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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,

vs.

HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B.
Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts
unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia
Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this
case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa
R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs,
against Bernardita R. Macariola, defendant, concerning the properties left by the deceased Francisco
Reyes, the common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a)
plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of
the deceased were defendant Macariola, she being the only offspring of the first marriage of Francisco
Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the deceased by his
second marriage with Irene Ondez; c) the properties left by the deceased were all the conjugal
properties of the latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased
during his second marriage; d) if there was any partition to be made, those conjugal properties should
first be partitioned into two parts, and one part is to be adjudicated solely to defendant it being the
share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the
deceased Francisco Reyes was to be divided equally among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the
dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and
so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have
been an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of the spouses Francisco Reyes
Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses
Francisco Reyes Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as
belonging exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her mother Felisa Espiras, as the exclusive owner of
one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half
(1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-
fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez
to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot
No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4)
of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition
of the estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving
widow of Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco
Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the
estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto
Reyes, Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent
of the total share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of
two-fifth (2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New
Civil Code), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista,
14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days
after this judgment shall have become final to submit to this court, for approval a project of partition of
the hereditary estate in the proportion above indicated, and in such manner as the parties may, by
agreement, deemed convenient and equitable to them taking into consideration the location, kind,
quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and
defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by
the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the
parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of
partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the
project of partition was not signed by the parties themselves but only by the respective counsel of
plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which for
convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for approval the following project
of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court
respectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes
Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall
be awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall
likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item
(2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes
and Priscilla Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall
belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in
accordance with the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this Project of Partition,
nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a conference and agreement of the plaintiffs and the
defendant approving the above Project of Partition, and that both lawyers had represented to the Court
that they are given full authority to sign by themselves the Project of Partition, the Court, therefore,
finding the above-quoted Project of Partition to be in accordance with law, hereby approves the same.
The parties, therefore, are directed to execute such papers, documents or instrument sufficient in form
and substance for the vesting of the rights, interests and participations which were adjudicated to the
respective parties, as outlined in the Project of Partition and the delivery of the respective properties
adjudicated to each one in view of said Project of Partition, and to perform such other acts as are legal
and necessary to effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of
giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer
certificates of title to the respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with
an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of
the deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita
Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of partition was
approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated
as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1
and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr.
Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of
the city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around
1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion
was declared by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and
interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the
time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan,
Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the
President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The
Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as "TRADERS"
were registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-
385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968
alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491,
paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one
of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article
14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25
of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing
Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance
of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of
Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the
law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on
October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to
then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and recommendation.
After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending
that respondent Judge should be reprimanded or warned in connection with the first cause of action
alleged in the complaint, and for the second cause of action, respondent should be warned in case of a
finding that he is prohibited under the law to engage in business. On the third and fourth causes of
action, Justice Palma recommended that respondent Judge be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein
instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola,
plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235,
seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010
and the two orders issued by respondent Judge approving the same, as well as the partition of the estate
and the subsequent conveyances with damages. It appears, however, that some defendants were
dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was
no longer a real party in interest when Civil Case No. 4234 was filed, having already conveyed on March
6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to
the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria
Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the
aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing
industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza
Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P.
Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A.
Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was
directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now
Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a
decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take
cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two
Orders [Exhibits "C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS
OF THE DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased
Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the
cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN
CIVIL CASE NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz
R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.
SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals
upon perfection of the appeal on February 22, 1971.

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first
cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties
involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either
in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers
and employees connected with the administration of justice, the property and rights in litigation or
levied upon an execution before the court within whose jurisdiction or territory they exercise their
respective functions; this prohibition includes the act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights which may be the object of any litigation in which they
may take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is
the subject of litigation to the persons disqualified therein. WE have already ruled that "... for the
prohibition to operate, the sale or assignment of the property must take place during the pendency of
the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979],
Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the
decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the
parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer
subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated
October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963
project of partition made pursuant to the June 8, 1963 decision, had long become final for there was no
appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the
plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot
1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the
finality of the decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically one-
half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto
Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots
denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr.
Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March
6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation
purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of
their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing
Industries, Inc., in which respondent was the president and his wife was the secretary, took place long
after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders
therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the
Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition
and the two orders approving the same, as well as the partition of the estate and the subsequent
conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr.
Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case
No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the
property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or
affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice,
was effected and consummated long after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year
after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of
partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article
1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio
Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the
illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the
project of partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by
respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of
which respondent was the President and his wife the Secretary, was intimately related to the Order of
respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions between the Reyeses
and the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show
that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14
of Respondent's Memorandum).

xxx xxx xxx

On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio
Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon
appeared to this investigator as a respectable citizen, credible and sincere, and I believe him when he
testified that he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses
without any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project
of partition although it was not signed by the parties, We quote with approval the findings of the
Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the signature of the parties
more particularly that of Mrs. Macariola on the project of partition submitted to him for approval;
however, whatever error was committed by respondent in that respect was done in good faith as
according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs.
Macariola, That he was authorized by his client to submit said project of partition, (See Exh. B and tsn p.
24, January 20, 1969). While it is true that such written authority if there was any, was not presented by
respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs.
Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh. A,
and that she gave her conformity thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral
Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title
the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly entered and
registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on
October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz
in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of said one-fourth
share, the same having been adjudicated to her as her share in the estate of her father Francisco Reyes
Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of
sale was duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition
dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an
amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs.
Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963,
several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154
by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such
contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154
belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth was the share of
complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the
one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the owner
of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs.
Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen aware of
the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at this
point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City
in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can
deduce that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the
project of partition.

Complainant also assails the project of partition because according to her the properties adjudicated to
her were insignificant lots and the least valuable. Complainant, however, did not present any direct and
positive evidence to prove the alleged gross inequalities in the choice and distribution of the real
properties when she could have easily done so by presenting evidence on the area, location, kind, the
assessed and market value of said properties. Without such evidence there is nothing in the record to
show that there were inequalities in the distribution of the properties of complainant's father (pp.
386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil
Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was,
however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons
of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of
impropriety, and his personal behavior, not only upon the bench and in the performance of judicial
duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have purchased or
acquired a portion of a piece of property that was or had been in litigation in his court and caused it to
be transferred to a corporation of which he and his wife were ranking officers at the time of such
transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of
maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly
honest and just, but his actuations must be such as not give cause for doubt and mistrust in the
uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and render his actuations open to suspicion and distrust.
Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he
was purchasing it from a third person and not from the parties to the litigation, he should nonetheless
have refrained from buying it for himself and transferring it to a corporation in which he and his wife
were financially involved, to avoid possible suspicion that his acquisition was related in one way or
another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants
in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and
fairness of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).

II
With respect to the second cause of action, the complainant alleged that respondent Judge violated
paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having
been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold
any office or have any direct, administrative, or financial intervention in commercial or industrial
companies within the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in
active service. This provision shall not be applicable to mayors, municipal judges, and municipal
prosecuting attorneys nor to those who by chance are temporarily discharging the functions of judge or
prosecuting attorney.

xxx xxx xxx

5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate
territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of
Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of
a political law as it regulates the relationship between the government and certain public officers and
employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and
operation of the governmental organs of the State and define the relations of the state with the
inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political
law embraces constitutional law, law of public corporations, administrative law including the law on
public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the
nature of an administrative law because it regulates the conduct of certain public officers and employees
with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885,
with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which
was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this
jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to
the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been
abrogated because where there is change of sovereignty, the political laws of the former sovereign,
whether compatible or not with those of the new sovereign, are automatically abrogated, unless they
are expressly re-enacted by affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following a
conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogatives of
the former government immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10,
1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign
continue in force without the express assent or affirmative act of the conqueror, the political laws do
not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not
in conflict with the constitution or institutions of the new sovereign, may be continued in force if the
conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress
in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of
American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief
Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with
each other undergo any change. Their relations with their former sovereign are dissolved, and new
relations are created between them and the government which has acquired their territory. The same
act which transfers their country, transfers the allegiance of those who remain in it; and the law which
may be denominated political, is necessarily changed, although that which regulates the intercourse and
general conduct of individuals, remains in force, until altered by the newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle
of the public law that on acquisition of territory the previous political relations of the ceded region are
totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of
the Code of Commerce after the change of sovereignty from Spain to the United States and then to the
Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding
effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate
Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of
Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides
that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:

xxx xxx xxx

(h) Directly or indirectly having financial or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing
that respondent participated or intervened in his official capacity in the business or transactions of the
Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in
which respondent participated has obviously no relation or connection with his judicial office. The
business of said corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of
the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly
becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not
enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he
has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40
O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in
its business operations by reason of respondent's financial involvement in it, or that the corporation
benefited in one way or another in any case filed by or against it in court. It is undisputed that there was
no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was
either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the
aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9
or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent
Judge was no longer connected with the corporation, having disposed of his interest therein on January
31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both
the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting
members of the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948,
does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law,
municipal judges may engage in teaching or other vocation not involving the practice of law after office
hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as
heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to
America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by
judges of a property in litigation before the court within whose jurisdiction they perform their duties,
cannot apply to respondent Judge because the sale of the lot in question to him took place after the
finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition;
hence, the property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service
Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural or industrial
undertaking without a written permission from the head of department, the same, however, may not fall
within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from
having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation
of the aforesaid rule by any officer or employee in the civil service, that is, engaging in private business
without a written permission from the Department Head may not constitute graft and corrupt practice
as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil
Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the
Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural or industrial
undertaking without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by
Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7,
Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of
the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious
misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is
authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to
conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline
judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation
of the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the
service, remove any subordinate officer or employee from the service, demote him in rank, suspend him
for not more than one year without pay or fine him in an amount not exceeding six months' salary."
Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers
and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the
disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the
head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and
the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec.
20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second
branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII
cannot be considered as a ground for disciplinary action against judges because to recognize the same as
applicable to them, would be adding another ground for the discipline of judges and, as aforestated,
Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious
misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who
has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to
it, all administrative cases against permanent officers and employees in the competitive service, and,
except as provided by law, to have final authority to pass upon their removal, separation, and suspension
and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees;
and prescribe standards, guidelines and regulations governing the administration of discipline"
(emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified
service of the government as a Presidential appointee and is therefore not covered by the aforesaid
provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we
emphasized that only permanent officers and employees who belong to the classified service come
under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA
710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders
Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the
provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil
Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the
Canons of Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises which are apt to be involved in
litigation in his court; and, after his accession to the bench, he should not retain such investments
previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It
is desirable that he should, so far as reasonably possible, refrain from all relations which would normally
tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial
attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on
January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it
appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in
court as there was no case filed in the different branches of the Court of First Instance of Leyte from the
time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from
said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only
22 days after the incorporation of the corporation, indicates that respondent realized that early that
their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife
therefore deserve the commendation for their immediate withdrawal from the firm after its
incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of
coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of
the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating
Justice that respondent Judge be exonerated because the aforesaid causes of action are groundless, and
WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closely
fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practising
attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in
the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the
time he believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this
assertion of respondent. It has been shown by complainant that Dominador Arigpa Tan represented
himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and the
words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and
any person for that matter to have accepted that statement on its face value. "Now with respect to the
allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the
extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact
even if true did not render respondent guilty of violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and family did not influence his official actuations as a judge
where said persons were concerned. There is no tangible convincing proof that herein respondent gave
any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of
law from his personal relations with respondent, or that he used his influence, if he had any, on the
Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from
maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid
suspicion 'that his social or business relations or friendship constitute an element in determining his
judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in itself
would not constitute a ground for disciplinary action unless it be clearly shown that his social relations
be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not
violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in
engaging in business by joining a private corporation during his incumbency as judge of the Court of First
Instance of Leyte, he should be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be characterized with propriety but
must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED
TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-21327 January 14, 1924

TEODORO ABUEVA, ET AL., petitioners,

vs.
LEONARD WOOD, ET AL., respondents.

Gregorio Perfecto and Alfonso E. Mendoza for petitioners.

Attorney-General Villa-Real for respondents.

Paredes and Buencamino, Ramon Diokno and Santos and Benitez of counsel.

JOHNSON, J.:

This is an original action commenced in the Supreme Court by the petitioners for the writ of mandamus,
to compel the respondents to exhibit to the petitioners and to permit them to examine all the vouchers
and other documentary proofs in their possession, showing the disbursements and expenditures made
by them out of the funds of the Independence Commission. To the petition each of the respondents
demurred. In order that there may be a clear understanding of the arguments in support of the
demurrer, a statement of the facts as they appear in the petition becomes necessary. They are:

(1) That the petitioners are and have been for more than six months members of the Independence
Commission, created by virtue of the Concurrent Resolution No. 20 (vol. 14, Public Laws, p. 343),
adopted on the 7th day of November, 1918, by the Philippine Legislature; and that the creation of said
Independence Commission had been confirmed and ratified by Joint Resolution No. 13 (vol. 14, Public
Laws, p. 342), adopted by the Philippine Legislature on the 8th day of March, 1919;

(2) That all and each one of the petitioners are actually members of the Philippine Legislature, elected at
the general election held on the 6th day of June, 1922; that the first twenty-six of the petitioners are
members of the House of Representatives and the last four are members of the Senate of the Philippine
Islands; that they all belong to the democratic party;

(3) That the respondent Leonard Wood is the Governor-General of the Philippine Islands, with his
residence and office in the City of Manila; that Manuel L. Quezon and Manuel Roxas are Presidents of
the Independence Commission; that Paciano Dizon is the Acting Auditor of the Philippine Islands; that
Teodoro M. Kalaw is the Executive Secretary of the Independence Commission, with a salary of P12,000
per annum, and that Fernando Mariano Guerrero is the Secretary of the Independence Commission;
(4) That by Act No. 2933 the Legislature of the Philippine Islands provided for a standing appropriation of
one million pesos (P1,000,000) per annum, payable out of any funds in the Insular Treasury, not
otherwise appropriated, to defray the expenses of the Independence Commission, including publicity
and all other expenses in connection with the performance of its duties; that said appropriation shall be
considered as included in the annual appropriation for the Senate and the House of Representatives, at
the rate of P500,000 for each house, although the appropriation act hereafter approved may not make
any specific appropriation for said purpose; with the proviso that no part of said sum shall be set upon
the books of the Insular Auditor until it shall be necessary to make the payment or payments authorized
by said act;

(5) That the petitioners are citizens and taxpayers and persons interested in knowing how the public
funds are expended; that as members of the Legislature they are entrusted with the honest investment,
disposition, and administration of the public funds of the Government; that as members of the
Independence Commission they are legally obliged to prevent the funds of said Commission from being
squandered, and to prevent any investments and illicit expenses in open contravention of the purposes
of the law; that the petitioners have verbally and by writing requested the respondents many times to
exhibit to them and to permit them to see and examine the vouchers and other documentary proofs
relating to the expenditures and payments made out of the funds appropriated for the use of the
Independence Commission;

(6) That notwithstanding the fact that the original vouchers showing the expenses paid out of the
Independence Commission fund are in the possession of the respondent Paciano Dizon, as Acting Insular
Auditor, who is under the control and authority of the respondent Leonard Wood as Governor-General;
and notwithsta the fact that the duplicates of said vouchers are in the possession of the officers of the
Independence Commission, Manuel L. Quezon, Manuel Roxas, Teodoro M. Kalaw, and Fernando Mariano
Guerrero, said respondents taking advantage of all clases of pretexts and subterfuges, have denied and
continue denying to permit the petitioners from examining said vouchers and documentary proofs of the
expenditures of the funds of said Independence Commission, thus trampling upon and denying the
rights of the petitioners in their capacity as citizens of the Philippine Islands, as members of the
Legislature, and as members of the Independence Commission, and inflicting an unpardonable offense
upon the electors of the Philippine Islands, who confided their votes and their representation in the
petitioners;

(7) That the petitioners not only have a recognized right under the law, but also the important duty of
knowing how the funds of the Commission are managed; that much of the funds of the Independence
Commission is being used for purposes contrary to the Concurrent Resolution No. 20 of the 7th day of
November, 1918;
(8) That the petitioners are without other plain, speedy, and adequate remedy.

To the petition the Attorney-General, Antonio Villa-Real, appeared as attorney for the respondents
Leonard Wood, as Governor-General, Manuel L. Quezon and Manuel Roxas as Chairmen of the
Independence Commission, and entered a special appearance for the purpose of objecting to the
jurisdiction of the court over his clients, upon the ground, first, that Leonard Wood, as Governor-General
of the Philippine Islands and head of the executive department of the Philippine Government, is not
subject to the control or supervision of the courts, and second, that Manuel L. Quezon and Manuel
Roxas, as Chairman of the Independence Commission, are mere agents of the Philippine Legislature and
cannot be controlled or interfered with by the courts.

The Attorney-General appeared on behalf of Paciano Dizon, as Acting Auditor of the Philippine Islands,
and demurred to the petition upon the ground:

First, that the court has no jurisdiction of the subject of the action because section 24 of the Jones Law
provides that: "The administrative jurisdiction of the Auditor over accounts, whether of funds or
property, and all vouchers and records pertaining thereto, shall be exclusive;" and also because the
determination of whether the accounts of the expenses of the Commission of Independence should be
shown to the plaintiffs or not, is a question of policy and administrative discretion, and is therefore not
justiciable;

Second, that the complaint does not state a cause of action in that (a) there is no provision of law
making it the duty of the Auditor to exhibit the vouchers of expenses of the Independence Commission
to anybody that may ask for the privilege, and it is a well-established rule that mandamus will not issue if
there is no legal duty to be enforced; (b) the work of the Independence Commission is largely of a
political and confidential nature, so that the granting of the writ to compel the exhibition of its records to
the plaintiffs or to the public in general would be contrary to public interest; (c) the plaintiffs have
another plain, speedy, and adequate remedy at law, to wit: by addressing their petition to the
Independence Commission or to the Philippine Legislature itself, of both of which bodies the said
plaintiffs are members;
Third, the plaintiffs have no beneficial interest in the act which they seek to have performed, or any
particular right to be protected thereby, independent of that which they hold in common with the public
at large, to make them proper parties to these proceedings and to entitle them to maintain the same;

Fourth, that the complaint is ambiguous, unintelligible, and uncertain.

The Attorney-General appeared on behalf of the respondents Teodoro M. Kalaw and Fernando Mariano
Guerrero, and demurred to the petition upon the following grounds:

First, that the court has no jurisdiction of the subject-matter of the action, because (a) the Commission
of Independence is a commission of the Philippine Legislature; that the funds appropriated by Act No.
2933 to defray the expenses of said Commission is, under the same law, deemed a part of the
appropriation for the Legislature; that the vouchers and other documents relative to the disbursement of
said funds form a part of the record of the Legislature, over which the Legislature has exclusive control;
that it is for the Legislature to decide whether or not its record should be shown to the public, and that
the courts cannot determine that question without encroaching upon the domain of a coordinate branch
of the government; and (b) that said respondents are not officers with specific duties assigned by law but
are acting as mere agents of the Philippine Legislature, and as agents of the Legislature, their action
cannot be controlled by the court;

Second, that the petitioners have no beneficial interest in the act which they seek to have performed, or
any right to be protected thereby, independent from that which they hold in common with the public at
large, to make them proper parties to the proceedings and to entitle them to maintain the same;

Third, that there is a misjoinder of parties defendant, in that the respondents are not proper parties to
these proceedings for the reason that, as mere officers of the Commission of Independence, they have
neither the right nor the power to exhibit the records of the said Commission without the authorization
or consent of the latter;

Fourth, that the complaint does not state facts sufficient to constitute a cause of action, in that: (a) there
is no provision of law making it the duty of the Philippine Legislature, of the Commission of
Independence, and much less of both or either of these respondents, to exhibit the records of the
Commission to any person that may ask for the same; (b) the duties sought to be enforced by the
petitioners, granting that they exist, are, by nature, discretionary and political, their performance being
left to the judgment of these respondents or of their superiors; (c) that the plaintiffs have another plain,
speedy and adequate remedy, to wit: by addressing their petition to the Commission of Independence or
to the Philippine Legislature itself. The complaint does not show that this has been done. The plaintiffs
not having exhausted their remedy at law, they are not entitled to the extraordinary remedy of
mandamus; (d) that the granting will be prejudicial to the public interest;

Fifth, the petition is ambiguous, unintelligible, and uncertain.

The particular defense presented by each of the respondents has been set out in full in order that their
respective positions might be clearly shown. At the close of the argument each requested ten days in
which to present a memorandum in support of his respective contention. Later, the Attorney-General
presented an extensive memorandum for the respondents in support of his contention. The petitioners
failed to present a memorandum in support of their contention.

The petition calls upon the judicial department of the Government to direct some of the officials of the
executive and Legislative departments to permit the petitioners to see and examine the vouchers
showing the various expenditures of the "Independence Commission," out of the appropriation
authorized by Act No. 2933. The petition presents no question concerning the legality of said
appropriation. That would be quite a different question from the one which were are considering. The
petition presents but one question and that is: Has the judicial department of the Government
jurisdiction or authority to direct either or both of the other departments of the Government to do or to
perform any duty which pertains particularly to those departments of the Government?

The question presented is not a new one, and this is not the first time that it has been presented to the
courts for solution. Neither is it the first time it has been presented to the courts here.

The Government of the United State in the Philippine Islands is divided under its charter or constitution
(the Organic Act) into three great, separate, distinct, and independent departments; the executive, the
legislative, and the judicial. The duties of each department are well defined and limited to certain fields
of governmental operation. This government is modeled after the Federal or state governments of the
United States, and possesses a complete governmental organization with executive, legislative, and
judicial departments which are exercising functions, as independent of each other, as the Federal or
state governments.
We shall consider the questions in the order in which they have been argued by the respondents.

First. Have the courts of the Philippine Islands jurisdiction to issue the writ of mandamus against Leonard
Wood, as Governor-General, to compel him to permit the petitioners to see and examine the vouchers in
question? In the first place section 222 of Act No. 190 provides generally when courts may issue the writ
of mandamus. Said section provides that "when the complaint in an action in a court of first instance
alleges that any inferior tribunal, corporation, board, or person unlawfully neglects the performance of
an act which the law specially enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes the plaintiff from the use and enjoyment of a right or office to which he is entitled and from
which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court,
on trial, finds the allegations of the complaint to be true, it may, if there is no other plain, speedy, and
adequate remedy in the ordinary courts (course) of law, render a judgment granting a peremptory order
against the defendant, commanding him, immediately after the receipt of such order, or at some other
specified time, to do the act required (by law or resulting from an office, trust, or station) to be done to
protect the rights of the plaintiff." Section 515 of Act No. 190 confers upon the Supreme Court the same
powers and duties conferred upon the courts of first instance by section 222.

It will be noted from said section 222 (and 515) that in order for the courts to issue the extraordinary
remedy of mandamus, it must be shown that the persons mentioned therein have unlawfully neglected
"the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or
station," or unlawfully excluded "the plaintiff from the use and enjoyment of a right or office to which he
is entitled, etc."

There is no allegation in the petition in the present case that Leonard Wood, as Governor-General, has
unlawfully neglected the performance of an act which the law specially enjoins as a duty upon him
resulting from his office, trust, or station, or has unlawfully excluded the plaintiffs from the use or
enjoyment of a right or office to which they are entitled. The only allegation in the complaint relating to
the duty or the neglected duty on the part of Leonard Wood as Governor-General is, "that the original of
said vouchers are in possession of the respondent Paciano Dizon as Acting Insular Auditor, who is under
his authority and high general inspection as Governor-General." There is no allegation or intimation in
the petition that Leonard Wood, as Governor-General, has neglected the performance of an act which
the law specially enjoins upon him as a duty resulting from an office, trust, or station or has unlawfully
excluded the petitioners from the use or enjoyment of a right or office to which they are entitled.

The failure of sufficient allegations in the complaint might therefore be sufficient reason for denying the
right prayed for. The demurrer, however, is not based upon that ground. It is based upon the ground that
this department of the Government, even though the allegations of the petition were sufficient, is
without authority or jurisdiction to grant the remedy prayed for. The Attorney-General preferred to place
his objection upon broader grounds that the mere failure of allegations in the petition. The Attorney-
General challenges the attention of the petitioners upon the question of jurisdiction. The petitioners
accepted the challenge and the cause was argued upon the theory that the courts have no jurisdiction at
all in the premises to grant the remedy prayed for as against the Governor-General of the Philippine
Islands. The question whether or not the courts have jurisdiction to control the official acts of the
executive and legislative departments of the Government has come before the courts a great many
times. The courts in the United States have not always been uniform in their conclusion.

The question was presented to this court in 1910 in the case of Severino vs. Governor-General (16 Phil.,
366). In that case an original petition was presented in the Supreme Court, praying for the writ of
mandamus against the Governor-General of the Philippine Islands to compel him to call a special
election for the purpose of electing a municipal president in the town of Silay. After a very careful
consideration of the question and the power of this court to control the action of the Governor-General
by mandamus, the court announced, through a very extended opinion by Mr. Justice Trent, that we could
not and should not entertain a complaint which seeks to control or interfere with the official duties of
the Governor-General. In the course of that decision practically every case which had been decided up to
that time, pro and con, was carefully considered by the court. After a full consideration of all of the
decisions pro and con, the conclusion was reached that the better doctrine to be adopted in the
Philippine Islands was, that which the court then adopted, to the effect that the judicial department
would not interfere by mandamus or otherwise for the purpose of controlling or directing the action of
the officials of a coordinate department of the Government. The writ of mandamus was originally a
prerogative writ and issued only by the King or the representative of the Sovereign. It was called a
prerogative writ from the fact that it proceeded from the King himself in his Court of King's Bench,
superintending the police and preserving the peace of the realm, and it was granted where one is
entitled to an office or function and there was no other remedy. (Opinion of Lord Mansfield, Chief
Justice, in the case of King vs. Barker, 1 Black. W., 352.)

Blackstone terms the writ of mandamus "a high prerogative writ of a most extensive remedial nature" (3
Blackstone Commentaries, 110) and it is uniformly referred to in the earlier decisions as a prerogative
remedy, and spoken of by many judges as one of the flowers of the King's Bench. It is a remedy of very
ancient origin, so ancient that Dr. High in his work on Extraordinary Legal Remedies says that its early
history is involved in obscurity and has been the cause of much curious research and of many conflicting
opinions. It seems, originally, to have been one of that large class of writs or mandates by which the
Sovereign of England directed the performance of any desired act by his subjects. It finally, in the time of
the reigns of Edward II and Edward III, came to be known as a judicial writ and was issued by authority of
the courts. In the United States, however, and in all of the states of the Union the writ of mandamus has
never been regarded as a judicial remedy. It is now generally considered as an ordinary action obtained
by petition, demurrer, and answer, as any other remedy is obtained through the courts.

One of the first cases, and perhaps the first which came before the Supreme Court of the United States
in which the writ of mandamus was prayed for against an officer of the executive department of the
Government, was that of Marbury vs. Madison (1 Cranch, U.S., 137-172). In that case Marburry had been
appointed as a justice of the peace for the City of Washington, D.C., by President Adams, as one of his
last official acts as President of the United States. The commission of the appointee was properly
executed, but had not been delivered at the time when President Adams cased to be President of the
United States and Mr. Jefferson became President. Mr. Jefferson directed that the commission appointing
Mr. Marbury should not be delivered. As a result, an action was commenced against Mr. Madison to
obtain the writ of mandamus, requiring him to deliver said commission. The Supreme Court, after due
deliberation and consideration of its own powers in the premises, through a very able and learned
opinion of Chief Justice Marshall, reached the conclusion that it had no power or jurisdiction to issue the
writ of mandamus, and that, in the face of the fact that the Congress of the United States had provided
for the appointment of said justice of the peace and the issuing of a commission of appointment. To
have required Mr. Madison to deliver the commission of appointment, would have been an interference
with the discretion and duties of the executive department of the Government, which the Supreme
Court of the United states positively refused to do upon the ground that the different departments of
the government were separate and independent, and that one department had no right, authority or
jurisdiction to intervene in the performance of the duties of the other for the purpose of directing and
controlling those duties. The delivery of the commission of appointment to Mr. Marbury was entirely
within the discretion of the executive department of the government.

Among the numerous cases which have been brought before the courts, involving the question of the
right of the courts to intervene in the administration of the other independent departments of the
government, we find one of the best-reasoned cases in that of Sutherland vs. Governor (29 Mich., 320).
The decision in that case was rendered by Mr. Justice Cooley, one of the greatest and ablest jurists who
ever sat upon any of the courts in the United States. In that case the Legislature of the State of Michigan
had by statute authorized the Governor of the state to issue a patent to certain public lands when
certain improvements had been made thereon by any citizen of the state. Mr. Sutherland claimed that
he had complied with the law and requested the Governor to issue to him a patent for the particular
land. The Governor refused for reasons which were sufficient for himself. A petition for the writ of
mandamus was presented in the Supreme Court, which was denied upon the ground that the court was
without jurisdiction to direct the Governor of the state in the performance of any duty which pertained
to his particular department. In the course of that opinion, Mr. justice Cooley, speaking for the court,
said:
There is no very clear and palpable line of distinction between those duties of the governor which are
political, and those which are to be considered miniterial merely; and if we should undertake to draw
one, and to declare that in all cases falling on one side the line the governor was subject to judicial
process, and in all falling on the other he was independent of it, we should open the doors to an endless
train of litigation, and the cases would be numerous in which neither the governor nor the parties would
be able to determine whether his conclusion was, under the law, to be final, and the courts would be
appealed to by every dissatisfied party to subject a coordinate department of the government to their
jurisdiction. However desirable a power in the judiciary to interfere in such cases might seem from the
standpoint of interested parties, it is manifest that harmony of action between the executive and judicial
departments would be directly threatened, and that exercise of such power could only be justified on
most imperative reasons. Moreover, it is not customary in our republican government to confer upon the
governor duties merely ministerial, and in the performance of which he is to be left no discretion
whatever; and the presumption in all cases must be, where a duty is devolved upon the chief executive
of the State rather than upon an inferior officer, that it is so because his superior judgment, discretion,
and sense of responsibility were confided in for a more accurate, faithful, and discreet performance than
could be relied upon if the duty were devolved upon an officer chosen for inferior duties. . . .

We are not disposed, however, in the present case, to attempt on any grounds to distinguish it from
other cases of executive duty with a view to lay down a narrow rule which, while disposing of this
motion, may leave the grave question it presents to be presented again and again in other cases which
the ingenuity of counsel may be able to distinguish in some minor particulars from the one before us. If a
broad general principle underlies all these cases, and requires the same decision in all, it would scarcely
be respectful to the governor, or consistent with our own sense of duty, that we should seek to avoid its
application and strive to decide each in succession upon some narrow and perhaps technical point
peculiar to the special case, if such might be discovered.

The Government of the United States in the Philippine Islands is one whose powers have been carefully
apportioned between the three distinct departments which have their powers alike limited and defined,
and are of equal dignity and within their respective spheres of action equally independent. It is a maxim,
under the Government of the United States, that the legislature cannot dictate to the courts what their
judgments shall be, or set aside or alter such judgments after they had been duly considered and
rendered. It could, says Mr. Justice Cooley, constitutional liberty would cease to exist; and if the
legislature could in like manner override executive action also, the government would become only a
despotism under popular forms. On the other hand, it would be readily conceded that no court can
compel the legislature to make or to refrain from making laws, or to meet or adjourn at its command, or
to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or
the laws. If the courts could intervene in the administration of the other independent departments of
the government or vice versa, they would break away from those checks and balances of government
which were meant, under our system of government, to be checks of cooperation and not of antagonism
or mastery, and would concentrate in their own hands something at least of the power which the
people, either directly or by the action of their representatives, decided to entrust to the other
departments of the government.

Under the form of government established by the United States in the Philippine Islands, one
department of the government has no power or authority to inquire into the acts of another, which acts
are performed within the discretion of the other department. That doctrine has been uniformally
maintained from the very commencement of the government, not only in the Government of the United
States in the Philippine Islands, but as well in the Government of the United States and that of the
States. The absurdity of any other rule is manifest upon the slightest meditation. By the organic law of
the Philippine Islands the Governor-General is invested with certain important political powers, in the
exercise of which he is to use his own discretion and is accountable only to his country in his political
character and to his own conscience. The judicial and executive departments of the government are
distinct and independent, and neither is responsible to the other for the performance of its duties and
neither can enforce the performance of the duties of the other. The dangers and difficulties which would
grow out of the adoption of a contrary rule are, by Chief Justice Taney in the case of Luther vs. Borden (7
Howard, U.S., 1, 44), clearly and ably pointed out.

No government past or present, under the American flag, has more carefully and safely guarded and
protected by law the individual rights of life and property of its citizens, that the Government of the
United States and of the various States of the Union. Each of the three departments of the government
has separate and distinct functions to perform in this great labor. The history of the United States
covering nearly a century and a half discloses the fact that each department has performed its part well.
No one department of the government can or ever has claimed, within its discretionary power, a greater
zeal than the others in its desire to promote the welfare of the individual citizen and to protect his rights.
They are all joined together in their respective spheres, harmoniously working to maintain good
government, peace, and order, to the end that the rights of each citizen be equally protected. No one
department can claim that it has a monopoly of these benign purposes of the government. Each
department has an exclusive field within which it can perform its part within certain discretionary limits.
No other department can claim a right to enter these discretionary limits and assume to act there. No
presumption of an abuse of these discretionary powers by one department will be considered or
entertained by another. Such conduct on the part of one department, instead of tending to conserve the
government and the rights of the people, would directly tend to destroy the confidence of the people in
the government and to undermine the very foundations of the government itself, and lead to disaster,
confusion, and uncertainty. (Barcelon vs. Baker and Thompson, 5 Phil., 87.)

No well-organized government of business even, can be well managed if one department can enter upon
the field of another attempt to administer or interfere with the administration of the other. Suppose, for
example, the chief of one department of the government, whose duties are well defined and whose field
or operation is well delimited, should attempt to enter upon the field of another coordinate and equal
department and to interfere with the administration of that department and to direct its affairs, disorder
and confusion would immediately arise. This illustration of the interference of one department with
another in any branch of the government fully demonstrates what would result from an interference by
one of the great departments of the government with the administration of another.

Of course, nothing which has been said here can be construed to mean that the Governor-General might
not, if the circumstances justified it, exhibit and deliver to the petitioners the vouchers in question if in
his judgment he thought it was wise to do for the best interest and highest welfare of the people of the
Philippine Islands. Whether such inspection and examination should be granted, lies within the absolute
discretion of the Governor-General. If he should deem it important and advisable to exhibit the vouchers
in question to the petitioners or to the public in order that the taxpayers might know in what manner
their contributions to the government are expended, that is a question for him to decide. It is purely a
political question, and lies within the breast of the Governor-General. The responsibility to decide that
question rests with him and his conscience to act as he deems wise in accordance with the best interest
and the highest welfare of the people.

It was argued at the hearing of the present case that the Philippine Government was a government of
laws and not of men, and that no individual or officer within the state was above the law, and to deny
the petitioners the right which they claim would be to recognize the doctrine that some officials of the
government are not governed by the law. It was urged by the petitioners that in the government of laws
there must be an adequate remedy for every wrong and that where a clear right exists, there must be
some mode of enforcing that right. As a legal proposition, that contention has much weight. But, as was
said in the case of People ex rel. vs. Bissell (19 Ill., 229): "While human society is governed by so
imperfect a being as man, this can be true only in theory. If we are to compel the governor or the
legislature to right every wrong which may arise from their omissions of duty, then surely they (the
executive and legislative departments) must, in order to make this Utopian system perfect, have the
power to compel us (the courts) to do right in every case. May it not be as well supposed that we (the
courts) will act perversely, and refuse to perform a duty imposed upon us, to the injury of the citizen, as
that the governor will do so? In the formation of the government, equal confidence was rightfully
reposed in each department, to which appropriate and independent duties were assigned."

In the performance of those independent duties assigned to each department of the government, a
discretion was given. Such duties were assigned to the respective departments upon the theory that by
reason of the machinery of government furnished to each department, they could be better and more
efficiently performed by the particular department to which they had been assigned. Under the theory
of the three distinct and independent departments of the government, it was not intended that one
should encroach upon the field of duty of the other. It was not intended by the framers of the theory of
our government that the duties which had been assigned to the executive should be performed by the
legislative, nor that the duties which had been assigned to each of them should be performed and
directed by the judicial department. The reason why the courts will not entertain jurisdiction to control
or direct the action of the executive or legislative departments of the government, is not that either of
said departments or the officers thereof are above the law, but because the people, the organization of
their government, deemed it wise to impose such duties upon those departments. If the courts should
take jurisdiction for the purpose of controlling the acts of the executive and legislative departments of
the government, then the courts might become the ruling and directing power of the government and
deprive those departments of their legal functions, contrary to the very fundamental idea of a
republican form of government.

The court exercise no functions of sovereignty. The courts cannot even execute their judgment except by
contempt proceedings. When a judgment is rendered and becomes final, its execution depends upon the
executive department of the government. The courts can only pronounce what the law is, and what the
rights of the parties thereunder are. When the courts pronounce an act of the executive or legislative
department of the government illegal and contrary to the fundamental laws of the land, it is because the
act of the executive department of the government or the law adopted by the legislative department of
the government, falls within some of the inhibitions of the fundamental law of the state. The wisdom or
advisability of a particular statute, is not a question for the courts to determine. If a particular act or
statute of the other departments of the government is within the constitutional power of said
departments, it should be sustained by the courts whether they agree or not in the wisdom of the act or
the enactment. If the act of the executive department or the enactment of the legislative department of
the government covers subjects not authorized by the fundamental laws of the land, or by the
constitution, then the courts are not only authorized to take jurisdiction to consider the same, but are
justified in pronouncing the same illegal and void, no matter how wise and beneficient they may be.
Courts are not justified in measuring their opinions with the opinions of the other departments of the
government as expressed in their acts, upon questions of the wisdom, justice, and advisability of a
particular act. In exercising the high authority conferred upon the courts to pronounce valid or invalid a
particular act of the other departments of the government, they are only the administrators of the
public will as expressed in the fundamental law of the land — the law of the people. If an act of either of
the other departments is to be held illegal, it is not because the judges or the courts have any control
over them, but because the act is forbidden by the fundamental law of the land and because the will of
the people, as declared in their law — the fundamental law of the land — is paramount and must be
obeyed even by the other departments of the government. In pronouncing an act of the other
departments of the government illegal, the courts are simply interpreting the meaning, force, and
application of the fundamental law of the state.
Another potent reason why the judicial department will not take jurisdiction of a case for the purpose of
directing and controlling the action of the executive department of the government, is, first, that it is
without the machinery or the power to enforce its processes. The Governor-General of the Philippine
Islands, as the Chief Executive of the Government, is possessed with the only machinery by which and
through which the orders of the court and the laws of the country are enforced. The courts are without
power to enforce their orders except in contempt proceedings, and then only with the assistance of the
officers of the executive department.

Second. What has been said with reference to the issuance of a writ of mandamus against the Governor-
General, as the head of the executive department of the Government, is equally applicable to the
legislative department of the Government and its officers when the duty is one pertaining to that
particular department of the Government. It may be asserted as a principle founded upon the clearest
legal reasoning that the legislature or legislative officers, in so far as concerns their purely legislative
functions, are beyond the control of the courts by the writ of mandamus. The legislative department,
being a coordinate and independent branch of the government, its action within its own sphere cannot
be revised or controlled by mandamus by the judicial department, without a gross usurpation of power
upon the part of the latter. When the legislative department of the government imposes upon its officers
the performance of certain duties which are not prohibited by the organic law of the land, the
performance, the non-performance, or the manner of the performance is under the direct control of the
legislature, and such officers are not subject to the direction of the courts. (High on Extraordinary Legal
Remedies [3d edition], 150-152, and cases cited; Turnbull vs. Giddings, 95 Mich., 314; Sinking Fund
Cases, 99 U.S., 700; 25 L. ed., 504; Ex Parte Echols, 39 Ala., 698.)

In the case of Ex Parte Echols the Speaker of the House of Representatives decided that a bill had not
passed by a vote of two-thirds in that branch of the legislature, and an appeal was taken from his
decision to the house and his decision was sustained. A member of the House of Representatives
presented a petition for the writ of mandamus in the Supreme Court to require the Speaker of the House
of Representatives to send said bill to the Senate of the State upon the theory that it had passed by a
majority vote of the House of Representatives. In passing upon that question, the Supreme Court of
Alabama said: "This court will not interfere with either of the other coordinate departments of the
government, in the legitimate exercise of their jurisdiction and powers, except to enforce mere
ministerial acts required by law to be performed by some officer thereof; and not then, if the law leaves
it discretionary with the officer or department. To this extent, and no farther, do the decisions of this
court go, upon this branch of the subject."

xxx xxx xxx

Each department of the government should be careful not to trench upon the powers of the others; and
this court should be the more so, as its decisions are to be taken as the measure, in the last legal resort,
of the powers which pertain to each department thereof; and while it will uphold its own jurisdiction
and powers, it will be careful not to invade or usurp any that appropriately belongs to either of the other
coordinate branches of the government. (Miles vs. Bradford, 85 Am. Dec., 643; State ex rel., Davisson vs.
Bolte, 151 Mo., 362; Greenwood Cemetery Land Co. vs. Routt, 17 Colo., 156; 31 Am. St. Rep., 284.)

The petitioners in the present case, together with others, constitute a committee (commission) duly
appointed by the Legislature of certain definite and defined purposes, under Concurrent Resolution No.
20, of November 7, 1918. The respondents Manuel L. Quezon, Manuel Roxas, Teodoro M. Kalaw, and
Fernando Mariano Guerrero are officers of that committee (commission). While it has been decided in
many cases that the courts will not interfere with the legislative department of the government in the
performance of its duties, does that rule apply to the committees duly appointed by the legislative
department of the government and its officers? The powers and duties conferred upon said committee
by the Legislature, granting the legality of the object and purpose of said committee, and granting that
the Legislature itself had the power to do and to perform the duties imposed upon said committee, then
an interference by the courts with the performance of those duties by it would be tantamount to
interfering with the workings and operations of the legislative branch of the government itself. An
interference by the judicial department of the government with the workings and operations of the
committee of the legislative department would be tantamount to an interference with the workings and
operations of the legislative department itself. And, again, we are called upon to say, that one branch of
the government cannot encroach upon the domain of another without danger. The safety of our
institutions depends in no small degree on a strict observance of this salutary rule. (Sinking Fund Cases,
99 U.S., 700, 718; Clough vs. Curtis, 134 U.S., 361, 371; Wise vs. Bigger, 79 Va., 269.)

The committee (commission) composed of the petitioners and others, of which the respondents Quezon,
Roxas, Kalaw, and Guerrero are officers, is responsible to the Legislature itself in the performance of the
duties conferred upon it. The Legislature may call upon it and demand from time to time reports of its
work and its expenditures. It is alleged that all the members of the committee, except its secretaries, are
members of the Legislature. The petitioners therefore have a remedy through the regular machinery of
the Legislature for obtaining the information which they are now seeking. If any irregularity or illegality
appears in the performance of the duties of either the Legislature or its committees, their responsibility
is to the people and not to the courts. An appeal in case of illegality and irregularity on the part of the
Legislature, as a body, or of its individual members, may be had to the people who commissioned them
through the ballot and whose personal representatives they are.

Each department of the government should be sovereign and supreme in the performance of its duties
within its own sphere, and should be left without interference in the full and free exercise of all such
powers, rights, and duties which rightfully belong to it. Each department should be left to interprete and
apply, within the constitutional powers conferred upon it, without interference, what may be termed its
political duties. For one department to assume to interpret, or to apply, or to attempt to indicate how
such political duties should be performed, would be an unwarranted, gross, and palpable violation of the
duties which were intended by the creation of the separate and distinct departments of the government.
(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil., 534, 574; Barcelon vs. Baker and Thompson, 5 Phil.,
87.)

The executive and legislative departments of the government are frequently called upon to deal with
what are known as political questions, with which the judicial department of the government has no
intervention. In all such questions, in the first instance the courts have uniformally refused to intervene
for the purpose of directing or controlling the actions of the other departments. Such questions are
many times reserved to those departments in the organic law of the state. (22 Harvard Law Review, 132;
Parker vs. State, ex rel., Powell, 133 Ind., 178; 18 L.R.A., 569; Farrell vs. United States, 110 Fed. Rep., 942;
Kelley vs. State, 25 Ark., 392; U.S. vs. Holliday, 3 Wallace [U.S.], 407; Message of President Polk to the
Congress of the United States, Apr. 20, 1846.)

And, in addition to all of the foregoing, the petitioners, as members of the Legislature, may, through the
Legislature itself, require the Independence Commission to make a full and complete report of all of its
operations, including an itemized statement of its expenditures and thereby obtain the very information
which they are now seeking through the judicial department of the government.

Third. With reference to the jurisdiction of the court to compel the Acting Insular Auditor, Mr. Dizon, to
comply with the prayer of the petition, it may be said that the Auditor of the Philippine Islands, under
the law, has (a) exclusive jurisdiction over government accounts and records pertaining thereto, and (b)
power and authority to audit, in accordance with law and administrative regulations, all expenditures of
funds or property pertaining to, or held in trust by the Government or the provinces or municipalities,
and to preserve the vouchers pertaining thereto. The Jones Law further provides that the decisions of
the Auditor shall be final and conclusive upon the executive branches of the government, except that
appeal therefrom may be taken by the party aggrieved or the head of the department concerned, within
one year, to the Governor-General, which appeal shall specifically set forth the particular action of the
Auditor from which the exception is taken, with the reasons and authorities relied upon for reserving
such decision. The law further provides that, in case of a disagreement between the Governor-General
and the Auditor, a further appeal is permitted to the Secretary of War, whose decision upon the question
presented shall be final and conclusive. (Act of Congress, August 29, 1916, sections 24 and 25, vol. 12,
Public Laws, pp. 247-249.)
Under said provisions of the Jones Law, the decision of the Auditor is final and unless an appeal is taken
within the time prescribed. The decision of the Auditor is final unless it is reversed or modified in the
manner provided by law, and the courts are therefore without jurisdiction to intervene or to modify his
decision in the premises. The administrative jurisdiction of the Auditor over accounts, whether of funds
or property, and all vouchers and records pertaining thereto, shall be exclusive. The jurisdiction of the
Auditor in auditing and settling accounts is exclusive, whether of funds or property, and all vouchers and
records pertaining thereto, and his decision or his accounting of such revenues and receipts and
expenditures is final and conclusive, unless an appeal is taken therefrom within the period of one year.
The Auditor being possessed with exclusive and final jurisdiction, except on an appeal, to audit all
accounts of expenditures of public funds of the Philippine Government, it would seem to be a
reasonable conclusion to hold that he has, at least, certain discretionary powers in arriving at an
uncontrolled and independent conclusion. The legislative department of the government of the United
States in the Philippine Islands would not have made the decisions of the Auditor final, unless an appeal
is taken therefrom, without intending to give him an uncontrollable discretion with reference thereto.
(Lamb vs. Phipps, 22 Phil., 456; State vs. Babcock, 22 Neb., 38.)

