is a matter of self-
preservation as that branch of the government vested with the legislative
power, independently of the judicial branch, asserts its authority and
punishes contempts thereof. The contempt power of the legislature is,
therefore, sui generis, and local legislative bodies cannot correctly claim to
possess it for the same reasons that the national legislature does. The power
attaches not to the discharge of legislative functions per se but to the
character of the legislature as one of the three independent and coordinate
branches of government. The same thing cannot be said of local legislative
bodies which are creations of law.
4. To begin with, there is no express provision either in the 1973 Constitution
or in the Local Government Code (Batas Pambansa Blg. 337) granting local
legislative bodies, the power to subpoena witnesses and the power to punish
non-members for contempt. Absent a constitutional or legal provision for the
exercise of these powers, the only possible justification for the issuance of a
subpoena and for the punishment of non-members for contumacious
behaviour would be for said power to be deemed implied in the statutory
grant of delegated legislative power. But, the contempt power and the
subpoena power partake of a judicial nature. They cannot be implied in the
grant of legislative power. Neither can they exist as mere incidents of the
performance of legislative functions. To allow local legislative bodies or
administrative agencies to exercise these powers without express statutory
basis would run afoul of the doctrine of separation of powers.
Thus, the contempt power, as well as the subpoena power, which the framers
of the fundamental law did not expressly provide for but which the then
Congress has asserted essentially for self-preservation as one of three co-
equal branches of the government cannot be deemed implied in the
delegation of certain legislative functions to local legislative bodies. These
cannot be presumed to exist in favor of the latter and must be considered as
an exception to Sec. 4 of B.P. 337 which provides for liberal rules of
interpretation in favor of local autonomy. Since the existence of the contempt
power in conjunction with the subpoena power in any government body
inevitably poses a potential derogation of individual rights, i.e. compulsion of
testimony and punishment for refusal to testify, the law cannot be liberally
construed to have impliedly granted such powers to local legislative bodies. It
cannot be lightly presumed that the sovereign people, the ultimate source of
all government powers, have reposed these powers in all government
agencies. The intention of the sovereign people, through their representatives
in the legislature, to share these unique and awesome powers with the local
legislative bodies must therefore clearly appear in pertinent legislation.
There being no provision in the Local Government Code explicitly granting
local legislative bodies, the power to issue compulsory process and the
power to punish for contempt, the Sanggunian Panlungsod of Dumaguete is
devoid of power to punish the petitioners Torres and Umbac for
contempt. The Ad-Hoc Committee of said legislative body has even less
basis to claim that it can exercise these powers.
5. Even assuming that the respondent Sangguniang Panlungsod and the
respondent Ad-Hoc Committee had the power to issue the subpoena and the
order complained of, such issuances would still be void for being ultra
vires.The contempt power (and the subpoena power) if actually possessed,
may only be exercised where the subject matter of the investigation is within
the jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing
Kilbourn v. Thompson). As admitted by the respondents in their Comment,
the investigation to be conducted by the Ad-Hoc Committee was to look into
the use by NORECO II of inefficient power lines "of pre-war vintage" which
the latter had acquired from the Visayan Electric Com. company, and "to hear
the side of the petitioners" (Comment, Rollo, p. 50). It comes evident that the
inquiry would touch upon the efficiency of the electric service of NORECO II
and, necessarily, its compliance with the franchise. Such inquiry is beyond
the jurisdiction of the respondent Sangguniang Panlungsod and the
respondent committee.
There is no doubt that a city government has the power to enact ordinances
regulating the installation and maintenance of electric power lines or wires
within its territorial jurisdiction. The power subsists notwithstanding the
creation of the National Electrification Administration (NEA), to which body
the franchise powers of local government units were transferred by
Presidential Decree No. 269. Section 42 of the Decree states:
SEC. 42. Repeal of Franchise Powers of Municipal City and
Provincial Governments. — The powers of municipal, city
and provincial governments to grant franchises, as provided
for in Title 34 of the Philippines Statutes or in any special
law, are hereby repealed; Provided, That this section shall
not impair or invalidate any franchise heretofore lawfully
granted by such a government or repeal any other subsisting
power of such governments to require that electric facilities
and related properties be so located, constructed and
operated and maintained as to be safe to the public and not
to unduly interfere with the primary use of streets, roads,
alleys and other public ways, buildings and grounds over,
upon or under which they may be built. (This Section was not
among those amended by Pres. Dec. Nos. 1370 [May 2,
1978] and 1645 [October 8, 1979]).
This particular power of the city government is included in the enumeration of
powers and duties of a Sangguniang Panlungsod in Section 177 of the Local
Government Code (Batas Pambansa Blg. 337, February 10, 1983), to wit:
SEC. 177. Powers and Duties. — The Sangguniang
Panlungsod shall:
xxx xxx xxx
(j) . . . regulate the digging and excavation for the laying of
gas, water, power, and other pipelines, the building and
repair of tunnels, sewers and drains, and all structures
thereunder; the placing, stringing, attaching, installing, repair
and construction of all gas mains, electric, telegraph and
telephone wires,conduits meters and other apparatus,
and the correction, condemnation of the same when
dangerous or defective;
xxx xxx xxx
The Sangguniang Panlungsod of Dumaguete may, therefore, enact
ordinances to regulate the installation and maintenance of electric power
lines, e.g. prohibit the use of inefficient power lines, in order to protect the city
residents from the hazards these may pose. In aid of this ordinance making
power, said body or any of its committees may conduct investigations similar
to, but not the same as, the legislative investigations conducted by the
national legislature. As already discussed, the difference lies in the lack of
subpoena power and of the power to punish for contempt on the part of the
local legislative bodies. They may only invite resource persons who are
willing to supply information which may be relevant to the proposed
ordinance. The type of investigation which may be conducted by the
Sangguniang PanLungsod does not include within its ambit an inquiry into
any suspected violation by an electric cooperative of the conditions of its
electric franchise.
The power to inquire into the efficiency of the service supplied by electric
cooperatives is within the franchising powers of the NEA under Sec. 43 of
Pres. Dec. No. 269, i.e.:
(2) to repeal and cancel any franchise if the NEA finds that
the holder thereof is not then furnishing, and is unable to or
unailling within reasonable time to furnish adequate and
dependable service on an area coverage within such area;
xxx xxx xxx
In the exercise of this power, the NEA may conduct hearings and
investigations, issle subpoenas and invoke the aid of the courts in case of
disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269). Clearly, then,
the Sangguniang Panlungsod of Dumaguete cannot look into an suspected
failure of NORECO II to comply with the standards of electric service
prescribed by law and in its franchise. The proper recourse is to file a
complaint with the NEA against NORECO II if there be sufficient basis
therefor.
WHEREFORE, the subpoena dated October 25, 1985 requiring the
attendance and testimony of the petitioners at an investigation by the
respondent Ad-Hoc Committee, and the Order issued by the latter on
October 29, 1985 directing herein petitioners to show cause why they should
not be punished for legislative contempt for their disobedience of
said subpoena, is declared null and void for being ultra vires. The respondent
Sangguniang Panlungsod and the respondent Ad-Hoc Committee are without
power to punish non- members for contempt. The Temporary Restraining
Order issued by this Court on November 7, 1985 enjoining said respondents,
their agents and representatives, and the police and other peace officers
from enforcing the aforesaid Order of the respondent committee is made
permanent. Petition is GRANTED. No costs.

