PONTEJOS VS. OFFICE OF THE OMBUDSMAN 483 SCRA 83 Facts: Sometime in 1998, Restituto P.

Aquino filed an Affidavit/Complaint before theOmbudsman against Emmanuel T. Pontejos (arbiter), Wilfredo I. Imperial (regionaldirector) and Carmencita R. Atos (legal staff), all of them officials of the Housing andLand Use Regulatory Board (HLURB).Several documents were adduced during the preliminary investigation findingprobable cause against Pontejos for the crimes of estafa, direct bribery and illegalpractice of profession in violation of RA 6713. Consequently, criminal cases for estafaand bribery against Pontejos were filed before the RTC of Quezon City. Prior to that,Atos was extended immunity as a state witness by the Ombudsman Aniano A.Desierto. Pontejos motioned for reinvestigation to be conducted by the CityProsecutor without remanding the case to the Ombudsman. The Assistant CityProsecutor, after conducting reinvestigation, recommended amending the Informationfor estafa to include Atos as accused reasoning that the power to grant immunitypertains solely to the courts not to the prosecution which can only recommend. TheOverall Deputy Ombudsman disapproved the prosecutors report in May 21, 2002Review and Recommendation. The March 14, 2003 Order denied reconsideration. Thus, the Petition for Certiorari under Rule 65 of the Rules of Court was filed byPontejos. Issue: Whether or not there was grave abuse of discretion of the Ombudsmanamounting to lack of or excess of jurisdiction when it granted immunity to Atos tobecome a state witness. Held: The court held in the negative. The power to choose who to discharge as statewitness is an executive function. It is the prosecution that could essentially determinethe strength of pursuing the case against an accused. The prosecutorial powersinclude the discretion of granting immunity to an accused in exchange for testimonyagainst another. Essentially, it is not a judicial prerogative. The fact that an individualhad not been previously charged or included in an information does not prevent theprosecution from utilizing said person as a witness Note: Can the Ombudsman grant immunity from prosecution? Yes, any person whose testimony or production of documents or other evidence is necessary to determine the truth in any inquiry, hearing, or proceeding being conducted by the Office of the Ombudsman or under its authority in the performance or furthermore of its Constitutional functions and statutory objectives, including preliminary investigation, may be granted immunity from criminal prosecution by the Ombudsman, upon such terms and conditions as the Ombudsman may determine, taking into account the pertinent provisions of the Rules of Court. How is the immunity from prosecution granted by the Ombudsman? The immunity from prosecution may be granted upon application of the concerned party, the investigating, and hearing, or prosecuting officer, or at the instance of the Ombudsman. However, in all cases, the concerned party shall execute an affidavit reciting the substance of his proposed testimony and/or nature of the evidence in his possession. How is the immunity from prosecution granted by the Ombudsman? The immunity from prosecution may be granted upon application of the concerned party, the investigating, and hearing, or prosecuting officer, or at the instance of the Ombudsman. However, in all cases, the concerned party shall execute an affidavit reciting the substance of his proposed testimony and/or nature of the evidence in his possession.

BIRAOGO vs PTC SC: Philippine Truth Commission of 2010 Void At the dawn of his administration, President Noynoy signed Executive Order No. 1 establishing the Philippine Truth Commission of 2010 (Truth Commission). The Philippine Truth Commission (PTC) is created to investigate reports of graft and corruption committed by third-level public officers and employees, their co-principals, accomplices and accessories during the administration of Gloria Macapagal Arroyo, and thereafter to submit its finding and recommendations to the President, Congress and the Ombudsman. Barely a month after the issuance of EO No. 1, two cases were filed before the SC assailing the validity and constitutionality of the said EO.

The first case is a special civil action for prohibition instituted by petitioner Louis Biraogo in his capacity as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative power of Congress under Section 1, Article VI of the Constitution as it usurps the constitutional authority of the legislature to create a public office and to appropriate funds therefor. Biraogo argues that EO No. 1 is unconstitutional because there is no provision in the Constitution or any specific law that authorizes the President to create a truth commission.

The second case is a special civil action for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent members of the House of Representatives. Petitioners-Legislators argue that the said Order is unconstitutional because the creation of a public office lies within the province of Congress and not with the executive branch of government.

The OSG counters that there is nothing exclusively legislative about the creation by the President of a fact-finding body such as a truth commission. Pointing to numerous offices created by past presidents, it argues that the authority of the President to create public offices within the Office of the President Proper has long been recognized. According to the OSG, the Executive, just like the other two branches of government, possesses the inherent authority to create factfinding committees to assist it in the performance of its constitutionally mandated functions and in the exercise of its administrative functions. The OSG also cites the recent case of Banda v. Ermita, where it was held that the President has the power to reorganize the offices and agencies in the executive department in line with his constitutionally granted power of control and by virtue of a valid delegation of the legislative power to reorganize executive offices under existing statutes. The OSG concludes that the power of control necessarily includes the power to create offices. 1. Does the creation of the PTC fall within the ambit of the power to reorganize as expressed in Section 31 of the Revised Administrative Code? SUGGESTED ANSWER: No. The power to reorganize as expressed in Section 31 of the Revised Administrative Code? Section 31 contemplates reorganization as limited by the following functional and structural lines: (1) restructuring the internal organization of the Office of the President Proper by abolishing, consolidating or merging units thereof or transferring functions from one unit to another; (2) transferring any function under the Office of the President to any other Department/Agency or vice versa; or (3) transferring any agency under the Office of the President to any other Department/Agency or vice

versa. Clearly, the provision refers to reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions. These point to situations where a body or an office is already existent but a modification or alteration thereof has to be effected. The creation of an office is nowhere mentioned, much less envisioned in said provision. Accordingly, the answer to the question is in the negative.