Without a further discussion of the questions presented, we are of the opinion, and so decide, that we
are without authority or jurisdiction to grant the remedy prayed for; and the petition is therefore hereby
denied, without any finding as to costs. So ordered.

Street, Malcolm, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 166052 August 29, 2007

ANAK MINDANAO PARTY-LIST GROUP, as represented by Rep. Mujiv S. Hataman, and MAMALO
DESCENDANTS ORGANIZATION, INC., as represented by its Chairman Romy Pardi, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE HON. EDUARDO R. ERMITA, and THE SECRETARY OF AGRARIAN/LAND
REFORM, THE HON. RENE C. VILLA, Respondents.

DECISION

CARPIO MORALES, J.:

Petitioners Anak Mindanao Party-List Group (AMIN) and Mamalo Descendants Organization, Inc. (MDOI)
assail the constitutionality of Executive Order (E.O.) Nos. 364 and 379, both issued in 2004, via the
present Petition for Certiorari and Prohibition with prayer for injunctive relief.

E.O. No. 364, which President Gloria Macapagal-Arroyo issued on September 27, 2004, reads:
EXECUTIVE ORDER NO. 364

TRANSFORMING THE DEPARTMENT OF AGRARIAN REFORM INTO THE DEPARTMENT OF LAND REFORM

WHEREAS, one of the five reform packages of the Arroyo administration is Social Justice and Basic
[N]eeds;

WHEREAS, one of the five anti-poverty measures for social justice is asset reform;

WHEREAS, asset reforms covers [sic] agrarian reform, urban land reform, and ancestral domain reform;

WHEREAS, urban land reform is a concern of the Presidential Commission [for] the Urban Poor (PCUP)
and ancestral domain reform is a concern of the National Commission on Indigenous Peoples (NCIP);

WHEREAS, another of the five reform packages of the Arroyo administration is Anti-Corruption and Good
Government;

WHEREAS, one of the Good Government reforms of the Arroyo administration is rationalizing the
bureaucracy by consolidating related functions into one department;

WHEREAS, under law and jurisprudence, the President of the Philippines has broad powers to reorganize
the offices under her supervision and control;

NOW[,] THEREFORE[,] I, Gloria Macapagal-Arroyo, by the powers vested in me as President of the

Republic of the Philippines, do hereby order:
SECTION 1. The Department of Agrarian Reform is hereby transformed into the Department of Land
Reform. It shall be responsible for all land reform in the country, including agrarian reform, urban land
reform, and ancestral domain reform.

SECTION 2. The PCUP is hereby placed under the supervision and control of the Department of Land
Reform. The Chairman of the PCUP shall be ex-officio Undersecretary of the Department of Land Reform
for Urban Land Reform.

SECTION 3. The NCIP is hereby placed under the supervision and control of the Department of Land
Reform. The Chairman of the NCIP shall be ex-officio Undersecretary of the Department of Land Reform
for Ancestral Domain Reform.

SECTION 4. The PCUP and the NCIP shall have access to the services provided by the Department’s
Finance, Management and Administrative Office; Policy, Planning and Legal Affairs Office, Field
Operations and Support Services Office, and all other offices of the Department of Land Reform.

SECTION 5. All previous issuances that conflict with this Executive Order are hereby repealed or modified
accordingly.

SECTION 6. This Executive Order takes effect immediately. (Emphasis and underscoring supplied)

E.O. No. 379, which amended E.O. No. 364 a month later or on October 26, 2004, reads:

EXECUTIVE ORDER NO. 379

AMENDING EXECUTIVE ORDER NO. 364 ENTITLED TRANSFORMING THE DEPARTMENT OF AGRARIAN
REFORM INTO THE DEPARTMENT OF LAND REFORM

WHEREAS, Republic Act No. 8371 created the National Commission on Indigenous Peoples;
WHEREAS, pursuant to the Administrative Code of 1987, the President has the continuing authority to
reorganize the administrative structure of the National Government.

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of the Philippines, by

virtue of the powers vested in me by the Constitution and existing laws, do hereby order:

Section 1. Amending Section 3 of Executive Order No. 364. Section 3 of Executive Order No. 364, dated
September 27, 2004 shall now read as follows:

"Section 3. The National Commission on Indigenous Peoples (NCIP) shall be an attached agency of the
Department of Land Reform."

Section 2. Compensation. The Chairperson shall suffer no diminution in rank and salary.

Section 3. Repealing Clause. All executive issuances, rules and regulations or parts thereof which are
inconsistent with this Executive Order are hereby revoked, amended or modified accordingly.

Section 4. Effectivity. This Executive Order shall take effect immediately. (Emphasis and underscoring in
the original)

Petitioners contend that the two presidential issuances are unconstitutional for violating:

- THE CONSTITUTIONAL PRINCIPLES OF SEPARATION OF POWERS AND OF THE RULE OF LAW[;]

- THE CONSTITUTIONAL SCHEME AND POLICIES FOR AGRARIAN REFORM, URBAN LAND REFORM,
INDIGENOUS PEOPLES’ RIGHTS AND ANCESTRAL DOMAIN[; AND]
- THE CONSTITUTIONAL RIGHT OF THE PEOPLE AND THEIR ORGANIZATIONS TO EFFECTIVE AND
REASONABLE PARTICIPATION IN DECISION-MAKING, INCLUDING THROUGH ADEQUATE
CONSULTATION[.]1

By Resolution of December 6, 2005, this Court gave due course to the Petition and required the
submission of memoranda, with which petitioners and respondents complied on March 24, 2006 and
April 11, 2006, respectively.

The issue on the transformation of the Department of Agrarian Reform (DAR) into the Department of
Land Reform (DLR) became moot and academic, however, the department having reverted to its former
name by virtue of E.O. No. 4562 which was issued on August 23, 2005.

The Court is thus left with the sole issue of the legality of placing the Presidential Commission3 for the
Urban Poor (PCUP) under the supervision and control of the DAR, and the National Commission on
Indigenous Peoples (NCIP) under the DAR as an attached agency.

Before inquiring into the validity of the reorganization, petitioners’ locus standi or legal standing, inter
alia,4 becomes a preliminary question.

The Office of the Solicitor General (OSG), on behalf of respondents, concedes that AMIN5 has the
requisite legal standing to file this suit as member6 of Congress.

Petitioners find it impermissible for the Executive to intrude into the domain of the Legislature. They
posit that an act of the Executive which injures the institution of Congress causes a derivative but
nonetheless substantial injury, which can be questioned by a member of Congress.7 They add that to the
extent that the powers of Congress are impaired, so is the power of each member thereof, since his
office confers a right to participate in the exercise of the powers of that institution.8

Indeed, a member of the House of Representatives has standing to maintain inviolate the prerogatives,
powers and privileges vested by the Constitution in his office.9
The OSG questions, however, the standing of MDOI, a registered people’s organization of Teduray and
Lambangian tribesfolk of (North) Upi and South Upi in the province of Maguindanao.

As co-petitioner, MDOI alleges that it is concerned with the negative impact of NCIP’s becoming an
attached agency of the DAR on the processing of ancestral domain claims. It fears that transferring the
NCIP to the DAR would affect the processing of ancestral domain claims filed by its members.

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.10

It has been held that a party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is invalid, but also that it
sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement, and
not merely that it suffers thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.11

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has
personally suffered some actual or threatened injury as a result 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.12

An examination of MDOI’s nebulous claims of "negative impact" and "probable setbacks"13 shows that
they are too abstract to be considered judicially cognizable. And the line of causation it proffers between
the challenged action and alleged injury is too attenuated.

Vague propositions that the implementation of the assailed orders will work injustice and violate the
rights of its members cannot clothe MDOI with the requisite standing. Neither would its status as a
"people’s organization" vest it with the legal standing to assail the validity of the executive orders.14
La Bugal-B’laan Tribal Association, Inc. v. Ramos,15 which MDOI cites in support of its claim to legal
standing, is inapplicable as it is not similarly situated with the therein petitioners who alleged personal
and substantial injury resulting from the mining activities permitted by the assailed statute. And so is
Cruz v. Secretary of Environment and Natural Resources,16 for the indigenous peoples’ leaders and
organizations were not the petitioners therein, who necessarily had to satisfy the locus standi
requirement, but were intervenors who sought and were allowed to be impleaded, not to assail but to
defend the constitutionality of the statute.

Moreover, MDOI raises no issue of transcendental importance to justify a relaxation of the rule on legal
standing. To be accorded standing on the ground of transcendental importance, Senate of the Philippines
v. Ermita17 requires that the following elements must be established: (1) the public character of the
funds 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 government, and (3) the
lack of any other party with a more direct and specific interest in raising the questions being raised. The
presence of these elements MDOI failed to establish, much less allege.

Francisco, Jr. v. Fernando18 more specifically declares that the transcendental importance of the issues
raised must relate to the merits of the petition.

This Court, not being a venue for the ventilation of generalized grievances, must thus deny adjudication
of the matters raised by MDOI.

Now, on AMIN’s position. AMIN charges the Executive Department with transgression of the principle of
separation of powers.

Under the principle of separation of powers, Congress, the President, and the Judiciary may not
encroach on fields allocated to each of them. The legislature is generally limited to the enactment of
laws, the executive to the enforcement of laws, and the judiciary to their interpretation and application
to cases and controversies. The principle presupposes mutual respect by and between the executive,
legislative and judicial departments of the government and calls for them to be left alone to discharge
their duties as they see fit.19

AMIN contends that since the DAR, PCUP and NCIP were created by statutes,20 they can only be
transformed, merged or attached by statutes, not by mere executive orders.
While AMIN concedes that the executive power is vested in the President21 who, as Chief Executive,
holds the power of control of all the executive departments, bureaus, and offices,22 it posits that this
broad power of control including the power to reorganize is qualified and limited, for it cannot be
exercised in a manner contrary to law, citing the constitutional duty23 of the President to ensure that
the laws, including those creating the agencies, be faithfully executed.

AMIN cites the naming of the PCUP as a presidential commission to be clearly an extension of the
President, and the creation of the NCIP as an "independent agency under the Office of the President."24
It thus argues that since the legislature had seen fit to create these agencies at separate times and with
distinct mandates, the President should respect that legislative disposition.

In fine, AMIN contends that any reorganization of these administrative agencies should be the subject of
a statute.

AMIN’s position fails to impress.

The Constitution confers, by express provision, the power of control over executive departments,
bureaus and offices in the President alone. And it lays down a limitation on the legislative power.

The line that delineates the Legislative and Executive power is not indistinct. Legislative power is "the
authority, under the Constitution, to make laws, and to alter and repeal them." The Constitution, as the
will of the people in their original, sovereign and unlimited capacity, has vested this power in the
Congress of the Philippines. The grant of legislative power to Congress is broad, general and
comprehensive. The legislative body possesses plenary power for all purposes of civil government. Any
power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress, unless the
Constitution has lodged it elsewhere. In fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and extends to matters of general concern or common
interest.

While Congress is vested with the power to enact laws, the President executes the laws. The executive
power is vested in the President. It is generally defined as the power to enforce and administer the laws.
It is the power of carrying the laws into practical operation and enforcing their due observance.
As head of the Executive Department, the President is the Chief Executive. He represents the
government as a whole and sees to it that all laws are enforced by the officials and employees of his
department. He has control over the executive department, bureaus and offices. This means that he has
the authority to assume directly the functions of the executive department, bureau and office, or
interfere with the discretion of its officials. Corollary to the power of control, the President also has the
duty of supervising and enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his control to enable him to
discharge his duties effectively.25 (Italics omitted, underscoring supplied)

The Constitution’s express grant of the power of control in the President justifies an executive action to
carry out reorganization measures under a broad authority of law.26

In enacting a statute, the legislature is presumed to have deliberated with full knowledge of all existing
laws and jurisprudence on the subject.27 It is thus reasonable to conclude that in passing a statute
which places an agency under the Office of the President, it was in accordance with existing laws and
jurisprudence on the President’s power to reorganize.

In establishing an executive department, bureau or office, the legislature necessarily ordains an

executive agency’s position in the scheme of administrative structure. Such determination is primary,28
but subject to the President’s continuing authority to reorganize the administrative structure. As far as
bureaus, agencies or offices in the executive department are concerned, the power of control may justify
the President to deactivate the functions of a particular office. Or a law may expressly grant the
President the broad authority to carry out reorganization measures.29 The Administrative Code of 1987
is one such law:30

SEC. 30. Functions of Agencies under the Office of the President.– Agencies under the Office of the
President shall continue to operate and function in accordance with their respective charters or laws
creating them, except as otherwise provided in this Code or by law.

SEC. 31. Continuing Authority of the President to Reorganize his Office.– The President, subject to the
policy in the Executive Office and in order to achieve simplicity, economy and efficiency, shall have
continuing authority to reorganize the administrative structure of the Office of the President. For this
purpose, he may take any of the following actions:
(1) Restructure the internal organization of the Office of the President Proper, including the immediate
Offices, the Presidential Special Assistants/Advisers System and the Common Staff Support System, by
abolishing, consolidating, or merging units thereof or transferring functions from one unit to another;

(2) Transfer any function under the Office of the President to any other Department or Agency as well as
transfer functions to the Office of the President from other Departments and Agencies; and

(3) Transfer any agency under the Office of the President to any other department or agency as well as
transfer agencies to the Office of the President from other departments or agencies.31 (Italics in the
original; emphasis and underscoring supplied)

In carrying out the laws into practical operation, the President is best equipped to assess whether an
executive agency ought to continue operating in accordance with its charter or the law creating it. This is
not to say that the legislature is incapable of making a similar assessment and appropriate action within
its plenary power. The Administrative Code of 1987 merely underscores the need to provide the
President with suitable solutions to situations on hand to meet the exigencies of the service that may call
for the exercise of the power of control.

x x x The law grants the President this power in recognition of the recurring need of every President to
reorganize his office "to achieve simplicity, economy and efficiency." The Office of the President is the
nerve center of the Executive Branch. To remain effective and efficient, the Office of the President must
be capable of being shaped and reshaped by the President in the manner he deems fit to carry out his
directives and policies. After all, the Office of the President is the command post of the President. This is
the rationale behind the President’s continuing authority to reorganize the administrative structure of
the Office of the President.32

The Office of the President consists of the Office of the President proper and the agencies under it.33 It
is not disputed that PCUP and NCIP were formed as agencies under the Office of the President.34 The
"Agencies under the Office of the President" refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the President, those under the administrative
supervision of the Office of the President, those attached to the Office for policy and program
coordination, and those that are not placed by law or order creating them under any special
department.35
As thus provided by law, the President may transfer any agency under the Office of the President to any
other department or agency, subject to the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency. Gauged against these guidelines,36 the challenged executive orders
may not be said to have been issued with grave abuse of discretion or in violation of the rule of law.

The references in E.O. 364 to asset reform as an anti-poverty measure for social justice and to
rationalization of the bureaucracy in furtherance of good government37 encapsulate a portion of the
existing "policy in the Executive Office." As averred by the OSG, the President saw it fit to streamline the
agencies so as not to hinder the delivery of crucial social reforms.38

The consolidation of functions in E.O. 364 aims to attain the objectives of "simplicity, economy and
efficiency" as gathered from the provision granting PCUP and NCIP access to the range of services
provided by the DAR’s technical offices and support systems.39

The characterization of the NCIP as an independent agency under the Office of the President does not
remove said body from the President’s control and supervision with respect to its performance of
administrative functions. So it has been opined:

That Congress did not intend to place the NCIP under the control of the President in all instances is
evident in the IPRA itself, which provides that the decisions of the NCIP in the exercise of its quasi-
judicial functions shall be appealable to the Court of Appeals, like those of the National Labor Relations
Commission (NLRC) and the Securities and Exchange Commission (SEC). Nevertheless, the NCIP, although
independent to a certain degree, was placed by Congress "under the office of the President" and, as
such, is still subject to the President’s power of control and supervision granted under Section 17, Article
VII of the Constitution with respect to its performance of administrative functions[.]40 (Underscoring
supplied)

In transferring the NCIP to the DAR as an attached agency, the President effectively tempered the
exercise of presidential authority and considerably recognized that degree of independence.

The Administrative Code of 1987 categorizes administrative relationships into (1) supervision and
control, (2) administrative supervision, and (3) attachment.41 With respect to the third category, it has
been held that an attached agency has a larger measure of independence from the Department to which
it is attached than one which is under departmental supervision and control or administrative
supervision. This is borne out by the "lateral relationship" between the Department and the attached
agency. The attachment is merely for "policy and program coordination."42 Indeed, the essential
autonomous character of a board is not negated by its attachment to a commission.43

AMIN argues, however, that there is an anachronism of sorts because there can be no policy and
program coordination between conceptually different areas of reform. It claims that the new framework
subsuming agrarian reform, urban land reform and ancestral domain reform is fundamentally incoherent
in view of the widely different contexts.44 And it posits that it is a substantive transformation or
reorientation that runs contrary to the constitutional scheme and policies.

AMIN goes on to proffer the concept of "ordering the law"45 which, so it alleges, can be said of the
Constitution’s distinct treatment of these three areas, as reflected in separate provisions in different
parts of the Constitution.46 It argues that the Constitution did not intend an over-arching concept of
agrarian reform to encompass the two other areas, and that how the law is ordered in a certain way
should not be undermined by mere executive orders in the guise of administrative efficiency.

The Court is not persuaded.

The interplay of various areas of reform in the promotion of social justice is not something implausible or
unlikely.47 Their interlocking nature cuts across labels and works against a rigid pigeonholing of
executive tasks among the members of the President’s official family. Notably, the Constitution inhibited
from identifying and compartmentalizing the composition of the Cabinet. In vesting executive power in
one person rather than in a plural executive, the evident intention was to invest the power holder with
energy.48

AMIN takes premium on the severed treatment of these reform areas in marked provisions of the
Constitution. It is a precept, however, that inferences drawn from title, chapter or section headings are
entitled to very little weight.49 And so must reliance on sub-headings,50 or the lack thereof, to support a
strained deduction be given the weight of helium.

Secondary aids may be consulted to remove, not to create doubt.51 AMIN’s thesis unsettles, more than
settles the order of things in construing the Constitution. Its interpretation fails to clearly establish that
the so-called "ordering" or arrangement of provisions in the Constitution was consciously adopted to
imply a signification in terms of government hierarchy from where a constitutional mandate can per se
be derived or asserted. It fails to demonstrate that the "ordering" or layout was not simply a matter of
style in constitutional drafting but one of intention in government structuring. With its inherent
ambiguity, the proposed interpretation cannot be made a basis for declaring a law or governmental act
unconstitutional.

A law has in its favor the presumption of constitutionality. For it to be nullified, it must be shown that
there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and
beyond reasonable doubt.52 Any reasonable doubt should, following the universal rule of legal
hermeneutics, be resolved in favor of the constitutionality of a law.53

Ople v. Torres54 on which AMIN relies is unavailing. In that case, an administrative order involved a
system of identification that required a "delicate adjustment of various contending state policies"
properly lodged in the legislative arena. It was declared unconstitutional for dealing with a subject that
should be covered by law and for violating the right to privacy.

In the present case, AMIN glaringly failed to show how the reorganization by executive fiat would
hamper the exercise of citizen’s rights and privileges. It rested on the ambiguous conclusion that the
reorganization jeopardizes economic, social and cultural rights. It intimated, without expounding, that
the agendum behind the issuances is to weaken the indigenous peoples’ rights in favor of the mining
industry. And it raised concerns about the possible retrogression in DAR’s performance as the added
workload may impede the implementation of the comprehensive agrarian reform program.lavvphil

AMIN has not shown, however, that by placing the NCIP as an attached agency of the DAR, the President
altered the nature and dynamics of the jurisdiction and adjudicatory functions of the NCIP concerning all
claims and disputes involving rights of indigenous cultural communities and

indigenous peoples. Nor has it been shown, nay alleged, that the reorganization was made in bad
faith.55

As for the other arguments raised by AMIN which pertain to the wisdom or soundness of the executive
decision, the Court finds it unnecessary to pass upon them. The raging debate on the most fitting
framework in the delivery of social services is endless in the political arena. It is not the business of this
Court to join in the fray. Courts have no judicial power to review cases involving political questions and,
as a rule, will desist from taking cognizance of speculative or hypothetical cases, advisory opinions and
cases that have become moot.56

Finally, a word on the last ground proffered for declaring the unconstitutionality of the assailed issuances
─ that they violate Section 16, Article XIII of the Constitution57 on the people’s right to participate in
decision-making through adequate consultation mechanisms.

The framers of the Constitution recognized that the consultation mechanisms were already operating
without the State’s action by law, such that the role of the State would be mere facilitation, not
necessarily creation of these consultation mechanisms. The State provides the support, but eventually it
is the people, properly organized in their associations, who can assert the right and pursue the objective.
Penalty for failure on the part of the government to consult could only be reflected in the ballot box and
would not nullify government action.58

WHEREFORE, the petition is DISMISSED. Executive Order Nos. 364 and 379 issued on September 27,
2004 and October 26, 2004, respectively, are declared not unconstitutional.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING
Associate Justice ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

CONSUELO YNARES-SANTIAGO

Associate Justice ANTONIO T. CARPIO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice ADOLFO S. AZCUNA

Associate Justice

RENATO C. CORONA

Associate Justice DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

CANCIO C. GARCIA

Associate Justice ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.
REYNATO S. PUNO

Chief Justice

Footnotes

1 Rollo, p. 6.

2 Entitled "RENAMING THE DEPARTMENT OF LAND REFORM BACK TO DEPARTMENT OF AGRARIAN

REFORM" which declared that agrarian reform "goes beyond just land reform but includes the totality of
all factors and support services designed to lift the economic status of the beneficiaries."

3 Formerly "Committee" until modified by Memorandum Order No. 68 issued on January 22, 1987.

4 As there is no disagreement between the parties over the rest of the requisites for a valid exercise of
judicial review, discussion on the same shall be unnecessary, as deemed by the Court. Vide Pimentel, Jr.
v. Aguirre, G.R. No. 132988, July 19, 2000, 336 SCRA 201, 213.

5 Anak Mindanao is a registered party-list group with one seat in the House of Representatives occupied
by Rep. Mujiv S. Hataman whose constituency includes indigenous peoples (Lumads), peasants and
urban poor in Mindanao.

6 Vide discussion in Senate of the Philippines v. Ermita, G.R. No. 169777, July 14, 2006, 495 SCRA 170, for
a discussion on the entitlement of a party-list organization to participate in the legislative process vis-à-
vis the intertwining rights of its representative/s.

7 Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994, 235 SCRA 506.

8 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 622.
9 Del Mar v. Phil. Amusement and Gaming Corp., 400 Phil. 307 (2000).

10 Francisco, Jr. v. The House of Representatives, 460 Phil. 830, 893 (2003).

11 Vide Agan, Jr. v. Phil.International Air Terminals Co., Inc., 450 Phil 744 (2003).

12 Vide Telecom and Broadcast Attys. of the Phils., Inc. v. COMELEC, 352 Phil. 153, 168 (1998); vide also
Lozada v. Comelec, 205 Phil. 283 (1983) on the need to establish concrete injury.

13 Rollo, pp. 5-6.

14 Vide Sanlakas v. Executive Secretary, 466 Phil. 482, 508 (2004) citing Kilosbayan v. Morato, G.R. No.
118910, November 16, 1995, 250 SCRA 130.

15 465 Phil. 860 (2004).

16 400 Phil. 904 (2000).

17 G.R. No. 169777, April 20, 2006, 488 SCRA 1.

18 G.R. No. 166501, November 16, 2006, 507 SCRA 173.

19 Vide Atitiw v. Zamora, G.R. No. 143374, September 30, 2005, 471 SCRA 329, 345-346.
20 The DAR was created by Republic Act No. 6389 (1971); the PCUP by Executive Order No. 82 (1986) as
modified by Memorandum Order No. 68 (1987) in Pres. Aquino’s exercise of legislative powers under
Proclamation No. 3, and Republic Act No. 7279 (1992); the NCIP by Republic Act No. 8371 (1997).

21 Constitution, Art. VII, Sec. 1.

22 Id., Art. VII, Sec. 17.

23 Ibid.

24 Republic Act No. 8371 (1997), vide Sec. 40.

25 Ople v. Torres, 354 Phil. 948, 966-968 (1998).

26 Bagaoisan v. National Tobacco Administration, 455 Phil. 761 (2003).

27 Didipio Earth-Savers’ Multi-Purpose Association, Inc. (DESAMA) v. Gozun, G.R. No. 157882, March 30,
2006, 485 SCRA 586.

28 Vide Eugenio v. Civil Service Commission, 312 Phil. 1145, 1152 (1995) which quotes Am Jur 2d on
Public Officers and Employees, viz: "Except for such offices as are created by the Constitution, the
creation of public offices is primarily a legislative function. In so far [sic] as the legislative power in this
respect is not restricted by constitutional provisions, it is supreme, and the legislature may decide for
itself what offices are suitable, necessary or convenient."

29 Vide Buklod ng Kawaning EIIB v. Hon. Sec. Zamora, 413 Phil. 281, 291 (2001).

30 Id. at 294.
31 Executive Order No. 292 (1987), Book III, Chapter 10.

32 Domingo v. Hon. Zamora, 445 Phil. 7, 13 (2003).

33 Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 21.

34 Vide Executive Order No. 82 (1986), Sec. 1; Republic Act No. 8371 (1997), Sec. 40.

35 Executive Order No. 292 (1987), Book III, Chapter 8, Sec. 23. The President shall, by executive order,
assign offices and agencies not otherwise assigned by law to any department, or indicate to which
department a government corporation or board may be attached. (Id., Book IV, Chapter 1. Sec. 5)

36 Bagaoisan v. National Tobacco Administration, supra at 776, adds that the numbered paragraphs are
not in the nature of provisos that unduly limit the aim and scope of the grant to the President of the
power to reorganize but are to be viewed in consonance therewith.

37 Executive Order No. 364 (2004), perambulatory clauses.

38 Rollo, p. 130.

39 Executive Order No. 364 (2004), Sec. 4 & perambulatory clauses.

40 Separate Opinion of Justice Santiago M. Kapunan in Cruz v. Secretary of Environment and Natural
Resources, supra at 1087-1088.

41 Executive Order No. 292 (1987), Book IV, Chapter 7, Sec. 38.
42 Beja, Sr. v. Court of Appeals, G.R. No. 97149, March 31, 1992, 207 SCRA 689.

43 Eugenio v. Civil Service Commission, supra at 1155.

44 Rollo, Memorandum for Petitioners, pp. 85, 99. Particularly between agrarian reform and ancestral
domain, (rural-based) on the one hand, and urban land reform (urban-based), on the other hand; and
between agricultural land (DAR’s concern) and non-agricultural land (concern of PCUP and NCIP, the
latter dealing mostly with timber & forest), citing Luz Farms v. Secretary of the Department of Agrarian
Reform, G.R. No. 86889, December 4, 1990, 192 SCRA 51.

45 Id. at 99-100 citing Waller, AO, An Introduction to Law, 7th Ed. (1995), p. 57. Petitioners attributed the
elaboration of the concept to Louis Waller who stated that the modern system of ordering involves an
understanding of certain "thought devices" with their appropriate names, which lawyers manufactured
in the process of creating the law. The function of all legal concepts is to enable discussion about the
regulation of human behavior to be carried on in a sensible fashion. And new thinking may produce new
classifications of legal rules to replace wholly or in part those which today seem so firmly established.
(Underscoring supplied).

46 On Agrarian Reform – Art. XIII, Secs. 4-8. On Urban Land Reform – Art. XIII, Secs. 9-10; On Indigenous
People’s Rights – Art. XIII, Sec. 6; Art. II, Sec. 22; Art. XII, Sec. 5; Art. XIV, Sec. 17; Art. XVI, Sec. 12. Also,
Art. VI, Sec. 5 (2) on the erstwhile system of sectoral representation providing for separate
representation of peasant, urban poor and indigenous cultural communities.

47 E.g., Constitution, Art. XIII, Sec. 6 which reads: "The State shall apply the principles of agrarian reform
or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other
natural resources, including lands of the public domain under lease or concession suitable to agriculture,
subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to
their ancestral lands."

48 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 793 (2003).
49 Black, Handbook on the Construction and Interpretation of the Laws 258-259 (1911); Crawford, The
Construction of Statutes 359-360 (1940); vide the Concurring and Dissenting Opinion of Justice (now
Chief Justice) Reynato S. Puno in Santiago v. Comelec, 336 Phil. 848, 911 (1997).

50 Found particularly in Article XIII of the Constitution.

51 People v. Yabut, 58 Phil. 499 (1933).

52 Beltran v. Secretary of Health, G.R. No. 133640, November 25, 2005, 476 SCRA 168, 199-200.

53 Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 107-108.

54 Supra note 25.

55 Cf. Canonizado v. Hon. Aguirre, 380 Phil. 280, 296 (2000); Larin v. Executive Secretary, 345 Phil. 962,
980 (1997) wherein it was held that reorganization is regarded as valid provided it is pursued in good
faith and, as a general rule, a reorganization is carried out in "good faith" if it is for the purpose of
economy or to make bureaucracy more efficient.

56 Cutaran v. DENR, 403 Phil. 654, 662-663 (2001).

57 "The right of the people and their organizations to effective and reasonable participation at all levels
of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate
the establishment of adequate consultation mechanisms."

58 Vide Bernas, The Intent of the 1986 Constitution Writers 999, 1003-1005 (1995).
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Greco Antonious Beda B. Belgica v. Hon. Executive Secretary Paquito N. Ochoa, G.R. No. 208566, 19
November 2013

♦ Decision, Perlas-Bernabe [J]

♦ Concurring Opinion, Sereno [J]

♦ Concurring Opinion, Carpio [J]

♦ Concurring Opinion, Leonen [J]

♦ Concurring and Dissenting Opinion, Brion [J]

Republic of the Philippines

SUPREME COURT

Manila

EN BANC
G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and
QUINTIN PAREDES SAN DIEGO, Petitioners,

vs.

HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND MANAGEMENT
FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES
represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE
HOUSE, Respondents.

x-----------------------x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.

HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member

-Province of Marinduque, Petitioner,

vs.

PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT
OF BUDGET AND MANAGEMENT, Respondents.
DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail
the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the Court
shall heretofore discuss the system‘s conceptual underpinnings before detailing the particulars of the
constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin.3 Historically, its usage may be traced to the
degrading ritual of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast
their famished bodies into the porcine feast to assuage their hunger with morsels coming from the
generosity of their well-fed master.4 This practice was later compared to the actions of American
legislators in trying to direct federal budgets in favor of their districts.5 While the advent of refrigeration
has made the actual pork barrel obsolete, it persists in reference to political bills that "bring home the
bacon" to a legislator‘s district and constituents.6 In a more technical sense, "Pork Barrel" refers to an
appropriation of government spending meant for localized projects and secured solely or primarily to
bring money to a representative's district.7 Some scholars on the subject further use it to refer to
legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of
Members of the Legislature,9 although, as will be later discussed, its usage would evolve in reference to
certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of "Congressional Pork
Barrel" in the Philippines since the utilization of the funds appropriated therein were subjected to post-
enactment legislator approval. Particularly, in the area of fund release, Section 312 provides that the
sums appropriated for certain public works projects13 "shall be distributed x x x subject to the approval
of a joint committee elected by the Senate and the House of Representatives. "The committee from each
House may also authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications."14 Also, in the area of fund realignment, the same section provides
that the said secretary, "with the approval of said joint committee, or of the authorized members
thereof, may, for the purposes of said distribution, transfer unexpended portions of any item of
appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation broadened from the
areas of fund release and realignment to the area of project identification. During that year, the
mechanics of the public works act was modified to the extent that the discretion of choosing projects
was transferred from the Secretary of Commerce and Communications to legislators. "For the first time,
the law carried a list of projects selected by Members of Congress, they ‘being the representatives of the
people, either on their own account or by consultation with local officials or civil leaders.‘"16 During this
period, the pork barrel process commenced with local government councils, civil groups, and individuals
appealing to Congressmen or Senators for projects. Petitions that were accommodated formed part of a
legislator‘s allocation, and the amount each legislator would eventually get is determined in a caucus
convened by the majority. The amount was then integrated into the administration bill prepared by the
Department of Public Works and Communications. Thereafter, the Senate and the House of
Representatives added their own provisions to the bill until it was signed into law by the President – the
Public Works Act.17 In the 1960‘s, however, pork barrel legislation reportedly ceased in view of the
stalemate between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after Martial Law
was declared, an era when "one man controlled the legislature,"19 the reprieve was only temporary. By
1982, the Batasang Pambansa had already introduced a new item in the General Appropriations Act
(GAA) called the" Support for Local Development Projects" (SLDP) under the article on "National Aid to
Local Government Units". Based on reports,20 it was under the SLDP that the practice of giving lump-
sum allocations to individual legislators began, with each assemblyman receiving ₱500,000.00.
Thereafter, assemblymen would communicate their project preferences to the Ministry of Budget and
Management for approval. Then, the said ministry would release the allocation papers to the Ministry of
Local Governments, which would, in turn, issue the checks to the city or municipal treasurers in the
assemblyman‘s locality. It has been further reported that "Congressional Pork Barrel" projects under the
SLDP also began to cover not only public works projects, or so- called "hard projects", but also "soft
projects",21 or non-public works projects such as those which would fall under the categories of, among
others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the form of the "Mindanao Development Fund" and the
"Visayas Development Fund" which were created with lump-sum appropriations of ₱480 Million and
₱240 Million, respectively, for the funding of development projects in the Mindanao and Visayas areas in
1989. It has been documented23 that the clamor raised by the Senators and the Luzon legislators for a
similar funding, prompted the creation of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3 Billion to cover "small local infrastructure
and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to
be released directly to the implementing agencies but "subject to the submission of the required list of
projects and activities."Although the GAAs from 1990 to 1992 were silent as to the amounts of
allocations of the individual legislators, as well as their participation in the identification of projects, it
has been reported26 that by 1992, Representatives were receiving ₱12.5 Million each in CDF funds,
while Senators were receiving ₱18 Million each, without any limitation or qualification, and that they
could identify any kind of project, from hard or infrastructure projects such as roads, bridges, and
buildings to "soft projects" such as textbooks, medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be made
upon the submission of the list of projects and activities identified by, among others, individual
legislators. For the first time, the 1993 CDF Article included an allocation for the Vice-President.29 As
such, Representatives were allocated ₱12.5 Million each in CDF funds, Senators, ₱18 Million each, and
the Vice-President, ₱20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification and
fund release as found in the 1993 CDF Article. In addition, however, the Department of Budget and
Management (DBM) was directed to submit reports to the Senate Committee on Finance and the House
Committee on Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the
implementing agency concerned, were directed to submit to the DBM the list of 50% of projects to be
funded from their respective CDF allocations which shall be duly endorsed by (a) the Senate President
and the Chairman of the Committee on Finance, in the case of the Senate, and (b) the Speaker of the
House of Representatives and the Chairman of the Committee on Appropriations, in the case of the
House of Representatives; while the list for the remaining 50% was to be submitted within six (6) months
thereafter. The same article also stated that the project list, which would be published by the DBM,35
"shall be the basis for the release of funds" and that "no funds appropriated herein shall be disbursed for
projects not included in the list herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and endorsements
were reproduced, except that the publication of the project list was no longer required as the list itself
sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other forms of
"Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA (called "Congressional
Insertions" or "CIs") in order to perpetuate the ad ministration‘s political agenda.37 It has been
articulated that since CIs "formed part and parcel of the budgets of executive departments, they were
not easily identifiable and were thus harder to monitor." Nonetheless, the lawmakers themselves as well
as the finance and budget officials of the implementing agencies, as well as the DBM, purportedly knew
about the insertions.38 Examples of these CIs are the Department of Education (DepEd) School Building
Fund, the Congressional Initiative Allocations, the Public Works Fund, the El Niño Fund, and the Poverty
Alleviation Fund.39 The allocations for the School Building Fund, particularly, ―shall be made upon prior
consultation with the representative of the legislative district concerned.”40 Similarly, the legislators had
the power to direct how, where and when these appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the
"Food Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44 and the "Rural/Urban
Development Infrastructure Program Fund,"45 all of which contained a special provision requiring "prior
consultation" with the Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in the GAA.
The requirement of "prior consultation with the respective Representative of the District" before PDAF
funds were directly released to the implementing agency concerned was explicitly stated in the 2000
PDAF Article. Moreover, realignment of funds to any expense category was expressly allowed, with the
sole condition that no amount shall be used to fund personal services and other personnel benefits.47
The succeeding PDAF provisions remained the same in view of the re-enactment48 of the 2000 GAA for
the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision
ordering the release of the funds directly to the implementing agency or local government unit
concerned, without further qualifications. The following year, 2003,50 the same single provision was
present, with simply an expansion of purpose and express authority to realign. Nevertheless, the
provisions in the 2003 budgets of the Department of Public Works and Highways51 (DPWH) and the
DepEd52 required prior consultation with Members of Congress on the aspects of implementation
delegation and project list submission, respectively. In 2004, the 2003 GAA was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and projects
under the ten point agenda of the national government and shall be released directly to the
implementing agencies." It also introduced the program menu concept,55 which is essentially a list of
general programs and implementing agencies from which a particular PDAF project may be subsequently
chosen by the identifying authority. The 2005 GAA was re-enacted56 in 2006 and hence, operated on
the same bases. In similar regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated
for the individual legislators, as well as their participation in the proposal and identification of PDAF
projects to be funded. In contrast to the PDAF Articles, however, the provisions under the DepEd School
Building Program and the DPWH budget, similar to its predecessors, explicitly required prior consultation
with the concerned Member of Congress61 anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of non-
governmental organizations (NGO) in the implementation of government projects were introduced. In
the Supplemental Budget for 2006, with respect to the appropriation for school buildings, NGOs were, by
law, encouraged to participate. For such purpose, the law stated that "the amount of at least ₱250
Million of the ₱500 Million allotted for the construction and completion of school buildings shall be
made available to NGOs including the Federation of Filipino-Chinese Chambers of Commerce and
Industry, Inc. for its "Operation Barrio School" program, with capability and proven track records in the
construction of public school buildings x x x."62 The same allocation was made available to NGOs in the
2007 and 2009 GAAs under the DepEd Budget.63 Also, it was in 2007 that the Government Procurement
Policy Board64 (GPPB) issued Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution 12-2007),
amending the implementing rules and regulations65 of RA 9184,66 the Government Procurement
Reform Act, to include, as a form of negotiated procurement,67 the procedure whereby the Procuring
Entity68 (the implementing agency) may enter into a memorandum of agreement with an NGO,
provided that "an appropriation law or ordinance earmarks an amount to be specifically contracted out
to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article included
an express statement on lump-sum amounts allocated for individual legislators and the Vice-President:
Representatives were given ₱70 Million each, broken down into ₱40 Million for "hard projects" and ₱30
Million for "soft projects"; while ₱200 Million was given to each Senator as well as the Vice-President,
with a ₱100 Million allocation each for "hard" and "soft projects." Likewise, a provision on realignment
of funds was included, but with the qualification that it may be allowed only once. The same provision
also allowed the Secretaries of Education, Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and Public Works and Highways to realign
PDAF Funds, with the further conditions that: (a) realignment is within the same implementing unit and
same project category as the original project, for infrastructure projects; (b) allotment released has not
yet been obligated for the original scope of work, and (c) the request for realignment is with the
concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or
designation of beneficiaries shall conform to the priority list, standard or design prepared by each
implementing agency (priority list requirement) x x x." However, as practiced, it would still be the
individual legislator who would choose and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and 2013
PDAF Articles; but the allocation for the Vice-President, which was pegged at ₱200 Million in the 2011
GAA, had been deleted. In addition, the 2013 PDAF Article now allowed LGUs to be identified as
implementing agencies if they have the technical capability to implement the projects.77 Legislators
were also allowed to identify programs/projects, except for assistance to indigent patients and
scholarships, outside of his legislative district provided that he secures the written concurrence of the
legislator of the intended outside-district, endorsed by the Speaker of the House.78 Finally, any
realignment of PDAF funds, modification and revision of project identification, as well as requests for
release of funds, were all required to be favorably endorsed by the House Committee on Appropriations
and the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of
Members of Congress, the present cases and the recent controversies on the matter have, however,
shown that the term‘s usage has expanded to include certain funds of the President such as the
Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of Presidential
Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In
enacting the said law, Marcos recognized the need to set up a special fund to help intensify, strengthen,
and consolidate government efforts relating to the exploration, exploitation, and development of
indigenous energy resources vital to economic growth.82 Due to the energy-related activities of the
government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep Water Gas-to-
Power Project",83 the special fund created under PD 910 has been currently labeled as Malampaya
Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV84 of PD 1869,85 or
the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly
issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD 1869 and accordingly
issued PD 1993 on October 31, 1985,86 amending Section 1287 of the former law. As it stands, the
Presidential Social Fund has been described as a special funding facility managed and administered by
the Presidential Management Staff through which the President provides direct assistance to priority
programs and projects not funded under the regular budget. It is sourced from the share of the
government in the aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small part
to previous Presidents who reportedly used the "Pork Barrel" in order to gain congressional support.90 It
was in 1996 when the first controversy surrounding the "Pork Barrel" erupted. Former Marikina City
Representative Romeo Candazo (Candazo), then an anonymous source, "blew the lid on the huge sums
of government money that regularly went into the pockets of legislators in the form of kickbacks."91 He
said that "the kickbacks were ‘SOP‘ (standard operating procedure) among legislators and ranged from a
low 19 percent to a high 52 percent of the cost of each project, which could be anything from dredging,
rip rapping, sphalting, concreting, and construction of school buildings."92 "Other sources of kickbacks
that Candazo identified were public funds intended for medicines and textbooks. A few days later, the
tale of the money trail became the banner story of the Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig."93 "The publication of the stories, including those about
congressional initiative allocations of certain lawmakers, including ₱3.6 Billion for a Congressman,
sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in the
2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support that
illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous
Members of Congress," the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into
allegations that "the government has been defrauded of some ₱10 Billion over the past 10 years by a
syndicate using funds from the pork barrel of lawmakers and various government agencies for scores of
ghost projects."96 The investigation was spawned by sworn affidavits of six (6) whistle-blowers who
declared that JLN Corporation – "JLN" standing for Janet Lim Napoles (Napoles) – had swindled billions of
pesos from the public coffers for "ghost projects" using no fewer than 20 dummy NGOs for an entire
decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘ private accounts.97 Thus, after its investigation on
the Napoles controversy, criminal complaints were filed before the Office of the Ombudsman, charging
five (5) lawmakers for Plunder, and three (3) other lawmakers for Malversation, Direct Bribery, and
Violation of the Anti-Graft and Corrupt Practices Act. Also recommended to be charged in the complaints
are some of the lawmakers‘ chiefs -of-staff or representatives, the heads and other officials of three (3)
implementing agencies, and the several presidents of the NGOs set up by Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the last three (3) years
of the Arroyo administration. The purpose of the audit was to determine the propriety of releases of
funds under PDAF and the Various Infrastructures including Local Projects (VILP)100 by the DBM, the
application of these funds and the implementation of projects by the appropriate implementing agencies
and several government-owned-and-controlled corporations (GOCCs).101 The total releases covered by
the audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made nationwide during
the audit period.102 Accordingly, the Co A‘s findings contained in its Report No. 2012-03 (CoA Report),
entitled "Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local
Projects (VILP)," were made public, the highlights of which are as follows:103

● Amounts released for projects identified by a considerable number of legislators significantly exceeded
their respective allocations.

● Amounts were released for projects outside of legislative districts of sponsoring members of the Lower
House.

● Total VILP releases for the period exceeded the total amount appropriated under the 2007 to 2009
GAAs.

● Infrastructure projects were constructed on private lots without these having been turned over to the
government.
● Significant amounts were released to implementing agencies without the latter‘s endorsement and
without considering their mandated functions, administrative and technical capabilities to implement
projects.

● Implementation of most livelihood projects was not undertaken by the implementing agencies
themselves but by NGOs endorsed by the proponent legislators to which the Funds were transferred.

● The funds were transferred to the NGOs in spite of the absence of any appropriation law or ordinance.

● Selection of the NGOs were not compliant with law and regulations.

● Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects
amount to ₱6.156 Billion were either found questionable, or submitted questionable/spurious
documents, or failed to liquidate in whole or in part their utilization of the Funds.