SO ORDERED
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS,
H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL,
GARY S. MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER
F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-
IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO
CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO
SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE
NATIONAL POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO
A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO
DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA,
IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO, LORETTA
ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V. MARIANO,
GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA THERESIA
HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT
INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ,
JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG,
GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER
C. LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO
(NAFLU-KMU), REPRESENTED BY ITS NATIONAL PRESIDENT,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T.
CARRANZA, EMILIA P. DAPULANG, MARTIN CUSTODIO, JR., AND
ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE
CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO
SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO
SENGA, AND DIRECTOR GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON
C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND INTEGRATED BAR
OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP
CHIEF, Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT
AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS
DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP);
GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF THE
ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA,
IN HIS CAPACITY AS EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid
formula are necessary.1 Superior strength – the use of force – cannot make
wrongs into rights. In this regard, the courts should be vigilant in safeguarding
the constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak." Laws and
actions that restrict fundamental rights come to the courts "with a heavy
presumption against their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege
that in issuing Presidential Proclamation No. 1017 (PP 1017) and General
Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed
grave abuse of discretion. Petitioners contend that respondent officials of the
Government, in their professed efforts to defend and preserve democratic
institutions, are actually trampling upon the very freedom guaranteed and
protected by the Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law,
without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of
the Edsa People Power I, President Arroyo issued PP 1017 declaring a state
of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7
of the Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or
suppress. . .rebellion. . .," and in my capacity as their Commander-in-
Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of insurrection or
rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction; and as provided in Section 17, Article 12 of the Constitution
do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition
have conspired with authoritarians of the extreme Left represented by
the NDF-CPP-NPA and the extreme Right, represented by military
adventurists – the historical enemies of the democratic Philippine
State – who are now in a tactical alliance and engaged in a concerted and
systematic conspiracy, over a broad front, to bring down the duly constituted
Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly
magnified by certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the economy
and sabotaging the people’s confidence in government and their faith in
the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme
Left and extreme Right the opening to intensify their avowed aims to
bring down the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense
and preservation of the democratic institutions and the State the primary duty
of Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety
and the integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017,
thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-
CPP-NPA and the extreme Right, represented by military adventurists - the
historical enemies of the democratic Philippine State – and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over
a broad front, to bring down the duly-constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by
obstructing governance, including hindering the growth of the economy and
sabotaging the people’s confidence in the government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and
the integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the
powers vested in me under the Constitution as President of the Republic of
the Philippines, and Commander-in-Chief of the Republic of the Philippines,
and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby
call upon the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), to prevent and suppress acts of terrorism and lawless
violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well
as the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of
national emergency and after all these petitions had been filed, the President
lifted PP 1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of
the Constitution, Proclamation No. 1017 dated February 24, 2006, was
issued declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP),
were directed to maintain law and order throughout the Philippines, prevent
and suppress all form of lawless violence as well as any act of rebellion and
to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5,
respondents stated that the proximate cause behind the executive issuances
was the conspiracy among some military officers, leftist insurgents of the
New People’s Army (NPA), and some members of the political opposition in a
plot to unseat or assassinate President Arroyo.4 They considered the aim to
oust or assassinate the President and take-over the reigns of government as
a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General
specified the facts leading to the issuance of PP 1017 and G.O. No.
5. Significantly, there was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is
not respondents’ task to state the facts behind the questioned Proclamation,
however, they are presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants
Sonny Sarmiento, Lawrence San Juan and Patricio Bumidang, members of
the Magdalo Group indicted in the Oakwood mutiny, escaped their detention
cell in Fort Bonifacio, Taguig City. In a public statement, they vowed to
remain defiant and to elude arrest at all costs. They called upon the people to
"show and proclaim our displeasure at the sham regime. Let us demonstrate
our disgust, not only by going to the streets in protest, but also by wearing
red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan
Hackle I " which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.6 Upon the advice of her security, President Arroyo decided
not to attend the Alumni Homecoming. The next day, at the height of the
celebration, a bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist
safehouse in Batangas province. Found in his possession were two (2) flash
disks containing minutes of the meetings between members of the Magdalo
Group and the National People’s Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive documents.7 Prior to
his arrest, Lt. San Juan announced through DZRH that the "Magdalo’s D-Day
would be on February 24, 2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information
that members of the PNP- Special Action Force were planning to defect.
Thus, he immediately ordered SAF Commanding General Marcelino Franco,
Jr. to "disavow" any defection. The latter promptly obeyed and issued a
public statement: "All SAF units are under the effective control of responsible
and trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquino’s brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly
Sindayen of TIME Magazine reported that Pastor Saycon, longtime Arroyo
critic, called a U.S. government official about his group’s plans if President
Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army’s elite Scout
Ranger. Lim said "it was all systems go for the planned movement against
Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a
critical mass and armed component to the Anti-Arroyo protests to be held on
February 24, 2005. According to these two (2) officers, there was no way
they could possibly stop the soldiers because they too, were breaking the
chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed
Col. Querubin to return to the Philippine Marines Headquarters in Fort
Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge
alliances with its members and key officials. NPA spokesman Gregorio "Ka
Roger" Rosal declared: "The Communist Party and revolutionary movement
and the entire people look forward to the possibility in the coming year of
accomplishing its immediate task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will not take much longer to
end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic
Front (NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo
groups within the military and police are growing rapidly, hastened by the
economic difficulties suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency operations in the field." He
claimed that with the forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus the groups that have
been reinforcing since June 2005, it is probable that the President’s ouster is
nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers
and cell sites in Bulacan and Bataan was also considered as additional
factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an
army outpost in Benguet resulting in the death of three (3) soldiers. And also
the directive of the Communist Party of the Philippines ordering its front
organizations to join 5,000 Metro Manila radicals and 25,000 more from the
provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security
advisers and several cabinet members to assess the gravity of the fermenting
peace and order situation. She directed both the AFP and the PNP to
account for all their men and ensure that the chain of command remains solid
and undivided. To protect the young students from any possible trouble that
might break loose on the streets, the President suspended classes in all
levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the
issuance of PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political
rallies, which to the President’s mind were organized for purposes of
destabilization, are cancelled.Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including
media, can already be implemented."11
Undeterred by the announcements that rallies and public assemblies would
not be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU]
and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging
at the EDSA shrine. Those who were already near the EDSA site were
violently dispersed by huge clusters of anti-riot police. The well-trained
policemen used truncheons, big fiber glass shields, water cannons, and tear
gas to stop and break up the marching groups, and scatter the massed
participants. The same police action was used against the protesters
marching forward to Cubao, Quezon City and to the corner of Santolan Street
and EDSA. That same evening, hundreds of riot policemen broke up an
EDSA celebration rally held along Ayala Avenue and Paseo de Roxas Street
in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion,
Ronald Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis
of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The
raiding team confiscated news stories by reporters, documents, pictures, and
mock-ups of the Saturday issue. Policemen from Camp Crame in Quezon
City were stationed inside the editorial and business offices of the
newspaper; while policemen from the Manila Police District were stationed
outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and
its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant
to show a ‘strong presence,’ to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government." The
PNP warned that it would take over any media organization that would not
follow "standards set by the government during the state of national
emergency." Director General Lomibao stated that "if they do not follow the
standards – and the standards are - if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5
and Proc. No. 1017 – we will recommend a ‘takeover.’" National
Telecommunications’ Commissioner Ronald Solis urged television and radio
networks to "cooperate" with the government for the duration of the state of
national emergency. He asked for "balanced reporting" from broadcasters
when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the
closure of any broadcast outfit that violates rules set out for media coverage
when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin
Beltran, representing the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a
warrant for his arrest dated 1985. Beltran’s lawyer explained that the warrant,
which stemmed from a case of inciting to rebellion filed during the Marcos
regime, had long been quashed. Beltran, however, is not a party in any of
these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5.
Two members were arrested and detained, while the rest were dispersed by
the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police
went after him during a public forum at the Sulo Hotel in Quezon City. But his
two drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro
Casiño and Gabriela Representative Liza Maza. Bayan Muna Representative
Josel Virador was arrested at the PAL Ticket Office in Davao City. Later, he
was turned over to the custody of the House of Representatives where the
"Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo, et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state
of national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on
the grounds that (1) it encroaches on the emergency powers of
Congress; (2) itis a subterfuge to avoid the constitutional requirements for the
imposition of martial law; and (3) it violates the constitutional guarantees of
freedom of the press, of speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares
and Tribune Publishing Co., Inc. challenged the CIDG’s act of raiding
the Daily Tribune offices as a clear case of "censorship" or "prior restraint."
They also claimed that the term "emergency" refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is "absolutely no emergency"
that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of
Representatives, including Representatives Satur Ocampo, Rafael Mariano,
Teodoro Casiño, Liza Maza, and Josel Virador. They asserted that PP 1017
and G.O. No. 5 constitute "usurpation of legislative powers"; "violation of
freedom of expression" and "a declaration of martial law." They alleged that
President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of
expression and the right of the people to peaceably assemble to redress their
grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an "arbitrary and unlawful exercise by the President of her Martial
Law powers." And assuming that PP 1017 is not really a declaration of
Martial Law, petitioners argued that "it amounts to an exercise by the
President of emergency powers without congressional approval." In addition,
petitioners asserted that PP 1017 "goes beyond the nature and function of a
proclamation as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that
PP 1017 and G.O. No. 5 are "unconstitutional for being violative of the
freedom of expression, including its cognate rights such as freedom of the
press and the right to access to information on matters of public concern, all
guaranteed under Article III, Section 4 of the 1987 Constitution." In this
regard, she stated that these issuances prevented her from fully prosecuting
her election protest pending before the Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being
moot; second,petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda),
171483 (KMU et al.), 171485 (Escudero et al.) and 171489 (Cadiz et al.)
have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal
basis; and fifth, PP 1017 does not violate the people’s right to free expression
and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties
on the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP
1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is
the concept of judicial review enunciated in Marbury v. Madison.21 This
concept rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the
ultimate source of all political authority. It confers limited powers on the
national government. x x x If the government consciously or
unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the
people as expressed in the Constitution. This power the courts
exercise. This is the beginning and the end of the theory of judicial
review.22
But the power of judicial review does not repose upon the courts a "self-
starting capacity."23 Courts may exercise such power only when the following
requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of
constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question
must be necessary to the determination of the case itself.24
Respondents maintain that the first and second requisites are absent, hence,
we shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite
legal claims susceptible of judicial resolution. It is "definite and concrete,
touching the legal relations of parties having adverse legal interest;" a real
and substantial controversy admitting of specific relief.25 The Solicitor
General refutes the existence of such actual case or controversy, contending
that the present petitions were rendered "moot and academic" by President
Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events,26so that a declaration thereon
would be of no practical use or value.27 Generally, courts decline jurisdiction
over such case28 or dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render
the present petitions moot and academic. During the eight (8) days that PP
1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional
or valid? Do they justify these alleged illegal acts? These are the vital
issues that must be resolved in the present petitions. It must be stressed that
"an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation,
inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide
cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31second, the exceptional character of the situation and the
paramount public interest is involved;32 third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and
the public;33and fourth, the case is capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s
assumption of jurisdiction over the instant petitions. Petitioners alleged that
the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no
question that the issues being raised affect the public’s interest, involving as
they do the people’s basic rights to freedom of expression, of assembly and
of the press. Moreover, the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by
constitutional guarantees.35 And lastly, respondents’ contested actions are
capable of repetition. Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganiban’s Separate Opinion in Sanlakas v.
Executive Secretary.36 However, they failed to take into account the Chief
Justice’s very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to
be prejudiced or damaged as a direct result of its issuance." The present
case falls right within this exception to the mootness rule pointed out by the
Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal
standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a
given question."37 In private suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted
or defended in the name of the real party in interest." Accordingly, the
"real-party-in interest" is "the party who stands to be benefited or injured
by the judgment in the suit or the party entitled to the avails of the
suit."38 Succinctly put, the plaintiff’s standing is based on his own right to the
relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either
case, he has to adequately show that he is entitled to seek judicial protection.
In other words, he has to make out a sufficient interest in the vindication of
the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but
the mere instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins:40 "In matter of mere public
right, however…the people are the real parties…It is at least the right, if
not the duty, of every citizen to interfere and see that a public offence
be properly pursued and punished, and that a public grievance be
remedied." With respect to taxpayer’s suits, Terr v. Jordan41 held that "the
right of a citizen and a taxpayer to maintain an action in courts to
restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference
in any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent "direct injury" test in Ex
Parte Levitt,42 later reaffirmed in Tileston v. Ullman.43 The same Court ruled
that for a private individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera,44 it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has
sustained, or will sustain direct injury as a result." The Vera doctrine was
upheld in a litany of cases, such as, Custodio v. President of the
Senate,45 Manila Race Horse Trainers’ Association v. De la
Fuente,46 Pascual v. Secretary of Public Works47 and Anti-Chinese League of
the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where
the "transcendental importance" of the cases prompted the Court to act
liberally. Such liberality was neither a rarity nor accidental. In Aquino v.
Comelec,50 this Court resolved to pass upon the issues raised due to the "far-
reaching implications" of the petition notwithstanding its categorical
statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed,
allowing ordinary citizens, members of Congress, and civic organizations to
prosecute actions involving the constitutionality or validity of laws, regulations
and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have
failed to show direct injury, they have been allowed to sue under the principle
of "transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled
that the enforcement of the constitutional right to information
and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner
with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court
held that "given the transcendental importance of the issues
involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the
parties seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental
importance, the cases must be settled promptly and definitely
and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases
decided by this Court. Taxpayers, voters, concerned citizens, and legislators
may be accorded standing to sue, provided that the following requirements
are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early;
and
 (5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s
attitude toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status
of Kilosbayan as a people’s organization does not give it the requisite
personality to question the validity of the on-line lottery contract, more so
where it does not raise any issue of constitutionality. Moreover, it cannot sue
as a taxpayer absent any allegation that public funds are being misused. Nor
can it sue as a concerned citizen as it does not allege any specific injury it
has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to
concerned citizens’ cases involving constitutional issues. It held that "there
must be a showing that the citizen personally suffered some actual or
threatened injury arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
President’s declaration of a state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing their legislative powers.
As to petitioners Sanlakas, Partido Manggagawa, and Social Justice Society,
the Court declared them to be devoid of standing, equating them with the
LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct
injury" resulting from "illegal arrest" and "unlawful search" committed by
police operatives pursuant to PP 1017. Rightly so, the Solicitor General does
not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was
usurpation of legislative powers. They also raised the issue of whether or not
the concurrence of Congress is necessary whenever the alarming powers
incident to Martial Law are used. Moreover, it is in the interest of justice that
those affected by PP 1017 can be represented by their Congressmen in
bringing to the attention of the Court the alleged violations of their basic
rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas,
Inc. v. Tan,61 Association of Small Landowners in the Philippines, Inc. v.
Secretary of Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated
its right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of
their members.65 We take judicial notice of the announcement by the Office
of the President banning all rallies and canceling all permits for public
assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed
to allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and
G.O. No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held
that the mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file
the instant petition as there are no allegations of illegal disbursement of
public funds. The fact that she is a former Senator is of no consequence. She
can no longer sue as a legislator on the allegation that her prerogatives as a
lawmaker have been impaired by PP 1017 and G.O. No. 5. Her claim that
she is a media personality will not likewise aid her because there was no
showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral
protest before the Presidential Electoral Tribunal is likewise of no relevance.
She has not sufficiently shown that PP 1017 will affect the proceedings or
result of her case. But considering once more the transcendental importance
of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but
corollary to the bigger question of proper exercise of judicial power. This is
the underlying legal tenet of the "liberality doctrine" on legal standing. It
cannot be doubted that the validity of PP No. 1017 and G.O. No. 5 is a
judicial question which is of paramount importance to the Filipino people. To
paraphrase Justice Laurel, the whole of Philippine society now waits with
bated breath the ruling of this Court on this very critical matter. The petitions
thus call for the application of the "transcendental importance" doctrine, a
relaxation of the standing requirements for the petitioners in the "PP 1017
cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent.
Settled is the doctrine that the President, during his tenure of office or actual
incumbency,67 may not be sued in any civil or criminal case, and there is no
need to provide for it in the Constitution or law. It will degrade the dignity of
the high office of the President, the Head of State, if he can be dragged into
court litigations while serving as such. Furthermore, it is important that he be
freed from any form of harassment, hindrance or distraction to enable him to
fully attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs
the operation of the Government. However, this does not mean that the
President is not accountable to anyone. Like any other official, he remains
accountable to the people68 but he may be removed from office only in the
mode provided by law and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the
President’s exercise of his Commander-in-Chief power has reached its
distilled point - from the indulgent days of Barcelon v.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v.
Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-war
always cuts across the line defining "political questions," particularly those
questions "in regard to which full discretionary authority has been delegated
to the legislative or executive branch of the government."75 Barcelon and
Montenegro were in unison in declaring that the authority to decide
whether an exigency has arisen belongs to the President and his
decision is final and conclusive on the courts. Lansang took the opposite
view. There, the members of the Court were unanimous in the conviction that
the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of
separation of powers, it shifted the focus to the system of checks and
balances, "under which the President is supreme, x x x
only if and when he acts within the sphere allotted to him by the Basic
Law, and the authority to determine whether or not he has so acted is
vested in the Judicial Department, which in this respect, is, in turn,
constitutionally supreme."76 In 1973, the unanimous Court of Lansang was
divided in Aquino v. Enrile.77 There, the Court was almost evenly divided on
the issue of whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to re-examine the latter
case, ratiocinating that "in times of war or national emergency, the
President must be given absolute control for the very life of the nation
and the government is in great peril. The President, it intoned, is
answerable only to his conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most
pertinent to these cases at bar -- echoed a principle similar to Lansang. While
the Court considered the President’s "calling-out" power as a discretionary
power solely vested in his wisdom, it stressed that "this does not prevent an
examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion."This ruling is mainly a result of the
Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies
the authority of the courts to determine in an appropriate action the validity of
the acts of the political departments. Under the new definition of judicial
power, the courts are authorized not only "to settle actual controversies
involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." The latter part of the authority
represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the
political departments of the government.81 It speaks of judicial prerogative not
only in terms of power but also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than
to satisfy the Court not that the President’s decision is correct," but that "the
President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this
Court further ruled that "it is incumbent upon the petitioner to show that
the President’s decision is totally bereft of factual basis" and that if he
fails, by way of proof, to support his assertion, then "this Court cannot
undertake an independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General’s Consolidated Comment and Memorandum shows a
detailed narration of the events leading to the issuance of PP 1017, with
supporting reports forming part of the records. Mentioned are the escape of
the Magdalo Group, their audacious threat of the Magdalo D-Day, the
defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army
showing the growing alliance between the NPA and the military. Petitioners
presented nothing to refute such events. Thus, absent any contrary
allegations, the Court is convinced that the President was justified in issuing
PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what
she believed was lawless violence, invasion or rebellion. However, the
exercise of such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In
times of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to
avert catastrophe. In these situations, the Crown retained a prerogative
"power to act according to discretion for the public good, without the
proscription of the law and sometimes even against it."84 But Locke
recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the
prerogative and how may its abuse be avoided? Here, Locke readily
admitted defeat, suggesting that "the people have no other remedy in this,
as in all other cases where they have no judge on earth, but to appeal to
Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to
him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the State…
It is wrong therefore to wish to make political institutions as strong as to
render it impossible to suspend their operation. Even Sparta allowed its law
to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle
to their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In
such a case, there is no doubt about the general will, and it clear that the
people’s first intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven."
Instead, he relied upon a tenure of office of prescribed duration to avoid
perpetuation of the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government:
"I am far from condemning, in cases of extreme necessity, the
assumption of absolute power in the form of a temporary
dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra
–constitutional measures; for although they may for a time be beneficial, yet
the precedent is pernicious, for if the practice is once established for good
objects, they will in a little while be disregarded under that pretext but for evil
purposes. Thus, no republic will ever be perfect if she has not by law
provided for everything, having a remedy for every emergency and fixed rules
for applying it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate
into the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve
of power and speed and vigor in its application in time of emergency, with
effective constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason
why absolutism should not be used as a means for the defense of
liberal institutions," provided it "serves to protect established institutions
from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of
political life."92 He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing
administrative powers of the executive, while at the same
time "imposing limitation upon that power."93Watkins placed his real faith
in a scheme of constitutional dictatorship. These are the conditions of
success of such a dictatorship: "The period of dictatorship must be
relatively short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in any
given case must never rest with the dictator himself…"94 and the
objective of such an emergency dictatorship should be "strict political
conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is
a problem of concentrating power – in a government where power has
consciously been divided – to cope with… situations of unprecedented
magnitude and gravity. There must be a broad grant of powers, subject to
equally strong limitations as to who shall exercise such powers, when, for
how long, and to what end."96 Friedrich, too, offered criteria for judging the
adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means – i.e., he must be
legitimate; he should not enjoy power to determine the existence of an
emergency; emergency powers should be exercised under a strict time
limitation; and last, the objective of emergency action must be the
defense of the constitutional order."97
Clinton L. Rossiter, after surveying the history of the employment of
emergency powers in Great Britain, France, Weimar, Germany and the
United States, reverted to a description of a scheme of "constitutional
dictatorship" as solution to the vexing problems presented by
emergency.98 Like Watkins and Friedrich, he stated a priori the conditions of
success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional
order…
2) …the decision to institute a constitutional dictatorship should never
be in the hands of the man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without
making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for
the conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect…
 7) The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or
men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the
termination of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions
existing prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and
he places great faith in the effectiveness of congressional investigating
committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of
recent experience, were one in saying that, "the suggestion that
democracies surrender the control of government to an authoritarian
ruler in time of grave danger to the nation is not based upon sound
constitutional theory." To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder
realistic analysis. It matters not whether the term "dictator" is used in its
normal sense (as applied to authoritarian rulers) or is employed to embrace
all chief executives administering emergency powers. However used,
"constitutional dictatorship" cannot be divorced from the implication of
suspension of the processes of constitutionalism. Thus, they favored instead
the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of
this study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the
substantive powers of government, full emphasis is placed upon procedural
limitations, and political responsibility. McIlwain clearly recognized the
need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test
of constitutionalism was the existence of adequate processes for
keeping government responsible. He refused to equate constitutionalism
with the enfeebling of government by an exaggerated emphasis upon
separation of powers and substantive limitations on governmental power. He
found that the really effective checks on despotism have consisted not in the
weakening of government but, but rather in the limiting of it; between which
there is a great and very significant difference. In associating
constitutionalism with "limited" as distinguished from "weak"
government, McIlwain meant government limited to the orderly
procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all
lovers of liberty must yet fight are the legal limits to arbitrary power and
a complete political responsibility of government to the governed.101
In the final analysis, the various approaches to emergency of the above
political theorists –- from Lock’s "theory of prerogative," to Watkins’ doctrine
of "constitutional dictatorship" and, eventually, to McIlwain’s "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power
to the Chief Executive, while insuring that such powers will be
exercised with a sense of political responsibility and under effective
limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of
a repressive regime, the 1986 Constitutional Commission, in drafting the
1987 Constitution, endeavored to create a government in the concept of
Justice Jackson’s "balanced power structure."102 Executive, legislative, and
judicial powers are dispersed to the President, the Congress, and the
Supreme Court, respectively. Each is supreme within its own sphere. But
none has the monopoly of power in times of emergency. Each branch is
given a role to serve as limitation or check upon the other. This system
does not weaken the President, it just limits his power, using the language
of McIlwain. In other words, in times of emergency, our Constitution
reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges
him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its
"overbreadth." They claim that its enforcement encroached on both
unprotected and protected rights under Section 4, Article III of the
Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed
for testing "on their faces" statutes in free speech cases, also known under
the American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,104the US
Supreme Court held that "we have not recognized an ‘overbreadth’
doctrine outside the limited context of the First Amendment" (freedom
of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that "reflects legitimate state interest in maintaining comprehensive
control over harmful, constitutionally unprotected conduct." Undoubtedly,
lawless violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." In Broadrick v. Oklahoma,105 it was
held:
It remains a ‘matter of no little difficulty’ to determine when a law may
properly be held void on its face and when ‘such summary action’ is
inappropriate. But the plain import of our cases is, at the very least, that
facial overbreadth adjudication is an exception to our traditional rules
of practice and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward conduct and that conduct –
even if expressive – falls within the scope of otherwise valid criminal
laws that reflect legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when
invoked against ordinary criminal laws that are sought to be applied to
protected conduct."106 Here, the incontrovertible fact remains that PP 1017
pertains to a spectrum of conduct, not free speech, which is manifestly
subject to state regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is
"generally disfavored;"107 The reason for this is obvious. Embedded in the
traditional rules governing constitutional adjudication is the principle that a
person to whom a law may be applied will not be heard to challenge a law on
the ground that it may conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court.108 A writer and scholar in
Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it
marks an exception to some of the usual rules of constitutional
litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the
courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes
unenforceable until a properly authorized court construes it more narrowly.
The factor that motivates courts to depart from the normal adjudicatory rules
is the concern with the "chilling;" deterrent effect of the overbroad statute on
third parties not courageous enough to bring suit. The Court assumes that an
overbroad law’s "very existence may cause others not before the court to
refrain from constitutionally protected speech or expression." An overbreadth
ruling is designed to remove that deterrent effect on the speech of those third
parties.
In other words, a facial challenge using the overbreadth doctrine will require
the Court to examine PP 1017 and pinpoint its flaws and defects, not on the
basis of its actual operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the Court to refrain
from constitutionally protected speech or expression. In Younger v.
Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and
amorphous nature of the required line-by-line analysis of detailed
statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way they
might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish
that there can be no instance when the assailed law may be valid. Here,
petitioners did not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of
vagueness. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine"
which holds that "a law is facially invalid if men of common intelligence
must necessarily guess at its meaning and differ as to its
application."110 It is subject to the same principles governing overbreadth
doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its
possible applications. Again, petitioners did not even attempt to show
that PP 1017 is vague in all its application. They also failed to establish
that men of common intelligence cannot understand the meaning and
application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do
hereby command the Armed Forces of the Philippines, to maintain law and
order throughout the Philippines, prevent or suppress all forms of lawless
violence as well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas
v. Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga,
held that Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part thereof under
martial law. Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law
or the suspension of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
grants the President, as Commander-in-Chief, a "sequence" of graduated
powers. From the most to the least benign, these are: the calling-out power,
the power to suspend the privilege of the writ of habeas corpus, and the
power to declare Martial Law. Citing Integrated Bar of the Philippines v.
Zamora,112 the Court ruled that the only criterion for the exercise of the
calling-out power is that "whenever it becomes necessary," the President
may call the armed forces "to prevent or suppress lawless violence,
invasion or rebellion." Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President
Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast
intelligence network, she is in the best position to determine the actual
condition of the country.
Under the calling-out power, the President may summon the armed forces to
aid him in suppressing lawless violence, invasion and rebellion. This
involves ordinary police action. But every act that goes beyond the
President’s calling-out power is considered illegal or ultra vires. For this
reason, a President must be careful in the exercise of his powers. He cannot
invoke a greater power when he wishes to act under a lesser power. There
lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the
President’s authority to declare a "state of rebellion" (in Sanlakas) and the
authority to proclaim a state of national emergency. While President Arroyo’s
authority to declare a "state of rebellion" emanates from her powers as Chief
Executive, the statutory authority cited in Sanlakas was Section 4, Chapter 2,
Book II of the Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive
order.
President Arroyo’s declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words
of Sanlakas, is harmless, without legal significance, and deemed not written.
In these cases, PP 1017 is more than that. In declaring a state of national
emergency, President Arroyo did not only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to prevent or suppress lawless
violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the State’s extraordinary power to take over privately-owned
public utility and business affected with public interest. Indeed, PP 1017 calls
for the exercise of an awesome power. Obviously, such Proclamation
cannot be deemed harmless, without legal significance, or not written, as in
the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017
are its wordings. It is plain therein that what the President invoked was her
calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military
power has been called upon by the executive to assist in the maintenance of
law and order, and that, while the emergency lasts, they must, upon pain of
arrest and punishment, not commit any acts which will in any way render
more difficult the restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13,
2006, Mr. Justice Vicente V. Mendoza,114an authority in constitutional law,
said that of the three powers of the President as Commander-in-Chief, the
power to declare Martial Law poses the most severe threat to civil liberties. It
is a strong medicine which should not be resorted to lightly. It cannot be used
to stifle or persecute critics of the government. It is placed in the keeping of
the President for the purpose of enabling him to secure the people from harm
and to restore order so that they can enjoy their individual freedoms. In fact,
Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law.
It is no more than a call by the President to the armed forces to prevent or
suppress lawless violence. As such, it cannot be used to justify acts that only
under a valid declaration of Martial Law can be done. Its use for any other
purpose is a perversion of its nature and scope, and any act done contrary to
its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures
without judicial warrants; (b) ban on public assemblies; (c) take-over of news
media and agencies and press censorship; and (d) issuance of Presidential
Decrees, are powers which can be exercised by the President as
Commander-in-Chief only where there is a valid declaration of Martial Law or
suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration
of Martial Law. It is merely an exercise of President Arroyo’s calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that
the laws be faithfully executed. This is based on Section 17, Article VII which
reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary
function of the President is to enforce the laws as well as to formulate policies
to be embodied in existing laws. He sees to it that all laws are enforced by
the officials and employees of his department. Before assuming office, he is
required to take an oath or affirmation to the effect that as President of the
Philippines, he will, among others, "execute its laws."116 In the exercise of
such function, the President, if needed, may employ the powers attached to
his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police118 under the Department of
Interior and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador
argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo
the power to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail
the clause "to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction."
\
Petitioners’ contention is understandable. A reading of PP 1017 operative
clause shows that it was lifted120 from Former President Marcos’
Proclamation No. 1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed
Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me
personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: "to enforce obedience to all the laws
and decrees, orders and regulations promulgated by me personally or
upon my direction." Upon the other hand, the enabling clause of PP 1017
issued by President Arroyo is: to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or
upon my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any
of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a
general or permanent character in implementation or execution of
constitutional or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspect of governmental operations in pursuance of his duties as
administrative head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which
the operation of a specific law or regulation is made to depend, shall be
promulgated in proclamations which shall have the force of an executive
order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only
concern a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating
to internal administration, which the President desires to bring to the attention
of all or some of the departments, agencies, bureaus or offices of the
Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in
his capacity as Commander-in-Chief of the Armed Forces of the Philippines
shall be issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos
under PP 1081. Presidential Decrees are laws which are of the same
category and binding force as statutes because they were issued by the
President in the exercise of his legislative power during the period of Martial
Law under the 1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as
it grants President Arroyo the authority to promulgate
"decrees." Legislative power is peculiarly within the province of the
Legislature. Section 1, Article VI categorically states that "[t]he legislative
power shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives." To be sure, neither
Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo’s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact
decrees. It follows that these decrees are void and, therefore, cannot be
enforced. With respect to "laws," she cannot call the military to enforce or
implement certain laws, such as customs laws, laws governing family and
property relations, laws on obligations and contracts and the like. She can
only order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare
a state of national emergency.
The import of this provision is that President Arroyo, during the state of
national emergency under PP 1017, can call the military not only to enforce
obedience "to all the laws and to all decrees x x x" but also to act pursuant to
the provision of Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires,
the State may, during the emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation of any privately-owned
public utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national
emergency, PP 1017 purports to grant the President, without any authority or
delegation from Congress, to take over or direct the operation of any
privately-owned public utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of
the "martial law" thinking of the 1971 Constitutional Convention.122 In effect at
the time of its approval was President Marcos’ Letter of Instruction No. 2
dated September 22, 1972 instructing the Secretary of National Defense to
take over "the management, control and operation of the Manila Electric
Company, the Philippine Long Distance Telephone Company, the National
Waterworks and Sewerage Authority, the Philippine National Railways, the
Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and
end the present national emergency."
Petitioners, particularly the members of the House of Representatives, claim
that President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a
state of national emergency" and to exercise emergency powers. To the first,
as elucidated by the Court, Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection can be raised. But to the
second, manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare
the existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions
as it may prescribe, to exercise powers necessary and proper to carry out a
declared national policy. Unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers
not only to war but also to "other national emergency." If the intention of the
Framers of our Constitution was to withhold from the President the authority
to declare a "state of national emergency" pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the
existence of a state of war), then the Framers could have provided so.
Clearly, they did not intend that Congress should first authorize the President
before he can declare a "state of national emergency." The logical conclusion
then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and
provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. 123 Considering
that Section 17 of Article XII and Section 23 of Article VI, previously quoted,
relate to national emergencies, they must be read together to determine the
limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is
evident in the tenor of Section 23 (2), Article VI authorizing it to delegate such
powers to the President. Certainly, a body cannot delegate a power not
reposed upon it. However, knowing that during grave emergencies, it may
not be possible or practicable for Congress to meet and exercise its powers,
the Framers of our Constitution deemed it wise to allow Congress to grant
emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a
national policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public
interest is just another facet of the emergency powers generally reposed
upon Congress. Thus, when Section 17 states that the "the State may,
during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest," it refers to
Congress, not the President. Now, whether or not the President may exercise
such power is dependent on whether Congress may delegate it to him
pursuant to a law prescribing the reasonable terms thereof. Youngstown
Sheet & Tube Co. et al. v. Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must
be found in some provision of the Constitution. And it is not claimed that
express constitutional language grants this power to the President. The
contention is that presidential power should be implied from the aggregate of
his powers under the Constitution. Particular reliance is placed on provisions
in Article II which say that "The executive Power shall be vested in a
President . . . .;" that "he shall take Care that the Laws be faithfully executed;"
and that he "shall be Commander-in-Chief of the Army and Navy of the
United States.
The order cannot properly be sustained as an exercise of the President’s
military power as Commander-in-Chief of the Armed Forces. The
Government attempts to do so by citing a number of cases upholding broad
powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though "theater of war"
be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander-in-Chief of the Armed
Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production. This
is a job for the nation’s lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several
constitutional provisions that grant executive power to the President. In
the framework of our Constitution, the President’s power to see that the
laws are faithfully executed refutes the idea that he is to be a
lawmaker. The Constitution limits his functions in the lawmaking
process to the recommending of laws he thinks wise and the vetoing of
laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The first
section of the first article says that "All legislative Powers herein
granted shall be vested in a Congress of the United States. . ."126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon,"
"hurricane"and"similar occurrences." This is a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly
intensifying the degree of existing danger to life or well-being beyond that
which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception.127 Emergencies, as perceived by legislature
or executive in the United Sates since 1933, have been occasioned by a wide
range of situations, classifiable under three (3) principal
heads: a)economic,128 b) natural disaster,129 and c) national security.130
"Emergency," as contemplated in our Constitution, is of the same breadth. It
may include rebellion, economic crisis, pestilence or epidemic, typhoon,
flood, or other similar catastrophe of nationwide proportions or effect.131 This
is evident in the Records of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of "national
emergency" which appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or
direct the operation of any privately owned public utility or business affected
with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What
about strikes and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term
"national emergency."
MR. BENGZON. Unless they are of such proportions such that they would
paralyze government service.132
xxxxxx
MR. TINGSON. May I ask the committee if "national emergency" refers
to military national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic
dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not
be able to convene and, therefore, unable to delegate to the President the
power to take over privately-owned public utility or business affected with
public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power,
through which extraordinary measures are exercised, remains in Congress
even in times of crisis.
"x x x
After all the criticisms that have been made against the efficiency of the
system of the separation of powers, the fact remains that the Constitution has
set up this form of government, with all its defects and shortcomings, in
preference to the commingling of powers in one man or group of men. The
Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all
its faults, as the ideal. The point is, under this framework of government,
legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the
basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to
another department – unless we regard as legislating the carrying out of a
legislative policy according to prescribed standards; no, not even when that
Republic was fighting a total war, or when it was engaged in a life-and-death
struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’
given the ability to act, are called upon ‘to perform the duties and discharge
the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of
national emergency, however, without legislation, he has no power to take
over privately-owned public utility or business affected with public interest.
The President cannot decide whether exceptional circumstances exist
warranting the take over of privately-owned public utility or business affected
with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President
has no power to point out the types of businesses affected with public interest
that should be taken over. In short, the President has no absolute authority to
exercise all the powers of the State under Section 17, Article VII in the
absence of an emergency powers act passed by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual
are often not compatible. Our history reveals that in the crucible of conflict,
many rights are curtailed and trampled upon. Here, the right against
unreasonable search and seizure; the right against warrantless
arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February
24, 2006, they were arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power I. The arresting officers cited
PP 1017 as basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
ransacked without warrant" their office. Three policemen were assigned to
guard their office as a possible "source of destabilization." Again, the basis
was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA
and later, to Ayala Avenue, to celebrate the 20th Anniversary of People
Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners
shows that they resulted from the implementation, pursuant to G.O. No. 5,
of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the
basis of these illegal acts? In general, does the illegal implementation of a
law render it unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused 135 and may afford
an opportunity for abuse in the manner of application.136 The validity of a
statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired, not from its effects in a particular
case.137 PP 1017 is merely an invocation of the President’s calling-out power.
Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017
allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the
ground that its implementor committed illegal acts? The answer is no. The
criterion by which the validity of the statute or ordinance is to be measured is
the essential basis for the exercise of power, and not a mere incidental
result arising from its exertion.138 This is logical. Just imagine the absurdity
of situations when laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily. If this were so, judging from
the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been
declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are "acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines."
They are internal rules issued by the executive officer to his subordinates
precisely for the proper and efficientadministration of law. Such rules and
regulations create no relation except between the official who issues them
and the official who receives them.139 They are based on and are the product
of, a relationship in which power is their source, and obedience, their
object.140 For these reasons, one requirement for these rules to be valid is
that they must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes
and the Constitution, and which is invariably associated with "invasion,
insurrection or rebellion," the phrase "acts of terrorism" is still an amorphous
and vague concept. Congress has yet to enact a law defining and punishing
acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition
of terrorism" confronts not only our country, but the international community
as well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the
justification of the use of force against certain states and against groups
operating internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria
that are not always known to the public, but are clearly determined by
strategic interests.
The basic problem underlying all these military actions – or threats of the use
of force as the most recent by the United States against Iraq – consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or
by individuals.
The dilemma can by summarized in the saying "One country’s terrorist is
another country’s freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben
Bella in Algeria, to mention only a few, were originally labeled as terrorists by
those who controlled the territory at the time, but later became internationally
respected statesmen.
What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been
trying in vain to reach a consensus on the basic issue of definition. The
organization has intensified its efforts recently, but has been unable to bridge
the gap between those who associate "terrorism" with any violent act by non-
state groups against civilians, state functionaries or infrastructure or military
installations, and those who believe in the concept of the legitimate use of
force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) – which is a terrorist group
for Israel and a liberation movement for Arabs and Muslims – the Kashmiri
resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom
fighters for the United States, terrorists for the Socialist camp – or, most
drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet
Union. One could go on and on in enumerating examples of conflicting
categorizations that cannot be reconciled in any way – because of opposing
political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the
divergent interest of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power
in a given territory, the definition of terrorism will "fluctuate" accordingly. A
state may eventually see itself as protector of the rights of a certain ethnic
group outside its territory and will therefore speak of a "liberation struggle,"
not of "terrorism" when acts of violence by this group are concerned, and
vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of
sovereign states that determine in each and every instance how a particular
armed movement (i.e. a non-state actor) is labeled in regard to the terrorists-
freedom fighter dichotomy. A "policy of double standards" on this vital issue
of international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign
states – and not of peoples, in spite of the emphasis in the Preamble to the
United Nations Charter! – has become even more serious in the present
global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium
powers are increasingly being marginalized; and the problem has become
even more acute since the terrorist attacks of 11 September 2001 I the
United States.141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the
police may consider the act as an act of terrorism and immediately arrest
them pursuant to G.O. No. 5. Obviously, this is abuse and oppression on
their part. It must be remembered that an act can only be considered a crime
if there is a law defining the same as such and imposing the corresponding
penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in
P.D. No. 1835 dated January 16, 1981 enacted by President Marcos during
the Martial Law regime. This decree is entitled "Codifying The Various Laws
on Anti-Subversion and Increasing The Penalties for Membership in
Subversive Organizations." The word "terrorism" is mentioned in the following
provision: "That one who conspires with any other person for the purpose of
overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist
Party of the Philippines) enacted by President Corazon Aquino on May 5,
1985. These two (2) laws, however, do not define "acts of terrorism." Since
there is no law defining "acts of terrorism," it is President Arroyo alone, under
G.O. No. 5, who has the discretion to determine what acts constitute
terrorism. Her judgment on this aspect is absolute, without restrictions.
Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All
these can be effected in the name of G.O. No. 5. These acts go far beyond
the calling-out power of the President. Certainly, they violate the due process
clause of the Constitution. Thus, this Court declares that the "acts of
terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to
commit acts beyond what are necessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and
seizure of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause
to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized."142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized
by a validly issued search warrant or warrant of arrest. Thus, the fundamental
protection given by this provision is that between person and police must
stand the protective authority of a magistrate clothed with power to issue or
refuse to issue search warrants or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP
operatives arrested him on the basis of PP 1017; third, he was brought at
Camp Karingal, Quezon City where he was fingerprinted, photographed and
booked like a criminal suspect; fourth,he was treated brusquely by policemen
who "held his head and tried to push him" inside an unmarked car; fifth, he
was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed,
is actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally.146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he
was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether petitioner
David was the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that
Congress has a right to prevent. In other words, like other rights embraced in
the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a
permit or authorization from the government authorities except, of course, if
the assembly is intended to be held in a public place, a permit for the use of
such place, and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing
any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances,
the charges of inciting to sedition and violation of BP 880 were mere
afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers’ conduct. In De Jonge v. Oregon,148 it was held
that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The
holding of meetings for peaceable political action cannot be proscribed.
Those who assist in the conduct of such meetings cannot be branded as
criminals on that score. The question, if the rights of free speech and
peaceful assembly are not to be preserved, is not as to the auspices under
which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects. If the persons assembling
have committed crimes elsewhere, if they have formed or are engaged in a
conspiracy against the public peace and order, they may be prosecuted for
their conspiracy or other violations of valid laws. But it is a different matter
when the State, instead of prosecuting them for such offenses, seizes
upon mere participation in a peaceable assembly and a lawful public
discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the
dispersal and arrest of the members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done merely on the basis of
Malacañang’s directive canceling all permits previously issued by local
government units. This is arbitrary. The wholesale cancellation of all permits
to rally is a blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and
present danger of a substantive evil that the State has a right to
prevent."149 Tolerance is the rule and limitation is the exception. Only upon a
showing that an assembly presents a clear and present danger that the State
may deny the citizens’ right to exercise it. Indeed, respondents failed to show
or convince the Court that the rallyists committed acts amounting to lawless
violence, invasion or rebellion. With the blanket revocation of permits, the
distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the
determination of the presence of clear and present danger. Here, petitioners
were not even notified and heard on the revocation of their permits. 150 The
first time they learned of it was at the time of the dispersal. Such absence of
notice is a fatal defect. When a person’s right is restricted by government
action, it behooves a democratic government to see to it that the restriction is
fair, reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom
of speech i.e., the freedom of the press. Petitioners’ narration of facts, which
the Solicitor General failed to refute, established the following: first, the Daily
Tribune’s offices were searched without warrant;second, the police
operatives seized several materials for publication; third, the search was
conducted at about 1:00 o’ clock in the morning of February 25,
2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of the Daily
Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid
was "meant to show a ‘strong presence,’ to tell media outlets not to
connive or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not
follow the standards –and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 – we will recommend
a ‘takeover.’" National Telecommunications Commissioner Ronald Solis
urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He warned that his agency
will not hesitate to recommend the closure of any broadcast outfit that
violates rules set out for media coverage during times when the
national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure
lays down the steps in the conduct of search and seizure. Section 4 requires
that a search warrant be issued upon probable cause in connection with one
specific offence to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may
produce. Section 8 mandates that the search of a house, room, or any other
premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2)
witnesses of sufficient age and discretion residing in the same locality.
And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to
be searched, in which case a direction may be inserted that it be served at
any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners’ freedom of the press. The best You made quite a mouthful of admission when you said that the policemen,
gauge of a free and democratic society rests in the degree of freedom when inspected the Tribune for the purpose of gathering evidence and you
enjoyed by its media. In the Burgos v. Chief of Staff152 this Court held that -- admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
As heretofore stated, the premises searched were the business and printing Tribune?
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked SOLICITOR GENERAL BENIPAYO:
and sealed, with the further result that the printing and publication of
said newspapers were discontinued. Under the law they would seem to be, if they were illegally seized, I think and
I know, Your Honor, and these are inadmissible for any purpose.155
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the xxxxxxxxx
fundamental law, and constitutes a virtual denial of petitioners' freedom
to express themselves in print. This state of being is patently
SR. ASSO. JUSTICE PUNO:
anathematic to a democratic framework where a free, alert and even
militant press is essential for the political enlightenment and growth of
the citizenry. These have been published in the past issues of the Daily Tribune; all you
have to do is to get those past issues. So why do you have to go there at 1
o’clock in the morning and without any search warrant? Did they become
While admittedly, the Daily Tribune was not padlocked and sealed like the
suddenly part of the evidence of rebellion or inciting to sedition or what?
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement
duties. The search and seizure of materials for publication, the stationing of SOLGEN BENIPAYO:
policemen in the vicinity of the The Daily Tribune offices, and the arrogant
warning of government officials to media, are plain censorship. It is that Well, it was the police that did that, Your Honor. Not upon my instructions.
officious functionary of the repressive government who tells the citizen that
he may speak only if allowed to do so, and no more and no less than what he SR. ASSO. JUSTICE PUNO:
is permitted to say on pain of punishment should he be so rash as to
disobey.153Undoubtedly, the The Daily Tribune was subjected to these Are you saying that the act of the policeman is illegal, it is not based on any
arbitrary intrusions because of its anti-government sentiments. This Court law, and it is not based on Proclamation 1017.
cannot tolerate the blatant disregard of a constitutional right even if it involves
the most defiant of our citizens. Freedom to comment on public affairs is
SOLGEN BENIPAYO:
essential to the vitality of a representative democracy. It is the duty of the
courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon. The motto should always be obsta It is not based on Proclamation 1017, Your Honor, because there is nothing
principiis.154 in 1017 which says that the police could go and inspect and gather clippings
from Daily Tribune or any other newspaper.
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribune’s offices and the seizure of its materials for publication SR. ASSO. JUSTICE PUNO:
and other papers are illegal; and that the same are inadmissible "for any
purpose," thus: Is it based on any law?