2. May the President legally create the Philippine Truth Commission (PTC)? Is there a valid delegation of power from Congress empowering the President to create a public office? Yes.The creation of the PTC finds justification under Section 17, Article VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. Section 17 reads: Section 17. The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed. Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.

On the charge that Executive Order No. 1 transgresses the power of Congress to appropriate funds for the operation of a public office, suffice it to say that there will be no appropriation but only an allotment or allocations of existing funds already appropriated. Accordingly, there is no usurpation on the part of the Executive of the power of Congress to appropriate funds. fellester.blogspot.com Further, there is no need to specify the amount to be earmarked for the operation of the commission because, in the words of the Solicitor General, whatever funds the Congress has provided for the Office of the President will be the very source of the funds for the commission. Moreover, since the amount that would be allocated to the PTC shall be subject to existing auditing rules and regulations, there is no impropriety in the funding. 3. According to petitioners, E.O. No. 1 illegally amended the Constitution and pertinent statutes when it vested the Truth Commission with quasi-judicial powers duplicating, if not superseding, those of the Office of the Ombudsman created under the 1987 Constitution and the Department of Justice created under the Administrative Code of 1987. Is this correct? No. Fact-finding is not adjudication and it cannot be likened to the judicial function of a court of justice, or even a quasijudicial agency or office. Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices. As pointed out by the Solicitor General, the recommendation to prosecute is but a consequence of the overall task of the commission to conduct a fact-finding investigation.

The actual prosecution of suspected offenders, much less adjudication on the merits of the charges against them, is certainly not a function given to the commission. The phrase, when in the course of its investigation, under Section 2(g), highlights this fact and gives credence to a contrary interpretation from that of the petitioners. The function of determining probable cause for the filing of the appropriate complaints before the courts remains to be with the DOJ and the Ombudsman.

4. Petitioners argue that E.O. No. 1 violates the equal protection clause as it selectively targets for investigation and prosecution officials and personnel of the previous administration as if corruption is their peculiar species even as it excludes those of the other administrations, past and present, who may be indictable. Are the petitioners correct? Yes! Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987 Constitution. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. Superficial differences do not make for a valid classification. Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth concerning the reported cases of graft and corruption during the previous administration only. The intent to single out the previous administration is plain, patent and manifest. In this regard, it must be borne in mind that the Arroyo administration is but just a member of a class, that is, a class of past administrations. fellester.blogspot.com It is not a class of its own. Not to include past administrations similarly situated constitutes arbitrariness which the equal protection clause cannot sanction. Such discriminating differentiation clearly reverberates to label the commission as a vehicle for vindictiveness and selective retribution. Though the OSG enumerates several differences between the Arroyo administration and other past administrations, these distinctions are not substantial enough to merit the restriction of the investigation to the previous administration only. (Biraogo vs. The Philippine Truth Commission of 2010 G.R. No. 192935 & G.R. No. 19303, December 7, 2010) Senate vs. Ermita G.R. No. 169777, July 14, 2006

Requisites of Judicial Review Legislative Inquiry vs. Executive Privilege Executive Privilege, defined Kinds of Executive Privilege Executive Privilege as applied to an official Constitutionality of EO 464

FACTS:

This case is regarding the railway project of the North Luzon Railways Corporation with the China National Machinery and Equipment Group as well as the Wiretapping activity of the ISAFP, and the Fertilizer scam.

The Senate Committees sent invitations to various officials of the Executive Department and AFP officials for them to appear before Senate on Sept. 29, 2005. Before said date arrived, Executive Sec. Ermita sent a letter to Senate President Drilon, requesting for a postponement of the hearing on Sept. 29 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 refused the request.

On Sept. 28, 2005, the President issued EO 464, effective immediately, which, among others, mandated that 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. Pursuant to this Order, Executive Sec. Ermita communicated to the Senate that the executive and AFP officials would not be able to attend the meeting since the President has not yet given her consent. Despite the lack of consent, Col. Balutan and Brig. Gen. Gudani, among all the AFP officials invited, attended the investigation. Both faced court marshal for such attendance.

Hence, these petitions.

ISSUES: Whether or not EO 464 contravenes the power of inquiry vested in Congress Whether or not EO 464 violates the right of the people to information on matters of public concern Whether or not respondents have committed grave abuse of discretion when they implemented EO 464 prior to its publication in a newspaper of general circulation RULING:

ESSENTIAL REQUISITES OF JUDICIAL REVIEW: there must be an actual case or controversy calling for the exercise of judicial power; 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; the question of constitutionality must be raised as the earliest opportunity; and the issue of constitutionality must be the very lis mota of the case.