● Procurement by the NGOs, as well as some implementing agencies, of goods and services reportedly
used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least ₱900 Million from royalties in
the operation of the Malampaya gas project off Palawan province intended for agrarian reform
beneficiaries has gone into a dummy NGO."104 According to incumbent CoA Chairperson Maria Gracia
Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the process of preparing "one consolidated
report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy, several
petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be declared
unconstitutional. To recount, the relevant procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society,
filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition),
seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective
capacities as the incumbent Senate President and Speaker of the House of Representatives, from further
taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form
and by whatever name it may be called, and from approving further releases pursuant thereto.106 The
Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent
Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of
Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the
provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executive‘s lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund,107 be declared
unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray
that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary Abad)
and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of
the Department of Budget and Management (DBM), and National Treasurer, or their agents, for them to
immediately cease any expenditure under the aforesaid funds. Further, they pray that the Court order
the foregoing respondents to release to the CoA and to the public: (a) "the complete schedule/list of
legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of
the funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto";
and (b) "the use of the Executive‘s lump-sum, discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project
or activity and the recipient entities or individuals, and all pertinent data thereto."108 Also, they pray for
the "inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances
from the PAGCOR."109 The Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated
August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a
cease and desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino)
and Secretary Abad from releasing such funds to Members of Congress and, instead, allow their release
to fund priority projects identified and approved by the Local Development Councils in consultation with
the executive departments, such as the DPWH, the Department of Tourism, the Department of Health,
the Department of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO (September 10,
2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any of the persons acting
under their authority from releasing (1) the remaining PDAF allocated to Members of Congress under
the GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be
hereafter directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and exploitation programs and projects of the government‖
under the same provision; and (d) setting the consolidated cases for Oral Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting with
respect to educational and medical assistance purposes, of the Court‘s September 10, 2013 TRO, and
that the consolidated petitions be dismissed for lack of merit.113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the
Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues
material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer questions related to, among others, the budgeting
process and its implementation. Further, the CoA Chairperson was appointed as amicus curiae and
thereby requested to appear before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for
the Court‘s resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Court‘s Decision dated August 19,
1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the
issue of constitutionality of the "Pork Barrel System" under the principles of res judicata and stare
decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the
priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social
Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court shall
also tackle certain ancillary issues as prompted by the present cases.

The Court’s Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity
of a law or governmental act may be heard and decided by the Court unless there is compliance with the
legal requisites for judicial inquiry,117 namely: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these
requisites, case law states that the first two are the most important119 and, therefore, shall be discussed
forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy.120 This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one
which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute.121 In other words,
"there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence."122 Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already ripe
for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action."123 "Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in these
cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their utilization
– such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as amended by PD
1993, for the Presidential Social Fund – are currently existing and operational; hence, there exists an
immediate or threatened injury to petitioners as a result of the unconstitutional use of these public
funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is no
more actual controversy between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents‘ proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which,
being a distinct subject matter, remains legally effective and existing. Neither will the President‘s
declaration that he had already "abolished the PDAF" render the issues on PDAF moot precisely because
the Executive branch of government has no constitutional authority to nullify or annul its legal existence.
By constitutional design, the annulment or nullification of a law may be done either by Congress,
through the passage of a repealing law, or by the Court, through a declaration of unconstitutionality.
Instructive on this point is the following exchange between Associate Justice Antonio T. Carpio (Justice
Carpio) and the Solicitor General during the Oral Arguments:126

Justice Carpio: The President has taken an oath to faithfully execute the law,127 correct? Solicitor
General Jardeleza: Yes, Your Honor.
Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the
President has a duty to execute the laws but in the face of the outrage over PDAF, the President was
saying, "I am not sure that I will continue the release of the soft projects," and that started, Your Honor.
Now, whether or not that … (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to
stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the
Revised Administrative Code128 x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF
because of the CoA Report, because of the reported irregularities and this Court can take judicial notice,
even outside, outside of the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty ….

xxxx

Justice Carpio: Yes, and that is correct. You‘ve seen the CoA Report, there are anomalies, you stop and
investigate, and prosecute, he has done that. But, does that mean that PDAF has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to
repeal it, or this Court declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic‘ principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: 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 the 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.129

The applicability of the first exception is clear from the fundamental posture of petitioners – they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and local
autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved

– the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character as
well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time
when the system‘s flaws have never before been magnified. To the Court‘s mind, the coalescence of the
CoA Report, the accounts of numerous whistle-blowers, and the government‘s own recognition that
reforms are needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie
pattern of abuse which only underscores the importance of the matter. It is also by this finding that the
Court finds petitioners‘ claims as not merely theorized, speculative or hypothetical. Of note is the weight
accorded by the Court to the findings made by the CoA which is the constitutionally-mandated audit arm
of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoA‘s
disallowance of irregularly disbursed PDAF funds, it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant
and conscientious in safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional mechanisms that gives life
to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially one
which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the decision and order are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only
when the CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. x x x.
(Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these
cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a definitive
ruling on the system‘s constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson
estimates that thousands of notices of disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate Justice Marvic Mario Victor F. Leonen (Justice
Leonen) pointed out that all of these would eventually find their way to the courts.132 Accordingly,
there is a compelling need to formulate controlling principles relative to the issues raised herein in order
to guide the bench, the bar, and the public, not just for the expeditious resolution of the anticipated
disallowance cases, but more importantly, so that the government may be guided on how public funds
should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence.133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course
of history, lends a semblance of truth to petitioners‘ claim that "the same dog will just resurface wearing
a different collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on
a previous course of action yet the Court used the "capable of repetition but evading review" exception
in order "to prevent similar questions from re- emerging."137 The situation similarly holds true to these
cases. Indeed, the myriad of issues underlying the manner in which certain public funds are spent, if not
resolved at this most opportune time, are capable of repetition and hence, must not evade judicial
review.
B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies‖ carries the assurance
that "the courts will not intrude into areas committed to the other branches of government."138
Essentially, the foregoing limitation is a restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr,139 applies when there is found, among others, "a textually
demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of
judicially discoverable and manageable standards for resolving it" or "the impossibility of deciding
without an initial policy determination of a kind clearly for non- judicial discretion." Cast against this
light, respondents submit that the "the political branches are in the best position not only to perform
budget-related reforms but also to do them in response to the specific demands of their constituents"
and, as such, "urge the Court not to impose a solution at this stage."140

The Court must deny respondents‘ submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a particular measure."141 The
intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which the Constitution itself has commanded the
Court to act upon. Scrutinizing the contours of the system along constitutional lines is a task that the
political branches of government are incapable of rendering precisely because it is an exercise of judicial
power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise
judicial power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987
Constitution cannot be any clearer: "The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. It 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." In Estrada v. Desierto,142 the expanded concept of
judicial power under the 1987 Constitution and its effect on the political question doctrine was explained
as follows:143
To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when
it expanded the power of judicial review of this court 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 government. Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are
given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)

It must also be borne in mind that ― when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; does not in reality nullify or invalidate an
act of the legislature or the executive, but only asserts the solemn and sacred obligation assigned to it by
the Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by its
co-equal branches of government. But it is by constitutional force that the Court must faithfully perform
its duty. Ultimately, it is the Court‘s avowed intention that a resolution of these cases would not arrest or
in any manner impede the endeavors of the two other branches but, in fact, help ensure that the pillars
of change are erected on firm constitutional grounds. After all, it is in the best interest of the people that
each great branch of government, within its own sphere, contributes its share towards achieving a
holistic and genuine solution to the problems of society. For all these reasons, the Court cannot heed
respondents‘ plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no
standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury."146 Clearly, as
taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public funds
are illegally disbursed or that public money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or unconstitutional law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues
they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest."148 The CoA Chairperson‘s statement during the
Oral Arguments that the present controversy involves "not merely a systems failure" but a "complete
breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the
issues involved herein. Indeed, of greater import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare
decisis which means "follow past precedents and do not disturb what has been settled") are general
procedural law principles which both deal with the effects of previous but factually similar dispositions
to subsequent cases. For the cases at bar, the Court examines the applicability of these principles in
relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between
the first and second actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since Philconsa and LAMP,
respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel System."
Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality – and, thus, hardly a
judgment on the merits – in that petitioners therein failed to present any "convincing proof x x x showing
that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them
according to their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of
PDAF in the form of kickbacks and has become a common exercise of unscrupulous Members of
Congress." As such, the Court up held, in view of the presumption of constitutionality accorded to every
law, the 2004 PDAF Article, and saw "no need to review or reverse the standing pronouncements in the
said case." Hence, for the foregoing reasons, the res judicata principle, insofar as the Philconsa and
LAMP cases are concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion
reached in one case should be doctrinally applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds from the first principle of justice that,
absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the
same questions relating to the same event have been put forward by the parties similarly situated as in a
previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt
to re-litigate the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the
1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners‘ posturing
was that "the power given to the Members of Congress to propose and identify projects and activities to
be funded by the CDF is an encroachment by the legislature on executive power, since said power in an
appropriation act is in implementation of the law" and that "the proposal and identification of the
projects do not involve the making of laws or the repeal and amendment thereof, the only function given
to the Congress by the Constitution."154 In deference to the foregoing submissions, the Court reached
the following main conclusions: one, under the Constitution, the power of appropriation, or the "power
of the purse," belongs to Congress; two, the power of appropriation carries with it the power to specify
the project or activity to be funded under the appropriation law and it can be detailed and as broad as
Congress wants it to be; and, three, the proposals and identifications made by Members of Congress are
merely recommendatory. At once, it is apparent that the Philconsa resolution was a limited response to a
separation of powers problem, specifically on the propriety of conferring post-enactment identification
authority to Members of Congress. On the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as
they are of the entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures
contained within a particular CDF or PDAF Article, including not only those related to the area of project
identification but also to the areas of fund release and realignment. The complexity of the issues and the
broader legal analyses herein warranted may be, therefore, considered as a powerful countervailing
reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional
inconsistencies which similarly countervail against a full resort to stare decisis. As may be deduced from
the main conclusions of the case, Philconsa‘s fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said identification authority is but an aspect of the
power of appropriation which has been constitutionally lodged in Congress. From this premise, the
contradictions may be easily seen. If the authority to identify projects is an aspect of appropriation and
the power of appropriation is a form of legislative power thereby lodged in Congress, then it follows
that: (a) it is Congress which should exercise such authority, and not its individual Members; (b) such
authority must be exercised within the prescribed procedure of law passage and, hence, should not be
exercised after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has
the force of law and, hence, cannot be merely recommendatory. Justice Vitug‘s Concurring Opinion in
the same case sums up the Philconsa quandary in this wise: "Neither would it be objectionable for
Congress, by law, to appropriate funds for such specific projects as it may be minded; to give that
authority, however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and current findings on
the matter, among others, the CoA Report, the Court must partially abandon its previous ruling in
Philconsa insofar as it validated the post-enactment identification authority of Members of Congress on
the guise that the same was merely recommendatory. This postulate raises serious constitutional
inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative as it
is innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List v.
Purisima155 (Abakada) has effectively overturned Philconsa‘s allowance of post-enactment legislator
participation in view of the separation of powers principle. These constitutional inconsistencies and the
Abakada rule will be discussed in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive issues in
these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms
"Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to
the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive
branches of government to accumulate lump-sum public funds in their offices with unchecked
discretionary powers to determine its distribution as political largesse."156 They assert that the
following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits.157 They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the Congressional (or
Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the Presidential (or Executive)
Pork Barrel, specifically, the Malampaya Funds under PD 910 and the Presidential Social Fund under PD
1869, as amended by PD 1993.159

Considering petitioners‘ submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner by
which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or collectively organized into committees, are able to
effectively control certain aspects of the fund’s utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as
Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual
legislators to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund which allows the President to determine the manner of its utilization. For reasons earlier stated,161
the Court shall delimit the use of such term to refer only to the Malampaya Funds and the Presidential
Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these
cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.
The principle of separation of powers refers to the constitutional demarcation of the three fundamental
powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it
means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government."163 To the legislative
branch of government, through Congress,164 belongs the power to make laws; to the executive branch
of government, through the President,165 belongs the power to enforce laws; and to the judicial branch
of government, through the Court,166 belongs the power to interpret laws. Because the three great
powers have been, by constitutional design, ordained in this respect, "each department of the
government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no
authority to make or construe the law, and the judiciary has no power to make or execute the law."168
The principle of separation of powers and its concepts of autonomy and independence stem from the
notion that the powers of government must be divided to avoid concentration of these powers in any
one branch; the division, it is hoped, would avoid any single branch from lording its power over the other
branches or the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent action in exercising their respective
mandates. Lack of independence would result in the inability of one branch of government to check the
arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the
principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere
impermissibly with the other’s performance of its constitutionally assigned function";171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly is
entrusted to another."172 In other words, there is a violation of the principle when there is
impermissible (a) interference with and/or (b) assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution
"covers the various operational aspects of budgeting" and accordingly includes "the evaluation of work
and financial plans for individual activities," the "regulation and release of funds" as well as all "other
related activities" that comprise the budget execution cycle.174 This is rooted in the principle that the
allocation of power in the three principal branches of government is a grant of all powers inherent in
them.175 Thus, unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget as provided
under the GAA as well as any other appropriation law.
In view of the foregoing, the Legislative branch of government, much more any of its members, should
not cross over the field of implementing the national budget since, as earlier stated, the same is properly
the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture
when it deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the
exercise of its own judgment and wisdom, formulates an appropriation act precisely following the
process established by the Constitution, which specifies that no money may be paid from the Treasury
except in accordance with an appropriation made by law." Upon approval and passage of the GAA,
Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role of
implementing the national budget begins. So as not to blur the constitutional boundaries between them,
Congress must "not concern it self with details for implementation by the Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"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."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the Constitution
itself allows. But it must be made clear that Congress‘ role must be confined to mere oversight. Any post-
enactment-measure allowing legislator participation beyond oversight is bereft of any constitutional
basis and hence, tantamount to impermissible interference and/or assumption of executive functions. As
the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1âwphi1

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 confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
(Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF
Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to
allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after
the GAA is passed."179 They state that the findings and recommendations in the CoA Report provide "an
illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers."180 Further, they point out
that the Court in the Philconsa case only allowed the CDF to exist on the condition that individual
legislators limited their role to recommending projects and not if they actually dictate their
implementation.181

For their part, respondents counter that the separations of powers principle has not been violated since
the President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the
final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa,
"upheld the constitutionality of the power of members of Congress to propose and identify projects so
long as such proposal and identification are recommendatory."183 As such, they claim that "everything
in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel
would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187
– have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special
Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles, allows
individual legislators to identify PDAF projects for as long as the identified project falls under a general
program listed in the said menu. Relatedly, Special Provision 2 provides that the implementing agencies
shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or
design prepared and submitted by implementing agencies from which the legislator may make his
choice. The same provision further authorizes legislators to identify PDAF projects outside his district for
as long as the representative of the district concerned concurs in writing. Meanwhile, Special Provision 3
clarifies that PDAF projects refer to "projects to be identified by legislators"188 and thereunder provides
the allocation limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of
Special Provision 4 requires that any modification and revision of the project identification "shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be." From the
foregoing special provisions, it cannot be seriously doubted that legislators have been accorded post-
enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House
Committee on Appropriations and the Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund realignment is contained in: first , paragraph 2,
Special Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be‖ ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education,
Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social
Welfare and Development and Trade and Industry190 x x x to approve realignment from one
project/scope to another within the allotment received from this Fund, subject to among others (iii) the
request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release
and fund realignment are not related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong to the sphere of budget execution.
Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to
participate in – as Guingona, Jr. puts it – "the various operational aspects of budgeting," including "the
evaluation of work and financial plans for individual activities" and the "regulation and release of funds"
in violation of the separation of powers principle. The fundamental rule, as categorically articulated in
Abakada, cannot be overstated – 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.191 That the said
authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since
the prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this
end, the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator
identification on the guise that the same is merely recommendatory and, as such, respondents‘ reliance
on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position
that the identification authority of legislators is only of recommendatory import. Quite the contrary,
respondents – through the statements of the Solicitor General during the Oral Arguments – have
admitted that the identification of the legislator constitutes a mandatory requirement before his PDAF
can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire
budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the
legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx
Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented without
the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I
would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA.
And the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question,
"How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he
must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases
supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through
which legislators have effectively intruded into the proper phases of budget execution, must be deemed
as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the
same unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially disputed here. As pointed out by Chief Justice
Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193

Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we
enforces the initial thought that I have, after I had seen the extent of this research made by my staff, that
neither the Executive nor Congress frontally faced the question of constitutional compatibility of how
they were engineering the budget process. In fact, the words you have been using, as the three lawyers
of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of these
things are now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one
section all the past practice that had been done since 1991. In a certain sense, we should be thankful
that they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the
1987 Constitution states that such 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.195 Based on this provision, it is clear that only Congress, acting
as a bicameral body, and the people, through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This premise embodies the principle of non-
delegability of legislative power, and the only recognized exceptions thereto would be: (a) delegated
legislative power to local governments which, by immemorial practice, are allowed to legislate on purely
local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by
law, exercise powers necessary and proper to carry out a declared national policy in times of war or
other national emergency,197 or fix within specified limits, and subject to such limitations and
restrictions as Congress 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.198
Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making
authority to implementing agencies for the limited purpose of either filling up the details of the law for
its enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual operation
(contingent rule-making).199 The conceptual treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary because
of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot
be extended to amending or expanding the statutory requirements or to embrace matters not covered
by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said
legislators are effectively allowed to individually exercise the power of appropriation, which – as settled
in Philconsa – is lodged in Congress.201 That the power to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money
shall be paid out of the Treasury except in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by law of a
certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF Article,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how
much from such fund would go to (b) a specific project or beneficiary that they themselves also
determine. As these two (2) acts comprise the exercise of the power of appropriation as described in
Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to perform the same,
undoubtedly, said legislators have been conferred the power to legislate which the Constitution does
not, however, allow. Thus, keeping with the principle of non-delegability of legislative power, the Court
hereby declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct does
not mean that they are absolutely unrestrained and independent of each other. The Constitution has
also provided for an elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government.203

A prime example of a constitutional check and balance would be the President’s power to veto an item
written into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a
process known as "bill presentment." The President‘s item-veto power is found in Section 27(2), Article
VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(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.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his
power of item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures"
for law-passage as specified under the Constitution.204 As stated in Abakada, the final step in the law-
making process is the "submission of the bill to the President for approval. Once approved, it takes effect
as law after the required publication."205
Elaborating on the President‘s item-veto power and its relevance as a check on the legislature, the Court,
in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is essentially
a legislative act. The questions presented to the mind of the Chief Executive are precisely the same as
those the legislature must determine in passing a bill, except that his will be a broader point of view.

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 in the same manner as they will presume the constitutionality of an act
as originally passed by the Legislature. (Emphases supplied)

The justification for the President‘s item-veto power rests on a variety of policy goals such as to prevent
log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive
branch‘s role in the budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US
Supreme Court characterized the President‘s item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of factions, precipitancy, or of any impulse
unfriendly to the public good, which may happen to influence a majority of that body"; phrased
differently, it is meant to "increase the chances in favor of the community against the passing of bad
laws, through haste, inadvertence, or design."209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item"
which may be the object of the veto. An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the appropriation or of the bill." In the case of
Bengzon v. Secretary of Justice of the Philippine Islands,210 the US Supreme Court characterized an item
of appropriation as follows:

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. (Emphases
supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able
to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence – meaning an allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be consistent
with its definition as a "specific appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent
Fund and the Intelligence Fund, being appropriations which state a specified amount for a specific
purpose, would then be considered as "line- item" appropriations which are rightfully subject to item
veto. Likewise, it must be observed that an appropriation may be validly apportioned into component
percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice
Carpio correctly pointed out, a valid appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose, e.g., MOOE (maintenance and other
operating expenses), in which case the related purposes shall be deemed sufficiently specific for the
exercise of the President‘s item veto power. Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for as long as they follow the rule on
singular correspondence as herein discussed. Anent special purpose funds, it must be added that Section
25(4), Article VI of the 1987 Constitution requires that the "special appropriations bill shall specify the
purpose for which it is intended, and shall be supported by funds actually available as certified by the
National Treasurer, or t o be raised by a corresponding revenue proposal therein." Meanwhile, with
respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds
"shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to
such guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular
lump-sum amount to be tapped as a source of funding for multiple purposes. Since such appropriation
type necessitates the further determination of both the actual amount to be expended and the actual
purpose of the appropriation which must still be chosen from the multiple purposes stated in the law, it
cannot be said that the appropriation law already indicates a "specific appropriation of money‖ and
hence, without a proper line-item which the President may veto. As a practical result, the President
would then be faced with the predicament of either vetoing the entire appropriation if he finds some of
its purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder some of
its legitimate purposes. Finally, it may not be amiss to state that such arrangement also raises non-
delegability issues considering that the implementing authority would still have to determine, again,
both the actual amount to be expended and the actual purpose of the appropriation. Since the foregoing
determinations constitute the integral aspects of the power to appropriate, the implementing authority
would, in effect, be exercising legislative prerogatives in violation of the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislator‘s identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power
of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which is
intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are
essential to financially address situations which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum appropriations is constitutionally allowed
and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of ₱24.79 Billion only appears as a collective allocation limit
since the said amount would be further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion. As these intermediate appropriations are made by legislators only after
the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the President‘s power of item veto. As petitioners aptly point
out, the above-described system forces the President to decide between (a) accepting the entire ₱24.79
Billion PDAF allocation without knowing the specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215
Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of ₱24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical materials, construction of roads, flood
control, etc. This setup connotes that the appropriation law leaves the actual amounts and purposes of
the appropriation for further determination and, therefore, does not readily indicate a discernible item
which may be subject to the President‘s power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson
relays, "limited state auditors from obtaining relevant data and information that would aid in more
stringently auditing the utilization of said Funds."216 Accordingly, she recommends the adoption of a
"line by line budget or amount per proposed program, activity or project, and per implementing
agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to
defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its Members. In
particular, they point out that the Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into
"financially-interested partners."219 They also claim that the system has an effect on re- election as "the
PDAF excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power
of impeachment" as such "funds are indeed quite useful, ‘to well, accelerate the decisions of
senators.‘"220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office
is a public trust," is an overarching reminder that every instrumentality of government should exercise
their official functions only in accordance with the principles of the Constitution which embodies the
parameters of the people‘s trust. The notion of a public trust connotes accountability,221 hence, the
various mechanisms in the Constitution which are designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may be
checked is the power of congressional oversight. As mentioned in Abakada,222 congressional oversight
may be performed either through: (a) 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 confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork
Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that
individual legislators are given post-enactment roles in the implementation of the budget makes it
difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted
as said legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very same concept
of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which
provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of
office. He shall not intervene in any matter before any office of the Government for his pecuniary benefit
or where he may be called upon to act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation – a matter
before another office of government – renders them susceptible to taking undue advantage of their own
office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office. Indeed,
while the Congressional Pork Barrel and a legislator‘s use thereof may be linked to this area of interest,
the use of his PDAF for re-election purposes is a matter which must be analyzed based on particular facts
and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the former‘s post-enactment participation, may affect
the process of impeachment, this matter largely borders on the domain of politics and does not strictly
concern the Pork Barrel System‘s intrinsic constitutionality. As such, it is an improper subject of judicial
assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and other
forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section
26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the
qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of itself,
provide a judicially enforceable constitutional right but merely specifies guideline for legislative or
executive action.226 Therefore, since there appears to be no standing law which crystallizes the policy
on political dynasties for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this score to be largely speculative since it
has not been properly demonstrated how the Pork Barrel System would be able to propagate political
dynasties.

5. Local Autonomy.

The State‘s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3,
Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the qualifications, election, appointment
and removal, term, salaries, powers and functions and duties of local officials, and all other matters
relating to the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in
the attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and people‘s organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower
local government units (LGUs) to develop and ultimately, become self-sustaining and effective
contributors to the national economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development of
our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic. This
objective could be blunted by undue interference by the national government in purely local affairs
which are best resolved by the officials and inhabitants of such political units. The decision we reach
today conforms not only to the letter of the pertinent laws but also to the spirit of the Constitution.229
(Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional
principles on local autonomy since it allows district representatives, who are national officers, to
substitute their judgments in utilizing public funds for local development.230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their congressional
colleagues, are likely to be knowledgeable about the needs of their respective constituents and the
priority to be given each project."231 Drawing strength from this pronouncement, previous legislators
justified its existence by stating that "the relatively small projects implemented under the Congressional
Pork Barrel complement and link the national development goals to the countryside and grassroots as
well as to depressed areas which are overlooked by central agencies which are preoccupied with mega-
projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF and budgetary reforms,
President Aquino mentioned that the Congressional Pork Barrel was originally established for a worthy
goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking
into account the specific interests and peculiarities of the district the legislator represents. In this regard,
the allocation/division limits are clearly not based on genuine parameters of equality, wherein economic
or geographic indicators have been taken into consideration. As a result, a district representative of a
highly-urbanized metropolis gets the same amount of funding as a district representative of a far-flung
rural province which would be relatively "underdeveloped" compared to the former. To add, what rouses
graver scrutiny is that even Senators and Party-List Representatives – and in some years, even the Vice-
President – who do not represent any locality, receive funding from the Congressional Pork Barrel as
well. These certainly are anathema to the Congressional Pork Barrel‘s original intent which is "to make
equal the unequal." Ultimately, the PDAF and CDF had become personal funds under the effective
control of each legislator and given unto them on the sole account of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts
with the functions of the various Local Development Councils (LDCs) which are already legally mandated
to "assist the corresponding sanggunian in setting the direction of economic and social development,
and coordinating development efforts within its territorial jurisdiction."234 Considering that LDCs are
instrumentalities whose functions are essentially geared towards managing local affairs,235 their
programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who
are national officers that have no law-making authority except only when acting as a body. The
undermining effect on local autonomy caused by the post-enactment authority conferred to the latter
was succinctly put by petitioners in the following wise:236

With PDAF, a Congressman can simply bypass the local development council and initiate projects on his
own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional
Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive
issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid
appropriations laws since they do not have the "primary and specific" purpose of authorizing the release
of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is not an
appropriation law since the "primary and specific‖ purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental thereto.237 In similar
regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary and specific" purpose of PD
1869 which is the amendment of the Franchise and Powers of PAGCOR.238 In view of the foregoing,
petitioners suppose that such funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law‖ under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate
that the legislative intent to appropriate exists. As the Constitution "does not provide or prescribe any
particular form of words or religious recitals in which an authorization or appropriation by Congress shall
be made, except that it be ‘made by law,‘" an appropriation law may – according to Philconsa – be
"detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it be
"made by law," such as precisely the authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as by past
but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be made in general as well as in specific terms. The
Congressional authorization may be embodied in annual laws, such as a general appropriations act or in
special provisions of laws of general or special application which appropriate public funds for specific
public purposes, such as the questioned decrees. An appropriation measure is sufficient if the legislative
intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32
P. 272), whether in the past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or purpose.
An appropriation in the sense of the constitution means the setting apart a portion of the public funds
for a public purpose. No particular form of words is necessary for the purpose, if the intention to
appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the
"primary and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate, if a
legal provision designates a determinate or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate becomes apparent and, hence,
already sufficient to satisfy the requirement of an "appropriation made by law" under contemplation of
the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery bonus,
production bonus; all money collected from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as the government share representing
royalties, rentals, production share on service contracts and similar payments on the exploration,
development and exploitation of energy resources, shall form part of a Special Fund to be used to
finance energy resource development and exploitation programs and projects of the government and for
such other purposes as may be hereafter directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority infrastructure development projects and to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis-à-vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the
Energy Development Board from any and all sources" (a determinable amount) "to be used to finance
energy resource development and exploitation programs and projects of the government and for such
other purposes as may be hereafter directed by the President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross
earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than ₱150,000,000.00" (also a
determinable amount) "to finance the priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines" (also a specified public purpose), are legal appropriations
under Section 29(1), Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains
post-enactment measures which effectively create a system of intermediate appropriations. These
intermediate appropriations are the actual appropriations meant for enforcement and since they are
made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court
observes that the real appropriation made under the 2013 PDAF Article is not the ₱24.79 Billion
allocated for the entire PDAF, but rather the post-enactment determinations made by the individual
legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article does
not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to
the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development and
exploitation programs and projects of the government."244

The Court agrees with petitioners‘ submissions.

While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive245 either for the purpose of
(a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-making.246 There
are two (2) fundamental tests to ensure that the legislative guidelines for delegated rule-making are
indeed adequate. The first test is called the "completeness test." Case law states that a law is complete
when it sets forth therein the policy to be executed, carried out, or implemented by the delegate. On the
other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law 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.247 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.248
In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes
as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a sufficient standard to adequately
determine the limits of the President‘s authority with respect to the purpose for which the Malampaya
Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya
Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public
funds beyond the purview of the law. That the subject phrase may be confined only to "energy resource
development and exploitation programs and projects of the government" under the principle of ejusdem
generis, meaning that the general word or phrase is to be construed to include – or be restricted to –
things akin to, resembling, or of the same kind or class as those specifically mentioned,249 is belied by
three (3) reasons: first, the phrase "energy resource development and exploitation programs and
projects of the government" states a singular and general class and hence, cannot be treated as a
statutory reference of specific things from which the general phrase "for such other purposes" may be
limited; second, the said phrase also exhausts the class it represents, namely energy development
programs of the government;250 and, third, the Executive department has, in fact, used the Malampaya
Funds for non-energy related purposes under the subject phrase, thereby contradicting respondents‘
own position that it is limited only to "energy resource development and exploitation programs and
projects of the government."251 Thus, while Section 8 of PD 910 may have passed the completeness test
since the policy of energy development is clearly deducible from its text, the phrase "and for such other
purposes as may be hereafter directed by the President" under the same provision of law should
nonetheless be stricken down as unconstitutional as it lies independently unfettered by any sufficient
standard of the delegating law. This notwithstanding, it must be underscored that the rest of Section 8,
insofar as it allows for the use of the Malampaya Funds "to finance energy resource development and
exploitation programs and projects of the government," remains legally effective and subsisting. Truth be
told, the declared unconstitutionality of the aforementioned phrase is but an assurance that the
Malampaya Funds would be used – as it should be used – only in accordance with the avowed purpose
and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869
has already been amended by PD 1993 which thus moots the parties‘ submissions on the same.252
Nevertheless, since the amendatory provision may be readily examined under the current parameters of
discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may
be used "to first, finance the priority infrastructure development projects and second, to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines." The Court finds that while the second indicated purpose
adequately curtails the authority of the President to spend the Presidential Social Fund only for
restoration purposes which arise from calamities, the first indicated purpose, however, gives him carte
blanche authority to use the same fund for any infrastructure project he may so determine as a
"priority". Verily, the law does not supply a definition of "priority in frastructure development projects"
and hence, leaves the President without any guideline to construe the same. To note, the delimitation of
a project as one of "infrastructure" is too broad of a classification since the said term could pertain to
any kind of facility. This may be deduced from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities (such as highways, schools, bridges,
sewers, and water-systems) needed to support commerce as well as economic and residential
development."253 In fine, the phrase "to finance the priority infrastructure development projects" must
be stricken down as unconstitutional since – similar to the above-assailed provision under Section 8 of
PD 910 – it lies independently unfettered by any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally
effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners’ Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional – as the Court did so in
the context of its pronouncements made in this Decision – petitioners equally pray that the Executive
Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executive‘s lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as
follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving public interest.
ARTICLE III Sec. 7.

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

The Court denies petitioners‘ submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ
of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases
supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and the
like." In the same case, it was stressed that it is essential that the "applicant has a well -defined, clear
and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform
the act required." Hence, without the foregoing substantiations, the Court cannot grant a particular
request for information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records to
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public
concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA
203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of respondent
to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the
Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right" to be
furnished by the Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any law or administrative issuance which
would form the bases of the latter‘s duty to furnish them with the documents requested. While
petitioners pray that said information be equally released to the CoA, it must be pointed out that the
CoA has not been impleaded as a party to these cases nor has it filed any petition before the Court to be
allowed access to or to compel the release of any official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of disclosure are properly foisted and so as not
to unduly hamper the equally important interests of the government, it is constrained to deny
petitioners‘ prayer on this score, without prejudice to a proper mandamus case which they, or even the
CoA, may choose to pursue through a separate petition.

It bears clarification that the Court‘s denial herein should only cover petitioners‘ plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to official
documents which are already existing and of public record. Subject to reasonable regulation and absent
any valid statutory prohibition, access to these documents should not be proscribed. Thus, in Valmonte,
while the Court denied the application for mandamus towards the preparation of the list requested by
petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject
to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

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

The Court, therefore, applies the same treatment here.

2. Petitioners’ Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress
of all presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from
the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the Executive‘s Social
Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left
to the prerogative of the political branches of government. Hence, lest the Court itself overreach, it must
equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Court‘s September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated September
27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order
(SARO) has been issued by the DBM and such SARO has been obligated by the implementing agencies
prior to the issuance of the TRO, may continually be implemented and disbursements thereto effected
by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said SARO
had been obligated by the implementing agency concerned prior to the issuance of the Court‘s
September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet
involve the release of funds under the PDAF, as release is only triggered by the issuance of a Notice of
Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing agency
concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They conclude that this is a reasonable interpretation of the
TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Court‘s September 10, 2013 TRO
should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013
PDAF Article as declared herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of the remaining PDAF
funds for 2013, among others, is now permanently enjoined.

The propriety of the DBM‘s interpretation of the concept of "release" must, nevertheless, be resolved as
it has a practical impact on the execution of the current Decision. In particular, the Court must resolve
the issue of whether or not PDAF funds covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBM‘s interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners‘ posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined by
the DBM itself in its website, is "aspecific authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the purpose indicated. It shall cover expenditures
the release of which is subject to compliance with specific laws or regulations, or is subject to separate
approval or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and
not the directive to pay. Practically speaking, the SARO does not have the direct and immediate effect of
placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the actual release of funds. On the other
hand, the actual release of funds is brought about by the issuance of the NCA,264 which is subsequent
to the issuance of a SARO. As may be determined from the statements of the DBM representative during
the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to
enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able
to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor, is
the go signal for the MDS for the authorized government-disbursing banks to, therefore, pay the payees
depending on the projects or projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are
withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by
obligated SAROs, and without any corresponding NCAs issued, must, at the time of this Decision’s
promulgation, be enjoined and consequently reverted to the unappropriated surplus of the general fund.
Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated
pursuant thereto cannot be disbursed even though already obligated, else the Court sanctions the
dealing of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released – meaning, those merely covered by a SARO – under the phrase "and for such
other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910; and (b)
funds sourced from the Presidential Social Fund under the phrase "to finance the priority infrastructure
development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were
altogether declared by the Court as unconstitutional. However, these funds should not be reverted to
the general fund as afore-stated but instead, respectively remain under the Malampaya Funds and the
Presidential Social Fund to be utilized for their corresponding special purposes not otherwise declared as
unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Court‘s pronouncement anent the unconstitutionality of (a)
the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions similar
thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure development
projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in
effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate
case, declares the invalidity of a certain legislative or executive act, such act is presumed constitutional
and thus, entitled to obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque Power Corporation,266
the doctrine merely "reflects awareness that precisely because the judiciary is the governmental organ
which has the final say on whether or not a legislative or executive measure is valid, a period of time may
have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity.
It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of
what had transpired prior to such adjudication."267 "In the language of an American Supreme Court
decision: ‘The actual existence of a statute, prior to such a determination of unconstitutionality, is an
operative fact and may have consequences which cannot justly be ignored.‘"268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In
the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution,
the system has violated the principle of separation of powers; insofar as it has conferred unto legislators
the power of appropriation by giving them personal, discretionary funds from which they are able to
fund specific projects which they themselves determine, it has similarly violated the principle of non-
delegability of legislative power ; insofar as it has created a system of budgeting wherein items are not
textualized into the appropriations bill, it has flouted the prescribed procedure of presentment and, in
the process, denied the President the power to veto items ; insofar as it has diluted the effectiveness of
congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of
governance which they may be called to monitor and scrutinize, the system has equally impaired public
accountability ; insofar as it has authorized legislators, who are national officers, to intervene in affairs of
purely local nature, despite the existence of capable local institutions, it has likewise subverted genuine
local autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds
intended by law for energy-related purposes only to other purposes he may deem fit as well as other
public funds under the broad classification of "priority infrastructure development projects," it has once
more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured, the
Court urges the people and its co-stewards in government to look forward with the optimism of change
and the awareness of the past. At a time of great civic unrest and vociferous public debate, the Court
fervently hopes that its Decision today, while it may not purge all the wrongs of society nor bring back
what has been lost, guides this nation to the path forged by the Constitution so that no one may
heretofore detract from its cause nor stray from its course. After all, this is the Court‘s bounden duty and
no other‘s.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this
Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal
provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF
Articles and the various Congressional Insertions, which authorize/d legislators – whether individually or
collectively organized into committees – to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment, unrelated to
the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
confer/red personal, lump-sum allocations to legislators from which they are able to fund specific
projects which they themselves determine; (d) all informal practices of similar import and effect, which
the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure
development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-
delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013,
as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not
covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs),
whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent
injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the
general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain
therein to be utilized for their respective special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES
petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and
Management be ordered to provide the public and the Commission on Audit complete lists/schedules or
detailed reports related to the availments and utilization of the funds subject of these cases. Petitioners‘
access to official documents already available and of public record which are related to these funds
must, however, not be prohibited but merely subjected to the custodian‘s reasonable regulations or any
valid statutory prohibition on the same. This denial is without prejudice to a proper mandamus case
which they or the Commission on Audit may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the
budgetary deliberations of Congress as the same is a matter left to the prerogative of the political
branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE

Associate Justice
WE CONCUR:

See Concurring Opinion

MARIA LOURDES P. A. SERENO

Chief Justice

See Concurring Opinion

ANTONIO T. CARPIO

Associate Justice NO PART

PRESBITERO J. VELASCO, JR.

Associate Justice

I concur and also join the concurring opinion of Justice Carpio.

TERESITA J. LEONARDO-DE CASTRO

Associate Justice I join the Opinion of Justice Carpio, subject to my Concurring & Dissenting
Opinion.

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice I join the concurring opinion of J. A.T. Carpio of the ponencia

ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice BIENVENIDO L. REYES

Associate Justice

See Concurring Opinion

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision had been reached in consultation before the cases
were assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

*Dropped as a party per Memorandum dated October 17, 2013 filed by counsel for petitioners Atty.
Alfredo B. Molo III, et al. Rollo (G.R. No. 208566), p. 388.

** No part.

1 The Federalist Papers, Federalist No. 20.

2 Rollo (G.R. No. 208566), pp. 3-51; rollo (G.R. No. 208493), pp. 3-11; and rollo (G.R. No. 209251), pp. 2-
8.

3 "’Pork barrel spending,‘ a term that traces its origins back to the era of slavery before the U.S. Civil War,
when slave owners occasionally would present a barrel of salt pork as a gift to their slaves. In the
modern usage, the term refers to congressmen scrambling to set aside money for pet projects in their
districts." (Drudge, Michael W. "’Pork Barrel‘ Spending Emerging as Presidential Campaign Issue," August
1, 2008 http://iipdigital.usembassy.gov/st/english/article/2008/08/20080801181504lcnirellep
0.1261713.html#axzz2iQrI8mHM> [visited October 17, 2013].)

4 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003
Edition, p. 786, citing Bernas, "From Pork Barrel to Bronze Caskets," Today, January 30, 1994.

5 Heaser, Jason, "Pulled Pork: The Three Part Attack on Non-Statutory Earmarks," Journal of Legislation,
35 J. Legis. 32 (2009). <http://heinonline.org/HOL/LandingPage?collection=&handle
=hein.journals/jleg35&div=6&id=&page=> (visited October 17, 2013).

6 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines,
"Understanding the ‘Pork Barrel,‘" p. 2. <http://www.congress.gov.ph/download/14th/pork_barrel.pdf>
(visited October 17, 2013).

7 Chua, Yvonne T. and Cruz, Booma, B., "Pork is a Political, Not A Developmental, Tool."
<http://pcij.org/stories/2004/pork.html> [visited October 22, 2013].) See also rollo (G.R. No. 208566),
pp. 328-329.

8 Morton, Jean, "What is a Pork Barrel?" Global Granary, Lifestyle Magazine and Common Place Book
Online: Something for Everyone, August 19, 2013. <http://www.globalgranary.org/2013/08/19/what-is-
a-pork-barrel/#.UnrnhFNavcw > (visited October 17, 2013).

9 Jison, John Raymond, "What does the 'pork barrel' scam suggest about the Philippine government?"
International Association for Political Science Students, September 10, 2013. <http://www.iapss.org/
index.php/articles/item/93-what-does-the-pork-barrel-scam-suggest-about-the-philippine-government>
(visited October 17, 2013). See also Llanes, Jonathan, "Pork barrel – Knowing the issue," Sunstar Baguio,
October 23, 2013. <http://www.sunstar.com.ph/ baguio/opinion/2013/09/05/llanes-pork- barrel-
knowing-issue-301598> (visited October 17, 2013).

10 Entitled "AN ACT MAKING APPROPRIATIONS FOR PUBLIC WORKS," approved on March 10, 1922.

11 "Act 3044, the first pork barrel appropriation, essentially divided public works projects into two types.
The first type—national and other buildings, roads and bridges in provinces, and lighthouses, buoys and
beacons, and necessary mechanical equipment of lighthouses—fell directly under the jurisdiction of the
director of public works, for which his office received appropriations. The second group—police barracks,
normal school and other public buildings, and certain types of roads and bridges, artesian wells,
wharves, piers and other shore protection works, and cable, telegraph, and telephone lines—is the
forerunner of the infamous pork barrel. Although the projects falling under the second type were to be
distributed at the discretion of the secretary of commerce and communications, he needed prior
approval from a joint committee elected by the Senate and House of Representatives. The nod of either
the joint committee or a committee member it had authorized was also required before the commerce
and communications secretary could transfer unspent portions of one item to another item." (Emphases
supplied) (Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> [visited October 14, 2013]).

12 Sec. 3. The sums appropriated in paragraphs (c), (g), (l), and (s) of this Act shall be available for
immediate expenditure by the Director of Public Works, but those appropriated in the other paragraphs
shall be distributed in the discretion of the Secretary of Commerce and Communications, subject to the
approval of a joint committee elected by the Senate and the House of Representatives. The committee
from each House may authorize one of its members to approve the distribution made by the Secretary of
Commerce and Communications, who with the approval of said joint committee, or of the authorized
members thereof may, for the purposes of said distribution, transfer unexpended portions of any item of
appropriation. (Emphases supplied)

13 Those Section 1 (c), (g), (l), and (s) of Act 3044 "shall be available for immediate expenditure by the
Director of Public Works."

14 Section 3, Act 3044.

15 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013).

16 Id.

17 Id.

18 Id.

19 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines,
"Understanding the ‘Pork Barrel,‘" <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf >
(visited October 17, 2013).

20 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013).

21 Id.

22 Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects
(VILP), Special Audits Office Report No. 2012-03, August 14, 2013 (CoA Report), p. 2.

23 Ilagan, Karol, "Data A Day; CIA, CDF, PDAF? Pork is pork is pork," Moneypolitics, A Date Journalism
Project for the Philippine Center for Investigative Journalism, August 1, 2013
<http://moneypolitics.pcij.org/data-a-day/cia-cdf-pdaf-pork-is-pork-is-pork/> (visited October 14, 2013).

24 Republic Act No. (RA) 6831.

25 Special Provision 1, Article XLIV, RA 7078 (1991 CDF Article), and Special Provision 1, Article XLII
(1992), RA 7180 (1992 CDF Article) are similarly worded as follows: Special Provision 1.
Use and Release of Funds. The amount herein appropriated shall be used for infrastructure and other
priority projects and activities upon approval by the President of the Philippines and shall be released
directly to the appropriate implementing agency [(x x x for 1991)], subject to the submission of the
required list of projects and activities. (Emphases supplied)

26 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013).

27 Id.

28 Special Provision 1, Article XXXVIII, RA 7645 (1993 CDF Article) provides:

Special Provision

1. Use and Release of Funds.

The amount herein appropriated shall be used for infrastructure and other priority projects and activities
as proposed and identified by officials concerned according to the following allocations: Representatives,
₱12,500,000 each; Senators ₱18,000,000 each; Vice-President, ₱20,000,000. The fund shall be
automatically released quarterly by way of Advice of Allotment and Notice of Cash Allocation directly to
the assigned implementing agency not later than five (5) days after the beginning of each quarter upon
submission of the list of projects and activities by the officials concerned. (Emphases supplied)

29 See Special Provision 1, 1993 CDF Article; id.

30 Special Provision 1, Article XLI, RA 7663 (1994 CDF Article) provides:

Special Provisions
1. Use and Release of Funds.

The amount herein appropriated shall be used for infrastructure, purchase of ambulances and
computers and other priority projects and activities, and credit facilities to qualified beneficiaries as
proposed and identified by officials concerned according to the following allocations: Representatives,
₱12,500,000 each; Senators ₱18,000,000 each; Vice-President, ₱20,000,000; PROVIDED, That, the said
credit facilities shall be constituted as a revolving fund to be administered by a government financial
institution (GFI) as a trust fund for lending operations. Prior years releases to local government units and
national government agencies for this purpose shall be turned over to the government financial
institution which shall be the sole administrator of credit facilities released from this fund.

The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash
Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of
each quarter upon submission of the list of projects and activities by the officials concerned. (Emphases
supplied)

31 Special Provision 1, Article XLII, RA 7845 (1995 CDF Article) provides:

Special Provisions

1. Use and Release of Funds.

The amount herein appropriated shall be used for infrastructure, purchase of equipment and other
priority projects and activities as proposed and identified by officials concerned according to the
following allocations: Representatives, ₱12,500,000 each; Senators ₱18,000,000 each; Vice-President,
₱20,000,000.