JUSTICE CALLEJO: SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have
been injured by this would want to sue them, they can sue and there are
remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or
unlawful acts committed on the occasion of 1017, as I said, it cannot be
condoned. You cannot blame the President for, as you said, a
misapplication of the law. These are acts of the police officers, that is their
responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional
in every aspect and "should result in no constitutional or statutory breaches if
applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by the President of the
military to prevent or suppress lawless violence, invasion or rebellion. When
in implementing its provisions, pursuant to G.O. No. 5, the military and the
police committed acts which violate the citizens’ rights under the Constitution,
this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a
supervening event – would have normally rendered this case moot and
academic. However, while PP 1017 was still operative, illegal acts were
committed allegedly in pursuance thereof. Besides, there is no guarantee that
PP 1017, or one similar to it, may not again be issued. Already, there have
been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent." Consequently,
the transcendental issues raised by the parties should not be "evaded;" they
must now be resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017’s extraneous provisions giving the President express or implied power
(1) to issue decrees; (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any
form of prior restraint on the press, are ultra vires and unconstitutional. The
Court also rules that under Section 17, Article XII of the Constitution, the
President, in the absence of a legislation, cannot take over privately-owned
public utility and private business affected with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President – acting as Commander-in-Chief – addressed to subalterns in the
AFP to carry out the provisions of PP 1017. Significantly, it also provides a
valid standard – that the military and the police should take only the
"necessary and appropriate actions and measures to suppress and
prevent acts of lawless violence."But the words "acts of terrorism" found
in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While
"terrorism" has been denounced generally in media, no law has been
enacted to guide the military, and eventually the courts, to determine the
limits of the AFP’s authority in carrying out this portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David
and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of
the KMU and NAFLU-KMU members; (3) the imposition of standards on
media or any prior restraint on the press; and (4) the warrantless search of
the Tribune offices and the whimsical seizures of some articles for publication
and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the
AFP and the PNP should implement PP 1017, i.e. whatever is "necessary
and appropriate actions and measures to suppress and prevent acts of
lawless violence." Considering that "acts of terrorism" have not yet been
defined and made punishable by the Legislature, such portion of G.O. No. 5
is declared UNCONSTITUTIONAL.

Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers
concerned. They have not been individually identified and given their day in
court. The civil complaints or causes of action and/or relevant criminal
Informations have not been presented before this Court. Elementary due
process bars this Court from making any specific pronouncement of civil,
criminal or administrative liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military
the power it needs to protect the Republic without unnecessarily
trampling individual rights is one of the eternal balancing tasks of a
democratic state.During emergency, governmental action may vary in
breadth and intensity from normal times, yet they should not be arbitrary as to
unduly restrain our people’s liberty.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal
and warrantless arrest of the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners were committing acts
constituting lawless violence, invasion or rebellion and violating BP 880; the
imposition of standards on media or any form of prior restraint on the press,
as well as the warrantless search of the Tribune offices and whimsical
seizure of its articles for publication and other materials, are
declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

Perhaps, the vital lesson that we must learn from the theorists who studied
the various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two
vital principles of constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the government to the
governed.158

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws
not related to lawless violence, as well as decrees promulgated by the
President, are declared UNCONSTITUTIONAL. In addition, the provision in
PP 1017 declaring national emergency under Section 17, Article VII of the
Constitution is CONSTITUTIONAL, but such declaration does not authorize
the President to take over privately-owned public utility or business affected
with public interest without prior legislation.
 EN BANC
[G.R. No. 56384. March 22, 1984.]
MAYOR FRANCISCO LECAROZ, Petitioner, v.
SANDIGANBAYAN, Respondent.
Roberto C. Diokno for Petitioner.
The Solicitor General for Respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; SANDIGANBAYAN;
JURISDICTION. — It is clear from the above-quoted constitutional provision
that respondent court has jurisdictional competence not only over criminal
and civil cases involving graft and corrupt practices committed by public
officers and employees but also over other crimes committed by them in
relation to their office, though not involving graft and corrupt practices, as
may be determined by law. The intention of the framers of the New
Constitution is patent from the explicit language thereof as well as from
Section 1 of the same Article XIII titled "Accountability of Public Officers.".
2. ID.; ID.; ID.; SECTION 4(c), PRESIDENTIAL DECREE NO. 1486, AS
AMENDED, NOT VIOLATIVE OF NEW CONSTITUTION. — There is no
merit in petitioner’s contention that Section 4(c) of Presidential Decree No.
1486, as amended, is violative of the provision of Section 5 of Article XIII of
the New Constitution because the former enlarges what the latter limited.
Said constitutional provision delegates to the lawmaking body the
determination of "such other offenses" committed by public officers over
which the Sandiganbayan shall have jurisdiction. Accordingly, the President
of the Philippines, exercising his lawmaking authority and prerogative vested
in him by the Constitution, issued Presidential Decree No. 1486 which
mandates in Section 4(c) thereof that the Sandiganbayan shall have
jurisdiction over "other crimes or offenses committed by public officers or
employees, including those employed in government-owned or controlled
corporation, in relation to their office." (Italics supplied) When the lawmaking
authority chose to include all public office-related offenses over which
respondent court shall have jurisdiction, the courts will not review questions
of legislative policy. It is enough that the act is within the constitutional power
of the lawmaking body or authority and, if it is, the courts are bound to follow
and apply.
3. ID.; ID.; ID.; ID.; CONCURRENT JURISDICTION WITH REGULAR
COURTS UNDER SECTION 4, PRESIDENTIAL DECREE NO. 1606. — The
crime for which petitioner is charged, grave coercion, is penalized by arresto
mayor and a fine not exceeding P500.00 under the first paragraph of Article
286 of the Revised Penal Code, as amended. Respondent court, pursuant to
the provisions of Section 4 of Presidential Decree No. 1606, as amended,
has concurrent jurisdiction with the regular courts. Well established is the rule
that once a court acquires jurisdiction in a case where said jurisdiction is
concurrent with another court, it must continue exercising the same to the
exclusion of all other courts. In Laquian v. Baltazar, 31 SCRA 551, We ruled
that "in case of concurrent jurisdiction, it is axiomatic that the court first
acquiring jurisdiction excludes the other courts." Thus, respondent’s denial of
petitioner’s request for the transfer of the case to the Court of First Instance
of Marinduque was well-grounded and certainly not a grave abuse of
discretion.
4. ID.; ID.; ID.; DISPOSITION OF PENDING CASES AS OF EFFECTIVITY
DATE OF PRESIDENTIAL DECREE NO. 1861; CASE AT BAR. — It is true
that on March 23, 1983, Presidential Decree No. 1861 amended Presidential
Decree No. 1606, and it provides, among others, that where the penalty for
offenses or felonies committed by public officers and employees in relation to
their office does not exceed prision correctional or imprisonment for six(6)
years, or fine of P6,000.00, they are no longer within the concurrent
jurisdiction of respondent court and the regular courts but are now vested in
the latter. However, Section 2 of said Presidential Decree No. 1861 states:
"SECTION 2. All cases pending in the Sandiganbayan or in the appropriate
courts as of the date of the effectivity of this Decree shall remain with and be
disposed of by the courts where they are pending." (Italics supplied) The
information against petitioner was filed in 1980; therefore, respondent court
retains jurisdiction over the case subject of instant petition.
5. ID.; ID.; PUBLIC OFFICERS; IMPEACHMENT; EFFECTS. — Section 2,
Article XIII of the 1973 Constitution proscribes removal from office of the
aforementioned constitutional officers by any other method; otherwise, to
allow a public officer who may be removed solely by impeachment to be
charged criminally while holding his office with an offense that carries the
penalty of removal from office, would be violative of the clear mandate of the
fundamental law. The effect of impeachment is limited to the loss of position
and disqualification to hold any office of honor, trust or profit under the
Republic. It is equally manifest that the party thus convicted may be
proceeded against, tried and thereafter punished in accordance with law.
There can be no clearer expression of the constitutional intent as to the
scope of the impeachment process (The Constitution of the Philippines, pp.
465-466)." The clear implication is, the party convicted in the impeachment
proceeding shall nevertheless be liable and subject to prosecution, trial and
punishment according to law; and that if the same does not result in a
conviction and the official is not hereby removed, the filing of a criminal action
"in accordance with law" may not prosper.
DECISION
RELOVA, J.:
On October 21, 1980, petitioner was charged with the crime of grave
coercion in an information filed before the respondent court, which reads:.
"That on or about July 2, 1979, in the municipality of Sta. Cruz, Province of
Marinduque, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, a public officer, being then the mayor of Sta.
Cruz, Marinduque, taking advantage of his public position and which offense
was committed in relation to his office, did then and there, wilfully, unlawfully
and feloniously take over the operation and control of the gasoline station
owned by Pedro Par, sell the gasoline therein to the public issuing the
invoices of said gasoline station and some pieces of yellow pad paper for the
purpose, and padlock dispensing pump thereof without authority of law,
depriving Pedro Par of the possession and exercise of a lawful trade or
occupation, by means of threat, force and/or violence, thereby preventing
said Pedro Par from doing something not prohibited by law or compelling him
to do something against his will, whether it be right or wrong.
"CONTRARY TO LAW.".
(p. 10, Rollo)
On November 27, 1980, the information was amended with the insertion of
the phrase "by ordering his policemen companions" between the words
"Pedro Par" and "to sell the gasoline.".
Petitioner filed a motion to quash the information principally on the ground
that the respondent court lacks jurisdiction to entertain the case and that it
should have been filed with the ordinary courts in Marinduque where the
alleged crime was committed.
Respondent court denied the motion. Hence, petitioner instituted this
proceeding for certiorari seeking the same relief, alleging that —
1. The offense for which he was charged is not related to his office as mayor;
2. The offense of grave coercion is not among those mentioned or
determined by Section 4(c), Presidential Decree No. 1486, as amended; and
3. Assuming that respondent has jurisdiction to try this case, it committed
grave abuse of discretion in denying the transfer of the hearing of the case to
the Court of First Instance of Marinduque because all witnesses of both the
prosecution and defense will have to come from Marinduque, a far away
island.
Section 5, Article XIII of the Constitution, provides for the creation of a special
court known as the Sandiganbayan and defines the jurisdiction thereof. It
states:.
"SEC. 5. The National Assembly shall create a special court, to be known as
Sandiganbayan, which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices and such other offenses committed by
public officers and employees, including those in government-owned or
controlled corporations, in relation to their office as may be determined by
law.".
It is clear from the above-quoted constitutional provision that respondent
court has jurisdictional competence not only over criminal and civil cases
involving graft and corrupt practices committed by public officers and
employees but also over other crimes committed by them in relation to their
office, though not involving graft and corrupt practices, as may be determined
by law. The intention of the framers of the New Constitution is patent from the
explicit language thereof as well as from Section 1 of the same Article XIII
titled "Accountability of Public Officers," which
provides:red:chanrobles.com.ph
"SECTION 1. Public office is a public trust. Public officers and employees
shall serve with the highest degree of responsibility, integrity, loyalty, and
efficiency, and shall remain accountable to the people.".
There is no merit in petitioner’s contention that Section 4(c) of Presidential
Decree No. 1486, as amended, is violative of the provision of Section 5 of
Article XIII of the New Constitution because the former enlarges what the
latter limited. Said constitutional provision delegates to the lawmaking body
the determination of "such other offenses" committed by public officers over
which the Sandiganbayan shall have jurisdiction. Accordingly, the President
of the Philippines, exercising his lawmaking authority and prerogative vested
in him by the Constitution, issued Presidential Decree No. 1486 which
mandates in Section 4(c) thereof that the Sandiganbayan shall have
jurisdiction over "other crimes or offenses committed by public officers or
employees, including those employed in government-owned or controlled
corporation, in relation to their office." (Emphasis supplied) When the
lawmaking authority chose to include all public office-related offenses over
which respondent court shall have jurisdiction, the courts will not review
questions of legislative policy. It is enough that the act is within the
constitutional power of the lawmaking body or authority and, if it is, the courts
are bound to follow and apply.
The original and amended information clearly alleged that petitioner took
advantage of his position as mayor when he intimidated the gasoline station’s
owner in taking over the operation and control of the establishment, ordering
his policemen to sell the gasoline therein and padlocking the dispensing
pump thereof without legal authority. Stated differently, if petitioner were not
the mayor he would not have allegedly directed the policeman and the latter
would not have followed his orders and instructions to sell Pedro Par’s
gasoline and padlocked the station. The fact that he is the mayor did not vest
him with legal authority to take over the operations and control of
complainant’s gasoline station and padlock the same without observing due
process.
The crime for which petitioner is charged, grave coercion, is penalized by
arresto mayor and a fine not exceeding P500.00 under the first paragraph of
Article 286 of the Revised Penal Code, as amended. Respondent court,
pursuant to the provisions of Section 4 of Presidential Decree No. 1606, as
amended, has concurrent jurisdiction with the regular courts. Well established
is the rule that once a court acquires jurisdiction in a case where said
jurisdiction is concurrent with another court, it must continue exercising the
same to the exclusion of all other courts. In Laquian v. Baltazar, 31 SCRA
551, We ruled that "in case of concurrent jurisdiction, it is axiomatic that the
court first acquiring jurisdiction excludes the other courts." Thus, respondent’s
denial of petitioner’s request for the transfer of the case to the Court of First
Instance of Marinduque was well-grounded and certainly not a grave abuse
of discretion..
It is true that on March 23, 1983, Presidential Decree No. 1861 amended
Presidential Decree No. 1606, and it provides, among others, that where the
penalty for offenses or felonies committed by public officers and employees
in relation to their office does not exceed prision correccional or imprisonment
for six(6) years, or fine of P6,000.00, they are no longer within the concurrent
jurisdiction of respondent court and the regular courts but are now vested in
the latter. However, Section 2 of said Presidential Decree No. 1861 states:.
"SECTION 2. All cases pending in the Sandiganbayan or in the appropriate
courts as of the date of the effectivity of this Decree shall remain with and be
disposed of by the courts where they are pending." (Emphasis supplied)
The information against petitioner was filed in 1980; therefore, respondent
court retains jurisdiction over the case subject of instant petition.
The broad power of the New Constitution vests the respondent court with
jurisdiction over "public officers and employees, including those in
government-owned or controlled corporations." There are exceptions,
however, like constitutional officers, particularly those declared to be
removed by impeachment. Section 2, Article XIII of the 1973 Constitution
provides:.
"SEC. 2. The President, the Members of the Supreme Court, and the
Members of the Constitutional Commissions shall be removed from office on
impeachment for, and conviction of, culpable violation of the Constitution,
treason, bribery, other high crimes, or graft and corruption.".
Thus, the provision proscribes removal from office of the aforementioned
constitutional officers by any other method; otherwise, to allow a public officer
who may be removed solely by impeachment to be charged criminally while
holding his office with an offense that carries the penalty of removal from
office, would be violative of the clear mandate of the fundamental
law.chanrobles.com.ph : virtual law library
Chief Justice Enrique M. Fernando, in his authoritative dissertation on the
New Constitution, states that "judgment in cases of impeachment shall be
limited to removal from office and disqualification to hold ANY office of honor,
trust, or profit under the Republic of the Philippines, but the party convicted
shall nevertheless be liable and subject to prosecution, trial, and punishment,
in accordance with law. The above provision is a reproduction of what was
found in the 1935 Constitution. It is quite apparent from the explicit character
of the above provision that the, effect of impeachment is limited to the loss of
position and disqualification to hold any office of honor, trust or profit under
the Republic. It is equally manifest that the party thus convicted may be
proceeded against, tried and thereafter punished in accordance with law.
There can be no clearer expression of the constitutional intent as to the
scope of the impeachment process (The Constitution of the Philippines, pp.
465-466)." The clear implication is, the party convicted in the impeachment
proceeding shall nevertheless be liable and subject to prosecution, trial and
punishment according to law; and that if the same does not result in a
conviction and the official is not hereby removed, the filing of a criminal action
"in accordance with law" may not prosper.

ACCORDINGLY, the petition is dismissed for lack of merit and the temporary
restraining order issued on March 12, 1982 is hereby DISSOLVED.

SO ORDERED.
 EN BANC
[G.R. No. 115455. August 25, 1994.]
ARTURO M. TOLENTINO, Petitioner, v. THE SECRETARY OF FINANCE
and THE COMMISSIONER OF INTERNAL REVENUE, Respondents.
[G.R. No. 115525.]
JUAN T. DAVID, Petitioner, v. TEOFISTO T. GUINGONA, JR., as
Executive Secretary; ROBERTO DE OCAMPO, as Secretary of Finance;
LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue;
and their AUTHORIZED AGENTS OR
REPRESENTATIVES, Respondents.
[G.R. No. 115543.]
RAUL S. ROCO and the INTEGRATED BAR OF THE
PHILIPPINES, Petitioners, v. THE SECRETARY OF THE DEPARTMENT
OF FINANCE; THE COMMISSIONERS OF THE BUREAU OF INTERNAL
REVENUE AND BUREAU OF CUSTOMS, Respondents.
[G.R. No. 115544.]
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.;
KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE
JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, Petitioners, v. HON. LIWAYWAY V. CHATO, in her capacity
as Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA,
JR., in his capacity as Executive Secretary; and HON. ROBERTO B. DE
OCAMPO, in his capacity as Secretary of Finance, Respondents.
[G.R. No. 115754.]
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC.,
(CREBA), Petitioner, v. THE COMMISSIONER OF INTERNAL
REVENUE, Respondent.
[G.R. No. 115781.]
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME
CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM
TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN,
FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO,
JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"),
FREEDOM FROM DEBT COALITION, INC., PHILIPPINE BIBLE SOCIETY,
INC., and WIGBERTO TAÑADA, Petitioners, v. THE EXECUTIVE
SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF
CUSTOMS, Respondents.
[G.R. No. 115852.]
PHILIPPINE AIRLINES, INC., Petitioner, v. THE SECRETARY OF
FINANCE, and COMMISSIONER OF INTERNAL REVENUE, Respondents.
[G.R. No. 115873.]
COOPERATIVE UNION OF THE PHILIPPINES, Petitioners, v. HON.
LIWAYWAY V. CHATO in her capacity as the Commissioner of Internal
Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as
Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, Respondents.
[G.R. No. 115931.]
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and
ASSOCIATION OF PHILIPPINE BOOKSELLERS, Petitioners, v. HON.
ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON.
LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and
HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner
of Customs, Respondents.
Arturo M. Tolentino for and in his behalf.
Donna Celeste D. Feliciano and Juan T. David for petitioners in G.R. No
115525.
Roco, Bunag, Kapunan, Migallos and Jardeleza for petitioner R.S. Roco.
Villaraza and Cruz for petitioners in G.R. No. 115544.
Carlos A. Raneses and Manuel M. Serrano for petitioner in G.R. No.
115754.
 Salonga, Hernandez & Allado for Freedom from Debts Coalition, Inc. &
Phil. Bible Society.
Estelito P. Mendoza for petitioner in G.R. No. 115852.
Panganiban, Benitez, Parlade, Africa & Barinaga Law Offices for
petitioners in G.R. No 115873.
R. B. Rodriguez & Associates for petitioners in G.R. No. 115931.
Rene A.V. Saguisag for MABINI.
DECISION
MENDOZA, J.:
The valued-added tax (VAT) is levied on the sale, barter or exchange of
goods and properties as well as on the sale or exchange of services. It is
equivalent to 10% of the gross selling price or gross value in money of goods
or properties sold, bartered or exchanged or of the gross receipts from the
sale or exchange of services. Republic Act No. 7716 seeks to widen the tax
base of the existing VAT system and enhance its administration by amending
the National Internal Revenue Code..
These are various suits for certiorari and prohibition, challenging the
constitutionality of Republic Act No. 7716 on various grounds summarized in
the resolution of July 6, 1994 of this Court, as follows:.
I. Procedural Issues:.
A. Does Republic Act No. 7716 violate Art. VI, § 24 of the Constitution?
B. Does it violate Art. VI, § 26(2) of the Constitution?
C. What is the extent of the power of the Bicameral Conference Committee?
II. Substantive Issues:.
A. Does the law violate the following provisions in the Bill of Rights (Art. III)?
1. § 1
2. § 4
3. § 5
4. § 10
B. Does the law violate the following other provisions of the Constitution?
1. Art. VI, § 28(1)
2. Art. VI, § 28(3)
These questions will be dealt in the order they are stated above. As will
presently be explained not all of these questions are judicially cognizable,
because not all provisions of the Constitution are self executing and,
therefore, judicially enforceable. The other departments of the government
are equally charged with the enforcement of the Constitution, especially the
provisions relating to them.
I. PROCEDURAL ISSUES
The contention of petitioners is that in enacting Republic Act No. 7716, or the
Expanded Valued-Added Tax Law, Congress violated the Constitution
because, although H. No. 11197 had originated in the House of
Representatives, it was not passed by the Senate but was simply
consolidated with the Senate version (S. No. 1630) in the Conference
Committee to produce the bill which the President signed into law. The
following provisions of the Constitution are cited in support of the proposition
that because Republic Act No. 7716 was passed in this manner, it did not
originate in the House of Representatives and it has not thereby become a
law:.
Art. VI, § 24: All appropriation, revenue or tariff bills, bills authorizing increase
of the public debt, bills of local application, and private bills shall originate
exclusively in the House of Representatives, but the Senate may propose or
concur with amendments.
Id., § 26(2): No bill passed by either House shall become a law unless it has
passed three readings on separate days, and printed copies thereof in its
final form have been distributed to its Members three days before its
passage, except when the President certifies to the necessity of its
immediate enactment to meet a public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays entered
in the Journal.
It appears that on various dates between July 22, 1992 and August 31, 1993,
several bills 1 were introduced in the House of Representatives seeking to
amend certain provisions of the National Internal Revenue Code relative to
the value-added tax or VAT. These bills were referred to the House Ways
and Means Committee which recommended for approval a substitute
measure, H. No. 11197, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO
WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION,
AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104,
105, 106, 107, 108 AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V,
AND 236, 237 AND 238 OF TITLE IX, AND REPEALING SECTIONS 113
AND 114 OF TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE
CODE, AS AMENDED.
The bill (H. No. 11197) was considered on second reading starting November
6, 1993 and, on November 17, 1993, it was approved by the House of
Representatives after third and final reading.
It was sent to the Senate on November 23, 1993 and later referred by that
body to its Committee on Ways and Means.
On February 7, 1994, the Senate Committee submitted its report
recommending approval of S. No. 1630, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM TO
WIDEN ITS TAX BASE AND ENHANCE ITS ADMINISTRATION,
AMENDING FOR THESE PURPOSES SECTIONS 99, 100, 102, 103, 104,
105, 107, 108, AND 110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113, 114 and 116 OF
TITLE V, ALL OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, AND FOR OTHER PURPOSES.
It was stated that the bill was being submitted "in substitution of Senate Bill
No. 1129, taking into consideration P. S. Res. No. 734 and H. B. No. 11197.".
On February 8, 1994, the Senate began consideration of the bill (S. No.
1630). It finished debates on the bill and approved it on second reading on
March 24, 1994. On the same day, it approved the bill on third reading by the
affirmative votes of 13 of its members, with one abstention.
H. No. 1197 and its Senate version (S. No. 1630) were then referred to a
conference committee which, after meeting four times (April 13, 19, 21 and
25, 1994), recommended that "House Bill No. 11197, in consolidation with
Senate Bill No. 1630, be approved in accordance with the attached copy of
the bill as reconciled and approved by the conferees.".
The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE
VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND
ENHANCING ITS ADMINISTRATION AND FOR THESE PURPOSES
AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR
OTHER PURPOSES," was thereafter approved by the House of
Representatives on April 27, 1994 and by the Senate on May 2, 1994. The
enrolled bill was then presented to the President of the Philippines who, on
May 5, 1994, signed it. It became Republic Act No. 7716. On May 12, 1994,
Republic Act No. 7716 was published in two newspapers of general
circulation and, on May 28, 1994, it took effect, although its implementation
was suspended until June 30, 1994 to allow time for the registration of
business entities. It would have been enforced on July 1, 1994 but its
enforcement was stopped because the Court, by the vote of 11 to 4 of its
members, granted a temporary restraining order on June 30, 1994.
First. Petitioners’ contention is that Republic Act No. 7716 did not "originate
exclusively" in the House of Representatives as required by Art. VI, § 24 of
the Constitution, because it is in fact the result of the consolidation of two
distinct bills, H. No. 11197 and S. No. 1630. In this connection, petitioners
point out that although Art. VI, § 24 was adopted from the American Federal
Constitution, 2 it is notable in two respects: the verb "shall originate" is
qualified in the Philippine Constitution by the word "exclusively" and the
phrase "as on other bills" in the American version is omitted. This means,
according to them, that to be considered as having originated in the House,
Republic Act No. 7716 must retain the essence of H. No. 11197.
This argument will not bear analysis. To begin with, it is not the law — but the
revenue bill — which is required by the Constitution to "originate exclusively"
in the House of Representatives. It is important to emphasize this, because a
bill originating in the House may undergo such extensive changes in the
Senate that the result may be a rewriting of the whole. The possibility of a
third version by the conference committee will be discussed later. At this
point, what is important to note is that, as a result of the Senate action, a
distinct bill may be produced. To insist that a revenue statute — and not only
the bill which initiated the legislative process culminating in the enactment of
the law — must substantially be the same as the House bill would be to deny
the Senate’s power not only to "concur with amendments" but also to"
propose amendments." It would be to violate the coequality of legislative
power of the two houses of Congress and in fact make the House superior to
the Senate.
The contention that the constitutional design is to limit the Senate’s power in
respect of revenue bills in order to compensate for the grant to the Senate of
the treaty-ratifying power 3 and thereby equalize its powers and those of the
House overlooks the fact that the powers being compared are different. We
are dealing here with the legislative power. which under the Constitution is
vested not in any particular chamber but in the Congress of the Philippines,
consisting of "a Senate and a House of Representatives." 4 The exercise of
the treaty-ratifying power is not the exercise of legislative power. It is the
exercise of a check on the executive power. There is, therefore, no
justification for comparing the legislative powers of the House and of the
Senate on the basis of the possession of such nonlegislative power by the
Senate. The possession of a similar power by the U.S. Senate 5 has never
been thought of as giving it more legislative powers than the House of
Representatives.
In the United States, the validity of a provision (sec. 37) imposing an ad
valorem tax based on the weight of vessels, which the U.S. Senate had
inserted in the Tariff Act of 1909, was upheld against the claim that the
provision was a revenue bill which originated in the Senate in contravention
of Art. I, § 7 of the U.S. Constitution. 6 Nor is the power to amend limited to
adding a provision or two in a revenue bill emanating from the House. The
U.S. Senate has gone so far as changing the whole of bills following the
enacting clause and substituting its own versions. In 1883, for example, it
struck out everything after the enacting clause of a tariff bill and wrote in its
place its own measure, and the House subsequently accepted the
amendment. The U.S. Senate likewise added 847 amendments to what later
became the Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the
Tariff Act of 1921; it rewrote an extensive tax revision bill in the same year
and recast most of the tariff bill of 1992. 7 Given, then, the power of the
Senate to propose amendments, the Senate can propose its own version
even with respect to bills which are required by the Constitution to originate in
the House.
It is insisted, however, that S. No. 1630 was passed not in substitution of H.
No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that what
the Senate did was merely to "take [H. No. 11197] into consideration" in
enacting S. No. 1630. There is really no difference between the Senate
preserving H. No. 11197 up to the enacting clause and then writing its own
version following the enacting clause (which, it would seem, petitioners admit
is an amendment by substitution), and, on the other hand, separately
presenting a bill of its own on the same subject matter. In either case the
result are two bills on the same subject.
Indeed, what the Constitution simply means is that the initiative for filing
revenue, tariff, or tax bills, bills authorizing an increase of the public debt,
private bills and bills of local application must come from the House of
Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local
needs and problems. On the other hand, the senators, who are elected at
large, are expected to approach the same problems from the national
perspective. Both views are thereby made to bear on the enactment of such
laws.
Nor does the Constitution prohibit the filing in the Senate of a substitute bill in
anticipation of its receipt of the bill from the House, so long as action by the
Senate as a body is withheld pending receipt of the House bill. The Court
cannot, therefore, understand the alarm expressed over the fact that on
March 1, 1993, eight months before the House passed H. No. 11197, S. No.
1129 had been filed in the Senate. After all it does not appear that the Senate
ever considered it. It was only after the Senate had received H. No. 11197 on
November 23, 1993 that the process of legislation in respect of it began with
the referral to the Senate Committee on Ways and Means of H. No. 11197
and the submission by the Committee on February 7, 1994 of S. No. 1630.
For that matter, if the question were simply the priority in the time of filing of
bills, the fact is that it was in the House that a bill (H. No. 253) to amend the
VAT law was first filed on July 22, 1992. Several other bills had been filed in
the House before S. No. 1129 was filed in the Senate, and H. No. 11197 was
only a substitute of those earlier bills..
Second. Enough has been said to show that it was within the power of the
Senate to propose S. No. 1630. We not pass to the next argument of
petitioners that S. No. 1630 did not pass three readings on separate days as
required by the Constitution 8 because the second and third readings were
done on the same day, March 24, 1994. But this was because on February
24, 1994 9 and again on March 22, 1994, 10 the President had certified S.
No. 1630 as urgent. The presidential certification dispensed with the
requirement not only of printing but also that of reading the bill on separate
days. The phrase "except when the President certifies to the necessity of its
immediate enactment, etc." in Art. VI, § 26(2) qualified the two stated
conditions before a bill can become a law: (i) the bill has passed three
readings on separate days and (ii) it has been printed in its final form and
distributed three days before it is finally approved.
In other words, the "unless" clause must be read in relation to the "except"
clause, because the two are really coordinate clauses of the same sentence.
To construe the "except" clause as simply dispensing with the second
requirement in the "unless" clause (i.e., printing and distribution three days
before final approval) would not only violate the rules of grammar. It would
also negate the very premise of the "except" clause: the necessity of securing
the immediate enactment of a bill which is certified in order to meet a public
calamity or emergency. For if it is only the printing that is dispensed with by
presidential certification, the time saved would be so negligible as to be of
any use in insuring immediate enactment. It may well be doubted whether
doing away with the necessity of printing and distributing copies of the bill
three days before the third reading would insure speedy enactment of a law
in the face of an emergency requiring the calling of a special election for
President and Vice-President. Under the Constitution such a law is required
to be made within seven days of the convening of Congress in emergency
session. 11
That upon the certification of a bill by the President the requirement of three
readings on separate days and of printing and distribution can be dispensed
with is supported by the weight of legislative practice. For example, the bill
defining the certiorari jurisdiction of this Court which, in consolidation with the
Senate version, became Republic Act No. 5440, was passed on second and
third readings in the House of Representatives on the same day (May 14,
1968) after the bill had been certified by the President as urgent. 12
There is, therefore, no merit in the contention that presidential certification
dispenses only with the requirement for the printing of the bill and its
distribution three days before its passage but not with the requirement of
three readings on separate days, also..
It is nonetheless urged that the certification of the bill in this case was invalid
because there was no emergency, the condition stated in the certification of a
"growing budget deficit" not being an unusual condition in this country.
It is noteworthy that no member of the Senate saw fit to controvert the reality
of the factual basis of the certification. To the contrary, by passing S. No.
1630 on second and third readings on March 24, 1994, the Senate accepted
the President’s certification. Should such certification be now reviewed by this
Court, especially when no evidence has been shown that, because S. No.
1630 was taken up on second and third readings on the same day, the
members of the Senate were deprived of the time needed for the study of a
vital piece of legislation?
The sufficiency of the factual basis of the suspension of the writ of habeas
corpus or declaration of martial law under Art. VII, § 18, or the existence of a
national emergency justifying the delegation of extraordinary powers to the
President under Art. VI, § 23(2), is subject to judicial review because basic
rights of individuals may be at hazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural requirements
designed to insure that bills are duly considered by members of Congress,
certainly should elicit a different standard of review.
Petitioners also invite attention to the fact that the President certified S. No.
1630 and not H. No. 11197. That is because S. No. 1630 was what the
Senate was considering. When the matter was before the House, the
President likewise certified H. No. 9210 then pending in the House.
Third. Finally it is contended that the bill which became Republic Act No.
7716 is the bill which the Conference Committee prepared by consolidating
H. No. 11197 and S. No. 1630. It is claimed that the Conference Committee
report included provisions not found in either the House bill or the Senate bill
and that these provisions were "surreptitiously" inserted by the Conference
Committee. Much is made of the fact that in the last two days of its session
on April 21 and 25, 1994 the Committee met behind closed doors. We are not
told, however, whether the provisions were not the result of the give and take
that often mark the proceedings of conference committees.
Nor is there anything unusual or extraordinary about the fact that the
Conference Committee met in executive sessions. Often the only way to
reach agreement on conflicting provisions is to meet behind closed doors,
with only the conferees present. Otherwise, no compromise is likely to be
made. The Court is not about to take the suggestion of a cabal or sinister
motive attributed to the conferees on the basis solely of their "secret
meetings" on April 21 and 25, 1994, nor read anything into the incomplete
remarks of the members, marked in the transcript of stenographic notes by
ellipses. The incomplete sentences are probably due to the stenographer’s
own limitations or to the incoherence that sometimes characterize
conversations. William Safire noted some such lapses in recorded talks even
by recent past Presidents of the United States.
In any event, in the United States conference committees had been
customarily held in executive sessions with only the conferees and their staffs
in attendance. 13 Only in November 1975 was a new rule adopted requiring
open sessions. Even then a majority of either chamber’s conferees may vote
in public to close the meetings. 14
As to the possibility of an entirely new bill emergency out of a Conference
Committee, it has been explained:.
Under congressional rules of procedure, conference committees are not
expected to make any material change in the measure at issue, either by
deleting provisions to which both houses have already agreed or by inserting
new provisions. But this is a difficult provision to enforce. Note the problem
when one house amends a proposal originating in either house by striking out
everything following the enacting clause and substituting provisions which
make it an entirely new bill. The versions are now altogether different,
permitting a conference committee to draft essentially a new bill . . . 15
The result is a third version, which is considered an "amendment in the
nature of a substitute," the only requirement for which being that the third
version be germane to the subject of the House and Senate bills. 16
Indeed, this Court recently held that it is within the power of a conference
committee to include in its report an entirely new provision that is not found
either in the House bill or in the Senate bill. 17 If the committee can propose
an amendment consisting of one or two provisions, there is no reason why it
cannot propose several provisions, collectively considered as an
"amendment in the nature of a substitute," so long as such amendment is
germane to the subject of the bills before the committee. After all, its report
was not final but needed the approval of both houses of Congress to become
valid as an act of the legislative department. The charge that in this case the
Conference Committee acted as a third legislative chamber is thus without
any basis. 18
Nonetheless, it is argued that under the respective Rules of the Senate and
the House of Representatives a conference committee can only act on the
differing provisions of a Senate bill and a House bill, and that contrary to
these Rules the Conference Committee inserted provisions not found in the
bills submitted to it. The following provisions are cited in support of this
contention:.
Rules of the Senate
Rule XII:.
§ Sec. 26. In the event that the Senate does not agree with the House of
Representatives on the provision of any bill or joint resolution, the differences
shall be settled by a conference committee of both Houses which shall meet
within ten days after their composition.
The President shall designate the members of the conference committee in
accordance with subparagraph (c), Section 3 of Rule III.
Each Conference Committee Report shall contain a detailed and sufficiently
explicit statement of the changes in or amendments to the subject measure,
and shall be signed by the conferees.
The consideration of such report shall not be in order unless the report has
been filed with the Secretary of the Senate and copies thereof have been
distributed to the Members.
(Emphasis added)
Rules of the House of Representatives
Rule XIV:.
§ Sec. 85. Conference Committee Reports. — In the event that the House
does not agree with the Senate on the amendments to any bill or joint
resolution, the differences may be settled by conference committees of both
Chambers.
The consideration of conference committee reports shall always be in order,
except when the journal is being read, while the roll is being called or the
House is dividing on any question. Each of the pages of such reports shall be
signed by the conferees. Each report shall contain a detailed, sufficiently
explicit statement of the changes in or amendments to the subject measure.
The consideration of such report shall not be in order unless copies thereof
are distributed to the Members: Provided, That in the last fifteen days of each
session period it shall be deemed sufficient that three copies of the report,
signed as above provided, are deposited in the office of the Secretary
General.
(Emphasis added)
To be sure, nothing in the Rules limits a conference committee to a
consideration of conflicting provisions. But Rule XLIV, § 112 of the Rules of
the Senate is cited to the effect that "If there is no Rule applicable to a
specific case the precedents of the Legislative Department of the Philippines
shall be resorted to, and as a supplement of these, the Rules contained in
Jefferson’s Manual." The following is then quoted from the Jefferson’s
Manual:.
The managers of a conference must confine themselves to the differences
committed to them . . . and may not include subjects not within
disagreements, even though germane to a question in issue.
Note that, according to Rule XLIX, § 112, in case there is no specific rule
applicable, resort must be to the legislative practice. The Jefferson’s Manual
is resorted to only as supplement. It is common place in Congress that
conference committee reports include new matters which, though germane,
have not been committed to the committee. This practice was admitted by
Senator Raul S. Roco, petitioner in G.R. No. 115543, during the oral
argument in these cases. Whatever, then, may be provided in the Jefferson’s
Manual must be considered to have been modified by the legislative practice.
If a change is desired in the practice it must be sought in Congress since this
question is not covered by any constitutional provision but is only an internal
rule of each house. Thus, Art. VI, § 16(3) of the Constitution provides that
"Each House may determine the rules of its proceedings. . . .".
This observation applies to the other contention that the Rules of the two
chambers were likewise disregarded in the preparation of the Conference
Committee Report because the Report did not contain a "detailed and
sufficiently explicit statement of changes in, or amendments to, the subject
measure." The Report used brackets and capital letters to indicate the
changes. This is a standard practice in bill-drafting. We cannot say that in
using these marks and symbols the Committee violated the Rules of the
Senate and the House. Moreover, this Court is not the proper forum for the
enforcement of these internal Rules. To the contrary, as we have already
ruled, "parliamentary rules are merely procedural and with their observance
the courts have no concern." 19 Our concern is with the procedural
requirements of the Constitution for the enactment of laws. As far as these
requirements are concerned, we are satisfied that they have been faithfully
observed in these cases..
Nor is there any reason for requiring that the Committee’s Report in these
cases must have undergone three readings in each of the two houses. If that
be the case, there would be no end to negotiation since each house may
seek modifications of the compromise bill. The nature of the bill, therefore,
requires that it be acted upon by each house on a "take it or leave it" basis,
with the only alternative that if it is not approved by both houses, another
conference committee must be appointed. But then again the result would
still be a compromise measure that may not be wholly satisfying to both
houses.
Art. VI, § 26(2) must, therefore, be construed as referring only to bills
introduced for the first time in either house of Congress, not to the conference
committee report. For if the purpose of requiring three readings is to give
members of Congress time to study bills, it cannot be gainsaid that H. No.
11197 was passed in the House after three reading; that in the Senate it was
considered on first reading and then referred to a committee of that body; that
although the Senate committee did not report out the House bill, it submitted
a version (S. No. 1630) which it had prepared by "taking into consideration"
the House bill; that for its part the Conference Committee consolidated the
two bills and prepared a compromise version; that the Conference Committee
Report was thereafter approved by the House and the Senate, presumably
after appropriate study by their members. We cannot say that, as a matter of
fact, the members of Congress were not fully informed of the provisions of
the bill. The allegation that the Conference Committee usurped the legislative
power of Congress is, in our view, without warrant in fact and in law.
Fourth. Whatever doubts there may be as to the formal validity of Republic
Act No. 7716 must be resolved in its favor. Our cases 20 manifest firm
adherence to the rule that an enrolled copy of a bill is conclusive not only of
its provisions but also of its due enactment. Not even claims that a proposed
constitutional amendment was invalid because the requisite votes for its
approval had not been obtained 21 or that certain provisions of a statute had
been "smuggled" in the printing of the bill 22 have moved or persuaded us to
look behind the proceedings of a coequal branch of the government. There is
no reason now to depart from this rule.
No claim is here made that the "enrolled bill" rule is absolute. In fact in one
case 23 we "went behind" an enrolled bill and consulted the Journal to
determine whether certain provisions of a statute had been approved by the
Senate in view of the fact that the President of the Senate himself, who had
signed the enrolled bill, admitted a mistake and withdrew his signature, so
that in effect there was no longer an enrolled bill to consider..:red
But where allegations that the constitutional procedures for the passage of
bills have not been observed have no more basis than another allegation that
the Conference Committee "surreptitiously" inserted provisions into a bill
which it had prepared, we should decline the invitation to go behind the
enrolled copy of the bill. To disregard the "enrolled bill" rule in such cases
would be to disregard the respect due the other two departments of our
government.
Fifth. An additional attack on the formal validity of Republic Act No. 7716 is
made by the Philippine Airlines, Inc., petitioner in G.R. No. 11582, namely,
that it violates Art. IV, § 26(1) which provides that "Every bill passed by
Congress shall embrace only one subject which shall be expressed in the title
thereof." It is contended that neither H. No. 11197 nor S. No. 1630 provided
for removal of exemption of PAL transactions from the payment of the VAT
and that this was made only in the Conference Committee bill which became
Republic Act No. 7716 without reflecting this fact in its title.
The title of Republic Act No. 7716 is:.
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM,
WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND
FOR THESE PURPOSES AMENDING AND REPEALING THE RELEVANT
PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, AND FOR OTHER PURPOSES.
Among the provisions of the NIRC amended is sec. 103, which originally
read:.
§ Sec. 103. Exempt transactions. — The following shall be exempt from the
value-added tax:.
...
(q) Transactions which are exempt under special laws or international
agreements to which the Philippines is a signatory.
Among the transactions exempted from the VAT were those of PAL because
it was exempted under its franchise (P.D. No. 1590) from the payment of all
"other taxes . . . now or in the near future," in consideration of the payment by
it either of the corporate income tax or a franchise tax of 2%.
As a result of its amendment by Republic Act No. 7716, § 103 of the NIRC
now provides:.
§ 103. Exempt transactions. — The following shall be exempt from the value-
added tax:.
...
(q) Transactions which are exempt under special laws, except those granted
under Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .
The effect of the amendment is to remove the exemption granted to PAL, as
far as the VAT is concerned.
The question is whether this amendment of § 103 of the NIRC is fairly
embraced in the title of Republic Act No. 7716, although no mention is made
therein of P.D. No. 1590 as among those which the statute amends. We think
it is, since the title states that the purpose of the statute is to expand the VAT
system, and one way of doing this is to widen its base by withdrawing some
of the exemptions granted before. To insist that P.D. No. 1590 be mentioned
in the title of the law, in addition to § 103 of the NIRC, in which it is
specifically referred to, would be to insist that the title of a bill should be a
complete index of its content.
The constitutional requirement that every bill passed by Congress shall
embrace only one subject which shall be expressed in its title is intended to
prevent surprise upon the members of Congress and to inform the people of
pending legislation so that, if they wish to, they can be heard regarding it. If,
in the case at bar, petitioner did not know before that its exemption had been
withdrawn, it is not because of any defect in the title but perhaps for the same
reason other statutes, although published, pass unnoticed until some event
somehow calls attention to their existence. Indeed, the title of Republic Act
No. 7716 is not any more general than the title of PAL’s own franchise under
P.D. No. 1590, and yet no mention is made of its tax exemption. The title of
P.D. No. 1590 is:.
AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE AIRLINES, INC.
TO ESTABLISH, OPERATE, AND MAINTAIN AIR-TRANSPORT SERVICES
IN THE PHILIPPINES AND BETWEEN THE PHILIPPINES AND OTHER
COUNTRIES.
The trend in our cases is to construe the constitutional requirement in such a
manner that courts do not unduly interfere with the enactment of necessary
legislation and to consider it sufficient if the title expresses the general
subject of the statute and all its provisions are germane to the general subject
thus expressed. 24
It is further contended that amendment of petitioner’s franchise may only be
made by special law, in view of sec. 24 of P.D. No. 1590 which provides:.