The fund shall be automatically released semi-annually by way of Advice of Allotment and Notice of Cash
Allocation directly to the designated implementing agency not later than five (5) days after the beginning
of each semester upon submission of the list of projects and activities by the officials concerned.
(Emphases supplied)
32 Special Provision 1, Article XLII, RA 8174 (1996 CDF Article) provides:

Special Provisions

1. Use and Release of Fund.

The amount herein appropriated shall be used for infrastructure, purchase of equipment and other
priority projects and activities, including current operating expenditures, except creation of new plantilla
positions, as proposed and identified by officials concerned according to the following allocations:
Representatives, Twelve Million Five Hundred Thousand Pesos (₱12,500,000) each; Senators, Eighteen
Million Pesos (₱18,000,000) each; Vice-President, Twenty Million Pesos (₱20,000,000).

The Fund shall be released semi-annually by way of Special Allotment Release Order and Notice of Cash
Allocation directly to the designated implementing agency not later than thirty (30) days after the
beginning of each semester upon submission of the list of projects and activities by the officials
concerned. (Emphases supplied)

33 Special Provision 2 of the 1994 CDF Article, Special Provision 2 of the 1995 CDF Article and Special
Provision 2 of the 1996 CDF Article are similarly worded as follows:

2. Submission of [Quarterly (1994)/Semi-Annual (1995 and 1996)] Reports. The Department of Budget
and Management shall submit within thirty (30) days after the end of each [quarter (1994)/semester
(1995 and 1996)] a report to the House Committee on Appropriations and the Senate Committee on
Finance on the releases made from this Fund. The report shall include the listing of the projects,
locations, implementing agencies [stated (order of committees interchanged in 1994 and 1996)] and the
endorsing officials. (Emphases supplied)

34 Special Provision 2, Article XLII, RA 8250 (1997 CDF Article) provides:

Special Provisions
xxxx

2. Publication of Countrywide Development Fund Projects. Within thirty (30) days after the signing of
this Act into law, the Members of Congress and the Vice-President shall, in consultation with the
implementing agency concerned, submit to the Department of Budget and Management the list of fifty
percent (50%) of projects to be funded from the allocation from the Countrywide Development Fund
which shall be duly endorsed by the Senate President and the Chairman of the Committee on Finance in
the case of the Senate and the Speaker of the House of Representatives and the Chairman of the
Committee on Appropriations in the case of the House of Representatives, and the remaining fifty
percent (50%) within six (6) months thereafter. The list shall identify the specific projects, location,
implementing agencies, and target beneficiaries and shall be the basis for the release of funds. The said
list shall be published in a newspaper of general circulation by the Department of Budget and
Management. No funds appropriated herein shall be disbursed for projects not included in the list herein
required. (Emphases supplied)

35 See Special Provision 2, 1997 CDF Article; id.

36 Special Provision 2, Article XLII, RA 8522 (1998 CDF Article) provides:

Special Provisions

xxxx

2. Publication of Countrywide Development Fund Projects. x x x PROVIDED, That said publication is not a
requirement for the release of funds. x x x x (Emphases supplied)

37 Chua, Yvonne T. and Cruz, Booma, B., "Pork by any name," VERA Files, August 23, 2013.
<http://verafiles.org/pork-by-any-name/> (visited October 14, 2013).

38 Id.
49 Rollo (G.R. No. 208566), pp. 335-336, citing Parreño, Earl, "Perils of Pork," Philippine Center for
Investigative Journalism, June 3-4, 1998. Available at <http://pcij.org/stories/1998/pork.html>

40 Id.

41 Id.

42 RA 8745 entitled "AN ACT APPROPRIATING FUNDS FOR THE OPERATION OF THE GOVERNMENT OF
THE REPUBLIC OF THE PHILIPPINES FROM JANUARY ONE TO DECEMBER THIRTY ONE, NINETEEN
HUNDRED NINETY NINE, AND FOR OTHER PURPOSES."

43 Special Provision 1, Article XLII, Food Security Program Fund, RA 8745 provides:

Special Provision

1. Use and Release of Fund. The amount herein authorized shall be used to support the Food Security
Program of the government, which shall include farm-to-market roads, post harvest facilities and other
agricultural related infrastructures. Releases from this fund shall be made directly to the implementing
agency subject to prior consultation with the Members of Congress concerned. (Emphases supplied)

44 Special Provision 1, Article XLIX,

Lingap Para sa Mahihirap

Program Fund, RA 8745 provides:

Special Provision
1. Use and Release of Fund. The amount herein appropriated for the Lingap Para sa Mahihirap Program
Fund shall be used exclusively to satisfy the minimum basic needs of poor communities and
disadvantaged sectors: PROVIDED, That such amount shall be released directly to the implementing
agency upon prior consultation with the Members of Congress concerned. (Emphases supplied)

45 Special Provision 1, Article L, Rural/Urban Development Infrastructure Program Fund, RA 8745

provides:

Special Provision

1. Use and Release of Fund. The amount herein authorized shall be used to fund infrastructure
requirements of the rural/urban areas which shall be released directly to the implementing agency upon
prior consultation with the respective Members of Congress. (Emphases supplied)

46 Special Provision 1, Article XLIX, RA 8760 (2000 PDAF Article) provides:

Special Provision

1. Use and release of the Fund. The amount herein appropriated shall be used to fund priority programs
and projects as indicated under Purpose 1: PROVIDED, That such amount shall be released directly to the
implementing agency concerned upon prior consultation with the respective Representative of the
District: PROVIDED, FURTHER, That the herein allocation may be realigned as necessary to any expense
category: PROVIDED, FINALLY, That no amount shall be used to fund personal services and other personal
benefits. (Emphases supplied)

47 See Special Provision 1, 2000 PDAF Article; id.

48 Section 25 (7), Article VI, of the 1987 Philippine Constitution (1987 Constitution) provides that
"if, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for
the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed
reenacted and shall remain in force and effect until the general appropriations bill is passed by the
Congress." (Emphasis supplied)

49 Special Provision 1, Article L, RA 9162 (2002 PDAF Article) provides:

1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs
and projects or to fund counterpart for foreign-assisted programs and projects:

PROVIDED, That such amount shall be released directly to the implementing agency or Local
Government Unit concerned. (Emphases supplied)

50 Special Provision 1, Article XLVII, RA 9206, 2003 GAA (2003 PDAF Article) provides:

Special Provision

1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs
and projects or to fund the required counterpart for foreign-assisted programs and projects: PROVIDED,
That such amount shall be released directly to the implementing agency or Local Government Unit
concerned: PROVIDED, FURTHER, That the allocations authorized herein may be realigned to any
expense class, if deemed necessary: PROVIDED, FURTHERMORE, That a maximum of ten percent (10%)
of the authorized allocations by district may be used for the procurement of rice and other basic
commodities which shall be purchased from the National Food Authority.

51 Special Provision 1, Article XVIII, RA 9206 provides:

Special Provision No. 1 – Restriction on the Delegation of Project Implementation The implementation of
the projects funded herein shall not be delegated to other agencies, except those projects to be
implemented by the Engineering Brigades of the AFP and inter-department projects undertaken by other
offices and agencies including local government units with demonstrated capability to actually
implement the projects by themselves upon consultation with the Members of Congress concerned. In
all cases the DPWH shall exercise technical supervision over projects. (Emphasis supplied)

52 Special Provision 3, Article XLII, RA 9206 provides:

Special Provision No. 3 – Submission of the List of School Buildings Within 30 days after the signing of
this Act into law, (DepEd) after consultation with the representative of the legislative district concerned,
shall submit to DBM the list of 50% of school buildings to be constructed every municipality x x x. The list
as submitted shall be the basis for the release of funds. (Emphasis supplied)

53 Rollo (G.R. No. 208566), p. 557.

54 Special Provision 1, Article L, RA 9336 (2005 PDAF Article) provides:

Special Provision(s)

1. Use and Release of the Fund. The amount appropriated herein shall be used to fund priority programs
and projects under the ten point agenda of the national government and shall be released directly to the
implementing agencies as indicated hereunder, to wit:

PARTICULARS PROGRAM/PROJECT IMPLEMENTING

AGENCY

A. Education Purchase of IT Equipment DepEd/TESDA/ CHED/SUCs/LGUs

Scholarship TESDA/CHED/

SUCs/LGUs

B. Health Assistance to Indigent Patients Confined at the Hospitals Under DOH Including Specialty
Hospitals DOH/Specialty

Hospitals
 Assistance to Indigent Patients at the Hospitals Devolved to LGUs and RHUs LGUs

Insurance Premium Philhealth

C. Livelihood/ CIDSS Small & Medium Enterprise/Livelihood DTI/TLRC/DA/CDA

Comprehensive Integrated Delivery of Social Services DSWD

D. Rural Electrification Barangay/Rural Electrification DOE/NEA

E. Water Supply Construction of Water System DPWH

Installation of Pipes/Pumps/Tanks LGUs

F. Financial Assistance Specific Programs and Projects to Address the Pro-Poor Programs of
Government LGUs

G. Public Work

Construction/Repair/ Rehabilitation of the following: Roads and Bridges/Flood Control/School buildings

Hospitals Health Facilities/Public Markets/Multi-Purpose Buildings/Multi-Purpose Pavements

DPWH

H. Irrigation Construction/Repair/ Rehabilitation of Irrigation Facilities DA-NIA

(Emphasis supplied)

55 Id.

56 Rollo (G.R. No. 208566), p. 558.

57 See Special Provision 1, Article XLVII, RA 9401.

58 See Special Provision 1, Article XLVI, RA 9498.

59 See Special Provision 1, Article XLIX, RA 9524.

60 See Special Provision 1, Article XLVII, RA 9970.

61 For instance, Special Provisions 2 and 3, Article XLIII, RA 9336 providing for the 2005 DepEd School
Building Program, and Special Provisions 1 and 16, Article XVIII, RA 9401 providing for the 2007 DPWH
Regular Budget respectively state: 2005 DepEd School Building Program Special Provision No. 2 –
Allocation of School Buildings: The amount allotted under Purpose 1 shall be apportioned as follows: (1)
fifty percent (50%) to be allocated pro-rata according to each legislative districts student population x x x;
(2) forty percent (40%) to be allocated only among those legislative districts with classroom shortages x x
x; (3) ten percent (10%) to be allocated in accordance x x x.

Special Provision No. 3 – Submission of the List of School Buildings: Within 30 days after the signing of
this Act into law, the DepEd after consultation with the representative of the legislative districts
concerned, shall submit to DBM the list of fifty percent (50%) of school buildings to be constructed in
every municipality x x x. The list as submitted shall be the basis for the release of funds x x x. (Emphases
supplied)

2007 DPWH Regular Budget

Special Provision No. 1 – Restriction on Delegation of Project Implementation: The implementation of

the project funded herein shall not be delegated to other agencies, except those projects to be
implemented by the AFP Corps of Engineers, and inter-department projects to be undertaken by other
offices and agencies, including local government units (LGUs) with demonstrated capability to actually
implement the project by themselves upon consultation with the representative of the legislative district
concerned x x x.

Special Provision No. 16 – Realignment of Funds: The Secretary of Public Works and Highways is
authorized to realign funds released from appropriations x x x from one project/scope of work to
another: PROVIDED, that x x x (iii) the request is with the concurrence of the legislator concerned

x x x. (Emphasis supplied)
62 Rollo (G.R. No. 208566) , p. 559, citing Section 2.A of RA 9358, otherwise known as the "Supplemental
Budget for 2006."

63 Id. at 559-560.

64 "As a primary aspect of the Philippine Government's public procurement reform agenda, the
Government Procurement Policy Board (GPPB) was established by virtue of Republic Act No. 9184 (R.A.
9184) as an independent inter-agency body that is impartial, transparent and effective, with private
sector representation. As established in Section 63 of R.A. 9184, the GPPB shall have the following duties
and responsibilities: 1. To protect national interest in all matters affecting public procurement, having
due regard to the country's regional and international obligations; 2. To formulate and amend public
procurement policies, rules and regulations, and amend, whenever necessary, the implementing rules
and regulations Part A (IRR-A); 3. To prepare a generic procurement manual and standard bidding forms
for procurement; 4. To ensure the proper implementation by the procuring entities of the Act, its IRR-A
and all other relevant rules and regulations pertaining to public procurement; 5. To establish a
sustainable training program to develop the capacity of Government procurement officers and
employees, and to ensure the conduct of regular procurement training programs by the procuring
entities; and 6. To conduct an annual review of the effectiveness of the Act and recommend any
amendments thereto, as may be necessary.

x x x x" <http://www.gppb.gov.ph/about_us/gppb.html> (visited October 23, 2013).

65 Entitled "AMENDMENT OF SECTION 53 OF THE IMPLEMENTING RULES AND REGULATIONS PART A OF

REPUBLIC ACT 9184 AND PRESCRIBING GUIDELINES ON PARTICIPATION OF NON-GOVERNMENTAL
ORGANIZATIONS IN PUBLIC PROCUREMENT," approved June 29, 2007.

66 Entitled "AN ACT PROVIDING FOR THE MODERNIZATION, STANDARDIZATION AND REGULATION OF
THE PROCUREMENT ACTIVITIES OF THE GOVERNMENT AND FOR OTHER PURPOSES."

67 Sec. 48. Alternative Methods. - Subject to the prior approval of the Head of the Procuring Entity or his
duly authorized representative, and whenever justified by the conditions provided in this Act, the
Procuring Entity may, in order to promote economy and efficiency, resort to any of the following
alternative methods of Procurement:
xxxx

(e) Negotiated Procurement - a method of Procurement that may be resorted under the extraordinary
circumstances provided for in Section 53 of this Act and other instances that shall be specified in the IRR,
whereby the Procuring Entity directly negotiates a contract with a technically, legally and financially
capable supplier, contractor or consultant.

xxxx

68 As defined in Section 5(o) of RA 9184, the term "Procuring Entity" refers to any branch, department,
office, agency, or instrumentality of the government, including state universities and colleges,
government-owned and/or - controlled corporations, government financial institutions, and local
government units procuring Goods, Consulting Services and Infrastructure Projects.

69 Rollo (G.R. No. 208566), p. 564, citing GPPB Resolution 12-2007.

70 Special Provision 2, Article XLIV, RA 10147 (2011 PDAF Article) provides:

2. Allocation of Funds. The total projects to be identified by legislators and the Vice-President shall not
exceed the following amounts:

a. Total of Seventy Million Pesos (₱70,000,000) broken down into Forty Million Pesos (₱40,000,000) for
Infrastructure Projects and Thirty Million Pesos (₱30,000,000) for soft projects of Congressional Districts
or Party List Representatives;

b. Total of Two Hundred Million Pesos (₱200,000,000) broken down into One Hundred Million Pesos
(₱100,000,000) for Infrastructure Projects and One Hundred Million Pesos (₱100,000,000) for soft
projects of Senators and the Vice President.
71 See Special Provision 4, 2011 PDAF Article.

72 Special Provision 2, Article XLIV, RA 10155 (2012 PDAF Article) provides: 2. Project Identification.
Identification of projects and/or designation of beneficiaries shall conform to the priority list, standard or
design prepared by each implementing agency. Furthermore, preference shall be given to projects
located in the 4th to 6th class municipalities or indigents identified under the National Household
Targeting System for Poverty Reduction by the DSWD.

For this purpose, the implementing agency shall submit to Congress said priority list, standard or design
within ninety (90) days from effectivity of this Act. (Emphasis supplied)

73 RA 10352, passed and approved by Congress on December 19, 2012 and signed into law by the
President on December 19, 2012. Special Provision 2, Article XLIV, RA 10352 (2013 PDAF Article)
provides:

2. Project Identification. Identification of projects and/or designation of beneficiaries shall conform to

the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference
shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the
NHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority
list, standard or design within ninety (90) days from effectivity of this Act. (Emphasis supplied)

74 The permissive treatment of the priority list requirement in practice was revealed during the Oral
Arguments (TSN, October 10, 2013, p. 143):

Justice Leonen: x x x In Section 2 meaning, Special Provision 2, it mentions priority list of implementing
agencies. Have the implementing agencies indeed presented priority list to the Members of Congress
before disbursement?

Solicitor General Jardeleza: My understanding is, is not really, Your Honor. Justice Leonen: So, in other
words, the PDAF was expended without the priority list requirements of the implementing agencies?
Solicitor General Jardeleza: That is so much in the CoA Report, Your Honor.

75 See Special Provision 3 of the 2012 PDAF Article and Special Provision 3 of the 2013 PDAF Article.

76 Special Provision 6 of the 2012 PDAF Article provides:

6. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of
Agriculture, Education, Energy, Environment and Natural Resources, Health, Interior and Local
Government, Public Works and Highways, and Social Welfare and Development are also authorized to
approve realignment from one project/scope to another within the allotment received from this Fund,
subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit
and same project category as the original project; (ii) allotment released has not yet been obligated for
the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned.
The DBM must be informed in writing of any realignment approved within five (5) calendar days from its
approval.

Special Provision 4 of the 2013 PDAF Article provides:

4. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of
Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and
Highways, Social Welfare and Development and Trade and Industry are also authorized to approve
realignment from one project/scope to another within the allotment received from this Fund, subject to
the following: (i) for infrastructure projects, realignment is within the same implementing unit and same
project category as the original project; (ii) allotment released has not yet been obligated for the original
project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM
must be informed in writing of any realignment approved within five (5) calendar days from approval
thereof: PROVIDED, That any realignment under this Fund shall be limited within the same classification
of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in
case of realignments, modifications and revisions of projects to be implemented by LGUs, the LGU
concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back
to the BTr.
Any realignment, modification and revision of the project identification shall be submitted to the House
Committee on Appropriations and the Senate Committee on Finance, for favorable endorsement to the
DBM or the implementing agency, as the case may be. (Emphases supplied)

77 Special Provision 1 of the 2013 PDAF Article provides:

Special Provision(s) 1. Use of Fund. The amount appropriated herein shall be used to fund the following
priority programs and projects to be implemented by the corresponding agencies:

xxxx

PROVIDED, That this Fund shall not be used for the payment of Personal Services expenditures:
PROVIDED, FURTHER, That all procurement shall comply with the provisions of R.A. No. 9184 and its
Revised Implementing Rules and Regulations: PROVIDED, FINALLY, That for infrastructure projects, LGUs
may only be identified as implementing agencies if they have the technical capability to implement the
same. (Emphasis supplied)

78 Special Provision 2 of the 2013 PDAF Article provides:

2. Project Identification. x x x.

xxxx

All programs/projects, except for assistance to indigent patients and scholarships, identified by a
member of the House of Representatives outside of his/her legislative district shall have the written
concurrence of the member of the House of Representatives of the recipient or beneficiary legislative
district, endorsed by the Speaker of the House of Representatives.

79 See Special Provision 4 of the 2013 PDAF Article; supra note 76.
80 Sec. 8.

Appropriations. The sum of Five Million Pesos out of any available funds from the National Treasury is
hereby appropriated and authorized to be released for the organization of the Board and its initial
operations. Henceforth, funds sufficient to fully carry out the functions and objectives of the Board shall
be appropriated every fiscal year in the General Appropriations Act.

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery bonus,
production bonus; all money collected from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as the government share representing
royalties, rentals, production share on service contracts and similar payments on the exploration,
development and exploitation of energy resources, shall form part of a Special Fund to be used to
finance energy resource development and exploitation programs and projects of the government and for
such other purposes as may be hereafter directed by the President. (Emphasis supplied)

81 Entitled "CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND FUNCTIONS,
PROVIDING FUNDS, THEREFOR, AND FOR OTHER PURPOSES."

82 See First Whereas Clause of PD 910.

83 See <http://malampaya.com/> (visited October 17, 2013).

84 Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of the Corporation from this
Franchise shall be immediately set aside and allocated to fund the following infrastructure and socio-civil
projects within the Metropolitan Manila Area:

(a) Flood Control

(b) Sewerage and Sewage

(c) Nutritional Control

(d) Population Control

(e) Tulungan ng Bayan Centers

(f) Beautification

(g) Kilusang Kabuhayan at Kaunlaran (KKK) projects; provided, that should the aggregate gross earning be
less than ₱150,000,000.00, the amount to be allocated to fund the above-mentioned project shall be
equivalent to sixty (60%) percent of the aggregate gross earning.

In addition to the priority infrastructure and socio-civic projects with the Metropolitan Manila
specifically enumerated above, the share of the Government in the aggregate gross earnings derived by
the Corporate from this Franchise may also be appropriated and allocated to fund and finance
infrastructure and/or socio-civic projects throughout the Philippines as may be directed and authorized
by the Office of the President of the Philippines.

85 Entitled "CONSOLIDATING AND AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C,
1399 AND 1632, RELATIVE TO THE FRANCHISE AND POWERS OF THE PHILIPPINE AMUSEMENT AND
GAMING CORPORATION (PAGCOR)."

86 Entitled "AMENDING SECTION TWELVE OF PRESIDENTIAL DECREE NO. 1869-CONSOLIDATING AND

AMENDING PRESIDENTIAL DECREE NOS. 1067-A, 1067-B, 1067-C, 1399 AND 1632, R ELATIVE TO THE F
RANCHISE AND POWERS OF THE PHILIPPINE AMUSEMENT AND G AMING CORPORATION (PAGCOR)."
While the parties have confined their discussion to Section 12 of PD 1869, the Court takes judicial notice
of its amendment and perforce deems it apt to resolve the constitutionality of the amendatory
provision.
87 Section 12 of PD 1869, as amended by PD 1993, now reads:

Sec. 12. Special Condition of Franchise. — After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the government in the aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be less than ₱150,000,000.00 shall immediately be set
aside and shall accrue to the General Fund to finance the priority infrastructure development projects
and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed
and authorized by the Office of the President of the Philippines.

88 Rollo (G.R. No. 208566), p. 301.

89 CDF/PDAF ALLOCATION FROM 1990 -2013.

1990…………… ₱2,300,000,000.00

1991…………… P 2,300,000,000.00

1992…………… P 2,480,000,000.00

1993…………… P 2,952,000,000.00

1994…………… P 2,977,000,000.00

1995…………… P 3,002,000,000.00

1996…………… P 3,014,500,000.00
1997…………… P 2,583,450,000.00

1998…………… P 2,324,250,000.00

1999…………… P 1,517,800,000.00 (Food Security Program Fund)

…………… P 2,500,000,000.00 (Lingap Para Sa Mahihirap Program Fund)

…………… P 5,458,277,000.00 (Rural/Urban Development Infrastructure Program Fund)

2000…………… P 3,330,000,000.00

2001…………… 2000 GAA re-enacted

2002…………… P 5,677,500,000.00

2003…………… P 8,327,000,000.00

2004…………… 2003 GAA re-enacted

2005…………… P 6,100,000,000.00

2006…………… 2005 GAA re-enacted

2007…………… P 11,445,645,000.00
2008…………… P 7,892,500,000.00

2009…………… P 9,665,027,000.00

2010…………… P 10,861,211,000.00

2011…………… P 24,620,000,000.00

2012…………… P 24,890,000,000.00

2013…………… P 24,790,000,000.00

90 "Pork as a tool for political patronage, however, can extend as far as the executive branch. It is no
accident, for instance, that the release of the allocations often coincides with the passage of a Palace-
sponsored bill.

That pork funds have grown by leaps and bounds in the last decade can be traced to presidents in need
of Congress support. The rise in pork was particularly notable during the Ramos administration, when
the president and House Speaker Jose de Venecia, Jr. used generous fund releases to convince
congressmen to support Malacañang-initiated legislation. The Ramos era, in fact, became known as the
‘golden age of pork.‘

Through the years, though, congressmen have also taken care to look after their very own. More often
than not, pork-barrel funds are funneled to projects in towns and cities where the lawmakers' own
relatives have been elected to public office; thus, pork is a tool for building family power as well. COA has
come across many instances where pork-funded projects ended up directly benefiting no less than the
lawmaker or his or her relatives."(CHUA, YVONNE T. and CRUZ, BOOMA, "Pork is a Political, Not A
Developmental, Tool." <http://pcij.org/stories/2004/pork.html> [visited October 22, 2013].)
91 With reports from Inquirer Research and Salaverria, Leila, "Candazo, first whistle-blower on pork
barrel scam, dies; 61," Philippine Daily Inquirer, August 20, 2013, <http://newsinfo.
inquirer.net/469439/candazo-first-whistle-blower-on-pork-barrel-scam-dies-61> (visited October 21,
2013.)

92 Id.

93 Id.

94 Id.

95 Lawyers Against Monopoly and Poverty (LAMP) v. Secretary of Budget and Management, G.R. No.
164987, April 24, 2012, 670 SCRA 373, 387.

96 Carvajal, Nancy, " NBI probes ₱10-B scam," Philippine Daily Inquirer, July 12, 2013
<http://newsinfo.inquirer.net/443297/nbi-probes-p10-b-scam> (visited October 21, 2013).

97 Id.

98 See NBI Executive Summary. <http://www.gov.ph/2013/09/16/executive-summary-by-the-nbi-on-the-

pdaf-complaints-filed-against-janet-lim-napoles-et-al/> (visited October 22, 2013).

99 Pursuant to Office Order No. 2010-309 dated May 13, 2010.

100 During the Oral Arguments, the CoA Chairperson referred to the VILP as "the source of the so called
HARD project, hard portion x x x "under the title the Budget of the DPWH." TSN, October 8, 2013, p. 69.

101 These implementing agencies included the Department of Agriculture, DPWH and the Department
of Social Welfare and Development (DSWD). The GOCCs included Technology and Livelihood Resource
Center (TLRC)/Technology Resource Center (TRC), National Livelihood Development Corporation (NLDC),
National Agribusiness Corporation (NABCOR), and the Zamboanga del Norte Agricultural College (ZNAC)
Rubber Estate Corporation (ZREC). CoA Chairperson‘s Memorandum. Rollo (G.R. No. 208566), p. 546. See
also CoA Report, p. 14.

102 Id.

103 Id. at 546-547.

104 Carvajal, Nancy, ―Malampaya fund lost ₱900M in JLN racket‖, Philippine Daily Inquirer, July 16,
2013 <http://newsinfo.inquirer.net/445585/malampaya-fund-lost-p900m-in-jln-racket> (visited October
21, 2013.)

105 TSN, October 8, 2013, p. 119.

106 Rollo (G.R. No. 208493), pp. 9 and 341.

107 The Court observes that petitioners have not presented sufficient averments on the remittances
from the Philippine Charity Sweepstakes Office‖ nor have defined the scope of "the Executive‘s Lump
Sum Discretionary Funds" (See rollo [G.R. No. 208566], pp. 47-49) which appears to be too broad and all-
encompassing. Also, while Villegas filed a Supplemental Petition dated October 1, 2013 (Supplemental
Petition, see rollo [G.R. No. 208566], pp. 213-220, and pp. 462-464) particularly presenting their
arguments on the Disbursement Acceleration Program, the same is the main subject of G.R. Nos.
209135, 209136, 209155, 209164, 209260, 209287, 209442, 209517, and 209569 and thus, must be
properly resolved therein. Hence, for these reasons, insofar as the Presidential Pork Barrel is concerned,
the Court is constrained not to delve on any issue related to the above-mentioned funds and
consequently confine its discussion only with respect to the issues pertaining to the Malampaya Funds
and the Presidential Social Fund.

108 Rollo (G.R. No. 208566), pp. 48-49.

109 Id. at 48.

110 To note, Villegas‘ Supplemental Petition was filed on October 2, 2013.

111 Rollo, (G.R. No. 208566), p. 342; and rollo (G.R. No. 209251), pp. 6-7.

112 Re-docketed as G.R. No. 209251 upon Nepomuceno‘s payment of docket fees on October 16, 2013
as reflected on the Official Receipt No. 0079340. Rollo (G.R. No. 209251) p. 409.

113 Rollo (G.R. No. 208566) p. 97.

114 G.R. Nos. 113105, 113174, 113766 & 113888, August 19, 1994, 235 SCRA 506.

115 Supra note 95.

116 Entitled "CREATING AN ENERGY DEVELOPMENT BOARD, DEFINING ITS POWERS AND FUNCTIONS,
PROVIDING FUNDS, THEREFOR, AND FOR OTHER PURPOSES."

117 Joya v. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA
568, 575.

118 Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December 7, 2010, 637 SCRA 78,
148.

119 Joya v. Presidential Commission on Good Government, supra note 117, at 575.
120 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552,
178554, 178581, 178890, 179157, and 179461, October 5, 2010, 632 SCRA 146, 175.

121 Province of North Cotabato v. Government of the Republic of the Philippines Peace Panel on
Ancestral Domain (GRP), G.R. Nos. 183591, 183752, 183893, 183951, and 183962, October 14, 2008, 568
SCRA 402, 450.

122 Id. at 450-451.

123 Francisco, Jr. v. Toll Regulatory Board, G.R. No. 166910, 169917, 173630, and 183599, October 19,
2010, 633 SCRA 470, 493, citing Province of North Cotabato v. Government of the Republic of the
Philippines Peace Panel on Ancestral Domain (GRP), G.R. Nos. 183591, 183752, 183893, 183951, and
183962, October 14, 2008, 568 SCRA 402, 405.

124 Id. at 492, citing Muskrat v. U.S., 219 U.S. 346 (1913).

125 Baldo, Jr. v. Commision on Elections, G.R. No. 176135, June 16, 2009, 589 SCRA 306, 310.

126 TSN, October 10, 2013, pp. 79-81.

127 Section 17, Article VII of the 1987 Constitution 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.

128 Sec. 38. Suspension of Expenditure of Appropriations. – Except as otherwise provided in the General
Appropriations Act and whenever in his judgment the public interest so requires, the President, upon
notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure
of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act,
except for personal services appropriations used for permanent officials and employees.
129 Mattel, Inc. v. Francisco, G.R. No. 166886, July 30, 2008, 560 SCRA 504, 514, citing Constantino v.
Sandiganbayan (First Division), G.R. Nos. 140656 and 154482, September 13, 2007, 533 SCRA 205, 219-
220.

130 Rollo (G.R. No. 208566), p. 292.

131 G.R. No. 198457, August 13, 2013.

132 TSN, October 10, 2013, p. 134.

133 Section 22, Article VII of the 1987 Constitution provides:

Sec. 22. The President shall submit to the Congress within thirty days from the opening of every regular
session, as the basis of the general appropriations bill, a budget of expenditures and sources of
financing, including receipts from existing and proposed revenue measures.

134 Rollo (G.R. No. 208566), p. 294.

135 Id. at 5.

136 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

137 Id. at 665.

138 See Francisco, Jr. v. Toll Regulatory Board, supra note 123, at 492.

139 369 US 186 82, S. Ct. 691, L. Ed. 2d. 663 [1962].
140 Rollo (G.R. No. 208566), pp. 295-296.

141 Tañada v. Cuenco, 100 Phil. 1101 (1957) unreported case.

142 406 Phil. 1 (2001).

143 Id. at 42-43.

144 Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).

145 La Bugal- B’laan Tribal Association, Inc. v. Sec. Ramos, 465 Phil. 860, 890 (2004).

146 Rollo (G.R. No. 208566), p. 349.

147 Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding Judge, RTC of
Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470.

148 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. No. 157870, November 3, 2008, 570 SCRA
410, 421.

149 TSN, October 8, 2013, pp. 184-185.

150 People v. Vera, 65 Phil. 56, 89 (1937).

151 See Lanuza v. CA, G.R. No. 131394, March 28, 2005, 454 SCRA 54, 61-62.
152 ART. 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the
legal system of the Philippines.

153 Chinese Young Men’s Christian Association o f the Philippine Islands v. Remington Steel Corporation,
G.R. No. 159422, March 28, 2008, 550 SCRA 180, 197-198.

154 Philconsa v. Enriquez, supra note 114, at 522.

155 G.R. No. 166715, August 14, 2008, 562 SCRA 251.

156 Rollo (G.R. No. 208566), p. 325.

157 Id.

158 Id. at 329.

159 Id. at 339.

160 Id. at 338.

161 See note 107.

162 Angara v. Electoral Commission, supra note 144, at 139.

163 Id. at 157.

164 Section 1, Article VI, 1987 Constitution.

165 Section 1, Article VII, 1987 Constitution.

166 Section 1, Article VIII, 1987 Constitution.

167 Angara v. Electoral Commission, supra note 144, at 156.

168 Government of the Philippine Islands v. Springer, 277 U.S. 189, 203 (1928).

169 Re: COA Opinion on the Computation of the Appraised Value of the Properties Purchased by the
Retired Chief/Associate Justices of the Supreme Court, A.M. No. 11-7-10-SC, July 31, 2012, 678 SCRA 1,
9-10, citing Carl Baar, Separate But Subservient: Court Budgeting In The American States 149-52 (1975),
cited in Jeffrey Jackson, Judicial Independence, Adequate Court Funding, and Inherent Judicial Powers,
52 Md. L. Rev. 217 (1993).

170 Id. at 10, citing Jeffrey Jackson, Judicial Independence, Adequate Court Funding, and Inherent
Judicial Powers, 52 Md. L. Rev. 217 (1993).

171 See Nixon v. Administrator of General Services, 433 U.S. 425, 441-446 and 451-452 (1977) and
United States v. Nixon, 418 U.S. 683 (1974), cited in Justice Powell‘s concurring opinion in Immigration
and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

172 See Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579, 587 (1952), Springer v. Philippine Islands,
277 U.S. 189, 203 (1928) cited in Justice Powell’s concurring opinion in Immigration and Naturalization
Service v. Chadha, 462 U.S. 919 (1983).

173 273 Phil. 443 (1991).

174 Id. at 461. "3. Budget Execution. Tasked on the Executive, the third phase of the budget process
covers the various operational aspects of budgeting. The establishment of obligation authority ceilings,
the evaluation of work and financial plans for individual activities, the continuing review of government
fiscal position, the regulation of funds releases, the implementation of cash payment schedules, and
other related activities comprise this phase of the budget cycle."

175 Biraogo v. Philippine Truth Commission of 2010, supra note 118, at 158.

176 Guingona, Jr. v. Carague, supra note 173, at 460-461.

177 Abakada Guro Party List v. Purisima, supra note 155, at 294-296.

178 Id. at 287.

179 Rollo (G.R. No. 208566), p. 179.

180 Id. at 29.

181 Id. at 24.

182 Id. at 86.

183 Id. at 308.

184 Id.
185 See CDF Articles for the years 1991, 1992, 1993, 1994, 1995, 1996, 1997, and 1998.

186 See PDAF Article for the year 2000 which was re-enacted in 2001. See also the following 1999 CIAs:
"Food Security Program Fund," the " Lingap Para Sa Mahihirap Program Fund," and the "Rural/Urban
Development Infrastructure Program Fund." See further the 1997 DepEd School Building Fund.

187 See PDAF Article for the years 2005, 2006, 2007, 2008, 2009, 2010, 2011, and 2013.

188 Also, in Section 2.1 of DBM Circular No. 547 dated January 18, 2013 (DBM Circular 547-13), or the
"Guidelines on the Release of Funds Chargeable Against the Priority Development Assistance Fund for FY
2013," it is explicitly stated that the "PDAF shall be used to fund priority programs and projects identified
by the Legislators from the Project Menu." (Emphasis supplied)

189 To note, Special Provision 4 cannot – as respondents submit – refer to realignment of projects since
the same provision subjects the realignment to the condition that the "allotment released has not yet
been obligated for the original project/scope of work". The foregoing proviso should be read as a textual
reference to the savings requirement stated under Section 25(5), Article VI of the 1987 Constitution
which pertinently provides that "x x x 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. In addition, Sections
4.2.3, 4.2.4 and 4.3.3 of DBM Circular 547-13, the implementing rules of the 2013 PDAF Article,
respectively require that: (a) "the allotment is still valid or has not yet lapsed"; (b) "requests for
realignment of unobligated allotment as of December 31, 2012 treated as continuing appropriations in
FY 2013 shall be submitted to the DBM not later than June 30, 2013"; and (c) requests for realignment
shall be supported with, among others, a "certification of availability of funds." As the letter of the law
and the guidelines related thereto evoke the legal concept of savings, Special Provision 4 must be
construed to be a provision on realignment of PDAF funds, which would necessarily but only incidentally
include the projects for which the funds have been allotted to. To construe it otherwise would effectively
allow PDAF funds to be realigned outside the ambit of the foregoing provision, thereby sanctioning a
constitutional aberration.

190 Aside from the sharing of the executive‘s realignment authority with legislators in violation of the
separation of powers principle, it must be pointed out that Special Provision 4, insofar as it confers fund
realignment authority to department secretaries, is already unconstitutional by itself. As recently held in
Nazareth v. Villar (Nazareth), G.R. No. 188635, January 29, 2013, 689 SCRA 385, 403-404, Section 25(5),
Article VI of the 1987 Constitution, limiting the authority to augment, is "strictly but reasonably
construed as exclusive" in favor of the high officials named therein. As such, the authority to realign
funds allocated to the implementing agencies is exclusively vested in the President, viz.:

It bears emphasizing that the exception in favor of the high officials named in Section 25(5), Article VI of
the Constitution limiting the authority to transfer savings only to augment another item in the GAA is
strictly but reasonably construed as exclusive. As the Court has expounded in Lokin, Jr. v. Commission on
Elections:

When the statute itself enumerates the exceptions to the application of the general rule, the exceptions
are strictly but reasonably construed. The exceptions extend only as far as their language fairly warrants,
and all doubts should be resolved in favor of the general provision rather than the exceptions. Where the
general rule is established by a statute with exceptions, none but the enacting authority can curtail the
former. Not even the courts may add to the latter by implication, and it is a rule that an express
exception excludes all others, although it is always proper in determining the applicability of the rule to
inquire whether, in a particular case, it accords with reason and justice.

The appropriate and natural office of the exception is to exempt something from the scope of the
general words of a statute, which is otherwise within the scope and meaning of such general words.
Consequently, the existence of an exception in a statute clarifies the intent that the statute shall apply to
all cases not excepted. Exceptions are subject to the rule of strict construction; hence, any doubt will be
resolved in favor of the general provision and against the exception. Indeed, the liberal construction of a
statute will seem to require in many circumstances that the exception, by which the operation of the
statute is limited or abridged, should receive a restricted construction. (Emphases and underscoring
supplied)

The cogence of the Nazareth dictum is not enfeebled by an invocation of the doctrine of qualified
political agency (otherwise known as the "alter ego doctrine") for the bare reason that the same is not
applicable when the Constitution itself requires the President himself to act on a particular matter, such
as that instructed under Section 25(5), Article VI of the Constitution. As held in the landmark case of
Villena v. Secretary of Interior (67 Phil. 451 [1987]), constitutional imprimatur is precisely one of the
exceptions to the application of the alter ego doctrine, viz.:
After serious reflection, we have decided to sustain the contention of the government in this case on the
board proposition, albeit not suggested, that under the presidential type of government which we have
adopted and considering the departmental organization established and continued in force by paragraph
1, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts
of the Executive Department, the heads of the various executive departments are assistants and agents
of the Chief Executive, and except in cases where the Chief Executive is required by the Constitution or
the law to act in person or the exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments, performed and
promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief
Executive, presumptively the acts of the Chief Executive. (Emphases and underscoring supplied; citations
omitted)

191 Abakada Guro Party List v. Purisima, supra note 155, at 294-296.

192 TSN, October 10, 2013, pp. 16, 17, 18, and 23.

193 TSN, October 10, 2013, pp. 72-73.

194 Aside from its conceptual origins related to the separation of powers principle, Corwin, in his
commentary on Constitution of the United States made the following observations:

At least three distinct ideas have contributed to the development of the principle that legislative power
cannot be delegated. One is the doctrine of separation of powers: Why go to the trouble of separating
the three powers of government if they can straightway remerge on their own motion? The second is the
concept of due process of law, which precludes the transfer of regulatory functions to private persons.
Lastly, there is the maxim of agency "Delegata potestas non potest delegari," which John Locke borrowed
and formulated as a dogma of political science . . . Chief Justice Taft offered the following explanation of
the origin and limitations of this idea as a postulate of constitutional law: "The well-known maxim
‘delegata potestas non potest delefari,‘ applicable to the law of agency in the general common law, is
well understood and has had wider application in the construction of our Federal and State Constitutions
than it has in private law . . . The Federal and State Constitutions than it has in private law . . . The
Federal Constitution and State Constitutions of this country divide the governmental power into three
branches . . . In carrying out that constitutional division . . . it is a breach of the National fundamental law
if Congress gives up its legislative power and transfers it to the President, or to the Judicial branch, or if
by law it attempts to invest itself or its members with either executive power of judicial power. This is
not to say that the three branches are not co-ordinate parts of one government and that each in the field
of its duties may not invoke government and that each in the field of its duties may not invoke the action
of the two other branches in so far as the action invoked shall not be an assumption of the constitutional
field of action of another branch. In determining what it may do in seeking assistance from another
branch, the extent and character of that assistance must be fixed according to common sense and the
inherent necessities of the governmental coordination. (Emphases supplied)

195 Section 1, Article VI, 1987 Constitution.

196 See Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 702 (1919).

197 See Section 23(2), Article VI of the 1987 Constitution.

198 See Section 28(2), Article VI of the 1987 Constitution.

199 Abakada Guro Party List v. Purisima, supra note 155, at 288.

200 169 Phil. 437, 447-448 (1977).

201 Philippine Constitution Association v. Enriquez, supra note 114, at 522.

202 Bengzon v. Secretary of Justice and Insular Auditor, 62 Phil. 912, 916 (1936).

203 Angara v. Electoral Commission, supra note 144, at 156.

204 Abakada Guro Party List v. Purisima, supra note 155, at 287.
205 Id. at 292.

206 Bengzon v. Secretary of Justice and Insular Auditor, supra note 202, at 916-917.

207 "Log-rolling legislation refers to the process in which several provisions supported by an individual
legislator or minority of legislators are combined into a single piece of legislation supported by a majority
of legislators on a quid pro quo basis: no one provision may command majority support, but the total
package will.” See Rollo (G.R. No. 208566), p. 420, citing Briffault, Richard, ―The Item Veto in State
Courts,‖ 66 Temp. L. Rev. 1171, 1177 (1993).

208 Passarello, Nicholas, "The Item Veto and the Threat of Appropriations Bundling in Alaska," 30 Alaska
Law Review 128 (2013), citing Black‘s Law Dictionary 1700 (9th ed. 2009).
<http://scholarship.law.duke.edu/alr/vol30/iss1/5> (visited October 23, 2013).

209 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).

210 299 U.S. 410 (1937).

211 To note, in Gonzales v. Macaraig, Jr. (G.R. No. 87636, November 19, 1990, 191 SCRA 452, 465), citing
Commonwealth v. Dodson (11 S.E., 2d 120, 176 Va. 281), the Court defined an item of appropriation as
"an indivisible sum of money dedicated to a stated purpose." In this relation, Justice Carpio astutely
explained that an "item" is indivisible because the amount cannot be divided for any purpose other than
the specific purpose stated in the item.

212 Rollo (G.R. No. 208566), p. 421.

213 Id.

214 Id. at 316.

215 Id. at 421.

216 Id. at 566.

217 Id. at 567.

218 "It cannot be denied that most government actions are inspired with noble intentions, all geared
towards the betterment of the nation and its people. But then again, it is important to remember this
ethical principle: ‘The end does not justify the means.‘ No matter how noble and worthy of admiration
the purpose of an act, but if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed. The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its enshrined principles. ‘The
Constitution must ever remain supreme. All must bow to the mandate of this law. Expediency must not
be allowed to sap its strength nor greed for power debase its rectitude.‘" (Biraogo v. Philippine Truth
Commission of 2010, supra note 118, 177; citations omitted)

219 Rollo (G.R. No. 208566), p. 406.

220 Id. at 407.

221 Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary,
2003 Edition, p. 1108.

222 Abakada Guro Party List v. Purisima, supra note 155.

223 See Section 22, Article VI, 1987 Constitution.

224 See Section 21, Article VI, 1987 Constitution.

225 Rollo (G.R. No. 208493), p. 9.

226 See Pamatong v. Commission on Elections, G.R. No. 161872, April 13, 2004, 427 SCRA 96, 100-101.

227 Entitled "AN ACT PROVIDING FOR A LOCAL GOVERNMENT CODE OF 1991."

228 230 Phil. 379, 387-388 (1986).

229 Id.

230 Rollo (G.R. No. 208566), pp. 95-96.

231 Philconsa v. Enriquez, supra note 114, at 523.

232 Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines,
"Understanding the ‘Pork Barrel,‘" <http://www.congress.gov.ph/download/ 14th/pork_barrel.pdf >
(visited October 17, 2013).

233 <http://www.gov.ph/2013/08/23/english-statement-of-president-aquino-on-the-abolition-of-pdaf-
august-23-2013/> (visited October 22, 2013).

234 Section 106 of the LGC provides:

Sec. 106. Local Development Councils. – (a) Each local government unit shall have a comprehensive
multi-sectoral development plan to be initiated by its development council and approved by its
sanggunian. For this purpose, the development council at the provincial, city, municipal, or barangal
level, shall assist the corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial jurisdiction.

235 See Section 109 of the LGC.

236 Rollo (G.R. No. 208566), p. 423.

237 Id. at 427.

238 Id. at 439-440.

239 Id. at 434 and 441.

240 See Guingona, Jr. v. Carague, supra note 173, where the Court upheld the constitutionality of certain
automatic appropriation laws for debt servicing although said laws did not readily indicate the exact
amounts to be paid considering that "the amounts nevertheless are made certain by the legislative
parameters provided in the decrees"; hence, "the Executive is not of unlimited discretion as to the
amounts to be disbursed for debt servicing." To note, such laws vary in great degree with the way the
2013 PDAF Article works considering that: (a) individual legislators and not the executive make the
determinations; (b) the choice of both the amount and the project are to be subsequently made after
the law is passed and upon the sole discretion of the legislator, unlike in Guingona, Jr. where the amount
to be appropriated is dictated by the contingency external to the discretion of the disbursing authority;
and (c) in Guingona, Jr. there is no effective control of the funds since as long as the contingency arises
money shall be automatically appropriated therefor, hence what is left is merely law execution and not
legislative discretion.

241 Id. at 462.

242 23 Nev. 25 (1895).