This franchise, as amended, or any section or provision hereof may only be
modified, amended, or repealed expressly by a special law or decree that
shall specifically modify, amend, or repeal this franchise or any section or
provision thereof..
This provision is evidently intended to prevent the amendment of the
franchise by mere implication resulting from the enactment of a later
inconsistent statute, in consideration of the fact that a franchise is a contract
which can be altered only by consent of the parties. Thus in Manila Railroad
Co. v. Rafferty, 25 it was held that an Act of the U.S. Congress, which
provided for the payment of tax on certain goods and articles imported into
the Philippines, did not amend the franchise of plaintiff, which exempted it
from all taxes except those mentioned in its franchise. It was held that a
special law cannot be amended by a general law.
In contrast, in the case at bar, Republic Act No. 7716 expressly amends
PAL’s franchise (P.D. No. 1590) by specifically excepting from the grant of
exemptions from the VAT PAL’s exemption under P.D. No. 1590. This is
within the power of Congress to do under Art. XII, § 11 of the Constitution,
which provides that the grant of a franchise for the operation of a public utility
is subject to amendment, alteration or repeal by Congress when the common
good so requires.
II. SUBSTANTIVE ISSUES
A. Claims of Press Freedom, Freedom of Thought
and Religious Freedom
The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a
nonprofit organization of newspaper publishers established for the
improvement of journalism in the Philippines. On the other hand, petitioner in
G.R. No. 115781, the Philippine Bible Society (PBS), is a nonprofit
organization engaged in the printing and distribution of bibles and other
religious articles. Both petitioners claim violations of their rights under § § 4
and 5 of the Bill of Rights as a result of the enactment of the VAT Law.
The PPI question the law insofar as it has withdrawn the exemption
previously granted to the press under § 103 (f) of the NIRC. Although the
exemption was subsequently restored by administrative regulation with
respect to the circulation income of newspapers, the PPI presses its claim
because of the possibility that the exemption may still be removed by mere
revocation of the regulation of the Secretary of Finance. On the other hand,
the PBS goes so far as to question the Secretary’s power to grant exemption
for two reasons: (1) The Secretary of Finance has no power to grant tax
exemption because this is vested in Congress and requires for its exercise
the vote of a majority of all its members 26 and (2) the Secretary’s duty is to
execute the law.
§ 103 of the NIRC contains a list of transactions exempted from VAT. Among
the transactions previously granted exemption were:.
(f) Printing, publication, importation or sale of books and any newspaper,
magazine, review, or bulletin which appears at regular intervals with fixed
prices for subscription and sale and which is devoted principally to the
publication of advertisements.
Republic Act No. 7716 amended § 103 by deleting par. (f) with the result that
print media became subject to the VAT with respect to all aspects of their
operations. Later, however, based on a memorandum of the Secretary of
Justice, respondent Secretary of Finance issued Revenue Regulations No.
11-94, dated June 27, 1994, exempting the "circulation income of print media
pursuant to § 4 Article III of the 1987 Philippine Constitution guaranteeing
against abridgment of freedom of the press, among others." The exemption
of "circulation income" has left income from advertisements still subject to the
VAT.
It is unnecessary to pass upon the contention that the exemption granted is
beyond the authority of the Secretary of Finance to give, in view of PPI’s
contention that even with the exemption of the circulation revenue of print
media there is still an unconstitutional abridgment of press freedom because
of the imposition of the VAT on the gross receipts of newspapers from
advertisements and on their acquisition of paper, ink and services for
publication. Even on the assumption that no exemption has effectively been
granted to print media transactions, we find no violation of press freedom in
these cases.
To be sure, we are not dealing here with a statute that on its face operates in
the area of press freedom. The PPI’s claim is simply that, as applied to
newspapers, the law abridges press freedom. Even with due recognition of its
high estate and its importance in a democratic society, however, the press is
not immune from general regulation by the State. It has been held:.
The publisher of a newspaper has no immunity from the application of
general laws. He has no special privilege to invade the rights and liberties of
others. He must answer for libel. He may be punished for contempt of court.
Like others, he must pay equitable and nondiscriminatory taxes on his
business. .27
The PPI does not dispute this point, either.
What it contends is that by withdrawing the exemption previously granted to
print media transactions involving printing, publication, importation or sale of
newspapers, Republic Act No. 7716 has singled out the press for
discriminatory treatment and that within the class of mass media the law
discriminates against print media by giving broadcast media favored
treatment. We have carefully examined this argument, but we are unable to
find a differential treatment of the press by the law, much less any censorial
motivation for its enactment. If the press is now required to pay a value-
added tax on its transactions, it is not because it is being singled out, much
less targeted, for special treatment but only because of the removal of the
exemption previously granted to it by law. The withdrawal of exemption is all
that is involved in these cases. Other transactions, likewise previously
granted exemption, have been delisted as part of the scheme to expand the
base and the scope of the VAT system. The law would perhaps be open to
the charge of discriminatory treatment if the only privilege withdrawn had
been that granted to the press. But that is not the case..: virtual law library
The situation in the case at bar is indeed a far cry from those cited by the PPI
in support of its claim that Republic Act No. 7716 subjects the press to
discriminatory taxation. In the cases cited, the discriminatory purpose was
clear either from the background of the law or from its operation. For
example, in Grosjean v. American Press Co., 28 the law imposed a license
tax equivalent to 2% of the gross receipts derived from advertisements only
on newspapers which had a circulation of more than 20,000 copies per week.
Because the tax was not based on the volume of advertisement alone but
was measured by the extent of its circulation as well, the law applied only to
the thirteen large newspapers in Louisiana, leaving untaxed four papers with
circulation of only slightly less than 20,000 copies a week and 120 weekly
newspapers which were in serious competition with the thirteen newspapers
in question. It was well known that the thirteen newspapers had been critical
of Senator Huey Long, and the Long-dominated legislature of Louisiana
responded by taxing what Long described as the "lying newspapers" by
imposing on them "a tax on lying." The effect of the tax was to curtail both
their revenue and their circulation. As the U.S. Supreme Court noted, the tax
was "a deliberate and calculated device in the guise of a tax to limit the
circulation of information to which the public is entitled in virtue of the
constitutional guaranties." 29 The case is a classic illustration of the warning
that the power to tax is the power to destroy.
In the other case 30 invoked by the PPI, the press was also found to have
been singled out because everything was exempt from the "use tax" on ink
and paper, except the press. Minnesota imposed a tax on the sales of goods
in that state. To protect the sales tax, it enacted a complementary tax on the
privilege of "using, storing or consuming in that state tangible personal
property" by eliminating the residents’ incentive to get goods from outside
states where the sales tax might be lower. The Minnesota Star Tribune was
exempted from both taxes from 1967 to 1971. In 1971, however, the state
legislature amended the tax scheme by imposing the "use tax" on the cost of
paper and ink used for publication. The law was held to have singled out the
press because (1) there was no reason for imposing the "use tax" since the
press was exempt from the sales tax and (2) the "use tax" was laid on an
"intermediate transaction rather than the ultimate retail sale." Minnesota had
a heavy burden of justifying the differential treatment and it failed to do so. In
addition, the U.S. Supreme Court found the law to be discriminatory because
the legislature, by again amending the law so as to exempt the first $100,000
of paper and ink used, further narrowed the coverage of the tax so that "only
a handful of publishers pay any tax at all and even fewer pay any significant
amount of tax." 31 The discriminatory purpose was thus very clear.
More recently, in Arkansas Writers’ Project, Inc. v. Ragland, 32 it was held
that a law which taxed general interest magazines but not newspapers and
religious, professional, trade and sports journals was discriminatory because
while the tax did not single out the press as a whole, it targeted a small group
within the press. What is more, by differentiating on the basis of contents
(i.e., between general interest and special interests such as religion or sports)
the law became "entirely incompatible with the First Amendment’s guarantee
of freedom of the press.".
These cases come down to this: that unless justified, the differential
treatment of the press creates risks of suppression of expression. In contrast,
in the cases at bar, the statute applies to a wide range of goods and services.
The argument that, by imposing the VAT only on print media whose gross
sales exceeds P480,000 but not more than P750,000, the law discriminates
33 is without merit since it has not been shown that as a result the class
subject to tax has been unreasonably narrowed. The fact is that this limitation
does not apply to the press alone but to all sales. Nor is impermissible motive
shown by the fact that print media and broadcast media are treated
differently. The press is taxed on its transactions involving printing and
publication, which are different from the transactions of broadcast media.
There is thus a reasonable basis for the classification.
The cases canvassed, it must be stressed, eschew any suggestion that
"owners of newspapers are immune from any forms of ordinary taxation." The
license tax in the Grosjean case was declared invalid because it was "one
single in kind, with a long history of hostile misuse against the freedom of the
press." 34 On the other hand, Minneapolis Star acknowledged that "The First
Amendment does not prohibit all regulation of the press [and that] the States
and the Federal Government can subject newspapers to generally applicable
economic regulations without creating constitutional problems." 35
What has been said above also disposes of the allegations of the PBS that
the removal of the exemption of printing, publication or importation of books
and religious articles, as well as their printing and publication, likewise
violates freedom of thought and of conscience. For as the U.S. Supreme
Court unanimously held in Jimmy Swaggart Ministries v. Board of
Equalization, 36 the Free Exercise of Religion Clause does not prohibit
imposing a generally applicable sales and use tax on the sale of religious
material by a religious organization.
This brings us to the question whether the registration provision of the law, 37
although of general applicability, nonetheless is invalid when applied to the
press because it lays a prior restraint on its essential freedom. The case of
American Bible Society v. City of Manila 38 is cited by both the PBS and the
PPI in support of their contention that the law imposes censorship. There, this
Court held that an ordinance of the City of Manila, which imposed a license
fee on those engaged in the business of general merchandise, could not be
applied to the appellant’s sale of bibles and other religious literature. This
Court relied on Murdock v. Pennsylvania 39 in which it was held that, as a
license fee is fixed in amount and unrelated to the receipts of the taxpayer,
the license fee, when applied to a religious sect, was actually being imposed
as a condition for the exercise of the sect’s right under the Constitution. For
that reason, it was held, the license fee "restrains in advance those
constitutional liberties of press and religion and inevitably tends to suppress
their exercise." 40
But, in this case, the fee in § 107, although a fixed amount (P1,000), is not
imposed for the exercise of a privilege but only for the purpose of defraying
part of the cost of registration. The registration requirement is a central
feature of the VAT system. It is designed to provide a record of tax credits
because any person who is subject to the payment of the VAT pays an input
tax, even as he collects an output tax on sales made or services rendered.
The registration fee is thus a mere administrative fee, one not imposed on the
exercise of a privilege, much less a constitutional right..
For the foregoing reasons, we find the attack on Republic Act No. 7716 on
the ground that it offends the free speech, press and freedom of religion
guarantees of the Constitution to be without merit. For the same reasons, we
find the claim of the Philippine Educational Publishers Association (PEPA) in
G.R. No. 115931 that the increase in the price of books and other educational
materials as a result of the VAT would violate the constitutional mandate to
the government to give priority to education, science and technology (Art. II,
sec. 17) to be untenable.
B. Claims of Regressivity, Denial of Due Process, Equal Protection,
and Impairment of Contracts
There is basis for passing upon claims that on its face the statute violates the
guarantees of freedom of speech, press and religion. The possible "chilling
effect" which it may have on the essential freedom of the mind and
conscience and the need to assure that the channels of communication are
open and operating importunately demand the exercise of this Court’s power
of review.
There is, however, no justification for passing upon the claims that the law
also violates the rule that taxation must be progressive and that it denies
petitioners’ right to due process and the equal protection of the laws. The
reason for this different treatment has been cogently stated by an eminent
authority on constitutional law thus:" [W]hen freedom of the mind is imperiled
by law, it is freedom that commands a moments of respect; when property is
imperiled it is the lawmakers’ judgment that commands respect. This dual
standard may not precisely reverse the presumption of constitutionality in civil
liberties cases, but obviously it does set up a hierarchy of values within the
due process clause." 41
Indeed, the absence of threat of immediate harm makes the need for judicial
intervention less evident and underscores the essential nature of petitioners’
attack on the law on the grounds of regressivity, denial of due process and
equal protection and impairment of contracts as a mere academic discussion
of the merits of the law. For the fact is that there have even been no notices
of assessments issued to petitioners and no determinations at the
administrative levels of their claims so as to illuminate the actual operation of
the law and enable us to reach sound judgment regarding so fundamental
questions as those raised in these suits..
Thus, the broad argument against the VAT is that it is regressive and that it
violates the requirement that "The rule of taxation shall be uniform and
equitable [and] Congress shall evolve a progressive system of taxation." 42
Petitioners in G.R. No. 115781 quote from a paper, entitled "VAT Policy
Issues: Structure, Regressivity, Inflation and Exports" by Alan A. Tait of the
International Monetary Fund, that "VAT payment by low-income households
will be a higher proportion of their incomes (and expenditures) than payments
by higher-income households. That is, the VAT will be regressive."
Petitioners contend that as a result of the uniform 10% VAT, the tax on
consumption goods of those who are in the higher-income bracket, which
before were taxed at a rate higher than 10%, has been reduced, while basic
commodities, which before were taxed at rates ranging from 3% to 5%, are
now taxed at a higher rate.
Just as vigorously as it is asserted that the law is regressive, the opposite
claim is pressed by respondents that in fact it distributes the tax burden to as
many goods and services as possible particularly to those which are within
the reach of higher-income groups, even as the law exempts basic goods
and services. It is thus equitable. The goods and properties subject to the
VAT are those used or consumed by higher-income groups. These include
real properties held primarily for sale to customers or held for lease in the
ordinary course of business, the right or privilege to use industrial,
commercial or scientific equipment, hotels, restaurants and similar places,
tourist buses, and the like. On the other hand, small business establishments,
with annual gross sales of less than P500,000, are exempted. This,
according to respondents, removes from the coverage of the law some
30,000 business establishments. On the other hand, an occasional paper 43
of the Center for Research and Communication cites a NEDA study that the
VAT has minimal impact on inflation and income distribution and that while
additional expenditure for the lowest income class is only P301 or 1.49% a
year, that for a family earning P500,000 a year or more is P8,340 or 2.2%.
Lacking empirical data on which to base any conclusion regarding these
arguments, any discussion whether the VAT is regressive in the sense that it
will hit the "poor" and middle-income group in society harder than it will the
"rich," as the Cooperative Union of the Philippines (CUP) claims in G.R. No.
115873, is largely an academic exercise. On the other hand, the CUP’s
contention that Congress’ withdrawal of exemption of producers
cooperatives, marketing cooperatives, and service cooperatives, while
maintaining that granted to electric cooperatives, not only goes against the
constitutional policy to promote cooperatives as instruments of social justice
(Art. XII, § 15) but also denies such cooperatives the equal protection of the
law is actually a policy argument. The legislature is not required to adhere to
a policy of "all or none" in choosing the subject of taxation. 44
Nor is the contention of the Chamber of Real Estate and Builders Association
(CREBA), petitioner in G.R. 115754, that the VAT will reduce the mark up of
its members by as much as 85% to 90% any more concrete. It is a mere
allegation. On the other hand, the claim of the Philippine Press Institute,
petitioner in G.R. No. 115544, that the VAT will drive some of its members
out of circulation because their profits from advertisements will not be enough
to pay for their tax liability, while purporting to be based on the financial
statements of the newspapers in question, still falls short of the establishment
of facts by evidence so necessary for adjudicating the question whether the
tax is oppressive and confiscatory.
Indeed, regressivity is not a negative standard for courts to enforce. What
Congress is required by the Constitution to do is to "evolve a progressive
system of taxation." This is a directive to Congress, just like the directive to it
to give priority to the enactment of laws for the enhancement of human
dignity and the reduction of social, economic and political inequalities (Art.
XIII, § 1), or for the promotion of the right to "quality education" (Art. XIV, § 1).
These provisions are put in the Constitution as moral incentives to legislation,
not as judicially enforceable rights.
At all events, our 1988 decision in Kapatiran 45 should have laid to rest the
question now raised against the VAT. There similar arguments made against
the original VAT Law (Executive Order No. 273) were held to be hypothetical,
with no more basis than newspaper articles which this Court found to be
"hearsay and [without] evidentiary value." As Republic Act No. 7716 merely
expands the base of the VAT system and its coverage as provided in the
original VAT Law, further debate on the desirability and wisdom of the law
should have shifted to Congress.
Only slightly less abstract but nonetheless hypothetical is the contention of
CREBA that the imposition of the VAT on the sales and leases of real estate
by virtue of contracts entered into prior to the effectivity of the law would
violate the constitutional provision that "No law impairing the obligation of
contracts shall be passed." It is enough to say that the parties to a contract
cannot, through the exercise of prophetic discernment, fetter the exercise of
the taxing power of the State. For not only are existing laws read into
contracts in order to fix obligations as between parties, but the reservation of
essential attributes of sovereign power is also read into contracts as a basic
postulate of the legal order. The policy of protecting contracts against
impairment presupposes the maintenance of a government which retains
adequate authority to secure the peace and good order of society. 46
In truth, the Contract Clause has never been thought as a limitation on the
exercise of the State’s power of taxation save only where a tax exemption
has been granted for a valid consideration. 47 Such is not the case of PAL in
G.R. No. 115852, and we do not understand it to make this claim. Rather, its
position, as discussed above, is that the removal of its tax exemption cannot
be made by a general, but only by a specific, law.chanroblesvirtual|awlibrary
The substantive issues raised in some of the cases are presented in abstract,
hypothetical form because of the lack of a concrete record. We accept that
this Court does not only adjudicate private cases; that public actions by "non-
Hohfeldian" 48 or ideological plaintiffs are now cognizable provided they
meet the standing requirement of the Constitution; that under Art. VIII, § 1,
par. 2 the Court has a "special function" of vindicating constitutional rights.
Nonetheless the feeling cannot be escaped that we do not have before us in
these cases a fully developed factual record that alone can impart to our
adjudication the impact of actuality 49 to insure that decision-making is
informed and well grounded. Needless to say, we do not have power to
render advisory opinions or even jurisdiction over petitions for declaratory
judgment. In effect we are being asked to do what the Conference Committee
is precisely accused of having done in these cases — to sit as a third
legislative chamber to review legislation.
We are told, however, that the power of judicial review is not so much power
as it is duty imposed on this Court by the Constitution and that we would be
remiss in the performance of that duty if we decline to look behind the
barriers set by the principle of separation of powers. Art. VIII, § 1, par. 2 is
cited in support of this view:.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government..
To view the judicial power of review as a duty is nothing new. Chief Justice
Marshall said so in 1803, to justify the assertion of this power in Marbury v.
Madison:.
It is emphatically the province and duty of the judicial department to say what
the law is. Those who apply the rule to particular cases must of necessity
expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. 50
Justice Laurel echoed this justification in 1936 in Angara v. Electoral
Commission:.
And when the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees
to them. 51
This conception of the judicial power has been affirmed in several cases 52
of this Court following Angara.
It does not add anything, therefore, to invoke this "duty" to justify this Court’s
intervention in what is essentially a case that at best is not ripe for
adjudication. That duty must still be performed in the context of a concrete
case or controversy, as Art. VIII, § 5(2) clearly defines our justification in
terms of "cases," and nothing but "cases." That the other departments of the
government may have committed a grave abuse of discretion is not an
independent ground for exercising our power. Disregard of the essential limits
imposed by the case and controversy requirement can in the long run only
result in undermining our authority as a court of law. For, as judges, what we
are called upon to render is judgment according to what may appear to be
the opinion of the day.
In the preceding pages we have endeavored to discuss, within limits, the
validity of Republic Act No. 7716 in its formal and substantive aspects as this
has been raised in the various cases before us. To sum up, we hold:.
(1) That the procedural requirements of the Constitution have been complied
with by Congress in the enactment of the statute;
(2) That judicial inquiry whether the formal requirements for the enactment of
statutes — beyond those prescribed by the Constitution — have been
observed is precluded by the principle of separation of powers;
(3) That the law does not abridge freedom of speech, expression or the
press, nor interfere with the free exercise of religion, nor deny to any of the
parties the right to an education; and
(4) That, in view of the absence of a factual foundation of record, claims that
the law is regressive, oppressive and confiscatory and that it violates vested
rights protected under the Contract Clause are prematurely raised and do not
justify the grant of prospective relief by writ of prohibition.