243 Rollo (G.R. No. 208566), p. 438.

244 Id. at 300.

245 The project identifications made by the Executive should always be in the nature of law enforcement
and, hence, for the sole purpose of enforcing an existing appropriation law. In relation thereto, it may
exercise its rule-making authority to greater particularize the guidelines for such identifications which, in
all cases, should not go beyond what the delegating law provides. Also, in all cases, the Executive‘s
identification or rule-making authority, insofar as the field of appropriations is concerned, may only arise
if there is a valid appropriation law under the parameters as above-discussed.

246 Abakada Guro Party List v. Purisima, supra note 155.

247 See Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary,
2009 Edition, pp. 686-687, citing Pelaez v. Auditor General, 15 SCRA 569, 576-577 (1965).

248 Id. at 277.

249 § 438 Ejusdem Generis ("of the same kind"); specific words; 82 C.J.S. Statutes § 438.

250 Rollo (G.R. No. 208566), p. 437, citing § 438 Ejusdem Generis ("of the same kind"); specific words; 82
C.J.S. Statutes § 438.

251 Based on a July 5, 2011 posting in the government’s website

<http://www.gov.ph/2011/07/05/budget-secretary-abad-clarifies-nature-of-malampaya-fund/>;
attached as Annex "A" to the Petitioners‘ Memorandum), the Malampaya Funds were also used for non-
energy related projects, to wit:

The rest of the 98.73 percent or ₱19.39 billion was released for non-energy related projects: 1) in 2006,
₱1 billion for the Armed Forces Modernization Fund; 2) in 2008, ₱4 billion for the Department of
Agriculture; 3) in 2009, a total of ₱14.39 billion to various agencies, including: ₱7.07 billion for the
Department of Public Works and Highways; ₱2.14 billion for the Philippine National Police; ₱1.82 billion
for [the Department of Agriculture]; ₱1.4 billion for the National Housing Authority; and ₱900 million for
the Department of Agrarian Reform.

252 For academic purposes, the Court expresses its disagreement with petitioners‘ argument that the
previous version of Section 12 of PD 1869 constitutes an undue delegation of legislative power since it
allows the President to broadly determine the purpose of the Presidential Social Fund‘s use and perforce
must be declared unconstitutional. Quite the contrary, the 1st paragraph of the said provision clearly
indicates that the Presidential Social Fund shall be used to finance specified types of priority
infrastructure and socio-civic projects, namely, Flood Control, Sewerage and Sewage, Nutritional Control,
Population Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at Kaunlaran
(KKK) projects located within the Metropolitan Manila area. However, with regard to the stated
geographical-operational limitation, the 2nd paragraph of the same provision nevertheless allows the
Presidential Social Fund to finance "priority infrastructure and socio-civic projects throughout the
Philippines as may be directed and authorized by the Office of the President of the Philippines." It must,
however, be qualified that the 2nd paragraph should not be construed to mean that the Office of the
President may direct and authorize the use of the Presidential Social Fund to any kind of infrastructure
and socio-civic project throughout the Philippines. Pursuant to the maxim of noscitur a sociis , (meaning,
that a word or phrase‘s "correct construction may be made clear and specific by considering the
company of words in which it is founded or with which it is associated"; see Chavez v. Judicial and Bar
Council, G.R. No. 202242, July 17, 2012, 676 SCRA 579, 598-599) the 2nd paragraph should be construed
only as an expansion of the geographical-operational limitation stated in the 1st paragraph of the same
provision and not a grant of carte blanche authority to the President to veer away from the project types
specified thereunder. In other words, what the 2nd paragraph merely allows is the use of the
Presidential Social Fund for Flood Control, Sewerage and Sewage, Nutritional Control, Population
Control, Tulungan ng Bayan Centers, Beautification and Kilusang Kabuhayan at Kaunlaran (KKK) projects
even though the same would be located outside the Metropolitan Manila area. To deem it otherwise
would be tantamount to unduly expanding the rule-making authority of the President in violation of the
sufficient standard test and, ultimately, the principle of non-delegability of legislative power.

253 Black‘s Law Dictionary (7th Ed., 1999), p. 784.

254 Rollo (G.R. No. 208566), pp. 48-49.

255 Id.
256 234 Phil. 521, 533-534 (1987).

257 252 Phil. 264 (1989).

258 Id. at 279

259 Id. at 278.

260 Rollo (G.R. No. 208566), p. 463.

261 Id. at 459-462.

262 Id. at 304-305.

263 <http://www.dbm.gov.ph/wp-content/uploads/BESE/BESE2013/Glossary.pdf> (visited November 4,

2013).

264 Notice of Cash Allocation (NCA). Cash authority issued by the DBM to central, regional and provincial
offices and operating units through the authorized government servicing banks of the MDS,* to cover
the cash requirements of the agencies.

*MDS stands for Modified Disbursement Scheme. It is a procedure whereby disbursements by NG

agencies chargeable against the account of the Treasurer of the Philippines are effected through GSBs.**

** GSB stands for Government Servicing Banks. (Id.)

265 TSN, October 10, 2013, pp. 35-36.

266 Commissioner of Internal Revenue v. San Roque Power Corporation, G.R. No. 187485, October 8,
2013, citing Serrano de Agbayani v. Philippine National Bank, 148 Phil. 443, 447-448 (1971).

267 Id.

268 Id.

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Republic of the Philippines

SUPREME COURT

Manila
EN BANC

G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,

vs.

HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR

SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are
involved, the Court's decision in this case would undeniably have a profound effect on the political,
economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-
violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of
power have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr.
Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support
of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from
Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January
30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the
fanaticism and blind loyalty of their followers in the country. The ratification of the 1987 Constitution
enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs.
Aquino's presidency. This did not, however, stop bloody challenges to the government. On August 28,
1987, Col. Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that
left scores of people, both combatants and civilians, dead. There were several other armed sorties of
lesser significance, but the message they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization
that civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have
set up a parallel government of their own on the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the
nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and
into exile after causing twenty years of political, economic and social havoc in the country and who
within the short space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.
The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the following
issues:

1. Does the President have the power to bar the return of former President Marcos and family to
the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from
returning to the Philippines, in the interest of "national security, public safety or public health

a. Has the President made a finding that the return of former President Marcos and his family to
the Philippines is a clear and present danger to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's decision, including
the grounds upon which it was based, been made known to petitioners so that they may controvert the
same?

c. Is the President's determination that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety, or public health a political
question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos and
his family is a clear and present danger to national security, public safety, or public health, have
respondents established such fact?

3. Have the respondents, therefore, in implementing the President's decision to bar the return of
former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the
return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp.
5-7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so "within the limits prescribed by law." Nor may the President
impair their right to travel because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the government, there must be
legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to
return to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each
state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public health or
morals or the rights and freedoms of others, and are consistent with the other rights recognized in the
present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves a political
question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos
and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights
in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and reside here at this time in the face of
the determination by the President that such return and residence will endanger national security and
public safety.

It may be conceded that as formulated by petitioners, the question is not a political question as it
involves merely a determination of what the law provides on the matter and application thereof to
petitioners Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by
petitioners Ferdinand E. Marcos and family impinge on or collide with the more primordial and
transcendental right of the State to security and safety of its nationals, the question becomes political
and this Honorable Court can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and
reestablish their residence here even if their return and residence here will endanger national security
and public safety? this is still a justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority and competence of the
President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In
support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The Government
may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo
of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio
batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez
Jimenez of Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted
in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power and its
limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to
travel and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles
[357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d
640) which affirmed the right to travel and recognized exceptions to the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines to
other countries or within the Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right
to freedom of movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to
freedom of movement and residence within the borders of each state" [Art. 13(l)] separately from the
"right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the other
hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence"
[Art. 12(l)] and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights
may be restricted by such laws as "are necessary to protect national security, public order, public health
or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to one's country in
the same context as those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel, but it is our well-considered view that
the right to return may be considered, as a generally accepted principle of international law and, under
our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct
and separate from the right to travel and enjoys a different protection under the International Covenant
of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be
limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary. An
appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether
or not the President has the power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the Court under the
Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse
of discretion amounting to lack or excess of jurisdiction when she determined that the return of the
Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar
their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)],
"the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the 1987
Constitution explicitly provides that "[the legislative power shall be vested in the Congress of the
Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts
as may be established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of
powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as the
Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power
means a grant of all legislative power; and a grant of the judicial power means a grant of all the judicial
power which may be exercised under the government." [At 631-632.1 If this can be said of the legislative
power which is exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the
executive power which is vested in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of
the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power"
although in the same article it touches on the exercise of certain powers by the President, i.e., the power
of control over all executive departments, bureaus and offices, the power to execute the laws, the
appointing power, the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international agreements, the
power to submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers of
the Constitution intend that the President shall exercise those specific powers and no other? Are these
se enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that
the President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her.
Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the same
problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think
that constitution makers ought to leave considerable leeway for the future play of political forces, it
should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested
in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-
4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the
office from Washington to the early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends in
important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than
most agencies of government, it changed shape, intensity and ethos according to the man in charge.
Each President's distinctive temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire
government. The executive branch, said Clark Clifford, was a chameleon, taking its color from the
character and personality of the President. The thrust of the office, its impact on the constitutional
order, therefore altered from President to President. Above all, the way each President understood it as
his personal obligation to inform and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity determined whether he strengthened
or weakened the constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions
are essential for a complete understanding of the extent of and limitations to the President's powers
under the 1987 Constitution. The 1935 Constitution created a strong President with explicitly broader
powers than the U.S. President. The 1973 Constitution attempted to modify the system of government
into the parliamentary type, with the President as a mere figurehead, but through numerous
amendments, the President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual distribution among
three distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for
the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine
Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the Government to elect directors in the National
Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are vested by the Organic Act
in the Governor-General, it is clear that they are not legislative in character, and still more clear that they
are not judicial. The fact that they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the remaining one among which the powers
of government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually from one extreme to the
other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical
precision and divide the branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the
people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for these
plans, or from another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution
reminds everyone that "[s]overeignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country
are the deposed dictator and his family at whose door the travails of the country are laid and from
whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred
freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation demand [See
Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [see Hyman, The American President, where the author advances the view that
an allowance of discretionary power is unavoidable in any government and is best lodged in the
President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with extraordinary powers in times
of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to
exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep
the peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the
House of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines "as a genuine unselfish gesture for true national reconciliation and as
irrevocable proof of our collective adherence to uncompromising respect for human rights under the
Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the Philippines, rather, it appeals
to the President's sense of compassion to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to
the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty 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." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the
Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the
political departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the people themselves
through a plebiscite or referendum. We cannot, for example, question the President's recognition of a
foreign government, no matter how premature or improvident such action may appear. We cannot set
aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the
grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide. In this light, it would appear clear
that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which
specifically empowers the courts to determine whether or not there has been a grave abuse of discretion
on the part of any branch or instrumentality of the government, incorporates in the fundamental law the
ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the sphere alloted 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. In the exercise of such authority, the function of the
Court is merely to check — not to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and
their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that
the return of the Marcoses at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups. But it is
the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw that
would break the camel's back. With these before her, the President cannot be said to have acted
arbitrarily and capriciously and whimsically in determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The
State, acting through the Government, is not precluded from taking pre- emptive action against threats
to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection
of the people is the essence of the duty of government. The preservation of the State the fruition of the
people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend
the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the
hardships brought about by the plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the Philippines in a position to destabilize the
country, while the Government has barely scratched the surface, so to speak, in its efforts to recover the
enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the
continually increasing burden imposed on the economy by the excessive foreign borrowing during the
Marcos regime, which stifles and stagnates development and is one of the root causes of widespread
poverty and all its attendant ills. The resulting precarious state of our economy is of common knowledge
and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years and lead to total economic collapse. Given what is
within our individual and common knowledge of the state of the economy, we cannot argue with that
determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos and his family at the
present time and under present circumstances poses a serious threat to national interest and welfare
and in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if
not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories
of law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever they
may be called, the fact is that these powers exist, as they must if the governance function of the
Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the
President to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of
its impact on national peace and order in these admittedly critical times, said question cannot be
withdrawn from the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A
hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force
Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to enter
Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the
government. Certainly, the state through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines
is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end
to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die
in his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving
more pernicious consequences was ever invented by the wit of man than that any of its provisions can
be suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident
truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so stigmatized on
the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of
unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and
not of power. Mr. Marcos is insensate and would not live if separated from the machines which have
taken over the functions of his kidneys and other organs. To treat him at this point as one with full
panoply of power against whom the forces of Government should be marshalled is totally unrealistic.
The Government has the power to arrest and punish him. But does it have the power to deny him his
right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which
the military was able to readily quell, the respondents have not pointed to any grave exigency which
permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds
of national security and public safety is vested by the Constitution in the President alone. The
determination should not be questioned before this Court. The President's finding of danger to the
nation should be conclusive on the Court.
What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that
he outside the scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which identifies it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by various departments on
one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous.
Neither should we validate a roving commission allowing public officials to strike where they please and
to override everything which to them represents evil. The entire Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national security
or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a
serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission
for his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There
are also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and
his family should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and this
obviously includes the right to travel out of or back into the Philippines, cannot be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a basis to bar their
coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has stated
that the Court has the last word when it comes to constitutional liberties and that she would abide by
our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or
subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil offenses by
military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is
indeed poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should not and is
not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the
cases where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the
main petitioner) and his use of the political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to invalidate a political use of power
through a convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide.
Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a
closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very
limited machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate
the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them.
It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped
to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back
upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to return
to the Philippines. It was only after the present petition was filed that the alleged danger to national
security and public safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to — (1) national welfare and interest and (2)
the continuing need to preserve the gains achieved in terms of recovery and stability. (See page 7,
respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and
public safety. The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is
a popular one. Supreme Court decisions do not have to be popular as long as they follow the
Constitution and the law. The President's original position "that it is not in the interest of the nation that
Marcos be allowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989).
On February 11, 1989, the President is reported to have stated that "considerations of the highest
national good dictate that we preserve the substantial economic and political gains of the past three
years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily
Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic
and political gains," cannot be equated with national security or public order. They are too generic and
sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds of national security, public safety,
or public health and with the added requirement that such impairment must be "as provided by law."
The constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has
suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced
to flee the country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of
student groups, teachers' organizations, pea ant and labor federations, transport workers, and
government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor.
The alleged confluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state that the situation
threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of
national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies
may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno
Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be
tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a
situation where it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military
capabilities according to General de Villa. There would be set-backs in the expected eradication of the
Communist threat. There would be other serious problems but all can be successfully contained by the
military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters
of the right to travel and to freely choose one's abode has constrained the President to fill in the
vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious
consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa
failed or was unable to act adequately on any matter for any reason that in his judgment required
immediate action. When the Bill of Rights provides that a right may not be impaired except in the
interest of national security, public safety, or public health and further requires that a law must provide
when such specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply
its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing
else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines
to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in
the Philippines. If at all, the right to come home must be more preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have
a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators
who were barred by their successors from returning to their respective countries. There is no showing
that the countries involved have constitutions which guarantee the liberty of abode and the freedom to
travel and that despite such constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are as deeply committed to
democratic principles and as observant of constitutional protections as President Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of
the writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die
— in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving of
the very liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to leave
Hawaii (which may depend on the action we take today), the respondents have acted with grave abuse
of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was
true that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of
fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the
threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and
scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to
his own country except only if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family
be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of
his family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context, the
issue is clearly justiciable involving, as it does, colliding assertions of individual right and governmental
power. Issues of this nature more than explain why the 1986 Constitutional Commission, led by the
illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new
provision on the power of Judicial Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to
restrict travel even when such restriction is demanded by national security, public safety or public health,
The power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the
police power of the state wich may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the
right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override
the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the
Court sufficient factual bases and data which would justify their reliance on national security and public
safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos
as a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed
by the respondents, including those conveyed through the military, do not, with all due respect, escalate
to proportions of national security or public safety. They appear to be more speculative than real,
obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be
"under control," as admitted to the Court by said military authorities, given the resources and facilities at
the command of government. But, above all, the Filipino people themselves, in my opinion, will know
how to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and
his actual return, to this country. The Court, in short, should not accept respondents' general
apprehensions, concerns and perceptions at face value, in the light of a countervailing and even
irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right
to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly
yield thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe
that it is one case where the human and constitutional light invoked by one party is so specific,
substantial and clear that it cannot be overshadowed, much less, nullified by simplistic generalities;
worse, the Court neglects its duty under the Constitution when it allows the theory of political question
to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the
right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I
still have not found a satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors are in opposite roles,
which really makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case —

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino
to return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I
therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from
afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar
as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or
even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution
reminds everyone that "sovereignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation demanded [See
Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances the view that
an allowance of discretionary power is unavoidable in any government and is best lodged in the
President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a
big of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions,
the dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial
aim a constitution must lay down the boundaries beyond which he's forbidden territory for state action"
8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by
Presidential action, to the right of travel or liberty of abode and of changing the same other than what it
explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter
could have specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by
Presidential initiative, it could have so averred. It would also have made the Constitution, as far as limits
to the said right are concerned, come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in
the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the
Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices
as "hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .15 The President is out
of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign
affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military
top brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall"
should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say
"from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors
of martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort
of its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20
As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities,
has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict
contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because
of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week
in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August
14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano
Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas
(Democracy In the Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman
Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the
human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to
take the events at "EDSA" to set them free from house arrest and these political offenses. I am for
Marcos' return not because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is
his constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded,
and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let
no more of human rights violations be repeated against any one, friend or foe. In a democratic
framework, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if
not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories
of law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they may
be called, the fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact
on national peace and order in these admittedly critical times, said question cannot be withdrawn from
the competence of the Executive Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A
hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force
Strike wing commander and his deputy hostage. Troops on board several vehicles attempted to enter
Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the
government. Certainly, the state through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines
is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end
to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a
realization of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die
in his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving
more pernicious consequences was ever invented by the wit of man than that any of its provisions can
be suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed.
281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident
truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so stigmatized on
the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of
unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and
not of power. Mr. Marcos is insensate and would not live if separated from the machines which have
taken over the functions of his kidneys and other organs. To treat him at this point as one with full
panoply of power against whom the forces of Government should be marshalled is totally unrealistic.
The Government has the power to arrest and punish him. But does it have the power to deny him his
right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which
the military was able to readily quell, the respondents have not pointed to any grave exigency which
permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds
of national security and public safety is vested by the Constitution in the President alone. The
determination should not be questioned before this Court. The President's finding of danger to the
nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that
he outside the scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not
legality, of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which Identifies it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by various departments on
one question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous.
Neither should we validate a roving commission allowing public officials to strike where they please and
to override everything which to them represents evil. The entire Govern ment is bound by the rule of
law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national security
or public safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a
serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission
for his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There
are also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and
his family should be permitted to return to the Philippines and that such a return would deprive his
fanatic followers of any further reason to engage in rallies and demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and this
obviously includes the right to travel out of or back into the Philippines, cannot be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is
absolutely no showing how any of these statutes and regulations could serve as a basis to bar their
coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has stated
that the Court has the last word when it comes to constitutional liberties and that she would abide by
our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or
subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil offenses by
military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the
Constitution, etc. was invariably met by an invocation that the petition involved a political question. It is
indeed poetic justice that the political question doctrine so often invoked by then President Marcos to
justify his acts is now being used against him and his family. Unfortunately, the Court should not and is
not allowed to indulge in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the
cases where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at
least two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the
main petitioner) and his use of the political question doctrine. The Constitution was accordingly
amended. We are now precluded by its mandate from refusing to invalidate a political use of power
through a convenient resort to the question doctrine. We are compelled to decide what would have
been non-justiceable under our decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide.
Definitely, the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a
closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the
president acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very
limited machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate
the conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them.
It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the
suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive
Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped
to handle; it lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back
upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to return
to the Philippines. It was only after the present petition was filed that the alleged danger to national
security and public safety conveniently surfaced in the respondents' pleadings. Secondly, President
Aquino herself limits the reason for the ban Marcos policy to-41) national welfare and interest and (2)
the continuing need to preserve the gains achieved in terms of recovery and stability. (See page 7,
respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and
public safety. The President has been quoted as stating that the vast majority of Filipinos support her
position. (The Journal, front page, January 24,1989) We cannot validate their stance simply because it is
a popular one. Supreme Court decisions do not have to be popular as long as they follow the
Constitution and the law. The President's original position "that it is not in the interest of the nation that
Marcos be allowed to return at this time" has not changed. (Manila Times, front page, February 7, 1989).
On February 11, 1989, the President is reported to have stated that "considerations of the highest
national good dictate that we preserve the substantial economic and political gains of the past three
years" in justifying her firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily
Globe, front page, February 15, 1989). "Interest of the nation national good," and "preserving economic
and political gains," cannot be equated with national security or public order. They are too generic and
sweeping to serve as grounds for the denial of a constitutional right. The Bill of Rights commands that
the right to travel may not be impaired except on the stated grounds of national security, public safety,
or public health and with the added requirement that such impairment must be "as provided by law."
The constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has
suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced
to flee the country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of
student groups, teachers' organizations, pea ant and labor federations, transport workers, and
government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult
problem or any troublesome person can be substituted for the Marcos threat as the catalysing factor.
The alleged confluence of NPAS, secessionists, radical elements, renegade soldiers, etc., would still be
present. Challenged by any critic or any serious problem, the Government can state that the situation
threatens a confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of
national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies
may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno
Aquino, Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be
tomorrow's pariahs I deeply regret that the Court's decision to use the political question doctrine in a
situation where it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military
capabilities according to General de Villa. There would be set-backs in the expected eradication of the
Communist threat. There would be other serious problems but all can be successfully contained by the
military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters
of the right to travel and to freely choose one's abode has constrained the President to fill in the
vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious
consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa
failed or was unable to act adequately on any matter for any reason that in his judgment required
immediate action. When the Bill of Rights provides that a right may not be impaired except in the
interest of national security, public safety, or public health and further requires that a law must provide
when such specifically defined interests are prejudiced or require protection, the inaction of Congress
does not give reason for the respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply
its laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his
claim to a basic right which is legally demandable and enforceable. For his own good, it might be
preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing
else. Any travel documents or any formal lifting of the Marcos ban as would allow international airlines
to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in
the Philippines. If at all, the right to come home must be more preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have
a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators
who were barred by their successors from returning to their respective countries. There is no showing
that the countries involved have constitutions which guarantee the liberty of abode and the freedom to
travel and that despite such constitutional protections, the courts have validated the "ban a return"
policy. Neither is it shown that the successors of the listed dictators are as deeply committed to
democratic principles and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of
the writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of
Rights says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in
his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt and undeserving of the very
liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to leave
Hawaii (which may depend on the action we take today), the respondents have acted with grave abuse
of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was
true that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of
fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the
threat of total massacre in defense at last of their freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans and
scoundrels of every stripe.
I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to
his own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family
be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of
his family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.
PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context, the
issue is clearly justiciable involving, as it does, colliding assertions of individual right and governmental
power. Issues of this nature more than explain why the 1986 Constitutional Commission, led by the
illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new
provision on the power of Judicial Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to
restrict travel even when such restriction is demanded by national security, public safety or public health,
The power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the
police power of the state wich may be exercised to preserve and maintain government as well as
promote the general welfare of the greatest number of people.
And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the
right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override
the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the
Court sufficient factual bases and data which would justify their reliance on national security and public
safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos
as a Filipino to return to this country. It appears to me that the apprehensions entertained and expressed
by the respondents, including those conveyed through the military, do not, with all due respect, escalate
to proportions of national security or public safety. They appear to be more speculative than real,
obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be
"under control," as admitted to the Court by said military authorities, given the resources and facilities at
the command of government. But, above all, the Filipino people themselves, in my opinion, will know
how to handle any situation brought about by a political recognition of Mr. Marcos' right to return, and
his actual return, to this country. The Court, in short, should not accept respondents' general
apprehensions, concerns and perceptions at face value, in the light of a countervailing and even
irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right
to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice
which falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly
yield thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe
that it is one case where the human and constitutional light invoked by one party is so specific,
substantial and clear that it cannot be overshadowed, much less, nullified by simplistic generalities;
worse, the Court neglects its duty under the Constitution when it allows the theory of political question
to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the
right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the
same time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I
still have not found a satisfactory answer to that question. Instead, it has become clearer by the day that
the drama today is the same drama in 1983 with the only difference that the actors are in opposite roles,
which really makes one hope, in the national interest, that the mistake in 1983 should not be made to
persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a Filipino
to return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I
therefore take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from
afar." 3 I have legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar
as their "capacity to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or
even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos
distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the Constitution
reminds everyone that "sovereignty resides in the people and all government authority emanates from
them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people.
To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do
anything not forbidden by the Constitution or the laws that the needs of the nation demanded [See
Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws
are faithfully executed [See Hyman, The American President, where the author advances the view that
an allowance of discretionary power is unavoidable in any government and is best lodged in the
President]. 7

I am not persuaded.
I

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a
big of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions,
the dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial
aim a constitution must lay down the boundaries beyond which he's forbidden territory for state action"
8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by
Presidential action, to the right of travel or liberty of abode and of changing the same other than what it
explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter
could have specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of
statute, or (2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by
Presidential initiative, it could have so averred. It would also have made the Constitution, as far as limits
to the said right are concerned, come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12
Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in
the interest of national security, public safety, or public health. 13 Arguably, the provision enabled the
Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices
as "hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .15 The President is out
of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign
affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military
top brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall"
should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we say
"from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so confidently
asserted, that "this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors
of martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort
of its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20
As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities,
has been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict
contentions that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because
of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week
in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August
14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano
Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to
sedition" and "rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas
(Democracy In the Philippines), a book extremely critical of martial rule, published by him and former
Congressman Concordia, authored by President Macapagal and translated into Tagalog by Congressman
Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the
human rights of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to
take the events at "EDSA" to set them free from house arrest and these political offenses. I am for
Marcos' return not because I have a score to settle with him. Ditto's death or my arrest are scores that
can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is
his constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded,
and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let
no more of human rights violations be repeated against any one, friend or foe. In a democratic
framwork, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Footnotes

** The Philippine presidency under the 1935 Constitution was patterned in large measure after the
American presidency. But at the outset, it must be pointed out that the Philippine government
established under the constitutions of 1935, 1973 and 1987 is a unitary government with general powers
unlike that of the United States which is a federal government with limited and enumerated powers.
Even so, the powers of the president of the United States have through the years grown, developed and
taken shape as students of that presidency have demonstrated.

FERNAN, C. J.:

1 From the speech "Restrictions on Human Rights-States of Emergency, National Security, Public
Safety and Public Order" delivered at the Lawasia Seminar on Human Rights, Today and Tomorrow: The
Role of Human Rights Commissions and Other Organs, at the Manila Hotel on August 27, 1988.

CRUZ, J.

1 In addition, he invokes the right as a basic human right recognized by the Universal Declaration
ration of Human Rights. ni

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations: Under
development, Catastrophies and Armed Conflicts, The International Dimensions of Human Rights, Vol. 1
Unesco, 1982, pp. 175-204.

3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights: "Illegal or
Unjust", 10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and Political Rights, The
International Dimensions of Human Rights, pp. 135-166.

4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of Human Rights, pp.
135-166.5as to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is
beyond the issues in this case; similarly, as to how the Philippine government should deal with Mr.
Marcos upon his return is also outside of the issues in this case.

5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond
the issues in this case; similarly, as to how the Philippine Government should deal with Mr. Marcos upon
his return is also outside of the issues in this case.
SARMIENTO, J.:

1 Decision, 4.

2 See supra, 1-4.

3 Supra, 2.

4 CONST., art. Ill, see. 6.

5 Decision, supra, 18; emphasis in the original.

6 Supra, 20-21.

7 Supra, 21-22.

* But see Cruz, J., Dissenting.

8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).

9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.

10 CONST., supra.
11 Supra.

12 CONST. (1973), art. IV, sec. 5.

13 Supra.

14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ED.)

15 CONST. (1987), art III, sec. 6, supra.

16 See Supra ,Aart VII, sec 18.

17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and 34339,
December 11, 1971, 42 SCRA 448, 480.

19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.
23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976), official
student organ of the University of the philippines. He was detained in the military stockade for
commoncriminals from Jan. to Aug, 1976.

24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the Revised Penal
Code, as amended the JG.R. No. 54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A.
Concordia, and Abraham F. Sarmiento, Petitioners, vs- The Preliminary Investigating Panel in SPI No. 79-
347 [Hamilton B. Dimaya Brigadier General, AFP, The Judge Advocate General, Chairman; Leon 0. Ridao
Colonel, JAGS GSC Deputy Judge Advocate General, Member; and Amor B. Felipe, Colonel, JAGS (GSC)
Executive Officer, Member], and the Minister of National Defense, Respondent Supreme Court.

25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June 28, 1977, of which
the undersigned was the counsel of the petitioner.

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EN BANC

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 letter8 informing him "that officials of the Executive Department invited to appear
at the meeting [regarding the NorthRail project] will not be able to attend the same without the consent
of the President, pursuant to [E.O. 464]" and that "said officials have not secured the required consent
from the President." On even date which was also the scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on National
Defense and Security, informing him "that per instruction of [President Arroyo], thru the Secretary of
National Defense, no officer of the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President" and "that no approval has been granted
by the President to any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and Security pushed through, with only Col. Balutan
and Brig. Gen. Gudani among all the AFP officials invited attending.

For defying President 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. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006.
Petitioners in G.R. No. 171246 did not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file
memorandum27 was granted, subsequently filed a manifestation28 dated March 14, 2006 that it would
no longer file its memorandum in the interest of having the issues resolved soonest, prompting this
Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated
memorandum38 on March 13, 2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464
prior to its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the
requisites for a valid exercise of the Court’s power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to
limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have standing to challenge the validity of the subject act
or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case or controversy where
the disagreement between the parties lies, discussion of the rest of the requisites shall be omitted.

Standing

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

With regard to the petition filed by the Senate, respondents argue that in the absence of a personal or
direct injury by reason of the issuance of E.O. 464, the Senate and its individual members are not the
proper parties to assail the constitutionality of E.O. 464.

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.67 Tribe, in fact, comments that while it is customary to employ the phrase "executive
privilege," it may be more accurate to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of considerations, and may be
asserted, with differing degrees of success, in the context of either judicial or legislative investigations."

One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents,
beginning with Washington, on the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another variety is the 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.77 Almonte 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.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice

(ON LEAVE)
REYNATO S. PUNO

Associate Justice

CONSUELO YNARES- SANTIAGO

Asscociate Justice

LEONARDO A. QUISUMBING

Associate Justice ANGELINA SANDOVAL-GUTIERREZ

Asscociate Justice

ANTONIO T. CARPIO

Associate Justice MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

RENATO C. CORONA

Associate Justice ADOLFO S. AZCUNA

Asscociate Justice

ROMEO J. CALLEJO, SR.

Associate Justice DANTE O. TINGA

Asscociate Justice

MINITA V. CHICO-NAZARIO

Associate Justice CANCIO C. GARCIA

Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the
above Resolution were reached in consultation before the case was assigned to the writer of the opinion
of the Court.

ARTEMIO V. PANGANIBAN

Chief Justice

Footnotes

* Henceforth, in consolidated petitions which assail the validity or constitutionality of an issuance of a

government official or agency, the petitioner which is the most directly affected by the issuance shall be
first in the order of enumeration of the titles of the petitions irrespective of their docket numbers or
dates of filing.

** On Leave.

1 Hamilton, The Federalist No. 70.

2 Annexes "J-2" to "J-7," rollo (G.R. No. 169777), pp. 72-77.

3 Annex "G," id. at 58.

4 Annex "B," id. at 52.

5 Annex "C," id. at 53.

6 Annex "D," id. at 54-55.

7 Annex "A," id. at 48-51.

8 Annex "F," id. at 57.

9 Annex "H," id. at 59.

10 Rollo (G.R. No. 169777), p. 379.

11 Ibid.

12 The petitioner names the following organizations as members: Albert Schweitzer Association,
Philippines, Inc. (ASAP), Alternative Law Research and Development Center, Inc. (ALTERLAW), Ateneo
Human Rights Center (AHRC), Balay Alternative Legal Advocates for Development in Mindanaw, Inc
(BALAOD Mindanaw), Children’s Legal Bureau (CLB), Inc., Environment Legal Assistance Center (ELAC),
Free Rehabilitation, Economic, Education and Legal Assistance Volunteers Association, Inc. (FREELAVA),
Kaisahan Tungo sa Kaunlaran ng Kanayunan at Repormang Pansakahan (KAISAHAN), Legal Rights and
Natural Resources Center-Kasama sa Kalikasan/Friends of the Earth-Philippines, Inc. (LRC-LSK/FOEI-
Phils.), Paglilingkod Batas Pangkapatiran Foundation (PBPF), Participatory Research Organization of
Communities and Education Towards Struggle for Self-Reliance (PROCESS) Foundation-PANAY, Inc.,
Pilipina Legal Resources Center (PLRC), Sentro ng Alternatibong Lingap Panligal (SALIGAN), Tanggapang
Panligal ng Katutubong Pilipino (PANLIPI), Tanggol Kalikasan (TK), Women’s Legal Bureau (WLB), and
Women’s Legal Education, Advocacy and Defense Foundation, Inc. (WomenLEAD).

13 Rollo (G.R. No. 169667), p. 22.

14 Annex "H," id. at 460-461.

15 Annex "H-1," id. at 462.

16 Rollo (G.R. No. 169777), pp. 383-384.

17 Annex "K," rollo (G.R. No. 169777), p. 466.

18 Annex "J," id. at 465.

19 Annex "M," id. at 468.

20 Annex "N," id. at 469.

21 Annex "O," id. at 470.

22 Court En Banc Resolution dated February 21, 2006, rollo (G.R. No. 169659), pp. 370-372.

23 Rollo (G.R. No. 169660), pp. 339-370.

24 Rollo (G.R. No. 169777), pp. 373-439.

25 Rollo (G.R. No. 169667), pp. 388-426.

26 Rollo (G.R. No. 169834), pp. 211-240.

27 Rollo (G.R. No. 169659), pp. 419-421.

28 id. at 469-471.

29 Court En Banc Resolution dated March 21, 2006, rollo (G.R. No. 169659), pp. 570-572.

30 Sec. 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.

31 Sec. 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.

32 Sec. 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.1avvphil.net

33 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.

34 Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access
to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.

35 Sec. 4. 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.
36 Sec. 16. The right of the people and their organizations to effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be abridged. The State shall, by law,
facilitate the establishment of adequate consultation mechanisms.

37 Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest.

38 Rollo (G.R. No. 169777), pp. 524-569.

39 Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133.

40 Citing Lujan v. Defenders of Wildlife, 504 US 555, 119 L. Ed.2d 351 (1992), rollo (G.R. No. 169777), p.
116.

41 Citing Lim v. Hon. Exec. Sec., 430 Phil. 555 (2002), rollo (G.R. No. 169777), p. 116.

42 G.R. No. 67752, April 10, 1989, 171 SCRA 657.

43 G.R. No. 78716, September 22, 1987 (res).

44 Rollo (G.R. No. 169777), p. 117.

45 Id. at 279.

46 Ibid.

47 Pimentel Jr., v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462 SCRA 623, 631-632.
48 Section 2 of The Party-List System Act (Republic Act 7941) reads:

SEC. 2. Declaration of Policy. – The State shall promote proportional representation in the election of
representatives to the House of Representatives through a party-list system of registered national,
regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens
belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and guarantee a full, free and open party
system in order to attain the broadest possible representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to compete for and win seats in the legislature,
and shall provide the simplest scheme possible.

49 Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744 , 761 (1998).

50 IBP Board of Governors Resolution No. XVII-2005-18, rollo (G.R. No 171246), p. 28.

51 Rollo (G.R. No. 169667), p. 3.

52 Rollo (G.R. No. 169660), p. 5.

53 Supra note 39 at 136.

54 Francisco, Jr. v. House of Representatives, supra note 39 at 139.

55 Lozada v. Commission on Elections, 205 Phil. 283, 287 (1983).

56 Rollo (G.R. No. 169659), p. 79.

57 Rollo (G.R. No. 169659), pp. 80-81.

58 87 Phil. 29 (1950).

59 Supra at 45, citing McGrain v. Daugherty 273 US 135, 47 S. Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1 (1927).

60 Id. at 46.

61 G.R. 89914, Nov. 20, 1991, 203 SCRA 767.

62 "WHEREAS, pursuant to the rule on executive privilege, the President and those who assist her must
be free to explore the alternatives in the process of shaping policies and making decisions since this is
fundamental to the operation of the government and is rooted in the separation of powers under the
Constitution;

xxxx

"WHEREAS, recent events, particularly with respect to the invitation of a member of the Cabinet by the
Senate as well as various heads of offices, civilian and military, have highlighted the need to ensure the
observance of the principle of separation of powers, adherence to the rule on executive privilege and
respect for the rights of persons appearing in such inquiries in aid of legislation and due regard to
constitutional mandate; x x x"

63 II Record, Constitutional Commission 150-151 (July 23, 1986).

64 B. Schwartz, Executive Privilege and Congressional Investigatory Power 47 Cal. L. Rev. 3.

65 M. Rozell, Executive Privilege and the Modern Presidents: In Nixon’s Shadow (83 Minn. L. Rev. 1069).

66 P. Shane & H. Bruff, Separation of Powers: Law Cases and Materials 292 (1996).

67 Id. at 293.

68 I L.Tribe, American Constitutional Law 770-1 (3rd ed., 2000).

69 121 F.3d 729, 326 U.S. App. D.C. 276.

70 Black’s Law Dictionary 569-570 (6th ed., 1991) citing 5 U.S.C.A. Sec. 552(b)(1); Black v. Sheraton Corp.
of America, D.C.D.C., 371 F.Supp. 97, 100.

71 I L.Tribe, supra note 68 at 771.

72 418 U.S. 683 (1974)

73 In re Sealed Case 121 F.3d 729, 326 U.S.App.D.C. 276 (1997) states: "It appears that the courts have
been drawn into executive-congressional privilege disputes over access to information on only three
recent occasions. These were: Unites States v. AT&T, 551 F.2d 384 (D.C. Cir.1976), appeal after remand,
567 F.2d 121 (D.C.Cir.1977); Senate Select Committee on Presidential Campaign Activities v. Nixon
(Senate Committee), 498 F.2d 725 (D.C. Cir. 1974); United States v. House of Representatives, 556 F.
Supp. 150 (D.D.C. 1983)"; Vide R. Iraola, Congressional Oversight, Executive Privilege, and Requests for
Information Relating to Federal Criminal Investigations and Prosecutions (87 Iowa L. Rev. 1559): "The
Supreme Court has yet to rule on a dispute over information requested by Congress where executive
privilege has been asserted; in the past twenty-five years, there have been only three reported cases
dealing with this issue."

74 J. Chaper & R. Fallon, Jr., Constitutional Law: Cases Comments Questions 197 (9th ed., 2001).
75 Senate Select Committee on Presidential Campaign Activities v. Nixon 498 F.2d 725, 162
U.S.App.D.C.183 (May 23, 1974).

76 N. Redlich & B. Schwartz, Constitutional Law 333 (3rd ed. ,1996) states in Note 24: "Now that the
Supreme Court decision has specifically recognized a "privilege of confidentiality of Presidential
communications," the Select Committee decision appears even stronger. If the need of the Watergate
Committee for evidence was not enough before the Supreme Court recognized executive privilege, the
same would surely have been true after the recognition. And, if the demand of the Watergate
Committee, engaged in a specific investigation of such importance, was not enough to outweigh the
nondisclosure claim, it is hard to see what Congressional demand will fare better when met by an
assertion of privilege."

77 314 Phil. 150 (1995).

78 Comm. Almonte v. Hon. Vasquez, 314 Phil. 150, 166 (1995) states: "To put this case in perspective it
should be stated at the outset that it does not concern a demand by a citizen for information under the
freedom of information guarantee of the Constitution."

79 360 Phil. 133 (1998).

80 Chavez v. PCGG, 360 Phil. 133, 160 (1998).

81 433 Phil. 506 (2002).

82 Chavez v. Public Estates Authority, 433 Phil. 506, 534 (2002).

83 II Record, Constitutional Commission 199 (July 24, 1986).

84 II Record, Constitutional Commission 900-1 (October 12, 1986).

85 H. Mendoza & A. Lim, The New Constitution 177 (1974).

86 Constitution (1973), Art. VIII, Sec. 12(1).

87 R. Martin, The New Constitution of the Philippines 394 (1973).

88 II Record, Constitutional Commission 133 (July 23, 1986).

89 Schwartz, supra at 11-12.

90 Supra.

91 Supra note 82 at 189.

92 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953).

93 Vide Tribe, supra note 68.

94 Supra note 78.

95 Supra note 75.

96 403 F.Supp. 1000, 20 Fed,R.Serv.2d 1382 (1975).

97 43 F.R.D. 181 (1967).

98 Ibid., citation omitted.

99 520 F.Supp.414, 32 Fed.R.Serv.2d 913 (1981).

100 371 F.Supp.97, 18 Fed.R.Serv.2d 563 (1974).

101 Ibid., citations omitted.

102 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed.2d 136 (1960).

103 U.S. v. Reynolds, supra note 85.

104 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

105 In re Sealed Case, supra note 69.

106 Black’s Law Dictionary, supra note 70 at 569.

107 G.R. No. 74930, February 13, 1989, 170 SCRA 256.

108 G.R. No. L-63915, December 29, 1986, 146 SCRA 446, 453.
109 Hoffman, Governmental Secrecy and the Founding Fathers: A Study in Constitutional Controls (1981)
13.

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Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS,

petitioners,

vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35,
UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF
MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,

vs.

THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE
HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE
WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL
COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,

vs.

EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ,

UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and
JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila,
respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and
83979.

RESOLUTION
PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by
the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC
judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if
any, to determine probable cause; and (3) whether or not the President of the Philippines, under the
Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-
affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary
of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A
second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on
April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the
Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive
Secretary on May 16, 1988. With these developments, petitioners' contention that they have been
denied the administrative remedies available under the law has lost factual support.

It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counter-
affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counter-
affidavits if he is so minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision
on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures 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 nder 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.

The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized
by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to
personally examine the complainant and his witnesses in his determination of probable cause for the
issuance of warrants of arrest. This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause
for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the supporting documents submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable
cause, he may disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for
the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this
resolution.

It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack
or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings
ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a
witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran,
would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand,
she would be exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's
time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential privilege as
a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus,
if so minded the President may shed the protection afforded by the privilege and submit to the court's
jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's
prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a
defense is best left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.

The petitions fail to establish that public respondents, through their separate acts, gravely abused their
discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for
cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part
of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and
83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated
April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of the
libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is
the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved
but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one
who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the
publisher and chairman of the editorial board, the managing editor and the business manager in a not
too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman
who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible
twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for libel. We have as
complainant a powerful and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she has taken the
unorthodox step of going to court inspite of the invocations of freedom of the press which would
inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and
defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment
goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media
to freely criticize government or to question government handling of sensitive issues and public affairs,
this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile
and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court
pointed out that while defamation is not authorized, criticism is to be expected and should be borne for
the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted position that
the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every
man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from slanderous and
libelous charges, would actually invite attacks by those who desire to create sensation. It would seem
that what would ordinarily be slander if directed at the typical person should be examined from various
perspectives if directed at a high government official. Again, the Supreme Court should draw this fine
line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free
press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after
discounting the possibility that the words may not be really that libelous, there is likely to be a chilling
effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers
to courageously perform their critical role in society. If, instead of merely reading more carefully what a
columnist writes in his daily column, the editors tell their people to lay off certain issues or certain
officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more weight
to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US
415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach
of the peace, obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no talismanic immunity
from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They recognized the risk to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions,
should not a differentiated approach to their particular liabilities be taken instead of lumping up
everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear to
shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before
us dampen the vigor and limit the variety of public debate? There are many other questions arising from
this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn
ones. I see no reason to disagree with the way the Court has resolved them. The first issue on
prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue,
considerations of public policy dictate that an incumbent President should not be sued. At the same
time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns
him or her.

The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know
that most of our fiscals and judges are courageous individuals who would not allow any considerations of
possible consequences to their careers to stand in the way of public duty. But why should we subject
them to this problem? And why should we allow the possibility of the trial court treating and deciding
the case as one for ordinary libel without bothering to fully explore the more important areas of
concern, the extremely difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343
U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are
consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent
their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression
should be faithfully applied.

Separate Opinions

GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of the
libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is
the more important issue in these petitions and it should be resolved now rather that later.

Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved
but broader considerations of governmental power versus a preferred freedom.

We have in these four petitions the unusual situation where the highest official of the Republic and one
who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the
publisher and chairman of the editorial board, the managing editor and the business manager in a not
too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman
who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible
twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or
contempt of the complainant. However, this case is not a simple prosecution for libel. We have as
complainant a powerful and popular President who heads the investigation and prosecution service and
appoints members of appellate courts but who feels so terribly maligned that she has taken the
unorthodox step of going to court inspite of the invocations of freedom of the press which would
inevitably follow.

I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and
defense lawyers to argue before a trial judge.

There is always bound to be harassment inherent in any criminal prosecution. Where the harassment
goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media
to freely criticize government or to question government handling of sensitive issues and public affairs,
this Court and not a lower tribunal should draw the demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete
liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp
incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile
and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court
pointed out that while defamation is not authorized, criticism is to be expected and should be borne for
the common good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx xxx xxx

... No longer is there a Minister of the Crown own or a person in authority of such exalted position that
the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every
man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900)

In fact, the Court observed that high official position, instead of affording immunity from slanderous and
libelous charges, would actually invite attacks by those who desire to create sensation. It would seem
that what would ordinarily be slander if directed at the typical person should be examined from various
perspectives if directed at a high government official. Again, the Supreme Court should draw this fine
line instead of leaving it to lower tribunals.