WHEREFORE, the petitions in these cases are DISMISSED.

 EN BANC
[G.R. No. 87636. November 19, 1990.]
NEPTALI A. GONZALES, ERNESTO M. MACEDA, ALBERTO G.
ROMULO, HEHERSON T. ALVAREZ, EDGARDO J. ANGARA, AGAPITO
A. AQUINO, TEOFISTO T. GUINGONA, JR., ERNESTO F. HERRERA,
JOSE D. LINA, JR., JOHN OSMEÑA, VICENTE T. PATERNO, RENE A.
SAGUISAG, LETICIA RAMOS-SHAHANI, MAMINTAL ABDUL J.
TAMANO, WIGBERTO E. TAÑADA, JOVITO R. SALONGA, ORLANDO S.
MERCADO, JUAN PONCE ENRILE, JOSEPH ESTRADA, SOTERO
LAUREL, AQUILINO PIMENTEL, JR., SANTANINA RASUL, VICTOR
ZIGA, Petitioners, v. HON. CATALINO MACARAIG, JR., HON. VICENTE
JAYME, HON. CARLOS DOMINGUEZ, HON. FULGENCIO FACTORAN,
HON. FIORELLO ESTUAR, HON. LOURDES QUISUMBING, HON. RAUL
MANGLAPUS, HON. ALFREDO BENGSON, HON. JOSE CONCEPCION,
HON. LUIS SANTOS, HON. MITA PARDO DE TAVERA, HON. RAINERIO
REYES, HON. GUILLERMO CARAGUE, HON. ROSALINA CAJUCOM and
HON. EUFEMIO C. DOMINGO, Respondents.
Gonzales, Batiller, Bilog & Associates for petitioners.
DECISION
MELENCIO-HERRERA, J.:
This constitutional controversy between the legislative and executive
departments of government stemmed from Senate Resolution No. 381,
adopted on 2 February 1989,
"Authorizing and Directing the Committee on Finance to Bring in the Name of
the Senate of the Philippines the Proper Suit with the Supreme Court of the
Philippines contesting the Constitutionality of the Veto by the President of
Special and General Provisions, particularly Section 55, of the General
Appropriation Bill of 1989 (H.B. No. 19186) and For Other Purposes.".
Petitioners are thus before us as members and ex-officio members of the
Committee on Finance of the Senate and as "substantial taxpayers whose
vital interests may be affected by this case.".
Respondents are members of the Cabinet tasked with the implementation of
the General Appropriations Act of 1989 and 1990, some of them incumbents,
while others have already been replaced, and include the National Treasurer
and the Commission on Audit Chairman, all of whom are being sued in their
official capacities..
The Background Facts
On 16 December 1988, Congress passed House Bill No. 19186, or the
General Appropriations Bill for the Fiscal Year 1989. As passed, it eliminated
or decreased certain items included in the proposed budget submitted by the
President.
Pursuant to the constitutional provision on the passage of bills, Congress
presented the said Bill to the President for consideration and approval.
On 29 December 1988, the President signed the Bill into law, and declared
the same to have become Rep. Act No. 6688. In the process, seven (7)
Special Provisions and Section 55, a "General Provision," were vetoed.
On 2 February 1989, the Senate, in the same Resolution No. 381 mentioned
at the outset, further expressed:.
"WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate
express its sense that the veto by the President of Section 55 of the
GENERAL PROVISIONS of the General Appropriation Bill of 1989 (H.B. No.
19186) is unconstitutional and, therefore, void and without any force and
effect; hence, the aforesaid Section 55 remains;
"x x x"
Thus it is that, on 11 April 1989, this Petition for Prohibition/ Mandamus was
filed, with a prayer for the issuance of a Writ of Preliminary Injunction and
Restraining Order, assailing mainly the constitutionality or legality of the
Presidential veto of Section 55, and seeking to enjoin respondents from
implementing Rep. Act No. 6688. No Restraining Order was issued by the
Court.
The Comment, submitted by the Solicitor General on 25 August 1989 (after
several extensions granted), was considered as the Answer to the Petition
and, on 7 September 1989, the Court Resolved to give due course to the
Petition and to require the parties to submit their respective Memoranda.
Petitioners filed their Memorandum on 12 December 1989. But, on 19
January 1990, they filed a Motion for Leave to File and to Admit
Supplemental Petition, which was granted, basically raising the same issue
as in the original Petition, this time questioning the President’s veto of certain
provisions, particularly Section 16, of House Bill 26934, or the General
Appropriations Bill for Fiscal Year 1990, which the President declared to have
become Rep. Act No. 6831..
The Solicitor General’s Comment on the Supplemental Petition, on behalf of
respondent public officials, was submitted on 24 April 1990. On 15 May 1990,
the Court required the parties to file simultaneously their consolidated
memoranda, to include the Supplemental Petition, within an inextendible
period of thirty (30) days from notice. However, because the original
Resolution of 15 May 1990 merely required the filing of a memorandum on
the Supplemental Petition, a revised Resolution requiring consolidated
memoranda, within thirty (30) days from notice, was released on 28 June
1990.
The Consolidated Memoranda were respectively filed on 26 June 1990 by
petitioners, and on 1 August 1990 by respondents. On 14 August 1990, both
Memoranda were Noted and the case was deemed submitted for
deliberation.
On 11 September 1990, the Court heard the case on oral argument and
required the submittal of supplemental Memoranda, the last of which was
filed on 26 September 1990.
The Vetoed Provisions and Reasons Therefor
Section 55 of the Appropriations Act of 1989 (Section 55 [FY ‘89] hereinafter),
which was vetoed by the President, reads:.
"SEC. 55. Prohibition Against the Restoration or Increase of Recommended
Appropriations Disapproved and/or Reduced by Congress: No item of
appropriation recommended by the President in the Budget submitted to
Congress pursuant to Article VII, Section 22 of the Constitution which has
been disapproved or reduced in this Act shall be restored or increased by the
use of appropriations authorized for other purposes by augmentation. An item
of appropriation for any purpose recommended by the President in the
Budget shall be deemed to have been disapproved by Congress if no
corresponding appropriation for the specific purpose is provided in this Act.".
We quote below the reason for the Presidential veto:.
"The provision violates Section 25 (5) of Article VI of the Constitution. If
allowed, this Section would nullify not only the constitutional and statutory
authority of the President, but also that of the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and Heads of Constitutional Commissions, to augment any item in the
general appropriations law for their respective offices from savings in other
items of their respective appropriations. A careful review of the legislative
action on the budget as submitted shows that in almost all cases, the budgets
of agencies as recommended by the President, as well as those of the
Senate, the House of Representatives, and the Constitutional Commissions,
have been reduced. An unwanted consequence of this provision is the
inability of the President, the President of the Senate, Speaker of the House
of Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions to augment any item of appropriation of their
respective offices from savings in other items of their respective
appropriations even in cases of calamity or in the event of urgent need to
accelerate the implementation of essential public services and infrastructure
projects.
"Furthermore, this provision is inconsistent with Section 12 and other similar
provisions of this General Appropriations Act.".
A substantially similar provision as the vetoed Section 55 appears in the
Appropriations Act of 1990, this time crafted as follows:.
"B. GENERAL PROVISIONS
"Sec. 16. Use of Savings. — The President of the Philippines, the President
of the Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, the Heads of Constitutional Commissions
under Article IX of the Constitution and the Ombudsman are hereby
authorized to augment any item in this Act for their respective offices from
savings in other items of their appropriations: PROVIDED, THAT NO ITEM
OF APPROPRIATION RECOMMENDED BY THE PRESIDENT IN THE
BUDGET SUBMITTED TO CONGRESS PURSUANT TO ARTICLE VII,
SECTION 22 OF THE CONSTITUTION WHICH HAS BEEN DISAPPROVED
OR REDUCED BY CONGRESS SHALL BE RESTORED OR INCREASED
BY THE USE OF APPROPRIATIONS AUTHORIZED FOR OTHER
PURPOSES IN THIS ACT BY AUGMENTATION. AN ITEM OF
APPROPRIATION FOR ANY PURPOSE RECOMMENDED BY THE
PRESIDENT IN THE BUDGET SHALL BE DEEMED TO HAVE BEEN
DISAPPROVED BY CONGRESS IF NO CORRESPONDING
APPROPRIATION FOR THE SPECIFIC PURPOSE IS PROVIDED IN THIS
ACT.".
It should be noted that in the 1989 Appropriations Act, the "Use of Savings"
appears in Section 12, separate and apart from Section 55; whereas in the
1990 Appropriations Act, the "Use of Savings" and the vetoed provision have
been commingled in Section 16 only, with the vetoed provision made to
appear as a condition or restriction.
Essentially the same reason was given for the veto of Section 16 (FY ‘90),
thus:.
"I am vetoing this provision for the reason that it violates Section 25 (5) of
Article VI of the Constitution in relation to Sections 44 and 45 of P.D. No.
1177 as amended by R.A. No. 6670 which authorizes the President to use
savings to augment any item of appropriations in the Executive Branch of the
Government.
"Parenthetically, there is a case pending in the Supreme Court relative to the
validity of the President’s veto on Section 55 of the General Provisions of
Republic Act No. 6688 upon which the amendment on this Section was
based. Inclusion, therefore, of the proviso in the last sentence of this section
might prejudice the Executive Branch’s position in the case.
"Moreover, if allowed, this Section would nullify not only the constitutional and
statutory authority of the President, but also that of the officials enumerated
under Section 25 (5) of Article VI of the Constitution, to augment any item in
the general appropriations law for their respective appropriations.
"An unwanted consequence of this provision would be the inability of the
President, the President of the Senate, Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and heads of
Constitutional Commissions to augment any item of appropriation of their
respective offices from savings in other items of their respective
appropriations even in cases of national emergency or in the event of urgent
need to accelerate the implementation of essential public services and
infrastructure projects.".
The fundamental issue raised is whether or not the veto by the President of
Section 55 of the 1989 Appropriations Bill (Section 55 FY ‘89), and
subsequently of its counterpart Section 16 of the 1990 Appropriations Bill
(Section 16 FY ‘90), is unconstitutional and without effect..
The Contending Views
In essence, petitioners’ cause is anchored on the following grounds: (1) the
President’s line-veto power as regards appropriation bills is limited to item/s
and does not cover provision/s; therefore, she exceeded her authority when
she vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90) which are provisions;
(2) when the President objects to a provision of an appropriation bill, she
cannot exercise the item-veto power but should veto the entire bill; (3) the
item-veto power does not carry with it the power to strike out conditions or
restrictions for that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in Article VI,
Section 25 [5] of the 1987 Constitution, has to be provided for by law and,
therefore, Congress is also vested with the prerogative to impose restrictions
on the exercise of that power.
The Solicitor General, as counsel for public respondents, counters that the
issue at bar is a political question beyond the power of this Court to
determine; that petitioners had a political remedy, which was to override the
veto; that Section 55 is a "rider" because it is extraneous to the
Appropriations Act and, therefore, merits the President’s veto; that the power
of the President to augment items in the appropriations for the executive
branches had already been provided for in the Budget Law, specifically
Sections 44 and 45 of Pres. Decree No. 1177, as amended by Rep. Act No.
6670 (4 August 1988); and that the President is empowered by the
Constitution to veto provisions or other "distinct and severable parts" of an
Appropriations Bill.
Judicial Determination
With the Senate maintaining that the President’s veto is unconstitutional, and
that charge being controverted, there is an actual case or justiciable
controversy between the Upper House of Congress and the executive
department that may be taken cognizance of by this Court.
"Indeed, where the legislature or the executive branch is acting within the
limits of its authority, the judiciary cannot and ought not to interfere with the
former. But where the legislature or the executive acts beyond the scope of
its constitutional powers, it becomes the duty of the judiciary to declare what
the other branches of the government had assumed to do as void. This is the
essence of judicial power conferred by the Constitution ‘in one Supreme
Court and in such lower courts as may be established by law’ [Art. VIII,
Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution
and which was adopted as part of the Freedom Constitution, and Art. VIII,
Section 1 of the 1987 Constitution] and which power this Court has exercised
in many instances" (Demetria v. Alba, G.R. No. 71977, 27 February 1987,
148 SCRA 209).
We take note as well of what petitioners stress as the "imperative need for a
definitive ruling by this Court as to the exact parameters of the exercise of the
item-veto power of the President as regards appropriation bills . . . in order to
obviate the recurrence of a similar problem whenever a general
appropriations bill is passed by Congress." Indeed, the contextual reiteration
of Section 55 (FY 89) in Section 16 (FY ‘90) and again, its veto by the
President, underscore the need for judicial arbitrament. The Court does not
thereby assert its superiority over or exhibit lack of respect due the other co-
ordinate departments but discharges a solemn and sacred duty to determine
essentially the scope of intersecting powers in regard which the Executive
and the Senate are in dispute..: virtual law library
Petitioners have also brought this suit as taxpayers. As ruled in Sanidad v.
COMELEC (No. L-44640, 12 October 1976, 73 SCRA 333), this Court enjoys
the open discretion to entertain taxpayers suits or not. In Tolentino v.
COMELEC (No. L-34150, 16 October 1961, 41 SCRA 702), it was also held
that a member of the Senate has the requisite personality to bring a suit
where a constitutional issue is raised..
The political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases.
"SECTION 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.".
Nor is this the first time that the constitutionality of a Presidential veto is
raised to the Court. The two oft-cited cases are Bengson v. Secretary of
Justice (62 Phil. 912 [1936]), penned by Justice George A. Malcolm, which
upheld the veto questioned before it, but which decision was reversed by the
U.S. Supreme Court in the same entitled case in 292 U.S. 410, infra,
essentially on the ground that an Appropriations Bill was not involved. The
second case is Bolinao Electronics v. Valencia (G.R. No. L-20740, 30 June
1964, 11 SCRA 486), infra, which rejected the President’s veto of a condition
or restriction in an Appropriations Bill.
The Extent of the President’s Item-veto Power
The focal issue for resolution is whether or not the President exceeded the
item-veto power accorded by the Constitution. Or differently put, has the
President the power to veto "provisions" of an Appropriations Bill?
Petitioners contend that Section 55 (FY ‘89) and Section 16 (FY ‘90) are
provisions and not items and are, therefore, outside the scope of the item-
veto power of the President..
The veto power of the President is expressed in Article VI, Section 27 of the
1987 Constitution reading, in full, as follows:.
"Sec. 27. (1) Every bill passed by the Congress shall, before it becomes a
law, be presented to the President. If he approves the same, he shall sign it;
otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its
Journal and proceed to reconsider it. If, after such reconsideration, two-thirds
of all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House,
it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the Members voting for or
against shall be entered in its Journal. The President shall communicate his
veto of any bill to the House where it originated within thirty days after the
date of receipt thereof; otherwise, it shall become a law as if he had signed it.
"(2) The President shall have the power to veto any particular item or items in
an appropriation, revenue, or tariff bill, but the veto shall not affect the item or
items to which he does not object.".
Paragraph (1) refers to the general veto power of the President and if
exercised would result in the veto of the entire bill, as a general rule.
Paragraph (2) is what is referred to as the item-veto power or the line-veto
power. It allows the exercise of the veto over a particular item or items in an
appropriation, revenue, or tariff bill. As specified, the President may not veto
less than all of an item of an Appropriations Bill. In other words, the power
given the executive to disapprove any item or items in an Appropriations Bill
does not grant the authority to veto a part of an item and to approve the
remaining portion of the same item.
Originally, item veto exclusively referred to veto of items of appropriation bills
and first came into being in the former Organic Act, the Act of Congress of 29
August 1916. This was followed by the 1935 Constitution, which contained a
similar provision in its Section 11(2), Article VI, except that the veto power
was made more expansive by the inclusion of this sentence:.
". . . When a provision of an appropriation bill affects one or more items of the
same, the President can not veto the provision without at the same time
vetoing the particular item or items to which it relates . . .".
The 1935 Constitution further broadened the President’s veto power to
include the veto of item or items of revenue and tariff bills.
With the advent of the 1973 Constitution, the section took a more simple and
compact form, thus:.
"Section 20 (2). The Prime Minister shall have the power to veto any
particular item or items in an appropriation, revenue, or tariff bill, but the veto
shall not affect the item or items to which he does not object.".
It is to be noted that the counterpart provision in the 1987 Constitution (Article
VI, Section 27 [2], supra), is a verbatim reproduction except for the public
official concerned. In other words, also eliminated has been any reference to
the veto of a provision. The vital question is: should this exclusion be
interpreted to mean as a disallowance of the power to veto a provision, as
petitioners urge?
The terms item and provision in budgetary legislation and practice are
concededly different. An item in a bill refers to the particulars, the details, the
distinct and severable parts of the bill (Bengzon, supra, at 916). It is an
indivisible sum of money dedicated to a stated purpose (Commonwealth v.
Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va. 281). The United States
Supreme Court, in the case of Bengzon v. Secretary of Justice (299 U.S.
410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an ‘item’ of an
appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens to
be put into an appropriation bill.".
It is our considered opinion that, notwithstanding the elimination in Article VI,
Section 27 (2) of the 1987 Constitution of any reference to the veto of a
provision, the extent of the President’s veto power as previously defined by
the 1935 Constitution has not changed. This is because the eliminated
proviso merely pronounces the basic principle that a distinct and severable
part of a bill may be the subject of a separate veto (Bengzon v. Secretary of
Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J., The Constitution
of the Republic of the Philippines, 1st ed., 154-155, [1988]).
The restrictive interpretation urged by petitioners that the President may not
veto a provision without vetoing the entire bill not only disregards the basic
principle that a distinct and severable part of a bill may be the subject of a
separate veto but also overlooks the Constitutional mandate that any
provision in the general appropriations bill shall relate specifically to some
particular appropriation therein and that any such provision shall be limited in
its operation to the appropriation to which it relates (1987 Constitution, Article
VI, Section 25 [2]). In other words, in the true sense of the term, a provision in
an Appropriations Bill is limited in its operation to some particular
appropriation to which it relates, and does not relate to the entire bill..
Petitioners’ further submission that, since the exercise of the veto power by
the President partakes of the nature of legislative powers it should be strictly
construed, is negative by the following dictum in Bengzon, supra, reading:.
"The Constitution is a limitation upon the power of the legislative department
of the government, but in this respect it is a grant of power to the executive
department. The Legislature has the affirmative power to enact laws; the
Chief Executive has the negative power by the constitutional exercise of
which he may defeat the will of the Legislature. It follows that the Chief
Executive must find his authority in the Constitution. But in exercising that
authority he may not be confined to rules of strict construction or hampered
by the unwise interference of the judiciary. The courts will indulge every
intendment in favor of the constitutionality of a veto the same as they will
presume the constitutionality of an act as originally passed by the
Legislature" (Commonwealth v. Barnett [1901], 199 Pa., 161; 55 L.R.A., 882;
People v. Board of Councilmen [1892], 20 N.Y.S., 52; Fulmore v. Lane
[1911], 104 Tex., 499; Texas Co. v. State [1927], 53 A.L.R., 258 [at 917]).
Inappropriateness of the so-called "Provisions"
But even assuming arguendo that provisions are beyond the executive power
to veto, we are of the opinion that Section 55 (FY ‘89) and Section 16 (FY
‘90) are not provisions in the budgetary sense of the term. Article VI, Section
25 (2) of the 1987 Constitution provides:.
"Sec. 25 (2) No provision or enactment shall be embraced in the general
appropriations bill unless it relates specifically to some particular
appropriation therein. Any such provision or enactment shall be limited in its
operation to the appropriation to which it relates.".
Explicit is the requirement that a provision in the Appropriations Bill should
relate specifically to some" particular appropriation" therein. The challenged
"provisions" fall short of this requirement. Firstly, the vetoed "provisions" do
not relate to any particular or distinctive appropriation. They apply generally
to all items disapproved or reduced by Congress in the Appropriations Bill.
Secondly, the disapproved or reduced items are nowhere to be found on the
face of the Bill. To discover them, resort will have to be made to the original
recommendations made by the President and to the source indicated by
petitioners themselves, i.e., the "Legislative Budget Research and Monitoring
Office" (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more
of an expression of Congressional policy in respect of augmentation from
savings rather than a budgetary appropriation. Consequently, Section 55 (FY
‘89) and Section 16 (FY ‘90) although labelled as "provisions," are actually
inappropriate provisions that should be treated as items for the purpose of
the President’s veto power. (Henry v. Edwards [1977] 346 S Rep. 2d, 157-
158)
"Just as the President may not use his item-veto to usurp constitutional
powers conferred on the legislature, neither can the legislature deprive the
Governor of the constitutional powers conferred on him as chief executive
officer of the state by including in a general appropriation bill matters more
properly enacted in separate legislation. The Governor’s constitutional power
to veto bills of general legislation . . . cannot be abridged by the careful
placement of such measures in a general appropriation bill, thereby forcing
the Governor to choose between approving unacceptable substantive
legislation or vetoing ‘items’ of expenditure essential to the operation of
government. The legislature cannot by location of a bill give it immunity from
executive veto. Nor can it circumvent the Governor’s veto power over
substantive legislation by artfully drafting general law measures so that they
appear to be true conditions or limitations on an item of appropriation.
Otherwise, the legislature would be permitted to impair the constitutional
responsibilities and functions of a co-equal branch of government in
contravention of the separation of powers doctrine . . . We are no more willing
to allow the legislature to use its appropriation power to infringe on the
Governor’s constitutional right to veto matters of substantive legislation than
we are to allow the Governor to encroach on the constitutional powers of the
legislature. In order to avoid this result, we hold that, when the legislature
inserts inappropriate provisions in a general appropriation bill, such
provisions must be treated as ‘items’ for purposes of the Governor’s item veto
power over general appropriation bills.
x x x
". . . Legislative control cannot be exercised in such a manner as to
encumber the general appropriation bill with veto-proof ‘logrolling measure,’
special interest provisions which could not succeed if separately enacted, or
‘riders,’ substantive pieces of legislation incorporated in a bill to insure
passage without veto. . . ." (Emphasis supplied)
Inappropriateness of the so-called "Conditions/Restrictions"
Petitioners maintain, however, that Congress is free to impose conditions in
an Appropriations Bill and where conditions are attached, the veto power
does not carry with it the power to strike them out, citing Commonwealth v.
Dodson (11 SE, 2d 130, supra) and Bolinao Electronics Corporation v.
Valencia (No. L-20740, June 30, 1964, 11 SCRA 486). In other words, their
theory is that Section 55 (FY ‘89) and Section 16 (FY ‘90) are such
conditions/restrictions and thus beyond the veto power..
There can be no denying that inherent in the power of appropriation is the
power to specify how money shall be spent; and that in addition to distinct
"items" of appropriation, the Legislature may include in Appropriation Bills
qualifications, conditions, limitations or restrictions on expenditure of funds.
Settled also is the rule that the Executive is not allowed to veto a condition or
proviso of an appropriation while allowing the appropriation itself to stand
(Fairfield v. Foster, supra, at 320). That was also the ruling in Bolinao, supra,
which held that the veto of a condition in an Appropriations Bill which did not
include a veto of the items to which the condition related was deemed invalid
and without effect whatsoever.
However, for the rule to apply, restrictions should be such in the real sense of
the term, not some matters which are more properly dealt with in a separate
legislation (Henry v. Edwards, La, 346, So 2d 153). Restrictions or conditions
in an Appropriations Bill must exhibit a connection with money items in a
budgetary sense in the schedule of expenditures. Again, the test is
appropriateness.
"It is not enough that a provision be related to the institution or agency to
which funds are appropriated. Conditions and limitations properly included in
an appropriation bill must exhibit such a connexity with money items of
appropriation that they logically belong in a schedule of expenditures . . . the
ultimate test is one of appropriateness" (Henry v. Edwards, supra, at 158).
Tested by these criteria, Section 55 (FY ‘89) and Section 16 (FY ‘90) must
also be held to be inappropriate "conditions." While they, particularly, Section
16 (FY ‘90), have been "artfully drafted" to appear as true conditions or
limitations, they are actually general law measures more appropriate for
substantive and, therefore, separate legislation.
Further, neither of them shows the necessary connection with a schedule of
expenditures. The reason, as explained earlier, is that items reduced or
disapproved by Congress would not appear on the face of the enrolled bill or
Appropriations Act itself. They can only be detected when compared with the
original budgetary submittals of the President. In fact, Sections 55 (FY ‘89)
and 16 (FY ‘90) themselves provide that an item "shall be deemed to have
been disapproved by Congress if no corresponding appropriation for the
specific purpose is provided in this Act.".
Considering that the vetoed provisions are not, in the budgetary sense of the
term, conditions or restrictions, the case of Bolinao Electronics Corporation v.
Valencia (supra), invoked by petitioners, becomes inapplicable. In that case,
a public works bill contained an item appropriating a certain sum for
assistance to television stations, subject to the condition that the amount
would not be available to places where there were commercial television
stations. Then President Macapagal approved the appropriation but vetoed
the condition. When challenged before this Court, it was held that the veto
was ineffectual and that the approval of the item carried with it the approval of
the condition attached to it. In contrast with the case at bar, there is no
condition, in the budgetary sense of the term, attached to an appropriation or
item in the appropriation bill which was struck out. For obviously, Sections 55
(FY ‘89) and 16 (FY ‘90) partake more of a curtailment on the power to
augment from savings; in other words, "a general provision of law, which
happens to be put in an appropriation bill" (Bengzon v. Secretary of Justice,
supra).
The Power of Augmentation and The Validity of the Veto
The President promptly vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90)
because they nullify the authority of the Chief Executive and heads of
different branches of government to augment any item in the General
Appropriations Law for their respective offices from savings in other items of
their respective appropriations, as guaranteed by Article VI, Section 25 (5) of
the Constitution. Said provision reads:.
"Sec. 25. (5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, and the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations" (Emphasis ours).
Noteworthy is the fact that the power to augment from savings lies dormant
until authorized by law.
This Court upheld the validity of the power of augmentation from savings in
Demetria v. Alba, which ruled:.
". . . to afford the heads of the different branches of the government and
those of the constitutional commissions considerable flexibility in the use of
public funds and resources, the constitution allowed the enactment of a law
authorizing the transfer of funds for the purpose of augmenting an item from
savings in another item in the appropriation of the government branch or
constitutional body concerned. The leeway granted was thus limited. The
purpose and conditions for which funds may be transferred were specified,
i.e., transfer may be allowed for the purpose of augmenting an item and such
transfer may be made only if there are savings from another item in the
appropriation of the government branch or constitutional body" (G.R. No.
71977, 27 February 1987, 148 SCRA 214).
The 1973 Constitution contained an identical authority to augment from
savings in its Article VIII, Section 16 (5), except for mention of the Prime
Minister among the officials vested with that power. 1
In 1977, the statutory authority of the President to augment any appropriation
of the executive department in the General Appropriations Act from savings
was specifically provided for in Section 44 of Presidential Decree No. 1177,
as amended (RA 6670, 4 August 1988), otherwise known as the "Budget
Reform Decree of 1977." It reads:.
"Sec. 44. . . .
"The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General Appropriations Act,
from savings in the appropriations of another department, bureau, office or
agency within the Executive Branch, pursuant to the provisions of Art. VIII,
Sec. 16 (5) of the Constitution (now Sec. 25 (5), Art. VI)" (Emphasis ours),
(N.B.: The first paragraph declared void in Demetria v. Alba, supra, has been
deleted).
Similarly, the use by the President of savings to cover deficits is specifically
authorized in the same Decree. Thus:.
"Sec. 45. Authority to Use Savings in Appropriations to Cover Deficits. Except
as otherwise provided in the General Appropriations Act, any savings in the
regular appropriations authorized in the General Appropriations Act for
programs and projects of any department, office or agency, may, with the
approval of the President be used to cover a deficit in any other item of the
regular appropriations: ". . .
A more recent grant is found in Section 12 of the General Appropriations Act
of 1989, the text of which is repeated in the first paragraph of Section 16 (FY
‘90). Section 12 reads:.
"Sec. 12. Use of Savings. — The President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, the heads of the Constitutional Commissions, and the Ombudsman
are hereby authorized to augment any item in this Act for their respective
offices from savings in other items of their respective appropriations.".
There should be no question, therefore, that statutory authority has, in fact,
been granted. And once given, the heads of the different branches of the
Government and those of the Constitutional Commissions are afforded
considerable flexibility in the use of public funds and resources (Demetria v.
Alba, supra). The doctrine of separation of powers is in no way endangered
because the transfer is made within a department (or branch of government)
and not from one department (branch) to another (CRUZ, Isagani A.,
Philippine Political Law [1989] p. 155).
When Sections 55 (FY ‘89) and 16 (FY ‘90), therefore, prohibit the restoration
or increase by augmentation of appropriations disapproved or reduced by
Congress, they impair the constitutional and statutory authority of the
President and other key officials to augment any item or any appropriation
from savings in the interest of expediency and efficiency. The exercise of
such authority in respect of disapproved or reduced items by no means vests
in the Executive the power to rewrite the entire budget, as petitioners
contend, the leeway granted being delimited to transfers within the
department or branch concerned, the sourcing to come only from savings.
More importantly, it strikes us, too, that for such a special power as that of
augmentation from savings, the same is merely incorporated in the General
Appropriations Bill. An Appropriations Bill is "one the primary and specific aim
of which is to make appropriation of money from the public treasury"
(Bengzon v. Secretary of Justice, 292 U.S., 410, 57 S.Ct. 252). It is a
legislative authorization of receipts and expenditures. The power of
augmentation from savings, on the other hand, can by no means be
considered a specific appropriation of money. It is a non-appropriation item
inserted in an appropriation measure.. : red
The same thing must be said of Section 55 (FY ‘89), taken in conjunction with
Section 12, and Section 16 (FY ‘90), which prohibit the restoration or
increase by augmentation of appropriations disapproved and/or reduced by
Congress. They are non-appropriation items, an appropriation being a setting
apart by law of a certain sum from the public revenue for a specific purpose
(Bengzon v. Secretary of Justice, 62 Phil. 912, 916 [1936]). It bears repeating
that they are more of a substantive expression of a legislative objective to
restrict the power of augmentation granted to the President and other key
officials. They are actually matters of general law and more properly the
subject of a separate legislation that will embody, define and delimit the
scope of the special power of augmentation from savings instead of being
inappropriately incorporated annually in the Appropriation Act. To sanction
this practice would be to give the Legislature the freedom to grant or withhold
the power from the Executive and other officials, and thus put in yearly
jeopardy the exercise of that power.
If, indeed, by the later enactments of Section 55 (FY ‘89) and Section 16 (FY
‘90), Congress, as petitioners argue, intended to amend or repeal Pres.
Decree No. 1177, with all the more reason should it have so provided in a
separate enactment, it being basic that implied repeals are not favored. For
the same reason, we cannot subscribe to petitioners’ allegation that Pres.
Decree No. 1177 has been revoked by the 1987 Constitution. The 1987
Constitution itself provides for the continuance of laws, decrees, executive
orders, proclamations, letters of instructions, and other executive issuances
not inconsistent with the Constitution until amended, repealed, or revoked
(1987 Constitution, Article XVIII, Section 3).
If, indeed, the legislature believed that the exercise of the veto powers by the
executive were unconstitutional, the remedy laid down by the Constitution is
crystal clear. A Presidential veto may be overriden by the votes of two-thirds
of members of Congress (1987 Constitution, Article VI, Section 27[1], supra).
But Congress made no attempt to override the Presidential veto. Petitioners’
argument that the veto is ineffectual so that there is "nothing to override"
(citing Bolinao) has lost force and effect with the executive veto having been
herein upheld.

As we see it, there need be no future conflict if the legislative and executive
branches of government adhere to the spirit of the Constitution, each
exercising its respective powers with due deference to the constitutional
responsibilities and functions of the other. Thereby, the delicate equilibrium of
governmental powers remains on even keel.

WHEREFORE, the constitutionality of the assailed Presidential veto is

UPHELD and this Petition is hereby DISMISSED.

No costs.

SO ORDERED.

Narvasa, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea and

Regalado, JJ., concur.