This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free
press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after
discounting the possibility that the words may not be really that libelous, there is likely to be a chilling
effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers
to courageously perform their critical role in society. If, instead of merely reading more carefully what a
columnist writes in his daily column, the editors tell their people to lay off certain issues or certain
officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of
Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<äre||anº•1àw>

The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to give any more weight
to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US
415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach
of the peace, obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no talismanic immunity
from constitutional limitations. It must be measured by standards that satisfy the First Amendment.

xxx xxx xxx

Those who won our independence believed ... that public discussion is a political duty; and that this
should be a fundamental principle of the American government. They recognized the risk to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the
fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law—the argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at
pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions,
should not a differentiated approach to their particular liabilities be taken instead of lumping up
everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear to
shame or disparage a public figure, may really be intended to provoke debate on public issues when
uttered or written by a media personality. Will not a criminal prosecution in the type of case now before
us dampen the vigor and limit the variety of public debate? There are many other questions arising from
this unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn
ones. I see no reason to disagree with the way the Court has resolved them. The first issue on
prematurity is moot. The second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue,
considerations of public policy dictate that an incumbent President should not be sued. At the same
time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns
him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know
that most of our fiscals and judges are courageous individuals who would not allow any considerations of
possible consequences to their careers to stand in the way of public duty. But why should we subject
them to this problem? And why should we allow the possibility of the trial court treating and deciding
the case as one for ordinary libel without bothering to fully explore the more important areas of
concern, the extremely difficult issues involving government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343
U. S. 250) when he said:

If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are
consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent
their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression
should be faithfully applied.

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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,26 so 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;31 second, 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;33 and 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."93 Watkins 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,104 the 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,114 an 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 misabused135 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 efficient administration 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 gauge of a free and
democratic society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff152
this Court held that --

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan
Mail" and the "We Forum" newspapers. As a consequence of the search and seizure, these premises
were padlocked and sealed, with the further result that the printing and publication of said newspapers
were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press
guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to
express themselves in print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political enlightenment and growth of the
citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the "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 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 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 is permitted to say on
pain of punishment should he be so rash as to disobey.153 Undoubtedly, the The Daily Tribune was
subjected to these arbitrary intrusions because of its anti-government sentiments. This Court 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 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 principiis.154
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 and other papers are illegal; and that the same are
inadmissible "for any purpose," thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when inspected the Tribune
for the purpose of gathering evidence and you 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
Tribune?

SOLICITOR GENERAL BENIPAYO:

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

xxxxxxxxx

SR. ASSO. JUSTICE PUNO:

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 suddenly part of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law, and it is not based on
Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017 which says that the
police could go and inspect and gather clippings from Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

Is it based on any law?

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.

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.

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.

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.

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.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice

(On leave)

REYNATO S. PUNO

Associate Justice

LEONARDO A. QUISUMBING

Asscociate Justice

CONSUELO YNARES-SANTIAGO

Associate Justice ANTONIO T. CARPIO

Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice RENATO C. CORONA

Asscociate Justice

CONCHITA CARPIO MORALES

Associate Justice ROMEO J. CALLEJO, SR.

Asscociate Justice

ADOLFO S. AZCUNA

Associate Justice DANTE O. TINGA

Asscociate Justice

MINITA V. CHICO-NAZARIO

Associate Justice CANCIO C. GARCIA

Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

ARTEMIO V. PANGANIBAN

Chief Justice

Footnotes

1 Law and Disorder, The Franklin Memorial Lectures, Justice Tom C. Clark – Lecturer, Volume XIX, 1971, p.
29.

2 Chief Justice Artemio V. Panganiban, Liberty and Prosperity, February 15, 2006.
3 Articulated in the writings of the Greek philosopher, Heraclitus of Ephesus, 540-480 B.C., who
propounded universal impermanence and that all things, notably opposites are interrelated.

4 Respondents’ Comment dated March 6, 2006.

5 Ibid.

6 Ibid.

7 Minutes of the Intelligence Report and Security Group, Philippine Army, Annex "I" of Respondents’
Consolidated Comment.

8 Respondents’ Consolidated Comment.

9 Ibid.

10 Ibid.

11 Petition in G.R. No. 171396, p. 5.

12 Police action in various parts of Metro Manila and the reactions of the huge crowds being dispersed
were broadcast as "breaking news" by the major television stations of this country.

13 Petition in G.R. No. 171400, p. 11.

14 Ibid.
15 The prime duty of the Government is to serve and protect the people. The Government may call upon
the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal military or civil service.

16 No person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws.

17 The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures 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.

18 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.

19 (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.

20 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.

21 1 Cranch 137 [1803].

22 Howard L. MacBain, "Some Aspects of Judicial Review," Bacon Lectures on the Constitution of the
United States (Boston: Boston University Heffernan Press, 1939), pp. 376-77.

23 The Court has no self-starting capacity and must await the action of some litigant so aggrieved as to
have a justiciable case. (Shapiro and Tresolini, American Constitutional Law, Sixth Edition, 1983, p. 79).

24 Cruz, Philippine Political Law, 2002 Ed., p. 259.

25 Ibid.

26 Province of Batangas v. Romulo, G.R. No. 152774, May 27, 2004, 429 SCRA 736.

27 Banco Filipino Savings and Mortgage Bank v. Tuazon, Jr., G.R. No. 132795, March 10, 2004, 425 SCRA
129; Vda. De Dabao v. Court of Appeals, G.R. No. 1165, March 23, 2004, 426 SCRA 91; and Paloma v.
Court of Appeals, G.R. No. 145431, November 11, 2003, 415 SCRA 590.

28 Royal Cargo Corporation v. Civil Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004, 421 SCRA
21; Vda. De Dabao v. Court of Appeals, supra.

29 Lacson v. Perez, G.R. No. 147780, May 10, 2001, 357 SCRA 756.

30 Cruz, Philippine Political Law, 2002, p. 268 citing Norton v. Shelby, 118 U.S. 425.

31 Province of Batangas v. Romulo, supra.

32 Lacson v. Perez, supra.

33 Province of Batangas v. Romulo, supra.

34 Albaña v. Commission on Elections, G.R. No. 163302, July 23, 2004, 435 SCRA 98, Acop v. Guingona,
Jr., G.R. No. 134855, July 2, 2002, 383 SCRA 577, Sanlakas v. Executive Secretary, G.R. No. 159085,
February 3, 2004, 421 SCRA 656.

35 Salonga v. Cruz Paño, et al., No. L- 59524, February 18, 1985, 134 SCRA 438.

36 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

37 Black’s Law Dictionary, 6th Ed. 1991, p. 941.

38 Salonga v. Warner Barnes & Co., 88 Phil. 125 (1951).

39 275 Ky 91, 120 SW2d 765 (1938).

40 19 Wend. 56 (1837).

41 232 NC 48, 59 SE2d 359 (1950).

42 302 U.S. 633.

43 318 U.S. 446.

44 65 Phil. 56 (1937).
45 G.R. No. 117, November 7, 1945 (Unreported).

46 G.R. No. 2947, January 11, 1959 (Unreported).

47 110 Phil. 331 (1960).

48 77 Phil. 1012 (1947).

49 84 Phil. 368 (1949) The Court held: "Above all, the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure."

50 L-No. 40004, January 31, 1975, 62 SCRA 275.

51 Tañada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27, where the Court held that where the
question is one of public duty and the enforcement of a public right, the people are the real party in
interest, and it is sufficient that the petitioner is a citizen interested in the execution of the law;

Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, where the Court held
that in cases involving an assertion of a public right, the requirement of personal interest is satisfied by
the mere fact that the petitioner is a citizen and part of the general public which possesses the right.

Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, L. No. 81311, June 30, 1988, 163
SCRA 371, where the Court held that objections to taxpayers’ lack of personality to sue may be
disregarded in determining the validity of the VAT law;

Albano v. Reyes, G.R. No. 83551, July 11, 1989, 175 SCRA 264, where the Court held that while no
expenditure of public funds was involved under the questioned contract, nonetheless considering its
important role in the economic development of the country and the magnitude of the financial
consideration involved, public interest was definitely involved and this clothed petitioner with the legal
personality under the disclosure provision of the Constitution to question it.

Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, G.R. No. 78742, July
14, 1989, 175 SCRA 343, where the Court ruled that while petitioners are strictly speaking, not covered
by the definition of a "proper party," nonetheless, it has the discretion to waive the requirement, in
determining the validity of the implementation of the CARP.

Gonzales v. Macaraig, Jr., G.R. No. 87636, November 19, 1990, 191 SCRA 452, where the Court held that
it enjoys the open discretion to entertain taxpayer’s suit or not and that a member of the Senate has the
requisite personality to bring a suit where a constitutional issue is raised.

Maceda v. Macaraig, Jr., G.R. No. 88291, May 31, 1991, 197 SCRA 771, where the Court held that
petitioner as a taxpayer, has the personality to file the instant petition, as the issues involved, pertains to
illegal expenditure of public money;

Osmeña v. Comelec, G.R. No. 100318, 100308, 100417,100420, July 30, 1991, 199 SCRA 750, where the
Court held that where serious constitutional questions are involved, the "transcendental importance" to
the public of the cases involved demands that they be settled promptly and definitely, brushing aside
technicalities of procedures;

De Guia v. Comelec, G.R. No. 104712, May 6, 1992, 208 SCRA 420, where the Court held that the
importance of the issues involved concerning as it does the political exercise of qualified voters affected
by the apportionment, necessitates the brushing aside of the procedural requirement of locus standi.

52 G.R. No. 133250, July 9, 2002, 384 SCRA 152.

53 G.R. Nos. 138570, 138572, 138587, 138680, 138698, October 10, 2000, 342 SCRA 449.

54 G.R. No. 151445, April 11, 2002, 380 SCRA 739.

55 Supra.

56 G.R. No. 118910, November 16, 1995, 250 SCRA 130.

57 G.R. No. 132922, April 21, 1998, 289 SCRA 337.

58 G.R. No. 147780, 147781, 147799, 147810, May 10, 2001, 357 SCRA 756.

59 G.R. No. 159085, February 3, 2004, 421 SCRA 656.

60 235 SCRA 506 (1994).

61 Supra.

62 Supra.

63 197 SCRA 52, 60 (1991).

64 Supra.

65 See NAACP v. Alabama, 357 U.S. 449 (1958).

66 G.R. No. 141284, August 15, 2000, 338 SCRA 81.

67 From the deliberations of the Constitutional Commission, the intent of the framers is clear that the
immunity of the President from suit is concurrent only with his tenure and not his term. (De Leon,
Philippine Constitutional Law, Vol. 2, 2004 Ed., p. 302).

68 Section 1, Article XI of the Constitution provides: 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.

69 Ibid., Sec. 2.

70 No. 2908, September 30, 2005, 471 SCRA 87.

71 91 Phil. 882 (1952).

72 No. L-33964, December 11, 1971, 42 SCRA 448.

73 No. L-35546, September 17, 1974, 59 SCRA 183.

74 No. L-61388, April 20, 1983, 121 SCRA 472.

75 Tañada v. Cuenco, 103 Phil. 1051 (1957).

76 Lansang v. Garcia, supra, pp. 473 and 481.

77 Supra.
78 "Five Justices – Antonio, Makasiar, Esguerra, Fernandez, and Aquino – took the position that the
proclamation of martial law and the arrest and detention orders accompanying the proclamation posed
a "political question" beyond the jurisdiction of the Court. Justice Antonio, in a separate opinion
concurred in by Makasiar, Fernandez, and Aquino, argued that the Constitution had deliberately set up a
strong presidency and had concentrated powers in times of emergency in the hands of the President and
had given him broad authority and discretion which the Court was bound to respect. He made reference
to the decision in Lansang v. Garcia but read it as in effect upholding the "political question" position.
Fernandez, in a separate opinion, also argued Lansang, even understood as giving a narrow scope of
review authority to the Court, affirmed the impossible task of ‘checking’ the action taken by the
President. Hence, he advocated a return to Barcelon v. Baker. Similarly, Esguerra advocated the
abandonment of Lansang and a return to Barcelon. And, although Justices Castro, Fernando, Muñoz-
Palma, and, implicitly, Teehankee, lined up on the side of justiciability as enunciated in Lansang, x x x
Barredo, however, wanted to have the best of both worlds and opted for the view that "political
questions are not per se beyond the Court’s jurisdiction ... but that as a matter of policy implicit in the
Constitution itself the Court should abstain from interfering with the Executive’s Proclamation." (Bernas,
The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 794.)

79 See Separate Opinion of J. Puno in Integrated Bar of the Philippines v. Zamora, supra.

80 Supra.

81 Cruz, Philippine Political Law, 2002 Ed., p. 247.

82 Santiago v. Guingona, Jr., G.R. No. 134577, November 18, 1998, 298 SCRA 756.

83 Supra, 481-482.

84 Smith and Cotter, Powers of the President during Crises, 1972, p. 6.

85 Ibid.
86 The Social Contract (New York: Dutton, 1950), pp. 123-124.

87 Smith and Cotter, Powers of the President during Crises, 1972, pp. 6-7.

88 Representative Government, New York, Dutton, 1950, pp. 274, 277-78.

89 The Discourses, Bk. 1, Ch. XXXIV.

90 Smith and Cotter, Powers of the President During Crises, 1972. p. 8.

91 Ibid.

92 See The Problem of Constitutional Dictatorship, p. 328.

93 Ibid., p. 353.

94 Ibid., pp. 338-341.

95 Smith and Cotter, Powers of the President During Crises, 1972, p. 9.

96 Constitutional Government and Democracy, Ch. XXVI, rev. ed., Boston: Ginn & Co., 1949, p. 580.

97 Ibid, pp. 574-584.

98 Smith and Cotter, Powers of the President During Crises, 1972, p. 10.
99 Rossiter, Constitutional Dictatorship, Princeton: Princeton University Press, 1948, pp. 298-306.

100 Smith and Cotter, Powers of the President During Crises, 1972, p. 11.

101 Smith and Cotter, Powers of the President During Crises, 1972, p. 12.

102 Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952), See
Concurring Opinion J. Jackson.

103 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, G.R. No. 148560,
November 19, 2001, 369 SCRA 393.

104 481 U.S. 739, 95 L. Ed. 2d 697 (1987).

105 Supra.

106 See Concurring Opinion of Justice Mendoza in Estrada v. Sandiganbayan, supra.

107 Broadrick v. Oklahoma, 413 U.S. 601 (1973).

108 Ibid.

109 401 U.S. 37, 52-53, 27 L.Ed.2d 669, 680 (1971), United States v. Raines, 362 U.S. 17, 4 L.Ed.2d 524
(1960); Board of Trustees, State Univ. of N.Y v. Fox, 492 U.S. 469, 106 L.Ed.2d 388 (1989).
110 Ermita-Malate Hotel and Motel Operators Association v. City Mayor, No. L-24693, July 31, 1967, 20
SCRA 849 (1967).

111 G.R. No. 159085, February 3, 2004, 421 SCRA 656, wherein this Court sustained President Arroyo’s
declaration of a "state of rebellion" pursuant to her calling-out power.

112 Supra.

113 Westel Willoughby, Constitutional Law of the United States 1591 [2d Ed. 1929, quoted in Aquino v.
Ponce Enrile, 59 SCRA 183 (1974), (Fernando, J., concurring)].

114 Retired Associate Justice of the Supreme Court.

115 Section 1, Article VII of the Constitution.

116 Section 5, Article VII of the Constitution.

117 Section 18, Article VII of the Constitution.

118 Section 6, Article XVI of the Constitution.

119 See Republic Act No. 6975.

120 Ironically, even the 7th Whereas Clause of PP 1017 which states that "Article 2, Section 4 of our
Constitution makes the defense and preservation of the democratic institutions and the State the
primary duty of Government" replicates more closely Section 2, Article 2 of the 1973 Constitution than
Section 4, Article 2 of the 1987 Constitution which provides that, "[t[he prime duty of the Government is
to serve and protect the people."
121 Agpalo, Statutory Construction, Fourth Edition, 1998, p. 1, citing Legaspi v. Ministry of Finance, 115
SCRA 418 (1982); Garcia-Padilla v. Ponce-Enrile, supra. Aquino v. Commission on Election, supra.

122 Section 17, Article XIV of the 1973 Constitution reads: "In times of national emergency when the
public interest so requires, the State may temporarily take over or direct the operation of any privately
owned public utility or business affected with public interest."

123 Antieau, Constitutional Construction, 1982, p.21.

124 Cruz, Philippine Political Law, 1998, p. 94.

125 343 U.S. 579; 72 Sup. Ct. 863; 96 L. Ed. 1153 (1952).

126 Tresolini, American Constitutional Law, 1959, Power of the President, pp. 255-257.

127 Smith and Cotter, Powers of the President During Crises, 1972, p. 14

128 The Federal Emergency Relief Act of 1933 opened with a declaration that the economic depression
created a serious emergency, due to wide-spread unemployment and the inadequacy of State and local
relief funds, . . . making it imperative that the Federal Government cooperate more effectively with the
several States and Territories and the District of Columbia in furnishing relief to their needy and
distressed people. President Roosevelt in declaring a bank holiday a few days after taking office in 1933
proclaimed that "heavy and unwarranted withdrawals of gold and currency from … banking institutions
for the purpose of hoarding; ... resulting in "sever drains on the Nation’s stocks of gold … have created a
national emergency," requiring his action. Enacted within months after Japan’s attack on Pearl Harbor,
the Emergency Price Control Act of 1942 was designed to prevent economic dislocations from
endangering the national defense and security and the effective prosecution of the war. (Smith and
Cotter, Powers of the President During Crises, 1972, p.18)
129 The Emergency Appropriation Act for Fiscal 1935 appropriated fund to meet the emergency and
necessity for relief in stricken agricultural areas and in another section referred to "the present drought
emergency."[129] The India Emergency Food Aid Act of 1951 provided for emergency shipments of food
to India to meet famine conditions then ravaging the great Asian sub-continent. The Communication Act
of 1934 and its 1951 amendment grant the President certain powers in time of "public peril or disaster."
The other statutes provide for existing or anticipated emergencies attributable to earthquake, flood,
tornado, cyclone, hurricane, conflagration an landslides.[129] There is also a Joint Resolution of April
1937. It made "funds available for the control of incipient or emergency outbreaks of insect pests or
plant diseases, including grasshoppers, Mormon crickets, and chinch bugs. (66 Stat 315, July 1, 1952, Sec.
2 [a]) Supra.

130 National Security may be cataloged under the heads of (1) Neutrality, (2) Defense, (3) Civil Defense,
and (4) Hostilities or War. (p. 22) The Federal Civil Defense Act of 1950 contemplated an attack or series
of attacks by an enemy of the United States which conceivably would cause substantial damage or injury
to civilian property or persons in the United States by any one of several means; sabotage, the use of
bombs, shellfire, or atomic, radiological, chemical, bacteriological means or other weapons or processes.
Such an occurrence would cause a "National Emergency for Civil Defense Purposes," or "a state of civil
defense emergency," during the term which the Civil Defense Administrator would have recourse to
extraordinary powers outlined in the Act. The New York-New Jersey Civil Defense Compact supplies an
illustration in this context for emergency cooperation. "Emergency" as used in this compact shall mean
and include invasion, or other hostile action, disaster, insurrection or imminent danger thereof. ( Id.,
p.15-16)

131 Cruz, Philippine Political Law, 1998, p. 95.

132 Record of the Constitutional Commission, Vol. III, pp. 266-267.

133 Record of the Constitutional Convention, pp. 648-649.

134 84 Phil. 368 (1949).

135 Uren v Bagley, 118 Or 77, 245 P 1074, 46 ALR 1173.

136 Gutierrez v. Middle Rio Grande Conservancy Dist., 34 NM 346, 282 P 1, 70 ALR 1261, cert den 280 US
610, 74 L ed 653, 50 S Ct 158.

137 Sanitation Dist. V. Campbell (Ky), 249 SW 2d 767; Rochester v. Gutberlett, 211 NY 309, 105 NE 548.

138 Hammond Packing Co. v. Arkansas, 212 US 322, 53 L ed 530, 29 S Ct 370.

139 De Leon and De Leon Jr., Administrative Law, Text and Cases, 2001 Ed., p. 115.

140 Ibid.

141 In a Lecture delivered on March 12, 2002 as part of the Supreme Court Centenary Lecture Series,
Hans Koechler, Professor of Philosophy at the University of Innsbruck (Austria) and President of the
International Progress Organization, speaking on "The United Nations, The International Rule of Law and
Terrorism" cited in the Dissenting Opinion of Justice Kapunan in Lim v. Executive Secretary, G.R. No.
151445, April 11, 2002, 380 SCRA 739.

142 Section 2, Article III of the 1987 Constitution.

143 Bernas, The 1987 Constitution of the Republic of the Philippines, A Reviewer-Primer, p. 51.

144 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.

145 An Act Ensuring the Free Exercise by the People of their Right Peaceably to Assemble and Petition
the Government for Other Purposes.

146 Annex "A" of the Memorandum in G.R. No. 171396, pp. 271-273.
147 Ibid.

148 299 U.S. 353, 57 S. Ct. 255, 81 L. Ed. 278.

149 Reyes v. Bagatsing, No. L-65366, November 9, 1983, 125 SCRA 553.

150 Section 5. Application requirements - All applications for a permit shall comply with the following
guidelines:

xxxxxx

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall immediately inform the applicant who must be heard
on the matter.

151 Petition in G.R. No. 171400, p. 11.

152 No. L-64161, December 26, 1984, 133 SCRA 816.

153 Dissenting Opinion, J. Cruz, National Press Club v. Commission on Elections, G.R. Nos. 102653,
102925 & 102983, March 5, 1992, 207 SCRA 1.

154 Boyd v. United States, 116 U.S. 616 (1886).

155 Transcript of Stenographic Notes, Oral Arguments, March 7, 2006, p. 470.

156 Ibid., pp. 432-433.

157 Ibid, pp. 507-508.

158 Smith and Cotter, Powers of the President During Crisis, 1972, p. 146.

SUMMARY OF THE VOTING IN THE PP 1017 DECISION

Fourteen of the 15 SC justices participated in the decision. Senior Associate Justice Reynato S. Puno was
on leave.

Justice Angelina Sandoval Gutierrez’s 78-page ponencia was concurred in by 10 Justices: Chief Justice
Artemio V. Panganiban and Justices Leonardo A. Quisumbing, Consuelo Ynares Santiago, Antonio T.
Carpio, Ma. Alicia Austria-Martinez, Conchita Carpio Morales, Romeo J. Callejo, Sr., Adolfo S. Azcuna,
Minita V. Chico-Nazario, and Cancio C. Garcia.

Both the Chief Justice and Justice Ynares-Santiago wrote separate concurring opinions. The Chief
Justice’s concurring opinion was joined by Justices Carpio, Carpio Morales, and Callejo, Sr.

Justice Dante O. Tinga’s dissenting opinion was joined by Justices Renato C. Corona and Presbitero J.
Velasco, Jr.

EN BANC

G.R. No. 171396 – DAVID et al. v. ARROYO, etc., et al. and related cases (G.R. Nos. 171409, 171483,
171485, 171400, 171424 and 171489)

Promulgated on:
May 3, 2006

x --------------------------------------------------------------------------- x

CONCURRING OPINION

CJ:

I was hoping until the last moment of our deliberations on these consolidated cases that the Court
would be unanimous in its Decision. After all, during the last two weeks, it decided with one voice two
equally contentious and nationally significant controversies involving Executive Order No. 4641 and the
so-called Calibrated Preemptive Response policy.2

However, the distinguished Mr. Justice Dante O. Tinga’s Dissenting Opinion has made that hope an
impossibility. I now write, not only to express my full concurrence in the thorough and elegantly written
ponencia of the esteemed Mme. Justice Angelina Sandoval-Gutierrez, but more urgently to express a
little comment on Justice Tinga’s Dissenting Opinion (DO).

The Dissent dismisses all the Petitions, grants no reliefs to petitioners, and finds nothing wrong with PP
1017. It labels the PP a harmless pronouncement -- "an utter superfluity" -- and denounces the ponencia
as an "immodest show of brawn" that "has imprudently placed the Court in the business of defanging
paper tigers."

Under this line of thinking, it would be perfectly legal for the President to reissue PP 1017 under its
present language and nuance. I respectfully disagree.

Let us face it. Even Justice Tinga concedes that under PP 1017, the police -- "to some minds" -- "may
have flirted with power." With due respect, this is a masterful understatement. PP 1017 may be a paper
tiger, but -- to borrow the colorful words of an erstwhile Asian leader -- it has nuclear teeth that must
indeed be defanged.
Some of those who drafted PP 1017 may be testing the outer limits of presidential prerogatives and the
perseverance of this Court in safeguarding the people’s constitutionally enshrined liberty. They are
playing with fire, and unless prudently restrained, they may one day wittingly or unwittingly burn down
the country. History will never forget, much less forgive, this Court if it allows such misadventure and
refuses to strike down abuse at its inception. Worse, our people will surely condemn the misuse of legal
hocus pocus to justify this trifling with constitutional sanctities.

And even for those who deeply care for the President, it is timely and wise for this Court to set down the
parameters of power and to make known, politely but firmly, its dogged determination to perform its
constitutional duty at all times and against all odds. Perhaps this country would never have had to
experience the wrenching pain of dictatorship; and a past President would not have fallen into the
precipice of authoritarianism, if the Supreme Court then had the moral courage to remind him
steadfastly of his mortality and the inevitable historical damnation of despots and tyrants. Let not this
Court fall into that same rut.

ARTEMIO V. PANGANIBAN

Chief Justice

Footnotes

1 Senate v. Ermita, GR No. 169777, April 20, 2006.

2 Bayan v. Ermita, GR No. 169838, April 25, 2006.

EN BANC

G.R. No. 171396 --- Professor Randolf S. David, et al., Petitioners, versus Gloria Macapagal-Arroyo, as
President and Commander-in-Chief, et al, Respondents.
G.R. No. 171409 --- Ninez Cacho-Olivares and Tribune Publishing Co., Inc., Petitioners, versus Honorable
Secretary Eduardo Ermita and Honorable Director General Arturo C. Lomibao, Respondents.

G.R. No. 171485 --- Francis Joseph G. Escudero, et al. Petitioners, versus Eduardo R. Ermita, et al.,
Respondents.

G.R. No. 171483 --- Kilusang Mayo Uno, represented by its Chairperson Elmer C. Labog and Secretary
General Joel Maglunsod, et al., Petitioners, versus Her Excellency President Gloria Macapagal Arroyo, et
al., Respondents.

G.R. No. 171400 --- Alternative Law Groups, Inc.. (ALG), Petitioners, versus Executive Secretary, Eduardo
Ermita, et al., Respondents.

G.R. No. 171489 – Jose Anselmo I. Cadiz, et al., Petitioners,

versus Hon. Executive Secretary Eduardo Ermita, et al., Respondents.

G.R. No. 171424 --- Loren B. Legarda, Petitioner, versus President Gloria Macapagal-Arroyo, in her
capacity as President and Commander-in-Chief, et al., Respondents;

Promulgated:

May 3, 2006

x ---------------------------------------------------------------------------------------- x

CONCURRING OPINION
YNARES-SANTIAGO, J.:

The only real security for social well-being is the free exercise of men’s minds.

-Harold J. Laski, Professor of Government and Member of the British Labor Party, in his book, Authority
in the Modern State (1919).

The ideals of liberty and equality, the eminent U.S. Supreme Court Justice Benjamin Cardozo once wrote,
are preserved against the assaults of opportunism, the expediency of the passing hour, the erosion of
small encroachments, the scorn and derision of those who have no patience with general principles.1 In
an open and democratic society, freedom of thought and expression is the matrix, the indispensable
condition, of nearly every other form of freedom.2

I share the view that Presidential Proclamation No. 1017 (PP 1017) under which President Gloria
Macapagal Arroyo declared a state of national emergency, and General Order No. 5 (GO No. 5), issued by
the President pursuant to the same proclamation are both partly unconstitutional.

I fully agree with the pronouncement that PP 1017 is no more than the exercise by the President, as the
Commander-in-Chief of all armed forces of the Philippines, of her power to call out such armed forces
whenever it becomes necessary to prevent or suppress lawless violence, invasion or rebellion. This is
allowed under Section 18, Article VII of the Constitution.

However, such "calling out" power does not authorize the President to direct the armed forces or the
police to enforce laws not related to lawless violence, invasion or rebellion. The same does not allow the
President to promulgate decrees with the force and effect similar or equal to laws as this power is vested
by the Constitution with the legislature. Neither is it a license to conduct searches and seizures or arrests
without warrant except in cases provided in the Rules of Court. It is not a sanction to impose any form of
prior restraint on the freedom of the press or expression or to curtail the freedom to peaceably
assemble or frustrate fundamental constitutional rights.

In the case of Bayan v. Ermita3 this Court thru Justice Adolfo S. Azcuna emphasized that the right to
peaceably assemble and petition for redress of grievances is, together with freedom of speech, of
expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. These
rights constitute the very basis of a functional democratic polity, without which all the other rights would
be meaningless and unprotected.

On the other hand, the direct reference to Section 17, Article XII of the Constitution as the constitutional
basis for the declaration of a state of national emergency is misplaced. This provision can be found under
the article on National Economy and Patrimony which presupposes that "national emergency" is of an
economic, and not political, nature. Moreover, the said provision refers to the temporary takeover by the
State of any privately-owned public utility or business affected with public interest in times of national
emergency. In such a case, the takeover is authorized when the public interest so requires and subject to
"reasonable terms" which the State may prescribe.

The use of the word "State" as well as the reference to "reasonable terms" under Section 17, Article XII
can only pertain to Congress. In other words, the said provision is not self-executing as to be validly
invoked by the President without congressional authorization. The provision merely declares a state
economic policy during times of national emergency. As such, it cannot be taken to mean as authorizing
the President to exercise "takeover" powers pursuant to a declaration of a state of national emergency.

The President, with all the powers vested in her by Article VII, cannot arrogate unto herself the power to
take over or direct the operation of any privately owned public utility or business affected with public
interest without Congressional authorization. To do so would constitute an ultra vires act on the part of
the Chief Executive, whose powers are limited to the powers vested in her by Article VII, and cannot
extend to Article XII without the approval of Congress.

Thus, the President’s authority to act in times of national emergency is still subject to the limitations
expressly prescribed by Congress. This is a featured component of the doctrine of separation of powers,
specifically, the principle of checks and balances as applicable to the political branches of government,
the executive and the legislature.

With regard to GO No. 5, I agree that it is unconstitutional insofar as it mandates the armed forces and
the national police "to prevent and suppress acts of terrorism and lawless violence in the country." There
is presently no law enacted by Congress that defines terrorism, or classifies what acts are punishable as
acts of terrorism. The notion of terrorism, as well as acts constitutive thereof, is at best fraught with
ambiguity. It is therefore subject to different interpretations by the law enforcement agencies.
As can be gleaned from the facts, the lack of a clear definition of what constitutes "terrorism" have led
the law enforcement officers to necessarily guess at its meaning and differ as to its application giving rise
to unrestrained violations of the fundamental guarantees of freedom of peaceable assembly and
freedom of the press.

In Kolender v. Lawson,4 the United States Supreme Court nullified a state statute requiring persons who
loitered or wandered on streets to provide "credible and reliable" identification and to account for their
presence when requested to do so by a police officer. Writing for the majority, Justice Sandra Day
O’Connor noted that the most important aspect of vagueness doctrine was the imposition of guidelines
that prohibited arbitrary, selective enforcement on constitutionally suspect basis by police officers. This
rationale for invocation of that doctrine was of special concern in this case because of the potential for
arbitrary suppression of the fundamental liberties concerning freedom of speech and expression, as well
as restriction on the freedom of movement.

Thus, while I recognize that the President may declare a state of national emergency as a statement of a
factual conditionpursuant to our ruling in Sanlakas v. Executive Secretary,5 I wish to emphasize that the
same does not grant her any additional powers. Consequently, while PP 1017 is valid as a declaration of a
factual condition, the provisions which purport to vest in the President additional powers not
theretofore vested in her must be struck down. The provision under GO No. 5 ordering the armed forces
to carry out measures to prevent or suppress "acts of terrorism" must be declared unconstitutional as
well.

Finally, it cannot be gainsaid that government action to stifle constitutional liberties guaranteed under
the Bill of Rights cannot be preemptive in meeting any and all perceived or potential threats to the life of
the nation. Such threats must be actual, or at least gravely imminent, to warrant government to take
proper action. To allow government to preempt the happening of any event would be akin to "putting
the cart before the horse," in a manner of speaking. State action is proper only if there is a clear and
present danger of a substantive evil which the state has a right to prevent. We should bear in mind that
in a democracy, constitutional liberties must always be accorded supreme importance in the conduct of
daily life. At the heart of these liberties lies freedom of speech and thought – not merely in the
propagation of ideas we love, but more importantly, in the advocacy of ideas we may oftentimes loathe.
As succinctly articulated by Justice Louis D. Brandeis:

Fear of serious injury cannot alone justify suppression of free speech and assembly. x x x It is the
function of speech to free men from the bondage of irrational fears. To justify suppression of free speech
there must be reasonable ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one. x x x But even advocacy of
violation, however reprehensible morally, is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy and incitement, between preparation and
attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of
clear and present danger it must be shown either that immediate serious violence was to be expected or
was advocated, or that the past conduct furnished reason to believe that such advocacy was then
contemplated.6

IN VIEW OF THE FOREGOING, I vote to PARTLY GRANT the petitions.

CONSUELO YNARES-SANTIAGO

Associate Justice

Footnotes

1 Cardozo, B. Nature of Judicial Process, 1921.

2 Palko v. State of Connecticut, 302 U.S. 319 (1937).

3 G.R. Nos. 169838, 169848, 169881, April 25, 2006.

4 461 U.S. 352 (1983).

5 G.R. Nos. 159085, 159103, 159185 & 159196, February 3, 2004, 421 SCRA 656.

6 Brandeis, J. , joined by Holmes, J., concurring in Whitney v. California, 274 U.S. 357 (1927).
G.R. No. 171396 (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, v. 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.)

G.R. No. 171409 (Niñez Cacho-Olivares and Tribune Publishing Co., Inc., petitioner, v. Honorable
Secretary Eduardo Ermita and Honorable Director General Arturo Lomibao, respondents.)

G.R. No. 171485 (Francis Joseph G. Escudero, Joseph A. Santiago, Teodoro A. Casino, Agapito A. Aquino,
Mario G. 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 Antonio-Custudio, Loretta Ann P. Rosales, Josel G. Virador, Rafael V. Mariano, Gilbert
C. Remulla, Florencio G. Noel, Ana Theresa Hontiveros-Baraquel, Imelda C. Nicolas, Marvic M.V.F.
Leonenen, Neri Javier Colmenares, Movement of Concerned Citizens for Civil Liberties, represented by
Amado Gat Inciong, petitioners, v. Eduardo R. Ermita, Executive Secretary, Avelino J. Cruz, Jr., Secretary,
DND Ronaldo V. Puno, Secretary, DILG, Generoso Senga, AFP Chief of Staff, Arturo Lumibao, Chief PNP,
respondents.)

G.R. No. 171483 (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, v. 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.)

G.R. No. 171400 (Alternative Law Groups, Inc. v. (ALG), petitioner, v. Executive Secretary Eduardo L.
Ermita. Lt. Gen. Generoso Senga, and Director General Arturo Lomibao, respondents.)

G.R. No. 171489 (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, v. Hon. Executive Secretary
Eduardo Ermita, General Generoso Senga, in his capacity as AFP Chief of Staff, and Direcotr General
Arturo Lomibao, in his capacity as PNP Chief, respondents.)

G.R. No. 171424 (Loren B. Legarda, petitioner, v. 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 Philippine
(AFP); and Eduardo Ermita, in his capacity as Executive Secretary, respondents.)

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DISSENTING OPINION

TINGA, J:

I regret to say that the majority, by its ruling today, has imprudently placed the Court in the business of
defanging paper tigers. The immodest show of brawn unfortunately comes at the expense of an
exhibition by the Court of a fundamental but sophisticated understanding of the extent and limits of
executive powers and prerogatives, as well as those assigned to the judicial branch. I agree with the
majority on some points, but I cannot join the majority opinion, as it proceeds to rule on non-justiciable
issues based on fears that have not materialized, departing as they do from the plain language of the
challenged issuances to the extent of second-guessing the Chief Executive. I respectfully dissent.

The key perspective from which I view these present petitions is my own ponencia in Sanlakas v.
Executive Secretary,1 which centered on Presidential Proclamation No. 427 (PP 427), declaring a "state of
rebellion" in 2003. The Court therein concluded that while the declaration was constitutional, such
declaration should be regarded as both regarded as "an utter superfluity", which "only gives notice to
the nation that such a state exists and that the armed forces may be called to prevent or suppress it",
and "devoid of any legal significance", and "cannot diminish or violate constitutionally protected rights."
I submit that the same conclusions should be reached as to Proclamation No. 1017 (PP 1017). Following
the cardinal precept that the acts of the executive are presumed constitutional is the equally important
doctrine that to warrant unconstitutionality, there must be a clear and unequivocal breach of the
Constitution, not a doubtful and argumentative implication.2 Also well-settled as a rule of construction is
that where thee are two possible constructions of law or executive issuance one of which is in harmony
with the Constitution, that construction should be preferred.3 The concerns raised by the majority
relating to PP 1017 and General Order Nos. 5 can be easily disquieted by applying this well-settled
principle.

I.

PP 1017Has No Legal Binding Effect; Creates No Rights and

Obligations; and Cannot Be Enforced or Invoked in a Court< Of Law

First, the fundamentals. The President is the Chief of State and Foreign Relations, the chief of the
Executive Branch,4 and the Commander-in-Chief of the Armed Forces.5 The Constitution vests on the
President the executive power.6 The President derives these constitutional mandates from direct
election from the people. The President stands as the most recognizable representative symbol of
government and of the Philippine state, to the extent that foreign leaders who speak with the President
do so with the understanding that they are speaking to the Philippine state.

Yet no matter the powers and prestige of the presidency, there are significant limitations to the office of
the President. The President does not have the power to make or legislate laws,7 or disobey those laws
passed by Congress.8 Neither does the President have to power to create rights and obligations with
binding legal effect on the Filipino citizens, except in the context of entering into contractual or treaty
obligations by virtue of his/her position as the head of State. The Constitution likewise imposes
limitations on certain powers of the President that are normally inherent in the office. For example, even
though the President is the administrative head of the Executive Department and maintains executive
control thereof,9 the President is precluded from arbitrarily terminating the vast majority of employees
in the civil service whose right to security of tenure is guaranteed by the Constitution.10

The President has inherent powers,11 powers expressly vested by the Constitution, and powers
expressly conferred by statutes. The power of the President to make proclamations, while confirmed by
statutory grant, is nonetheless rooted in an inherent power of the presidency and not expressly
subjected to constitutional limitations. But proclamations, as they are, are a species of issuances of
extremely limited efficacy. As defined in the Administrative Code, proclamations are merely "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".12 A proclamation, on its own,
cannot create or suspend any constitutional or statutory rights or obligations. There would be need of a
complementing law or regulation referred to in the proclamation should such act indeed put into
operation any law or regulation by fixing a date or declaring a status or condition of a public moment or
interest related to such law or regulation. And should the proclamation allow the operationalization of
such law or regulation, all subsequent resultant acts cannot exceed or supersede the law or regulation
that was put into effect.

Under Section 18, Article VII of the Constitution, among the constitutional powers of the President, as
Commander-in-Chief, is to "call out such armed forces to prevent or suppress lawless violence, invasion
or rebellion".13 The existence of invasion or rebellion could allow the President to either suspend the
privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law, but
there is a fairly elaborate constitutional procedure to be observed in such a case, including congressional
affirmation or revocation of such suspension or declaration, as well as the availability of judicial review.
However, the existence of lawless violence, invasion or rebellion does not ipso facto cause the "calling
out" of the armed forces, the suspension of habeas corpus or the declaration of martial law ─ it remains
within the discretion of the President to engage in any of these three acts should said conditions arise.

Sanlakas involved PP 427, which declared the existence of a "state of rebellion." Such declaration could
ostensibly predicate the suspension of the privilege of the writ of habeas corpus or the declaration of
martial law, but the President did not do so. Instead, PP 427, and the accompanying General Order No. 4,
invoked the "calling out" of the Armed Forces to prevent lawless violence, invasion and rebellion.
Appreciably, a state of lawless violence, invasion or rebellion could be variable in scope, magnitude and
gravity; and Section 18, Article VII allows for the President to respond with the appropriate measured
and proportional response.

Indeed, the diminution of any constitutional rights through the suspension of the privilege of the writ or
the declaration of martial law is deemed as "strong medicine" to be used sparingly and only as a last
resort, and for as long as only truly necessary. Thus, the mere invocation of the "calling out" power
stands as a balanced means of enabling a heightened alertness in dealing with the armed threat, but
without having to suspend any constitutional or statutory rights or cause the creation of any new
obligations. For the utilization of the "calling out" power alone cannot vest unto the President any new
constitutional or statutory powers, such as the enactment of new laws. At most, it can only renew
emphasis on the duty of the President to execute already existing laws without extending a
corresponding mandate to proceed extra-constitutionally or extra-legally. Indeed, the "calling out"
power does not authorize the President or the members of the Armed Forces to break the law.

These were the premises that ultimately informed the Court’s decision in Sanlakas, which affirmed the
declaration of a "state of rebellion" as within the "calling out" power of the President, but which
emphasized that for legal intents and purposes, it should be both regarded as "an utter superfluity",
which "only gives notice to the nation that such a state exists and that the armed forces may be called to
prevent or suppress it," and "devoid of any legal significance," as it could not "cannot diminish or violate
constitutionally protected rights." The same premises apply as to PP 1017.

A comparative analysis of PP 427 and PP 1017, particularly their operative clauses, is in order.

PP 427 PP 1017

NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me by law, hereby
confirm the existence of an actual and on-going rebellion, compelling me to declare a state of rebellion.

In view of the foregoing, I am issuing General Order No. 4 in accordance with Section 18, Article VII of
the Constitution, calling out the Armed Forces of the Philippines and the Philippine National Police to
immediately carry out the necessary actions and measures to suppress and quell the rebellion with due
regard to constitutional rights.

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 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.

Let us begin with the similarities. Both PP 427 and PP 1017 are characterized by two distinct phases. The
first is the declaration itself of a status or condition, a "state of rebellion" in PP 437, and a "state of
national emergency" under PP 1017. Both "state of rebellion" and "state of national emergency" are
terms within constitutional contemplation. Under Section 18, Article VII, the existence of a "state of
rebellion" is sufficient premise for either the suspension of the privilege of the writ of habeas corpus or
the declaration of martial law, though in accordance with the strict guidelines under the same provision.
Under Section 17, Article XII, the existence of a state of national emergency is sufficient ground for the
State, during the emergency, under reasonable terms prescribed by it, and when the public interest so
requires, to temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest. Under Section 23(2), Article VI, the existence of a state of national
emergency may also allow Congress to 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.

Certainly, the declaration could stand as the first step towards constitutional authorization for the
exercise by the President, the Congress or the State of extraordinary powers and prerogatives. However,
the declaration alone cannot put into operation these extraordinary powers and prerogatives, as the
declaration must be followed through with a separate act providing for the actual utilization of such
powers. In the case of the "state of rebellion," such act involves the suspension of the writ or declaration
of martial law. In the case of the "state of national emergency," such act involves either an order for the
takeover or actual takeover by the State of public utilities or businesses imbued with public interest or
the authorization by Congress for the President to exercise emergency powers.

In PP 427, the declaration of a "state of rebellion" did not lead to the suspension of the writ or the
declaration of martial law. In PP 1017, the declaration of a "state of national emergency" did not lead to
an authorization for the takeover or actual takeover of any utility or business, or the grant by Congress to
the President of emergency powers. Instead, both declarations led to the invocation of the calling out
power of the President under Section 18, Article VII, which the majority correctly characterizes as
involving only "ordinary police action."

I agree with the ponencia’s holding that PP 1017 involves the exercise by the President of the "calling
out" power under Section 18, Article VII. In Integrated Bar v. Zamora,14 the Court was beseeched upon
to review an order of President Estrada commanding the deployment of the Marines in patrols around
Metro Manila, in view of an increase in crime.15 The Court, speaking through Justice Santiago Kapunan,
affirmed the President’s order, asserting that "it is the unclouded intent of the Constitution to vest upon
the President, as Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence, invasion or
rebellion. Unless the petitioner can show that the exercise of such discretion was gravely abused, the
President’s exercise of judgment deserves to be accorded respect from this Court."16 Tellingly, the order
of deployment by President Estrada was affirmed by the Court even though we held the view that the
power then involved was not the "calling out" power, but "the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare."17
It was also maintained in Integrated Bar that while Section 18, Article VII mandated two conditions ─
actual rebellion or invasion and the requirement of public safety ─ before the suspension of the privilege
of the writ of habeas corpus or the declaration of martial law could be declared, "these conditions are
not required in the case of the power to call out the armed forces. The only criterion is that ‘whenever it
becomes necessary’, the President may call the armed forces ‘to suppress lawless violence, invasion or
rebellion."18 The Court concluded that the implication was "that the President is given full discretion
and wide latitude in the exercise of the power to call as compared to the two other powers."19

These propositions were affirmed in Sanlakas, wherein the invocation of the calling out power was
expressly made by President Arroyo. The Court noted that for the purpose of exercising the calling out
power, the Constitution did not require the President to make a declaration of a state of rebellion.20 At
the same time, the Court in Sanlakas acknowledged that "the President’s authority to declare a state of
rebellion springs in the main from her powers as chief executive and, at the same time, draws strength
from her Commander-in-Chief powers."21

For still unclear reasons, the majority attempts to draw a distinction between Sanlakas and the present
petitions by that the statutory authority to declare a "state of rebellion" emanates from the
Administrative Code of 1987, particularly the provision authorizing the President to make proclamations.
As such, the declaration of a "state of rebellion," pursuant to statutory authority, "was merely an act
declaring a status or condition of public moment or interest." The majority grossly misreads Sanlakas,
which expressly roots the declaration of a state of rebellion from the wedded powers of the Chief
Executive, under Section 1, Article VII, and as Commander-in-Chief, under Section 18, Article VII.

Insofar as PP 1017 is concerned, the calling out power is definitely involved, in view of the directive to
the Armed Forces of the Philippines to "suppress all forms of lawless violence". But there are nuances to
the calling out power invoked in PP 1017 which the majority does not discuss. The directive "to suppress
all forms of lawless violence" is addressed not only to the Armed Forces but to the police as well. The
"calling out" of the police does not derive from Section 17, Article VII, or the commander-in-chief clause,
our national police being civilian in character. Instead, the calling out of the police is sourced from the
power of the President as Chief Executive under Section 1, Article VII, and the power of executive control
under Section 18, Article VII. Moreover, while the permissible scope of military action is limited to acts in
furtherance of suppressing lawless violence, rebellion, invasion, the police can be commanded by the
President to execute all laws without distinction in light of the presidential duty to execute all laws.22

Still, insofar as Section 17, Article VII is concerned, wide latitude is accorded to the discretion of the Chief
Executive in the exercise of the "calling out" power due to a recognition that the said power is of limited
import, directed only to the Armed Forces of the Philippines, and incapable of imposing any binding legal
effect on the citizens and other branches of the Philippines. Indeed, PP 1017 does not purport
otherwise. Nothing in its operative provisions authorize the President, the Armed Forces of the
Philippines, or any officer of the law, to perform any extra-constitutional or extra-legal acts. PP 1017
does not dictate the suspension of any of the people’s guarantees under the Bill of Rights.

If it cannot be made more clear, neither the declaration of a state of emergency under PP 1017 nor the
invocation of the calling out power therein authorizes warrantless arrests, searches or seizures; the
infringement of the right to free expression, peaceable assembly and association and other
constitutional or statutory rights. Any public officer who nonetheless engaged or is engaging in such
extra-constitutional or extra-legal acts in the name of PP 1017 may be subjected to the appropriate civil,
criminal or administrative liability.

To prove this point, let us now compare PP 1017 with a different presidential issuance, one that was
intended to diminish constitutional and civil rights of the people. The said issuance, Presidential
Proclamation No. 1081, was issued by President Marcos in 1972 as the instrument of declaring martial
law. The operative provisions read:

PD. 1081 PP 1017

Now, thereof, 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 the article I, Section 1, of the Constitution under martial law, and in my capacity as their
commander-in-chief, do hereby command the arned 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.

In addition, I do hereby order that all persons presently detained, as well as others who may hereafter be
similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses
committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for
crimes against national security and the law of nations, crimes, against the fundamental laws of the
state, crimes against public order, crimes involving usurpation of authority, rank, title and improper use
of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will
be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any
violation of any decree, order or regulation promulgated by me personally or promulgated upon my
direction shall be kept under detention until otherwise ordered released by me or by my duly designated
representative. (emphasis supplied)

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 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.

Let us examine the differences between PP No. 1081 and PP 1017. First, while PP 1017 merely declared
the existence of a state of rebellion, an act ultimately observational in character, PP 1081 "placed the
entire Philippines under martial law," an active implement23 that, by itself, substituted civilian
governmental authority with military authority. Unlike in the 1986 Constitution, which was appropriately
crafted with an aversion to the excesses of Marcosian martial rule, the 1935 Constitution under which PP
1081 was issued left no intervening safeguards that tempered or limited the declaration of martial law.
Even the contrast in the verbs used, "place" as opposed to "declare," betrays some significance. To
declare may be simply to acknowledge the existence of a particular condition, while to place ineluctably
goes beyond mere acknowledgement, and signifies the imposition of the actual condition even if it did
not exist before.

Both PP 1081 and PP 1017 expressly invoke the calling out power. However, the contexts of such power
are wildly distaff in light of PP 1081’s accompanying declaration of martial law. Since martial law involves
the substitution of the military in the civilian functions of government, the calling out power involved in
PP 1081 is significantly greater than the one involved in PP 1017, which could only contemplate the
enforcement of existing laws in relation to the suppression of lawless violence, rebellion or invasion and
the maintenance of general peace and order.

Further proof that PP 1081 intended a wholesale suspension of civil liberties in the manner that PP 1017
does not even ponder upon is the subsequent paragraph cited, which authorizes the detention and
continued detention of persons for a plethora of crimes not only directly related to the rebellion or
lawless violence, but of broader range such as those "against national security," or "public order." The
order of detention under PP 1081 arguably includes every crime in the statute book. And most
alarmingly, any person detained by virtue of PP 1081 could remain in perpetual detention unless
otherwise released upon order of President Marcos or his duly authorized representative.

Another worthy point of contrast concerns how the Supreme Court, during the martial law era, dealt
with the challenges raised before it to martial law rule and its effects on civil liberties. While martial law
stood as a valid presidential prerogative under the 1935 Constitution, a ruling committed to safeguard
civil rights and liberties could have stood ground against even the most fundamental of human rights
abuses ostensibly protected under the 1935 and 1973 constitutions and under international declarations
and conventions. Yet a perusal of Aquino v. Enrile,24 the case that decisively affirmed the validity of
martial law rule, shows that most of the Justices then sitting exhibited diffidence guised though as
deference towards the declaration of martial law. Note these few excerpts from the several opinions
submitted in that case which stand as typical for those times:

The present state of martial law in the Philippines is peculiarly Filipino and fits into no traditional
patterns or judicial precedents. xxx In the first place I am convinced (as are the other Justices), without
need of receiving evidence as in an ordinary adversary court proceeding, that a state of rebellion existed
in the country when Proclamation No. 1081 was issued. It was a matter of contemporary history within
the cognizance not only of the courts but of all observant people residing here at that time. xxx The state
of rebellion continues up to the present. The argument that while armed hostilities go on in several
provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that
therefore there is no need to maintain martial law all over the country, ignores the sophisticated nature
and ramifications of rebellion in a modern setting. It does not consist simply of armed clashes between
organized and identifiable groups on fields of their own choosing. It includes subversion of the most
subtle kind, necessarily clandestine and operating precisely where there is no actual fighting.
Underground propaganda, through printed newssheets or rumors disseminated in whispers; recruiting
of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column
activities including sabotage and intelligence ─ all these are part of the rebellion which by their nature
are usually conducted far from the battle fronts. They cannot be counteracted effectively unless
recognized and dealt with in that context.25

xxx

[T]he fact that courts are open cannot be accepted as proof that the rebellion and insurrection, which
compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the
many surface indicia adverted to by the petitioners (the increase in the number of tourists, the choice of
Manila as the site of international conferences and of an international beauty contest) to be regarded as
evidence that the threat to public safety has abated. There is actual armed combat, attended by the
somber panoply of war, raging in Sulu and Cotabato, not to mention the Bicol region and Cagayan Valley.
I am hard put to say, therefore, that the Government’s claim is baseless.

I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte
Moyer, if it were the liberty alone of the petitioner Diokno that is in issue we would probably resolve the
doubt in his favor and grant his application. But the Solicitor General, who must be deemed to represent
the President and the Executive Department in this case, has manifested that in the President’s
judgment peace and tranquility cannot be speedily restored in the country unless the petitioners and
others like them meantime remain in military custody. For, indeed, the central matter involved is not
merely the liberty of isolated individuals, but the collective peace, tranquility and security of the entire
nation.26

xxx

It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would
justify the imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is
not of general knowledge to the public cannot conceivably be dangerous to public safety. But precisely
because it is capable of judicial notice, no inquiry is needed to determine the propriety of the Executive’s
action.

Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may
actually pose to the public safety are not always easily perceptible to the unpracticed eye. In the present
day practices of rebellion, its inseparable subversion aspect has proven to be more effective and
important than "the rising (of persons) publicly and taking arms against the Government" by which the
Revised Penal Code characterizes rebellion as a crime under its sanction. Subversion is such a covert kind
of anti-government activity that it is very difficult even for army intelligence to determine its exact area
of influence and effect, not ot mention the details of its forces and resources. By subversion, the rebels
can extend their field of action unnoticed even up to the highest levels of the government, where no one
can always be certain of the political complexion of the man next to him, and this does not exclude the
courts. Arms, ammunition and all kinds of war equipment travel and are transferred in deep secrecy to
strategic locations, which can be one’s neighborhood without him having any idea of what is going on.
There are so many insidious ways in which subversives act, in fact too many to enumerate, but the point
that immediately suggests itself is that they are mostly incapable of being proven in court, so how are
We to make a judicial inquiry about them that can satisfy our judicial conscience.
The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith
act as promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to
the life of the nation. He must do this with unwavering conviction, or any hesitancy or indecision on his
part will surely detract from the needed precision in his choice of the means he would employ to repel
the aggression. The apprehension that his decision might be held by the Supreme Court to be a
transgression of the fundamental law he has sworn to ‘defend and preserve’ would deter him from
acting when precisely it is most urgent and critical that he should act, since the enemy is about to strike
the mortal blow.27

xxx

To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least,
evident insurgency, what with the numerous easily verifiable reports of open rebellious activities in
different parts of the country and the series of rallies and demonstrations, often bloody, in Manila itself
and other centers of population, including those that reached not only the portals but even the session
hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either were
indifferent or did not know what to do under the circumstances. Instead of taking immediate measures
to alleviate the conditions denounced and decried by the rebels and the activists, they debated and
argued long on palliatives without coming out with anything substantial much less satisfactory in the
eyes of those who were seditiously shouting for reforms. In any event, in the face of the inability of
Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called
for immediate action, the only alternative open to the President was to resort to the other constitutional
source of extraordinary powers, the Constitution itself.28

xxx

Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of
persons, the Proclamation pointedly limits arrests and detention only to those "presently detained, as
well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all
other crimes and offences committed in furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, for crimes against national security and the law of nations, crimes, against the
fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, rank,
title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such
other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a
consequence of any violation of any decree, order or regulation promulgated by me personally or
promulgated upon my direction." Indeed, even in the affected areas, the Constitution has not been really
suspended much less discarded. As contemplated in the fundamental law itself, it is merely in a state of
anaesthesia, to the end that the much needed major surgery to save the nation’s life may be successfully
undertaken.29

xxx

The quoted lines of reasoning can no longer be sustained, on many levels, in these more enlightened
times. For one, as a direct reaction to the philosophy of judicial inhibition so frequently exhibited during
the Marcos dictatorship, our present Constitution has explicitly mandated judicial review of the acts of
government as part of the judicial function. As if to rebuff Aquino, the 1987 Constitution expressly allows
the Supreme Court to review the sufficiency of the factual basis of the proclamation of martial law and
decide the same within 30 days from the filing of the appropriate case.30 The Constitution also
emphasizes that a state of martial law did not suspend the operation of the Constitution or supplant the
functioning of the judicial and legislative branches.31 The expediency of hiding behind the political
question doctrine can no longer be resorted to.

For another, the renewed emphasis within domestic and international society on the rights of people, as
can be seen in worldwide democratic movements beginning with our own in 1986, makes it more
difficult for a government established and governed under a democratic constitution, to engage in
official acts that run contrary to the basic tenets of democracy and civil rights. If a government insists on
proceeding otherwise, the courts will stand in defense of the basic constitutional rights of the people.

Still, the restoration of rule under law, the establishment of national governmental instrumentalities, and
the principle of republicanism all ensure that the constitutional government retains significant powers
and prerogatives, for it is through such measures that it can exercise sovereign will in behalf of the
people. Concession to those presidential privileges and prerogatives should be made if due. The abuses
of past executive governments should not detract from these basic governmental powers, even as they
may warrant a greater degree of wariness from those institutions that balance power and the people
themselves. And the rule of law should prevail above all. The damage done by martial rule was not
merely personal but institutional, and the proper rebuke to the caprices and whims of the iniquitous past
is to respect the confines of the restored rule of law.32
Nothing in PP 1017, or any issuance by any President since Aquino, comes even close to matching PP
1081. It is a rank insult to those of us who suffered or stood by those oppressed under PP 1081 to even
suggest that the innocuous PP 1017 is of equivalent import.

PP 1017 Does Not Purport or Pretend that the President Has The Power to Issue Decrees

There is one seeming similarity though in the language of PP 1017 and PP 1081, harped upon by some of
the petitioners and alluded to by the majority. PP 1017 contains a command to the Armed Forces "to
enforce obedience to all the laws and to all decrees, orders and regulations by [the President]". A similar
command was made under PP 1081. That in itself should not be a cause of surprise, since both PP 1017
and PP 1081 expressly invoked the "calling out" power, albeit in different contexts.

The majority however considers that since the President does not have the power to issue decrees, PP
1017 is unconstitutional insofar as it enforces obedience "to all decrees." For one, it should be made
clear that the President currently has no power to issue decrees, and PP 1017 by no measure seeks to
restore such power to the President. Certainly, not even a single decree was issued by President Arroyo
during the several days PP 1017 was in effect, or during her term thus far for that matter.

At the same time, such power did once belong to the President during the Marcos era and was
extensively utilized by President Marcos. It has to be remembered that chafed as we may have under
some of the Marcos decrees, per the 1987 Constitution they still remain as part of the law of the land
unless particularly stricken down or repealed by subsequent enactments. Indeed, when the President
calls upon the Armed Forces to enforce the laws, those subsisting presidential decrees issued by
President Marcos in the exercise of his legislative powers are included in the equation.

This view is supported by the rules of statutory construction. The particular passage in PP 1017 reads
""to enforce obedience to all the laws and to all decrees, orders and regulations," with the phrases "all
the laws and to all decrees" separated by a comma from "orders and regulations promulgated by me."
Inherently, laws and those decrees issued by President Marcos in the exercise of his legislative powers,
and even those executive issuances of President Aquino in the exercise of her legislative powers, belong
to the same class, superior in the hierarchy of laws than "orders and regulations." The use of the
conjunction "and" denotes a joinder or union, "relating the one to the other."33 The use of "and"
establishes an association between laws and decrees distinct from orders and regulations, thus
permitting the application of the doctrine of noscitur a sociis to construe "decrees" as those decrees
which at present have the force of law. The dividing comma further signifies the segregation of concepts
between "laws and decrees" on one hand, and "orders and regulations" on the other.

Further proof that "laws and decrees" stand as a class distinct from "orders and regulations" is the
qualifying phrase "promulgated by me," which necessarily refers only to orders and regulations.
Otherwise, PP 1017 would be ridiculous in the sense that the obedience to be enforced only relates to
laws promulgated by President Arroyo since she assumed office in 2001. "Laws and decrees" do not
relate only to those promulgated by President Arroyo, but other laws enacted by past sovereigns,
whether they be in the form of the Marcos presidential decrees, or acts enacted by the American
Governor-General such as the Revised Penal Code. Certainly then, such a qualification sufficiently
addresses the fears of the majority that PP 1017 somehow empowers or recognizes the ability of the
current President to promulgate decrees. Instead, the majority pushes an interpretation that, if pursued
to its logical end, suggests that the President by virtue of PP 1017 is also arrogating unto herself, the
power to promulgate laws, which are in the mold of enactments from Congress. Again, in this respect,
the grouping of "laws" and "decrees" separately from "orders" and "regulations" signifies that the
President has not arrogated unto herself the power to issue decrees in the mold of the infamous Marcos
decrees.

Moreover, even assuming that PP 1017 was intended to apply to decrees which the current President
could not very well issue, such intention is of no consequence, since the proclamation does not intend or
pretend to grant the President such power in the first place. By no measure of contemplation could PP
1017 be interpreted as reinstating to the President the power to issue decrees.

I cannot see how the phrase "enforce obedience to decrees" can be the source of constitutional
mischief, since the implementation of PP 1017 will not vest on the President the power to issue such
decrees. If the Court truly feels the need to clarify this point, it can do so with the expediency of one
sentence or even a footnote. A solemn declaration that the phrase is unconstitutional would be like
killing a flea with dynamite when insect powder would do.

PP 1017 A Valid Exercise of Prerogatives

Inherent and Traditional in the Office of The Presidency

Thus far, I have dwelt on the legal effects of PP 1017, non-existent as they may be in relation to the
citizenry, the courts or on Congress. Still, there is another purpose and dimension behind PP 1017 that
fall within the valid prerogatives of the President.

The President, as head of state, is cast in a unique role in our polity matched by no other individual or
institution. Apart from the constitutional powers vested on the President lie those powers rooted in the
symbolic functions of the office. There is the common expectation that the President should stand as the
political, moral and social leader of the nation, an expectation not referred to in of the oath of office, but
expected as a matter of tradition. In fact, a President may be cast in crisis even if the Chief Executive has
broken no law, and faithfully executed those laws that exist, simply because the President has failed to
win over the hearts and minds of the citizens. As a Princeton academic, Woodrow Wilson once observed
that with the People, the President is everything, and without them nothing, and the sad decline of his
own eventual presidency is no better proof of the maxim. Such are among the vagaries of the political
office, and generally beyond judicial relief or remedy.

Justice Robert Jackson’s astute observation in Youngstown Sheet & Tube Co. v. Sawyer34 on the unique
nature of the presidency, has been widely quoted:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation
has a part, making him the focus of public hopes and expectations. In drama, magnitude, and finality, his
decisions so far overshadow any others that almost alone he fills the public eye and ear. No other
personality in public life can begin to compete with him in access to the public mind through modern
methods of communications. By his prestige as head of state and his influence upon public opinion he
exerts a leverage upon those who are supposed to check and balance his power which often cancels
their effectiveness.35

Correspondingly, the unique nature of the office affords the President the opportunity to profoundly
influence the public discourse, not necessarily through the enactment or enforcement of laws, but
specially by the mere expediency of taking a stand on the issues of the day. Indeed, the President is
expected to exercise leadership not merely through the proposal and enactment of laws, but by making
such vital stands. U.S. President Theodore Roosevelt popularized the notion of the presidency as a "bully
pulpit", in line with his belief that the President was the steward of the people limited only by the
specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its
constitutional powers.
Many times, the President exercises such prerogative as a responsive measure, as after a mass tragedy or
calamity. Indeed, when the President issues a declaration or proclamation of a state of national
mourning after a disaster with massive casualties, while perhaps de rigeur, is not the formalistic exercise
of tradition, but a statement that the President, as the representative of the Filipino people, grieves over
the loss of life and extends condolences in behalf of the people to the bereaved. This is leadership at its
most solemn.

Yet the President is not precluded, in the exercise of such role, to be merely responsive. The popular
expectation in fact is of a pro-active, dynamic chief executive with an ability to identify problems or
concerns at their incipience and to respond to them with all legal means at the earliest possible time.
The President, as head of state, very well has the capacity to use the office to garner support for those
great national quests that define a civilization, as President Kennedy did when by a mere congressional
address, he put America on track to the goal of placing a man on the moon. Those memorable
presidential speeches memorized by schoolchildren may have not, by themselves, made operative any
law, but they served not only merely symbolic functions, but help profoundly influence towards the right
direction, the public opinion in the discourse of the times. Perhaps there was no more dramatic example
of the use of the "bully pulpit" for such noble purposes than in 1964, when an American President from
Texas stood before a Congress populated by many powerful bigots, and fully committed himself as no
other President before to the cause of civil rights with his intonation of those lines from the civil rights
anthem, "we shall overcome."

From an earlier era in American history, Lincoln’s Emancipation Proclamation stands out as a presidential
declaration which clearly staked American polity on the side of the democratic ideal, even though the
proclamation itself was of dubitable legal value. The proclamation, in short form, "freed the slaves", but
was not itself free of legal questions. For one, the notion that the President could, by himself, alter the
civil and legal status of an entire class of persons was dubious then and now, although President Lincoln
did justify his action as in the exercise of his powers as commander-in-chief during wartime, "as a fit and
necessary war measure for suppressing [the] rebellion." Moreover, it has been pointed out that the
Proclamation only freed those slaves in those states which were then in rebellion, and it eventually took
the enactment of the Thirteenth Amendment of the U.S. Constitution to legally abolish involuntary
servitude.36 Notwithstanding the legal haze surrounding it, the Emancipation Proclamation still stands
as a defining example not only of the Lincoln Presidency, but of American democratic principles. It may
be remembered to this day not exactly as an operational means by which slaves were actually freed, but
as a clear rhetorical statement that slavery could no longer thenceforth stand.

The President as Chief Government Spokesperson of the democratic ideals is entrusted with a heady but
comfortable pursuit. But no less vital, if somewhat graver, is the role of the President as the Chief
Defender of the democratic way of life. The "calling out" power assures the President such capability to a
great extent, yet it will not fully suffice as a defense of democracy. There is a need for the President to
rally the people to defend the Constitution which guarantees the democratic way of life, through means
other than coercive. I assert that the declaration of a state of emergency, on premises of a looming
armed threat which have hardly been disputed, falls within such proper functions of the President as the
defender of the Constitution. It was designed to inform the people of the existence of such a threat, with
the expectation that the citizenry would not aid or abet those who would overturn through force the
democratic government. At the same time, the Proclamation itself does not violate the Constitution as it
does not call for or put into operation the suspension or withdrawal of any constitutional rights, or even
create or diminish any substantive rights.

I submit that it would be proper for the Court to recognize that PP 1017 strikes a commendable balance
between the Constitution, the "calling out" power, and the inherent function of the Presidency as
defender of the democratic constitution. PP 1017 keeps within the scope and limitations of these three
standards. It asserts the primacy of the democratic order, civilian control over the armed forces, yet
respects constitutional and statutory guarantees of the people.

II.

Section 17, Article XII of the Constitution In Relation to PP 1017

My next issue with the majority pertains to the assertion that the President does not have the power to
take over public utilities or businesses impressed with public interest under Section 17, Article XII of the
Constitution without prior congressional authorization. I agree that the power of the State to take over
such utilities and businesses is highly limited, and should be viewed with suspicion if actually enforced.

Yet qualifications are in order with regard to how Section 17, Article XII actually relates of PP 1017.

I agree with the majority that a distinction should be asserted as between the power of the President to
declare a state of emergency, and the exercise of emergency powers under Section 17, Article XII. The
President would have the power to declare a state of emergency even without Section 17, Article XII.

At the same time, it should be recognized that PP 1017, on its face and as applied, did not involve the
actual takeover of any public utility or business impressed with public interest. To some minds, the police
action in relation to the Daily Tribune may have flirted with such power, yet ultimately the newspaper
was able to independently publish without police interference or court injunction. It may be so that since
PP 1017 did make express reference to Section 17, Article XII, but it should be remembered that the
constitutional provision refers to a two-fold power of the State to declare a national emergency and to
take over such utilities and enterprises. The first power under Section 17, Article XII is not distinct from
the power of the President, derived from other constitutional sources, to declare a state of national
emergency. Reference to Section 17, Article XII in relation to the power to declare a state of national
emergency is ultimately superfluous. A different situation would obtain though if PP 1017 were invoked
in the actual takeover of a utility or business, and in such case, full consideration of the import of Section
17, Article XII would be warranted. But no such situation obtains in this case, and any discussion relating
to the power of the State to take over a utility or business under Section 17, Article XII would ultimately
be obiter dictum.

I respectfully submit that the Court, in these petitions, need not have engaged this potentially
contentious issue, especially as it extends to whether under constitutional contemplation, the President
may act in behalf of the State in exercising the powers under Section 17, Article XII. Nonetheless,
considering that the majority has chosen to speak out anyway, I will express agreement that as a general
rule, the President may exercise such powers under Section 17, Article XII only under the grant of
congressional approval. Certainly, the notion that congressional authority is required under Section 17,
Article XII is not evident from the provision. Even Fr. Bernas notes that Section 17 does not require, as
does Article VI, Section 23(2), that the authorization be "by law", thus leaving the impression that the
authorization can come from the President.37

After the 1989 coup d’etat, President Aquino issued issued Proclamation No. 503 on 6 December 1989,
declaring a state of national emergency, and referring therein to Section 17, Article XII by citing the
entire provision. The declaration was subsequently reaffirmed by Congress when two weeks after, it
enacted Republic Act No. 6826. Notably, Section 3(3) of the law authorized the President "to temporarily
takeover or direct the operation of any privately-owned public utility or business affected with public
interest that violates the herein declared national policy". Tellingly, however, such authority was granted
by Congress expressly "pursuant to Article VI, Section 23(2) of the Constitution", and not the take-over
provision in Section 17, Article XII. Evidently, the view that Section 17, Article XII requires prior
congressional authority has some novelty to it.

Still, I concede that it is fundamentally sound to construe Section 17 as requiring congressional authority
or approval before the takeover under the provision may be effected. After all, the taking over of a
privately owned public utility or business affected with public interest would involve an infringement on
the right of private enterprise to profit; or perhaps even expropriation for a limited period.
Constitutionally, the taking of property can only be accomplished with due process of law,38 and the
enactment of appropriate legislation prescribing the terms and conditions under which the President
may exercise the powers of the State under Section 17 stands as the best assurance that due process of
law would be observed.

The fact that Section 17 is purposely ambivalent as to whether the President may exercise the power
therein with or without congressional approval leads me to conclude that it is constitutionally
permissible to recognize exceptions, such as in extreme situations wherein obtention of congressional
authority is impossible or inexpedient considering the emergency. I thus dissent to any proposition that
such requirement is absolute under all circumstances. I maintain that in such extreme situations, the
President may exercise such authority subject to judicial review.

It should be admitted that some emergencies are graver and more imminent than others. It is not within
the realm of impossibility that by reason of a particularly sudden and grave emergency, Congress may
not be able to convene to grant the necessary congressional authority to the President. Certainly, if
bombs from a foreign invader are falling over Manila skies, it may be difficult, not to mention
unnecessarily onerous, to require convening Congress before the President may exercise the functions
under Section 17, Article XII. The proposition of the majority may be desirable as the general rule, but
the correct rule that should be adopted by the Court should not be so absolute so as to preclude the
exercise by the President of such power under extreme situations.

In response to this argument, the majority cites portions of Araneta v. Dinglasan,39 most pertinent of
which reads: "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."

For one, Araneta did not involve a situation wherein the President attempted to exercise emergency
powers without congressional authority; concerning as it did the exercise by President Quirino of those
emergency powers conferred several years earlier by Congress to President Quezon at the onset of the
Pacific phase of World War II. The Court therein ruled that the emergency that justified then the
extraordinary grant of powers had since expired, and that there no longer existed any authority on the
part of the President to exercise such powers, notwithstanding that the law, Commonwealth Act No.
671, "did not in term fix the duration of its effectiveness".

Clearly, the context in which the Court made that observation in Araneta is not the same context within
which my own observations oscillate. My own submission is premised on the extreme situation wherein
Congress may be physically unable to convene, an exceptional circumstance which the hard-line stance
of the majority makes no concessions for.

Indeed, even the factual milieu recounted in Araneta conceded that such extreme circumstance could
occur, when it noted President Quezon’s claim that he was impelled to call for a special session of the
National Assembly after foreseeing that "it was most unlikely that the Philippine Legislature would hold
its next regular session which was to open on January 1, 1942."40 That the National Assembly then was
able to convene and pass Commonwealth Act No. 671 was fortunate, but somewhat a luxury
nonetheless. Indeed, it is not beyond the realm of possibility that the emergency contemplated would
be so grave that a sufficient number of members of Congress would be physically unable to convene and
meet the quorum requirement.

Ultimately though, considering that the authorized or actual takeover under Section 17, Article XII, is not
presented as a properly justiciable issue. Nonetheless, and consistent with the general tenor, the
majority has undertaken to decide this non-justiciable issue, and to even place their view in the
dispositive portion in a bid to enshrine it as doctrine. In truth, the Court’s pronouncement on this point
is actually obiter. It is hoped that should the issue become ripe for adjudication before this Court, the
obiter is not adopted as a precedent without the qualification that in extreme situations wherein
congressional approval is impossible or highly impractical to obtain, the powers under Section 17, Article
XII may be authorized by the President.

III.

Overbreadth and "Void for Vagueness" Doctrines Applicable Not Only To Free Speech Cases

The majority states that "the overbreadth doctrine is an analytical tool developed for testing ‘on their
faces’ statutes in free speech cases"41, and may thus be entertained "in cases involving statutes which,
by their terms, seek to regulate only ‘spoken words’, and not conduct. A similar characterization is made
as to the "void for vagueness" doctrine, which according to the majority, is "subject to the same
principles governing overbreadth doctrine … also an analytical tool for testing ‘on their faces’ statutes in
free speech cases."42

As I noted in my Separate Opinion in Romualdez v. Sandiganbayan,43 citing Justice Kapunan, there is a

viable distinction between "void for vagueness" and "overbreadth" which the majority sadly ignores.
A view has been proferred that "vagueness and overbreadth doctrines are not applicable to penal laws."
These two concepts, while related, are distinct from each other. On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional right. (not merely those that regulate speech or other fundamental
constitutional rights.) The fact that a particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness grounds cannot succeed.44

The distinction may prove especially crucial since there has been a long line of cases in American
Supreme Court jurisprudence wherein penal statutes have been invalidated on the ground that they
were "void for vagueness." As I cited in Romualdez v. Sandiganbayan,45 these cases are Connally v.
General Construction Co,.46 Lanzetta v. State of New Jersey,47 Bouie v. City of Columbia,48 Papachristou
v. City of Jacksonville,49 Kolender v. Lawson,50 and City of Chicago v. Morales.51

Granting that perhaps as a general rule, overbreadth may find application only in "free speech"52 cases,
it is on the other hand very settled doctrine that a penal statute regulating conduct, not speech, may be
invalidated on the ground of "void for vagueness". In Romualdez, I decried the elevation of the suspect
and radical new doctrine that the "void for vagueness" challenge cannot apply other than in free speech
cases. My view on this point has not changed, and insofar as the ponencia would hold otherwise, I thus
dissent.

Moreover, even though the argument that an overbreadth challenge can be maintained only in free
speech cases has more jurisprudential moorings, the rejection of the challenge on that basis alone may
prove unnecessarily simplistic. I maintain that there is an even stronger ground on which the
overbreadth and "void for vagueness" arguments can be refuted ─ that Presidential Proclamation 1017
(PP 1017) neither creates nor diminishes any rights or obligations whatsoever. In fact, I submit again that
this proposition is the key perspective from which the petitions should be examined.

IV.

General Order No. 5

Suffers No Constitutional Infirmity

The majority correctly concludes that General Order No. 5 is generally constitutional. However, they
make an unnecessary distinction with regard to "acts of terrorism", pointing out that Congress has not
yet passed a law defining and punishing terrorism or acts of terrorism.

That may be the case, but does the majority seriously suggest that the President or the State is
powerless to suppress acts of terrorism until the word "terrorism" is defined by law? Terrorism has a
widely accepted meaning that encompasses many acts already punishable by our general penal laws.
There are several United Nations and multilateral conventions on terrorism53, as well as declarations
made by the United Nations General Assembly denouncing and seeking to combat terrorism.54 There is
a general sense in international law as to what constitutes terrorism, even if no precise definition has
been adopted as binding on all nations. Even without an operative law specifically defining terrorism, the
State already has the power to suppress and punish such acts of terrorism, insofar as such acts are
already punishable, as they almost always are, in our extant general penal laws. The President, tasked
with the execution of all existing laws, already has a sufficient mandate to order the Armed Forces to
combat those acts of terrorism that are already punishable in our Revised Penal Code, such as rebellion,
coup d’etat, murder, homicide, arson, physical injuries, grave threats, and the like. Indeed, those acts
which under normal contemplation would constitute terrorism are associated anyway with or subsumed
under lawless violence, which is a term found in the Constitution itself. Thus long ago, the State has
already seen it fit to punish such acts.

Moreover, General Order No. 5 cannot redefine statutory crimes or create new penal acts, since such
power belongs to the legislative alone. Fortunately, General Order No. 5 does not assume to make such
redefinitions. It may have been a different matter had General Order No. 5 attempted to define "acts of
terrorism" in a manner that would include such acts that are not punished under our statute books, but
the order is not comported in such a way. The proper course of action should be to construe "terrorism"
not in any legally defined sense, but in its general sense. So long as it is understood that "acts of
terrorism" encompasses only those acts which are already punishable under our laws, the reference is
not constitutionally infirm.

The majority cites a theoretical example wherein a group of persons engaged in a drinking spree may be
arrested by the military or police in the belief that they were committing acts of terrorism pursuant to
General Order No. 5. Under the same logical framework that group of persons engaged in a drinking
spree could very well be arrested by the military or police in the belief that they are committing acts of
lawless violence pursuant to General Order No. 5, instead of acts of terrorism. Obviously such act would
be "abuse and oppression" on the part of the military and the police, whether justified under "lawless
violence" or "acts of terrorism". Yet following the logic of the majority, the directive to prevent acts of
"lawless violence" should be nullified as well.

If the point of the majority is that there are no justiciable standards on what constitutes acts of
terrorism, it should be pointed out that only the following scenarios could ensue. For one, a person
would actually be arrested and charged with "acts of terrorism", and such arrest or charge would be
thrown out of the courts, since our statute books do not criminalize the specific crime of terrorism. More
probably, a person will be arrested and charged for acts that may under the layperson’s contemplation
constitutes acts of terrorism, but would be categorized in the information and charge sheet as actual
crimes under our Revised Penal Code. I simply cannot see how General Order No. 5 could validate arrests
and convictions for non-existent crimes.

Interestingly, the majority, by taking issue with the lack of definition and possible broad context of "acts
of terrorism", seems to be positively applying the arguments of "overbreadth" or "void for vagueness",
arguments which they earlier rejected as applicable only in the context of free expression cases. The
inconsistency is breath-taking. While I disagree with the majority-imposed limitations on the applicability
of the "overbreadth" or "void for vagueness" doctrines, I likewise cannot accede to the application of
those doctrines in the context of General Order No. 5, for the same reason that they should not apply to
PP 1017. Neither General Order No. 5 nor PP 1017 is a penal statute, or have an operative legal effect of
infringing upon liberty, expression or property. As such, neither General Order No. 5 nor PP 1017 can
cause the deprivation of life, liberty or property, thus divorcing those issuances from the context of the
due process clause. The same absence of any binding legal effect of these two issuances correspondingly
disassociates them from the constitutional infringement of free expression or association. Neither "void
for vagueness" nor "overbreadth" therefore lie.

Another point. The majority concludes from General Order No. 5 that the military or police is limited in
authority to perform those acts that are "necessary and appropriate actions and measures to suppress
and prevent acts of terrorism and lawless violence," and such acts committed beyond such authority are
considered illegal. I do not dispute such conclusion, but it must be emphasized that "necessary and
appropriate actions and measures" precisely do not authorize the military or police to commit unlawful
and unconstitutional acts themselves, even if they be geared towards suppressing acts of terrorism or
lawless violence. Indeed, with the emphasis that PP 1017 does not create new rights or obligations, or
diminish existing ones, it necessarily follows that General Order No. 5, even if premised on a state of
emergency, cannot authorize the military or police to ignore or violate constitutional or statutory rights,
or enforce laws completely alien to the suppression of lawless violence. Again, following the cardinal
principle of legal hermeneutics earlier adverted to, General Order No. 5 should be viewed in harmony
with the Constitution, and only if it the Order irreconcilably deviates from the fundamental law should it
be struck down.

V.

Court Should Refrain Making Any Further Declaration, For Now,

Relating to the Individual Grievances Raised by the Petitioners in Relation To PP 1017

I respectfully disagree with the manner by which the majority would treat the "void as applied"
argument presented by the petitioners. The majority adopts the tack of citing three particular injuries
alleged by the petitioners as inflicted with the implementation of PP 1017. The majority analyzes the
alleged injuries, correlates them to particular violations of the Bill of Rights, and ultimately concludes
that such violations were illegal.

The problem with this approach is that it would forever deem the Court as a trier or reviewer at first
instance over questions involving the validity of warrantless arrests, searches, seizures and the dispersal
of rallies, all of which entail a substantial level of factual determination. I agree that PP 1017 does not
expand the grounds for warrantless arrests, searches and seizures or dispersal of rallies, and that the
proclamation cannot be invoked before any court to assert the validity of such unauthorized actions. Yet
the problem with directly adjudicating that the injuries inflicted on David, et al., as illegal, would be that
such would have been done with undue haste, through an improper legal avenue, without the
appropriate trial of facts, and without even impleading the particular officers who effected the
arrests/searches/seizures.

I understand that the injurious acts complained of by the petitioners upon the implementation of PP
1017 are a source of grave concern. Indubitably, any person whose statutory or constitutional rights
were violated in the name of PP 1017 or General Order No. 5 deserves redress in the appropriate civil or
criminal proceeding, and even the minority wishes to makes this point as emphatically clear, if not
moreso, as the majority. Yet a ruling from this Court, without the proper factual basis or prayer for
remuneration for the injury sustained, would ultimately be merely symbolic. While the Court will not be
harmed by a symbolic reaffirmation of commitment to the principles in the Bill of Rights, it will be
harmed by a ruling that unduly and inappropriately expands the very limited function of the Court as a
trier of facts on first instance.
In my dissent in Teves v. Sandiganbayan,55 I alluded to the fact that our legal system may run counter-
intuitive in the sense that the seemingly or obviously guilty may still, after trial, be properly acquitted or
exonerated; to the extent that even an accused who murders another person in front of live television
cameras broadcast to millions of sets is not yet necessarily guilty of the crime of murder or homicide.56
Hence, the necessity of a proper trial so as to allow the entire factual milieu to be presented, tested and
evaluated before the court. In my theoretical example, the said accused should nonetheless be acquitted
if the presence of exempting circumstances is established. The same principle applies in these cases.
Certainly, we in the Court can all agree that PP 1017 cannot be invoked to justify acts by the police or
military officers that go beyond the Constitution and the laws. But the course of prudence dictates that
the pronouncement of such a doctrine, while enforceable in a court of law, should not yet extend itself
to specific examples that have not yet been properly litigated. The function of this Court is to make legal
pronouncements not based on "obvious" facts, but on proven facts.

A haphazard declaration by the Court that the arrests or seizures were "illegal" would likewise preclude
any meaningful review or reevaluation of pertinent legal doctrines that otherwise could have been
reexamined had these acts been properly challenged in regular order. For example, the matter of the
warrantless arrests in these cases could have most certainly compelled the Court to again consider the
doctrine laid down in Umil v. Ramos on warrantless arrests and rebellion as a continuing crime, a
doctrine that may merit renewed evaluation. Yet any healthy reexamination of Umil, or other precedents
for that matter, require the presentation and trial of the proper factual predicates, a course which the
majority unfortunately "short-cuts" in this present decision.

Of course, despite the grandiloquent pronouncement by the majority that the acts complained of by the
petitioners and implemented pursuant to General Order No. 5 are illegal, it could nonetheless impose
civil, criminal or administrative sanctions on the individual police officers concerned, as these officers
had not been "individually identified and given their day in court". Of course, the Court would be left
with pie on its face if these persons, once "given their day in court", would be able to indubitably
establish that their acts were actually justified under law. Perhaps worse, the pronouncement of the
majority would have had the effect of prejudging these cases, if ever lodged, even before trial on the
merits.

Certainly, a declaration by the majority that PP 1017 or General Order No. 5 cannot justify violation of
statutory or constitutional rights (a declaration which the minority would have no qualms assenting to)
would sufficiently arm those petitioners and other persons whose rights may have been injured in the
implementation of PP 1017, with an impeccable cause of action which they could pursue against the
violators before the appropriate courts. At the same time, if the officers or officials concerned have basis
to contend that no such rights were violated, for justifications independent of PP 1017 or General Order
No. 5, such claims could receive due consideration before the courts. Such a declaration would squarely
entrench the Court as a defender of the Bill of Rights, foster enforceable means by which the injured
could seek actual redress for the injury sustained, and preserve the integrity and order of our procedural
law.

VI.

Conclusion

The country-wide attention that the instant petitions have drawn should not make the Court lose focus
on its principal mission, which is to settle the law of the case. On the contrary, the highly political nature
of these petitions should serve as forewarning for the Court to proceed ex abundante cautelam, lest the
institution be unduly dragged into the partisan mud. The credibility of the Court is ensured by making
decisions in accordance with the Constitution without regard to the individual personalities involved;
with sights set on posterity, oblivious of the popular flavor of the day.

By deciding non-justiciable issues and prejudging cases and controversies without a proper trial on the
merits, the majority has diminished the potency of this Court’s constitutional power in favor of rhetorical
statements that afford no quantifiable relief. It is for the poet and the politician to pen beautiful paeans
to the people’s rights and liberties, it is for the Court to provide for viable legal means to enforce and
safeguard these rights and liberties. When the passions of these times die down, and sober retrospect
accedes, the decision of this Court in these cases will be looked upon as an extended advisory opinion.

Yes, PP 1017 and General Order No. 5 warrant circumspect scrutiny from those interested and tasked
with preserving our civil liberties. They may even stand, in the appropriate contexts, as viable partisan
political issues. But the plain fact remains that, under legal contemplation, these issuances are valid on
their face, and should result in no constitutional or statutory breaches if applied according to their letter.

I vote to DISMISS all the petitions.

DANTE O. TINGA

Associate Justice
Footnotes

1 G.R. Nos. 159085, 159103, 159185, 159196, 3 February 2004, 421 SCRA 656.

2 R. Agpalo, Statutory Construction, 3rd.ed. (1995), at 21.

3 "When a statute is reasonably susceptible of two constructions, one constitutional and the other
unconstitutional, that construction in favor of its constitutionality shall be adopted and the construction
that will render it invalid rejected." See R. Agpalo, id., at 266; citing Mutuc v. COMELEC, G.R. No. 32717,
Nov. 26, 1970, 36 SCRA 228; J.M. Tuason & Co., Inc. v. Land Tenure Adm., G.R. No. 21064, Feb. 18, 1970,
31 SCRA 413; American Bible Society v. City of Manila, 101 Phil. 386 (1957); Alba v. Evangelista, 100 Phil.
683 (1957); Maddumba v. Ozaeta, 82 Phil. 345 (1948); Benguet Exploration, Inc. v. Department of
Agriculture and Natural Resources, G.R. No. 29534, Fe. 28, 1977, 75 SCRA 285 (1977); De la Cruz v. Paras,
G.R. No. 42591, July 25, 1983, 123 SCRA 569.

4 See Constitution, Section 17, Article VII.

5 See Constitution, Section 18, Article VII.

6 See Constitution, Section 1, Article VII.

7 The plenary legislative power being vested in Congress. See Constitution, Section 1, Article VI.

8 "[The President] shall ensure that the laws be faithfully executed." See Constitution, Section 17, Article
VII.

9 Supra note 4.
10 "No officer or employee of the civil service shall be removed or suspended except for cause provided
by law." See Constitution, Section 2(3), Article IX-B.

11 See, e.g., Marcos v. Manglapus, G.R. No. 88211, 27 October 1989, 178 SCRA 760, 763.

12 See Administrative Code, Section 4, Chapter 2, Book III.

13 See Section 18, Article VII, Constitution.

14 392 Phil. 618 (2000)

15 Id. at 627.

16 Id. at 644.

17 Id. at 636.

18 Id. at 643.

19 Id.

20 Sanlakas v. Executive Secretary, supra note 1, at 668.

21 Id. at 677.
22 Supra note 8.

23 The declaration of martial law then within the President to make under authority of Section 10(2),
Article VII of the 1935 Constitution.

24 No. L-35546, 17 September 1974, 59 SCRA 183.

25 Aquino, Jr. v. Enrile, id. at 240-241.

26 Aquino, Jr. v. Enrile, id. at 262-263, Castro, J., Separate Opinion.

27 Id. at 398-399, Barredo, J., concurring.

28 Id. at 405-406, Barredo, J., concurring.

29 Id. at 423, Barredo, J., concurring.

30 Constitution, Section 18, Article VII.

31 Constitution, Section 18, Article VII.

32 See Mijares v. Hon. Ranada, G.R. No. 139325, 12 April 2005.

33 See R. Agpalo, Statutory Construction, p. 206.

34 343 U.S. 579, 653-654, J. Jackson, concurring.

35 Ibid.

36 See George Fort Milton, The Use of Presidential Power: 1789-1943, 1980 ed., at 119-120.

37 See J. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 ed.,
at 1183.

38 See Section 1, Article III, Constitution.

39 84 Phil. 368 (1949).

40 Id. at 379.

41 Decision, infra.

42 Id.

43 G.R. No. 152259, 29 July 2004, 435 SCRA 371, 395-406.

44 Id., at 398, citing Estrada v. Sandiganbayan, 421 Phil. 290, J. Kapunan, dissenting, at pp. 382-384.

45 Id., at 398-401.

46 269 U.S. 385, 393 (1926).

47 306 U.S. 451 (1939).

48 378 U.S. 347 (1964).

49 405 U.S. 156 (1972).

50 461 U.S. 352 (1983).

51 Case No. 97-1121, 10 June 1999.

52 But see United States v. Robel, 389 U.S. 258 (1967), wherein the U.S. Supreme Court invalidated a
portion of the Subversive Control Activities Act on the ground of overbreadth as it sought to proscribe
the exercise the right of free association, also within the First Amendment of the United States
Constitution but a distinct right altogether from free expression.

53 To name a few, the Convention on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (1973); International Convention for the Suppression of
Terrorist Bombings (1997); International Convention for the Suppression of the Financing of Terrorism
(1999); the International Convention for the Suppression of Acts of Nuclear Terrorism (2005). See
"United Nations Treaty Collection – Conventions on Terrorism",
http://untreaty.un.org/English/Terrorism.asp (last visited, 30 April 2006).

54 See, e.g., Resolution No. 49/60, Adopted by the United Nations General Assembly on 17 February
1995.

55 G.R. No. 154182, 17 December 2004, 447 SCRA 309, 335-348. J. Tinga, dissenting.

56 Id. at 345.
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EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.

ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST CRIME
AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA,
ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.

GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges
that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President.
The warring personalities are important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were
to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly
but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for
joint investigation.2
The House of Representatives did no less. The House Committee on Public Order and Security, then
headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the
other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the
move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel
Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of
the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However,
petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II
also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin
Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the
ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions
in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President.
Speaker Villar was unseated by Representative Fuentebella.12 On November 20, the Senate formally
opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing
as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios,
Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo.
Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General and
Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy
Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to
day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and low
points were the constant conversational piece of the chattering classes. The dramatic point of the
December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank.
She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose
Velarde" on documents involving a P500 million investment agreement with their bank on February 4,
2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that
the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-
judges ruled against the opening of the second envelope which allegedly contained evidence showing
that petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the
streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full of
sulphur were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line
of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala
Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in Metro Manila to show their
concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of
persuasion, attracted more and more people.21
On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed
Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m.,
Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and
hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your
Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson
and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for
the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial
second envelope.26 There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political
Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by
now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of
Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and
anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of
the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued
the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people
with gratitude for the opportunities given to me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy
was transmitted to Senate President Pimentel on the same day although it was received only at 9:00
p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers
the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath of
Office as President of the Republic of the Philippines before the Chief Justice — Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter, the court Resolve unanimously to confirm
the authority given by the twelve (12) members of the Court then present to the Chief Justice on January
20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special envoys.34
Recognition of respondent Arroyo's government by foreign governments swiftly followed. On January 23,
in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal Nuncio
Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House
conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the House
of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of
the Republic of the Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she
also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President.42
The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator
Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes"
with reservations, citing as reason therefor the pending challenge on the legitimacy of respondent
Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were
absent.44 The House of Representatives also approved Senator Guingona's nomination in Resolution No.
178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she
voted against the closure of the impeachment court on the grounds that the Senate had failed to decide
on the impeachment case and that the resolution left open the question of whether Estrada was still
qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up
from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted
President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55%
in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all social
classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among the E's
or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and
corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by
the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong,
et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case
No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus
and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his
counter-affidavit and the affidavits of his witnesses as well as other supporting documents in answer to
the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin
the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629,
1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until
after the term of petitioner as President is over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming
petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily
unable to discharge the duties of his office, and declaring respondent to have taken her oath as and to
be holding the Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the
respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing,
Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag
that they have "compromised themselves by indicating that they have thrown their weight on one side"
but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days
to file their memoranda and two (2) days to submit their simultaneous replies.
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement justifying the
alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being
cited for contempt to refrain from making any comment or discussing in public the merits of the cases at
bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman from
resolving or deciding the criminal cases pending investigation in his office against petitioner, Joseph E.
Estrada and subject of the cases at bar, it appearing from news reports that the respondent Ombudsman
may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days after the hearing
held on February 15, 2001, which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President
on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries,
the cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo
ascended the presidency through people power; that she has already taken her oath as the 14th
President of the Republic; that she has exercised the powers of the presidency and that she has been
recognized by foreign governments. They submit that these realities on ground constitute the political
thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine of which we
treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has narrowed the
reach of the political question doctrine when it expanded the power of judicial review of this court 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 government.59 Heretofore, the judiciary has
focused on the "thou shalt not's" of the Constitution directed against the exercise of its jurisdiction.60
With the new provision, however, courts are given a greater prerogative to determine what it can do to
prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the Court power of doing
nothing. In sync and symmetry with this intent are other provisions of the 1987 Constitution trimming
the so called political thicket. Prominent of these provisions is section 18 of Article VII which empowers
this Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at
bar involve the legitimacy of the government of respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will show that they are inapplicable. In the cited
cases, we held that the government of former President Aquino was the result of a successful revolution
by the sovereign people, albeit a peaceful one. No less than the Freedom Constitution63 declared that
the Aquino government was installed through a direct exercise of the power of the Filipino people "in
defiance of the provisions of the 1973 Constitution, as amended." In is familiar learning that the
legitimacy of a government sired by a successful revolution by people power is beyond judicial scrutiny
for that government automatically orbits out of the constitutional loop. In checkered contrast, the
government of respondent Arroyo is not revolutionary in character. The oath that she took at the EDSA
Shrine is the oath under the 1987 Constitution.64 In her oath, she categorically swore to preserve and
defend the 1987 Constitution. Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves
the exercise of the people power of revolution which overthrew the whole government. EDSA II is an
exercise of people power of freedom of speech and freedom of assembly to petition the government for
redress of grievances which only affected the office of the President. EDSA I is extra constitutional and
the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but
EDSA II is intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I presented a political
question; EDSA II involves legal questions. A brief discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of
the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call
for the recognition of freedom of the press of the Filipinos and included it as among "the reforms sine
quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898,
provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas
or opinions, orally or in writing, through the use of the press or other similar means; (2) of the right of
association for purposes of human life and which are not contrary to public means; and (3) of the right to
send petitions to the authorities, individually or collectively." These fundamental rights were preserved
when the United States acquired jurisdiction over the Philippines. In the Instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley, it is specifically provided "that no
law shall be passed abridging the freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of grievances." The guaranty was carried
over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. 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."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for advancing knowledge and discovering
truth; third, it is essential to provide for participation in decision-making by all members of society; and
fourth, it is a method of achieving a more adaptable and hence, a more stable community of maintaining
the precarious balance between healthy cleavage and necessary consensus."69 In this sense, freedom of
speech and of assembly provides a framework in which the "conflict necessary to the progress of a
society can take place without destroying the society."70 In Hague v. Committee for Industrial
Organization,71 this function of free speech and assembly was echoed in the amicus curiae filed by the
Bill of Rights Committee of the American Bar Association which emphasized that "the basis of the right
of assembly is the substitution of the expression of opinion and belief by talk rather than force; and this
means talk for all and by all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court
similar stressed that "… it should be clear even to those with intellectual deficits that when the sovereign
people assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under
section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from
suit. They also involve the correct calibration of the right of petitioner against prejudicial publicity. As
early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically
the province and duty of the judicial department to say what the law is . . ." Thus, respondent's in
vocation of the doctrine of political question is but a foray in the dark.
II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the records
of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers
from a permanent disability. Hence, he submits that the office of the President was not vacant when
respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the
Vice President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice President, the President of
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a
high level legal abstraction. It is a factual question and its elements are beyond quibble: there must be
an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity of a
resignation is not government by any formal requirement as to form. It can be oral. It can be written. It
can be express. It can be implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and
omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous and
posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In express
speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives.
Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in
tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and
Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The
call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to
open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16
was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number
grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the
morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA,
hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m.,
petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed: "Ed,
seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later
or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he would not
be a candidate. The proposal for a snap election for president in May where he would not be a candidate
is an indicium that petitioner had intended to give up the presidency even at that time. At 3:00 p.m.,
General Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner and
dramatically announced the AFP's withdrawal of support from the petitioner and their pledge of support
to respondent Arroyo. The seismic shift of support left petitioner weak as a president. According to
Secretary Angara, he asked Senator Pimentel to advise petitioner to consider the option of "dignified exit
or resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to go
abroad with enough funds to support him and his family.83 Significantly, the petitioner expressed no
objection to the suggestion for a graceful and dignified exit but said he would never leave the country.84
At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have
five days to a week in the palace."85 This is proof that petitioner had reconciled himself to the reality
that he had to resign. His mind was already concerned with the five-day grace period he could stay in the
palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed.
Again, we note that at this stage, the problem was already about a peaceful and orderly transfer of
power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and
his family, and (3) the agreement to open the second envelope to vindicate the name of the petitioner.87
Again, we note that the resignation of petitioner was not a disputed point. The petitioner cannot feign
ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses that
he just wants the five-day period promised by Reyes, as well as to open the second envelope to clear his
name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful. I'm tired of the red
tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he
said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For this
round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be effective
on Wednesday, 24 January 2001, on which day the Vice President will assume the Presidency of the
Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various positions and
offices of the government shall start their orientation activities in coordination with the incumbent
officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged savings
account of the President in the Equitable PCI Bank in accordance with the rules of the Senate, pursuant
to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President Joseph
Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the private sector throughout their
natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief of
Staff, as approved by the national military and police authorities – Vice President (Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will authorize
the opening of the second envelope in the impeachment trial as proof that the subject savings account
does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the 'Transition
Period"), the incoming Cabinet members shall receive an appropriate briefing from the outgoing Cabinet
officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and observance
thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided for
in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted
that during this second round of negotiation, the resignation of the petitioner was again treated as a
given fact. The only unsettled points at that time were the measures to be undertaken by the parties
during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by the
party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful
events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect a
peaceful transition. I can hear the general clearing all these points with a group he is with. I hear voices
in the background.
Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall be
effective on 24 January 2001, on which day the Vice President will assume the presidency of the Republic
of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January
2001, wherein persons designated by the Vice President to various government positions shall start
orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and security
of the President and his families throughout their natural lifetimes as approved by the national military
and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as national
military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the impeachment trial,
the contents of which shall be offered as proof that the subject savings account does not belong to the
President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side and
awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about the
agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is already
moot and academic. Within moments, Macel erases the first provision and faxes the documents, which
have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other
side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer the
oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal
12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police and military have already withdrawn their support for
the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement before leaving
Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her
oath as President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil
society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for the
sake of peace and in order to begin the healing process of our nation. I leave the Palace of our people
with gratitude for the opportunities given to me for service to our people. I will not shirk from any future
challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of
the respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized
he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the
healing process of our nation. He did not say he was leaving the Palace due to any kind inability and that
he was going to re-assume the presidency as soon as the disability disappears: (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring to the past
opportunity given him to serve the people as President (4) he assured that he will not shirk from any
future challenge that may come ahead in the same service of our country. Petitioner's reference is to a
future challenge after occupying the office of the president which he has given up; and (5) he called on
his supporters to join him in the promotion of a constructive national spirit of reconciliation and
solidarity. Certainly, the national spirit of reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner's valedictory, his final act of farewell. His
presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we
refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice President shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did
the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It strikes
the Court as strange that the letter, despite its legal value, was never referred to by the petitioner during
the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued his final
press release. It was all too easy for him to tell the Filipino people in his press release that he was
temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo for
the time bearing. Under any circumstance, however, the mysterious letter cannot negate the resignation
of the petitioner. If it was prepared before the press release of the petitioner clearly as a later act. If,
however, it was prepared after the press released, still, it commands scant legal significance. Petitioner's
resignation from the presidency cannot be the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation by the people. There is another reason why this
Court cannot given any legal significance to petitioner's letter and this shall be discussed in issue number
III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA
No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the
Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to
voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as
section 15:
"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense under the
Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution under this
Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15
above became section 13 under the new bill, but the deliberations on this particular provision mainly
focused on the immunity of the President, which was one of the reasons for the veto of the original bill.
There was hardly any debate on the prohibition against the resignation or retirement of a public official
with pending criminal and administrative cases against him. Be that as it may, the intent of the law ought
to be obvious. It is to prevent the act of resignation or retirement from being used by a public official as a
protective shield to stop the investigation of a pending criminal or administrative case against him and to
prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the Revised Penal
Code. To be sure, no person can be compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of the criminal
or administrative proceedings against him. He cannot use his resignation or retirement to avoid
prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting President then, petitioner was immune
from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for
it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment
proceeding is debatable. But even assuming arguendo that it is an administrative proceeding, it can not
be considered pending at the time petitioner resigned because the process already broke down when a
majority of the senator-judges voted against the opening of the second envelope, the public and private
prosecutors walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance,
and the proceedings were postponed indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability
claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of
the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the House
of Representatives his written declaration that he is unable to discharge the powers and duties of his
office, and until he transmits to them a written declaration to the contrary, such powers and duties shall
be discharged by the Vice-President as Acting President.
Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to
the Speaker of the House of Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House
of Representatives his written declaration that no inability exists, he shall reassume the powers and
duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five
days to the President of the Senate and to the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and duties of his office, the Congress
shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-
eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the Vice-
President shall act as President; otherwise, the President shall continue exercising the powers and duties
of his office."

That is the law. Now, the operative facts:

Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate President and
Speaker of the House;

Unaware of the letter, respondent Arroyo took her oath of office as President on January 20, 2001 at
about 12:30 p.m.;

Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House Resolution
No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE ASSUMPTION

INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former President Joseph
Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine National Police
and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national healing
and reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided, thus
by reason of the constitutional duty of the House of Representatives as an institution and that of the
individual members thereof of fealty to the supreme will of the people, the House of Representatives
must ensure to the people a stable, continuing government and therefore must remove all obstacles to
the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the whole
nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for the
House of Representatives to extend its support and collaboration to the administration of Her Excellency,
President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the national
interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office by Vice
President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF SENATOR

TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of
the Philippines – qualities which merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of Representatives
confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of the Republic of the
Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the Senate
signed the following:
"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change
and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria Macapagal-
Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM.

TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the Presidency
of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority Leader
Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having served
the government in various capacities, among others, as Delegate to the Constitutional Convention,
Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator of the land -
which qualities merit his nomination to the position of Vice President of the Republic: Now, therefore, be
it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T. Guingona,
Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday, January
16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with the
Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of the
Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the
Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously
with the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13th)
highest number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any
sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent
Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot
exercise its judicial power or this is an issue "in regard to which full discretionary authority has been
delegated to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103
there is a "textually demonstrable or a lack of judicially discoverable and manageable standards for
resolving it." Clearly, the Court cannot pass upon petitioner's claim of inability to discharge the power
and duties of the presidency. The question is political in nature and addressed solely to Congress by
constitutional fiat. It is a political issue, which cannot be decided by this Court without transgressing the
principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he is
a President on leave on the ground that he is merely unable to govern temporarily. That claim has been
laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made by a co-
equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In the 1910
case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen, sued
petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to
touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On
the contrary, it means, simply, that the governors-general, like the judges if the courts and the members
of the Legislature, may not be personally mulcted in civil damages for the consequences of an act
executed in the performance of his official duties. The judiciary has full power to, and will, when the
mater is properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has been deprived
his liberty or his property by such act. This remedy is assured to every person, however humble or of
whatever country, when his personal or property rights have been invaded, even by the highest
authority of the state. The thing which the judiciary can not do is mulct the Governor-General personally
in damages which result from the performance of his official duty, any more than it can a member of the
Philippine Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at all
in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the
discussion heretofore had, particularly that portion which touched the liability of judges and drew an
analogy between such liability and that of the Governor-General, that the latter is liable when he acts in
a case so plainly outside of his power and authority that he can not be said to have exercised discretion
in determining whether or not he had the right to act. What is held here is that he will be protected from
personal liability for damages not only when he acts within his authority, but also when he is without
authority, provided he actually used discretion and judgement, that is, the judicial faculty, in determining
whether he had authority to act or not. In other words, in determining the question of his authority. If he
decide wrongly, he is still protected provided the question of his authority was one over which two men,
reasonably qualified for that position, might honestly differ; but he s not protected if the lack of
authority to act is so plain that two such men could not honestly differ over its determination. In such
case, be acts, not as Governor-General but as a private individual, and as such must answer for the
consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest
officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way,
in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only form civil claims but
also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even acts
of the President outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or private individuals,
who acted upon orders of the President. It can be said that at that point most of us were suffering from
AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by delegate
J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original provision on immunity from suit under the
1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973 Constitution
was to make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors
and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed
Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first
be impeached and then convicted before he can be prosecuted. The plea if granted, would put a
perpetual bar against his prosecution. Such a submission has nothing to commend itself for it will place
him in a better situation than a non-sitting President who has not been subjected to impeachment
proceedings and yet can be the object of a criminal prosecution. To be sure, the debates in the
Constitutional Commission make it clear that when impeachment proceedings have become moot due
to the resignation of the President, the proper criminal and civil cases may already be filed against him,
viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation
would render the case moot and academic. However, as the provision says, the criminal and civil aspects
of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has
been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition
sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the
impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related
cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner
cannot cite any decision of this Court licensing the President to commit criminal acts and wrapping him
with post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation
from liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not
acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as
any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.
In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others,
that the President was not subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it
cannot prevail over the fundamental demands of due process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity
of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that "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."120
It set the rule that 'the right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall not be barred by prescription, latches
or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which is to "investigate on its own, or on
complaint by any person, any act or omission of any public official, employee, office or agency, when
such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of the
Ombudsman was also given fiscal autonomy.124 These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts
committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the
case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all
high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair
trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right to a
fair trial for, as well pointed out, a responsible press has always been regarded as the criminal field xxx.
The press does not simply publish information about trials but guards against the miscarriage of justice
by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly protected from
publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties to litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity.
In the case at a bar, the records do not show that the trial judge developed actual bias against appellants
as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity, which is incapable of change even by evidence presented during the trial. Appellant
has the burden to prove this actual bias and he has not discharged the burden.'
We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc.130
and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes,
its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For
sure, few cases can match the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated
even today. Commentators still bombard the public with views not too many of which are sober and
sublime. Indeed, even the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a
fair trial notwithstanding, criminal trials cannot be completely closed to the press and public. In the
seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance that the proceedings were conducted
fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on
secret bias or partiality. In addition, the significant community therapeutic value of public trials was
recognized when a shocking crime occurs a community reaction of outrage and public protest often
follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility and emotion. To work effectively, it is important that society's
criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S
Ct 11, which can best be provided by allowing people to observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded
that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system
of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of communication on matters relating to the functioning of
government. In guaranteeing freedom such as those of speech and press, the First Amendment can be
read as protecting the right of everyone to attend trials so as give meaning to those explicit guarantees;
the First Amendment right to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time the First Amendment was adopted. Moreover,
the right of assembly is also relevant, having been regarded not only as an independent right but also as
a catalyst to augment the free exercise of the other First Amendment rights with which the draftsmen
deliberately linked it. A trial courtroom is a public place where the people generally and representatives
of the media have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.

Even though the Constitution contains no provision which be its terms guarantees to the public the right
to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend criminal trial is implicit in the
guarantees of the First Amendment: without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at
bar, we find nothing in the records that will prove that the tone and content of the publicity that
attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of
an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights
of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear
that they considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the generosity with
which they accommodated the discovery motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the
ground of bias resulting from their bombardment of prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof.131 He needs to show more weighty social
science evidence to successfully prove the impaired capacity of a judge to render a bias-free decision.
Well to note, the cases against the petitioner are still undergoing preliminary investigation by a special
panel of prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been
made by the petitioner that the minds of the members of this special panel have already been infected
by bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has yet to
come out with its findings and the Court cannot second guess whether its recommendation will be
unfavorable to the petitioner.1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the mobs."132
News reports have also been quoted to establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in
light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of
good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt
the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows
to his subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the
independence to make their own findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled cases which they believe deserve
dismissal. In other words, investigating prosecutors should not be treated like unthinking slot machines.
Moreover, if the respondent Ombudsman resolves to file the cases against the petitioner and the latter
believes that the findings of probable cause against him is the result of bias, he still has the remedy of
assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from
the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be
more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State
to prosecute the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a prosecutor is more
to do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power
of number for in a democracy, the dogmatism of the majority is not and should never be the definition
of the rule of law. If democracy has proved to be the best form of government, it is because it has
respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of
thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let
us not throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2 PDI, October 6, 2000, pp. A1 and A18.

3 Ibid., October 12, 2000, pp. A1 and A17.

4 Ibid., October 14, 2000, p. A1.

5 Ibid., October 18, 2000, p. A1.

6 Ibid., October 13, 2000, pp. A1 and A21.

7 Ibid., October 26, 2000, p. A1.

8 Ibid., November 2, 2000, p. A1.

9 Ibid., November 3, 2000, p. A1.

10 Ibid., November 4, 2000, p. A1.

11 The complaint for impeachment was based on the following grounds: bribery, graft and corruption,
betrayal of public trust, and culpable violation of the Constitution.

12 Ibid., November 14, 2000, p. A1.

13 Ibid., November 21, 2000, p. A1.

14 Ibid., December 8, 2000, p. A1.

15 Ibid., December 23, 2000, pp. A1 and A19.

16 Ibid., January 12, 2001, p. A1.

17 Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon, Cayetano,
Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no" were Senators Ople,
Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile, Honasan, Jaworski, Revilla, Sotto III
and Tatad.
18 Philippine Star, January 17, 2001, p. 1.

19 Ibid., January 18, 2001, p. 4.

20 Ibid., p. 1.

21 Ibid., January 19, 2001, pp. 1 and 8.

22 "Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"), PDI, February
4, 2001, p. A16.

23 Philippine Star, January 20, 2001, p. 4.

24 PDI, February 4, 2001, p. A16.

25 Philippine Star, January 20, 2001, pp. 1 and 11.

26 Ibid., January 20, 2001, p. 3.

27 PDI, February 5, 2001, pp. A1 and A6.

28 Philippine Star, January 21, 2001, p. 1.

29 PDI, February 6, 2001, p. A12.

30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32 Ibid.

33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34 Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001, p. 3; PDI,
January 25, 2001, pp. A1 and A15.

35 Philippine Star, January 24, 2001, p. 1.

36 PDI, January 25, 2001, p. 1.

37 Ibid., p. 2.

38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39 Annex D, id; ibid., p. 292.

40 PDI, January 27, 2001, p. 1.

41 PDI, February 13, 2001, p. A2.

42 Philippine Star, February 13, 2001, p. A2.

43 Annex E, id.; ibid., p. 295.

44 PDI, February 8, 2001, pp. A1 & A19.

45 Annex F, id.; ibid., p. 297.

46 PDI, February 10, 2001, p. A2.

47 Annex G, id.; ibid., p. 299.

48 PDI, February 8, 2001, p. A19.

49 Philippine Star, February 3, 2001, p. 4.

50 "Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16, 2001, p. 14.

51 See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos. 146710-15,
pp. 525-527.

52 See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-125.

53 Rollo, G.R. No. 146738, p. 134.

54 Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos. 146710-15, Vol.
III, pp. 809-820.
55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57 See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15 August 2000;
Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA 756 (1998); Tatad v. Secretary
of the Department of Energy, 281 SCRA 330 (1997); Marcos v. Manglapus, 177 SCRA 668 (1989);
Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83
Phil. 17 (1949); Vera v. Avelino, 77 Phil 192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58 103 Phil 1051, 1068 (1957).

59 Section 1, Article VIII, 1987 Constitution.

60 Note that the early treatises on Constitutional Law are discourses on limitations of power typical of
which is, Cooley's Constitutional Limitations.

61 Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres. Corazon C.
Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the Constitution, etc. v. Mrs. Cory
Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v. Corazon C. Aquino, et al., GR No. 73990,
May 22, 1986.

62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63 Proclamation No. 3 (1986).

64 It states:
I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will faithfully and
conscientiously fulfill my duties as President o the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate myself to the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65 See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.

66 The guaranty was taken from Amendment I of the US Constitution which provides: "Congress shall
make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievance."

67 See section 8, Article IV.

68 See section 9, Article IV.

69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70 Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357, 375-76)
where he said "… the greatest menace to freedom is an inert people …"

71 307 US 496 (1939).

72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.
73 260 SCRA 798 (1996).

74 Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them."

75 Infra at 26.

76 Infra at 41.

77 1 Cranch (5 US) 137, 2 L ed 60 (1803).

78 Gonzales v. Hernandez, 2 SCRA 228 (1961).

79 See its February 4, 5, and 6, 2001 issues.

80 PDI, February 4, 2001, p. A1.

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.
85 Ibid.

86 PDI, February 5, 2001, p. A1.

87 Ibid., p. A-1.

88 Ibid.

89 PDI, February 5, 2001, P. A6.

90 PDI, February 6, 2001, p. A1.

91 In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary Angara stated that
the letter came from Asst. Secretary Boying Remulla; that he and Political Adviser Banayo opposed it;
and that PMS head Macel Fernandez believed that the petitioner would not sign the letter.

92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93 Id., May 9, 1959, p. 1988

94 Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any form shall
exist except as a punishment for a crime whereof the party shall have been duly convicted."

95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:
"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of the people is
the voice of God" establishes the basis of her mandate on integrity and morality in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business sectors in fully
supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting President Gloria
Macapagal-Arroyo's call to start the healing and cleansing process for a divided nation in order to 'build
an edifice of peace, progress and economic stability' for the country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration of Her
Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97 11th Congress, 3rd Session (2001).

98 11th Congress, 3rd Session (2001).

99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol. II, p. 231.

100 11th Congress, 3rd Session (2001).

101 11th Congress, 3rd Session (2001).

102 103 Phil 1051, 1067 (1957).

103 Baker vs. Carr, supra at 686 headnote 29.

104 16 Phil 534 (1910).

105 The logical basis for executive immunity from suit was originally founded upon the idea that the
"King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L. Rev., 303 (1959)]. The
concept thrived at the time of absolute monarchies in medieval England when it was generally accepted
that the seat of sovereignty and governmental power resides in the throne. During that historical,
juncture, it was believed that allowing the King to be sued in his courts was a contradiction to the
sovereignty of the King.
With the development of democratic thoughts and institutions, this kind of rationalization eventually lost
its moral force. In the United States, for example, the common law maxim regarding the King's infallibility
had limited reception among the framers of the Constitution. [J. Long, How to Sue the President: A
Proposal for Legislation Establishing the Extent of Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)].
Still, the doctrine of presidential immunity found its way of surviving in modern political times, retaining
both its relevance and vitality. The privilege, however, is now justified for different reasons. First, the
doctrine is rooted in the constitutional tradition of separation of powers and supported by history.
[Nixon v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as demanding
the executive's independence from the judiciary, so that the President should not be subject to the
judiciary's whim. Second, by reason of public convenience, the grant is to assure the exercise of
presidential duties and functions free from any hindrance or distraction, considering that the Chief
Executive is a job that, aside from requiring all of the office-holder's time, also demands undivided
attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time and substance of the chief
executive will be spent on wrangling litigation, disrespect upon his person will be generated, and distrust
in the government will soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of
public policy, it was recognized that the gains from discouraging official excesses might be more than
offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity, the president
would be disinclined to exercise decision-making functions in a manner that might detrimentally affect
an individual or group of individuals. [See H. Schechter, Immunity of Presidential Aides from Criminal
Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106 62 Phil. L.J. 113 (1987).

107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109 Supra at 47.

110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111 145 SCRA 160 (1986).

112 128 SCRA 324 (1984).

113 In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988); and Jarque v.
Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117 520 U.S. 681 (1997).

118 See section 1, Art. XI of the 1987 Constitution.

119 See section 27, Art. II of the 1987 Constitution.

120 See, section 1, Art. XI of the 1987 Constitution.

121 See section 15, Art. XI of the 1987 Constitution.

122 See section 4, Art. XI of the 1987 Constitution.

123 See section 13 (1), Art. XI of the 1987 Constitution.

124 See section 14, Art. XI of the 1987 Constitution.

125 See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American Approaches
to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75, No. 5, pp. 1412-1451
(November 2000).

126 Id., p. 1417.

127 See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee, 249 SCRA 54
(1995)

128 249 SCRA 54 (1955)

129 287 SCRA 581 at pp. 596-597 (1998)

130 247 SCRA 652 (1995)

131 Extensive publicity did not result in the conviction of well known personalities. E.g., OJ Simpson,
John Mitchell, William Kennedy Smith and Imelda Marcos.

132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134 See section 4, Rule 112.

135 Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION
VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could have
been one innocuous phenomenon buried in the pages of our history but for its critical dimensions. Now,
EDSA 2 would be far from being just another event in our annals. To this day, it is asked – Is Mr. Joseph
Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph Ejercito
Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million Filipinos in the
elections of May 1998, served well over two years until January 2001. Formally impeached by the Lower
House of Representatives for cases of Graft and Corruption, Bribery, Betrayal of Public Trust and Culpable
violation of the Constitution, he was tried by the Senate. The Impeachment Tribunal was tasked to
decide on the fate of Mr. Estrada- if convicted, he would be removed from office and face prosecution
with the regular courts or, if acquitted, he would remain in office. An evidence, however, presented by
the prosecution tagged as the "second envelope" would have it differently. The denial by the
impeachment court of the pleas to have the dreaded envelope opened promptly put the trial into a halt.
Within hours after the controversial Senate decision, an angered people trooped again to the site of the
previous uprising in 1986 that toppled the 20-year rule of former President Ferdinand E. Marcos - EDSA.
Arriving in trickles, the motley gathering swelled to an estimated million on the fourth day, with several
hundreds more nearing Mendiola reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for him
to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but beleaguered by
solitude-empty of the support by the military and the police, abandoned most of his cabinet members,
and with hardly any firm succor from constituents. And despite the alleged popularity that brought him
to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo, then
incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a letter, sent
through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is permanently
incapable of performing the duties of his office resulting in his permanent disability to govern the serve
his unexpired term. Almost all of his cabinet members have resigned and the Philippine National police
have withdrawn their support for Joseph Ejercito Estrada. Civil society has likewise refused to recognize
him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief Justice
Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City, Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."

The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to keep
its doors open, had to help assure that the judicial process was seen to be functioning. As the hours
passed, however, the extremely volatile situation was getting more precarious by the minute, and the
combustible ingredients were all but ready to ignite. The country was faced with a phenomenon --- the
phenomenon of a people, who, in the exercise of sovereignty perhaps too limitless to be explicitly
contained and constrained by the limited words and phrases of the constitution, directly sought to
remove their president from office. On that morning of the 20th of January, the his tribunal was
confronted with a dilemma ----- should it choose a literal and narrow view of the constitution, invoke the
rule of strict law, and exercise its characteristics reticence? Or was it propitious for it to itself take a
hand? The first was fraught with danger and evidently too risky to accept. The second could very well
help avert imminent bloodshed. Given the realities; the Court was left hardly with choice. Paradoxically,
the first option would almost certainly imperil the Constitution, the second could save it. The
confirmatory resolution was issued following the en banc session of the Court on 22 January 2001; it
read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which request
was treated as an administrative matter, the Court resolved unanimously to CONFIRM the authority
given by the twelve (12) members of the Court then present to the Chief justice on January 20, 2001 to
administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001.
"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th President of
the Republic of the Philippines. EDSA, once again, had its momentous role in yet another "bloodless
revolution." The Court could not have remained placid amidst the worsening situation at the time. It
could not in conscience allow the high-strung emotions and passions of EDSA to reach the gates of
Malacañang. The military and police defections created stigma that could not be left unguarded by a
vacuum in the presidency. The danger was simply overwhelming. The extra-ordinariness of the reality
called for an extra-ordinary solution. The court has chosen to prevent rather than cure an enigma
incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise of
healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was still
President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the Vice-
President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in case of
death, permanent disability, removal from office, or resignation of the President,1secondly, when the
President of the Senate and the Speaker of the House of representatives his written declaration that he
is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives
their written declaration that the President is unable to discharge the powers and duties of his office, 3
the latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the above
situations have occurred. The conditions for constitutional succession have not been met. He states that
he has merely been "temporarily incapacitated" to discharge his duties, and he invokes his letters to both
Chambers of the Congress consistent with section 11 of Article VII of the 1987 Constitution. The twin
letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the Vice-President shall be acting President."
Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office indefinitely. In
order to constitute a complete and operative act of resignation, the officer or employee must show a
clear intention to relinquish or surrender his position accompanied by an act of relinquishment.
Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has not
once been embodied in his letters or said in his statements. I am unable to oblige. The contemporary
acts of Estrada during those four critical days of January are evident of his intention to relinquish his
office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled to discharge his
duties, the embattled President acceded to have negotiations conducted for a smooth transition of
power. The belated proposals of the President to have the impeachment Court allow the opening of the
controversial envelope and to postpone his resignation until 24 January 2001 were both rejected. On the
morning of 20 January 2001, the President sent to congress the following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and the
Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day. Nor
this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and inutility in
office – not so much by the confluence of events that forces him to step down the seat of power in a
poignant and teary farewell as the recognition of the will of the governed to whom he owned allegiance.
In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of the
Republic of the Philippines. While along with many other legal minds of our country, I have strong and
serious doubts about the legality and constitutionality of her proclamation as President, I do not wish to
be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the palace of our
people with gratitude for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office although
not attending by the formalities normally observed in resignation. Abandonment may be effected by a
positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution. This
assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions those that
are personal, either by physical or mental in nature, 7 and innate to the individual. If it were otherwise,
when then would the disability last? Would it be when the confluent causes which have brought about
that disability are completely set in reverse? Surely, the idea fails to register well to the simple mind.
Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In its
delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The government
structure has remained intact. Succession to the presidency has been by the duly-elected Vice-president
of the Republic. The military and the police, down the line, have felt to be so acting in obedience to their
mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of society in
its political institution, social structure, leadership, government activity and policies.11 " The
distinguished A.J. Milne makes a differentiation between constitutional political action and a
revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted rules,
along with those in the Constitution13 and concerns itself with structures rather than personalities in
the establishments. Accordingly, structure would prefer to the different branches of the government and
personalities would be the power-holders. If determination would be made whether a specific legal
order is intact or not, what can be vital is not the change in the personalities but a change in the
structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of the
legal order. The constitutionally-established government structures, embracing various offices under the
executive branch, of the judiciary, of the legislature, of the constitutional commissions and still other
entities, including the Armed Forces of the Philippines and the Philippine National Police and local
governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore the
basic tenet of constitutionalism and to functionalize the clearly preponderant facts.
More than just an eloquent piece of frozen document, the Constitution should be deemed to be a living
testament and memorial of the sovereign will of the people from whom all government authority
emanates. Certainly, this fundamental statement is not without meaning. Nourished by time, it grows
and copes with the changing milieu. The framers of the constitution could not have anticipated all
conditions that might arise in the aftermath of events. A constitution does not deal in details, but
enunciates the general tenets that are intended to apply to all facts that may come about but which can
be brought within its directions. 14 Behind its conciseness is its inclusiveness and its apertures
overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent. The
Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and hand-tied
to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to be an
enduring instrument, its interpretation is not be confined to the conditions and outlook which prevail at
the time of its adoption15 instead, it must be given flexible to bring it in accord with the vicissitudes of
changing and advancing affairs of men.16 Technicalities and play of words cannot frustrate the inevitable
because there is an immense difference between legalism and justice. If only to secure our democracy
and to keep the social order – technicalities must give away. It has been said that the real essence of
justice does not emanate from quibblings over patchwork legal technicality but proceeds from the
spirit's gut consciousness of the dynamic role as a brick in the ultimate development of social edifice.17
Anything else defeats the spirit and intent of the Constitution for which it is formulated and reduces its
mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control of
the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span of
years between them, it might be said that popular mass action is fast becoming an institutionalized
enterprise. Should the streets now be the venue for the exercise of popular democracy? Where does one
draw the line between the rule of law and the rule of the mob, or between "People Power" and
"Anarchy?" If, as the sole justification for its being, the basis of the Arroyo presidency lies alone on those
who were at EDSA, then it does rest on loose and shifting sands and might tragically open a Pandora's
box more potent than the malaise it seeks to address. Conventional wisdom dictates the indispensable
need for great sobriety and extreme circumspection on our part. In this kind of arena, let us be assumed
that we are not overcome by senseless adventurism and opportunism. The country must not grow
oblivious to the innate perils of people power for no bond can be stretched far too much to its breaking
point. To abuse is to destroy that which we may hold dear.

1 Section 8, Article VII, 1987 Constitution

2 Section 11, 1st paragraph, Article VII, 1987 Constitution

3 Ibid., 2nd paragraph

4 Ortiz vs. Comelec, 162 SCRA 812

5 Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January 1998

6 Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7 "Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of inability to
discharge the powers and duties of the Office of the President. Can this written declaration to be done
for and in behalf of the President if, for example, the President is in no position to sign his name, like he
suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we borrowed this
provision, but we feel that in remote situation that the Commissioner has cited in that the President
cannot make a written declaration, I suppose an alternative would be considered wherein he can so
expressly manifest in an authentic manner what should be contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really, the physical
disability of the gentleman was never made clear to the historians. But suppose a situation will happen
in our country where the President may suffer coma and gets to be unconscious, which is practically a
total inability to discharge the powers and duties of his office, how can he submit a written declaration
of inability to perform the duties and functions of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment to the
American Constitution as adopted on February 10, 1967 prevent a recurrence of such situation. Besides,
it was not only the Wilson matter. As I have already mentioned here, they have had situations in the
United States, including those of President Garfield, President Wilson, President Roosevelt and President
Eisenhower."

(11 RECORDS, PP. 421-423)

8 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9 Ibid.

10 Ibid.
11 Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE QUARTERLY

12 Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453, 456 (1973)

13 Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines Law Journal,
390-391 (1971)

14 16 American Jurisprudence 2d.

15 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17 Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

18 Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No. 73748, May
22, 1986.

CONCURRING OPINION

MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo. In G.R.
No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito Estrada is
the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is merely acting
President on account o the former's temporary disability. On the other hand, in G.R. Nos. 146710-15, the
petition seeks to prohibit respondent Ombudsman Aniano Desierto from investigating charges of
plunder, bribery, malversation of public funds, and graft and corruption against petitioner Estrada on the
theory that, being still President, he is immune from suit.
In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has been
done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the events
starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In support of
this contention, respondent cites the following statements of this Court concerning the Aquino
government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the judgment;
they have accepted the government of President Corazon C. Aquino which is in effective control of the
entire country so that it is not merely a de facto government but is in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of the present government. All the
eleven members of this Court, as reorganized, have sworn to uphold the fundamental law of the
Republic under her government.2

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods of
making such change have proved inadequate or are so obstructed as to be unavailable." It has been said
that "the locus of positive law-making power lies with the people of the state" and from there is derived"
the right of the people to abolish, to reform and to alter any existing form of government without regard
to the existing constitution."3

But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the subject
of judicial review. If a court decides the question at all qua court, it must necessarily affirm the existence
and authority of such government under which it is exercising judicial power.4 As Melville Weston long
ago put it, "the men who were judges under the old regime and the men who are called to be judges
under the new have each to decide as individuals what they are to do; and it may be that they choose at
grave peril with the factional outcome still uncertain."5 This is what the Court did in Javellana v.
Executive Secretary6 when it held that the question of validity of the 1973 Constitution was political and
affirmed that it was itself part of the new government. As the Court said in Occena v. COMELEC7 and
Mitra v. COMELEC,8 "[P]etitioners have come to the wrong forum. We sit as a Court duty-bound to
uphold and apply that Constitution. . . . It is much too late in the day to deny the force and applicability
of the 1973 Constitution."
In contrast, these cases do not involve the legitimacy of a government. They only involve the legitimacy
of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is precisely that
Macapagal-Arroyo's ascension to the presidency was in accordance with the Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk about
the fact that it was brought about by succession due to resignation or permanent disability of petitioner
Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest for power
Macapagal-Arroyo's government is the successful one and is now accepted by the people and recognized
by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February 1986.
There was no overthrow of the existing legal order and its replacement by a new one, no nullification of
the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that case,
in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President Jose
Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate gallery,
as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session and, followed
by six senators, walked out of the session hall. The remaining senators then declared the position of
President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting president. The question
was whether respondent Cuenco had been validly elected acting president of the Senate, considering
that there were only 12 senators (out of 24) present, one senator (Sen. Confesor) being abroad while
another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto brought
to determine the rightful president of the Senate, among other things, in view of the political nature of
the controversy, involving as it did an internal affair of a coequal branch of the government, in the end
this Court decided to intervene because of the national crisis which developed as a result of the
unresolved question of presidency of the Senate. The situation justifying judicial intervention was
described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half of
the members; warrants of arrest have been issued, openly defied, and remained unexecuted like mere
scraps of paper, notwithstanding the fact that the persons to be arrested are prominent persons with
well-known addresses and residences and have been in daily contact with news reporters and
photographers. Farce and mockery have been interspersed with actions and movements provoking
conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the President of
the Philippines. The situation has created a veritable national crisis, and it is apparent that solution
cannot be expected from any quarter other than this Supreme Court, upon which the hopes of the
people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but to
meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls for
the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-Arroyo's
presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria Macapagal-
Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which, once squeezed
out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the tube.
Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in tubes
at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R. No.
146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office of the
President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these cases be in
his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of law. In
election cases, people accept the decisions of courts even if they be against the results as proclaimed.
Recognition given by foreign governments to the presidency poses no problem. So, as far as the political
question argument of respondents is anchored on the difficulty or impossibility of devising effective
judicial remedies, this defense should not bar inquiry into the legitimacy of the Macapagal-Arroyo
administration.
This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President of
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and need
not be recounted in great detail here. They began in October 2000 when allegations of wrong doings
involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made against
petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000, petitioner was
impeached by the House of Representatives and, on December 7, impeachment proceedings were
begun in the Senate during which more serious allegations of graft and corruption against petitioner
were made and were only stopped on January 16, 2001 when 11 senators, sympathetic to petitioner,
succeeded in suppressing damaging evidence against petitioner. As a result, the impeachment trial was
thrown into an uproar as the entire prosecution panel walked out and Senate President Aquilino
Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the following
excerpts from the Far Eastern Economic Review and Time Magazine quoted in the Memorandum of
petitioner in G.R. Nos. 146710-15, thus:

The decision immediately sent hundreds of Filipinos out into the streets, triggering rallies that swelled
into a massive four-day demonstration. But while anger was apparent among the middle classes,
Estrada, a master of the common touch, still retained largely passive support among the poorest
Filipinos. Citing that mandate and exploiting the letter of the Constitution, which stipulates that a written
resignation be presented, he refused to step down even after all of the armed forced, the police and
most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC REVIEW, "More Power to
The Powerful", id, at p. 18].

When an entire night passed without Estrada's resignation, tens of thousands of frustrated protesters
marched on Malacañang to demand that the president leave office. An air force fighter jet and four
military helicopters buzzed the palace to remind the president that had lost the reins of power. [FAR
EASTERN ECONOMIC REVIEW, supra, ibid].

While the television cameras were focused on the rallies – and the commentators became lost in
reveries about People Power revisited – behind-the-scenes negotiations had been going on non-stop
between military factions loyal to Estrada and those who advocated a quick coup to depose the
President. Chief of Staff Reyes and Defense Secretary Mercado had made their fateful call to Estrada
after luncheon attended by all the top commanders. The officers agreed that renouncing Estrada was the
best course, in part because some commanders were urging more drastic resolution. If the military did
not come to a consensus, there loomed the possibility of factional fighting or, worse, civil war. [TIME,
"People Power Redux", id at p. 18]

It finally took a controversial Supreme Court declaration that the presidency was effectively vacant to
persuade Estrada to pack up and move out to his family home in Manila – still refusing to sign a letter of
resignation and insisting that he was the legal president [FAR EASTERN ECONOMIC REVIEW, "More
Power to the Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President and
the other to the Speaker of the House, indicating that he was unable to perform the duties of his
Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who under
the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem? This can
only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were all
televised and heard by millions of people throughout the length and breadth of this archipelago. As a
result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members resigned,
members of the Armed Forces of the Philippines and the Philippine National Police withdrew their
support of the President, while civil society announced its loss of trust and confidence in him. Public
office is a public trust. Petitioner lost the public's trust and as a consequence remained President only in
name. Having lost the command of the armed forces and the national police, he found Himself
vulnerable to threats of mayhem.
This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers and
functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's presidency:

The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired of the red
tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-attack.
He does not have the AFP or the Philippine National Police on his side. He is not only in a corner – he is
also down."16

This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M. of
Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled but
only temporarily unable to discharge the powers and duties of his office and therefore can only be
temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.

From this judgment that petitioner became permanently disabled because he had lost the public's trust,
I except extravagant claims of the right of the people to change their government. While Art. II, §1 of the
Constitution says that "sovereignty resides in the people and all government authority emanates from
them," it also says that "the Philippines is a democratic and republican state." This means that ours is a
representative democracy — as distinguished from a direct democracy — in which the sovereign will of
the people is expressed through the ballot, whether in an election, referendum, initiative, recall (in the
case of local officials) or plebiscite. Any exercise of the powers of sovereignty in any other way is
unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right to
revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious reasons.
As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness
— That to secure these Rights, Governments are instituted among Men, deriving their just Powers from
the Consent of the Governed, that whenever any Form of Government becomes destructive of these
Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its
Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely
to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established
should not be changed for light and transient Causes; and accordingly all Experience hath shewn, that
Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing
the Forms to which they are accustomed. But when a long Train of Abuses and Usurpations, pursuing
invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right,
it is their Duty, to throw off such Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-President
Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis, nay a vacuum, in
the executive leadership which made the government rife for seizure by lawless elements. The
presidency was up for grabs, and it was imperative that the rule of succession in the Constitution be
enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own Executive
Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents, namely,
Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The Philippines had two
presidents at that time for the simple reason that there were then two governments — the de facto
government established by Japan as belligerent occupant, of which Laurel was president, and the de jure
Commonwealth Government in exile of President Manuel L. Quezon. That a belligerent occupant has a
right to establish a government in enemy territory is a recognized principle of international law.18 But
today we have only one government, and it is the one set up in the 1987 Constitution. Hence, there can
only be one President.

Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the Philippines,
I find no need to discuss his claim of immunity from suit. I believe in the canon of adjudication that the
Court should not formulate a rule of constitutional law broader than is required by the precise facts to
which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this jurisdiction is
whether there has been "actual, not merely possible, prejudice"19 caused to petitioner as a result of
publicity. There has been no proof of this, and so I think this claim should simply be dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.

(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2 Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746, May 22, 1986.

3 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4 Luther v. Borden, 7 How. 1 (1848).

5 Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6 50 SCRA 30 (1973).

7 104 SCRA ! (1981).

8 104 SCRA 59 (1981).

9 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10 83 Phil. 17 (1949).

11 83 Phil. At 76 (Perfecto, J., concurring).

12 Id. at 25-26 (concurring and dissenting).

13 Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14 Petition, G.R. No. 146738, p. 13.

15 Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6, 2001.

16 Id. (emphasis added).

17 Emphasis added.

18 Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285 (1945); Laurel v.
Misa, 77 Phil. 856 (1947).

19 See Martelino v. Alejandro, 32 SCRA 106 (1970).

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