LEGAL STANDING Standing of the Senate 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 legislation is not disputed. EO 464, however, allegedly stifles the ability of the members of Congress to access information that is crucial to law-making. 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 EO 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.

Standing of an ordinary citizen

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 Francisco v. House of Representatives, 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.

Requisites for transcendental importance: 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.

ACTUAL CASE/CONTROVERSY

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 EO 464 is concerned. For EO 464 does not require either a deliberative 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 EO 464.

The power of inquiry

The Congress power of inquiry is expressly recognized in Sec. 21, Art. VI. But as early as 1950 (the 1935 Constitution did not contain a similar provision) in Arnault v. Nazareno, the Court already recognized that the power of inquiry is inherent in the power to legislate. xxx

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...is co-extensive with the power to legislate. 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.

xxx the power of inquiry, with process to enforce it, is grounded on the necessity of the 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.

The power of inquiry is subject to judicial review

xxx the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Courts certiorari powers under Sec. 1, Art. VIII.

For one...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...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 investigations, 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.

Sec. 21, Art. VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Sec. 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.

Exemption to power of inquiry

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which exemptions falls under the rubric of executive privilege.

Executive privilege, defined

Schwartz defines executive privilege as the power of the Government to withhold information from the public, the courts, and the Congress. 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.

Kinds of executive privilege

One variety of the privilege...is the state secrets privilege...on the ground that the information is of such nature that its disclosure would subvert crucial military or diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of that law. Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.

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.

The principle of executive privilege

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.

xxx

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.

Constitutionality of Sec. 1, EO 464

Section 1, in view of its specific reference to Sec. 22 of Art. VI 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 Sec. 22, Art. VI xxx

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 Sec. 22, Art. VI, 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 Sec. 2 and 3, EO 464

En passant, the Court notes that Section 2(b) of EO 464 virtually states that executive privilege actually covers persons. Such is a misuse of the doctrine. Executive privilege...is properly invoked in relation to specific categories of information and not to categories of persons.

The claim of executive privilege must be accompanied by specific allegation of basis thereof

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 xxx

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 xxx

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. A useful analogy in determining the requisite degree of particularity would be the privilege against self-incrimination xxx

The claim of privilege under Sec. 3, EO 464 in relation to Sec. 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 EO 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 EO 464 must be invalidated.

EO 464 unlawfully delegated authority to the heads of offices in Sec. 2(b) to determine certain information as privileged

Section 2(b) in relation to Section 3 virtually provides that, once the head of office determines that a certain information is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, subject only to the express pronouncement of the President that it is allowing the appearance of such official. These provisions thus allow the President to authorize claims of privilege by mere silence.

Such presumptive authorization, however, is contrary to the exception nature of the privilege. Executive privilege...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, or in those instances where exemption from disclosure is necessary to the discharge of highly important executive responsibilities. The doctrine of executive privilege is thus premised on the fact

that certain informations (sic) 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.

How executive privilege should be applied in the case of an official

xxx 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, afer 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. Neri vs. Senate G.R. No. 180643, March 25, 2008

Former NEDA Director General Romulo Neri testified before the Senate for 11 hours relating to the ZTE-NBN mess. However, when probed further on what he and the President discussed about the NBN Project, he refused to answer, invoking executive privilege. In particular, he refused to answer 3 questions:

(a) whether or not President Arroyo followed up the NBN Project (b) whether or not she directed him to prioritize it (c) whether or not she directed him to approve it

Unrelenting, the Senate Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and testify on November 20, 2007. However, Executive Secretary Eduardo R. Ermita requested the Senate Committees to dispense with Neris testimony on the ground of executive privilege. In his letter, Ermita said that the information sought to be disclosed might impair our diplomatic as well as economic relations with China. Neri did not appear before the Committees. As a result, the Senate issued an Order citing him in contempt and ordered his arrest and detention until such time that he would appear and give his testimony.

Are the communications elicited by the subject three (3) questions covered by executive privilege?

SUGGESTED ANSWER:

Yes. The Communications elicited by the 3 Questions are covered by Executive Privilege. xxx we are convinced that the communications elicited by the questions are covered by the presidential communications privilege. First, the communications relate to a quintessential and non-delegable power of the President, i.e. the power to enter into an executive agreement with other countries. This authority of the President to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are received by a close advisor of the President. Under the operational proximity test, petitioner can be considered a close advisor, being a member of President Arroyos cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority. The Senate contends that the grant of the executive privilege violates the Right of the people to information on matters of public concern. Is the senate correct? ANSWER: No. 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. The right of Congress or any of its Committees to obtain information in aid of legislation cannot be equated with the peoples right to public information. The distinction between such rights is laid down in Senate v. Ermita: There are clear distinctions between the right of Congress to information which underlies the power of inquiry and the right of 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, not to an individual citizen. (visit fellester.blogspot.com)

On March 6, 2008, President Arroyo issued Memorandum Circular No. 151, revoking E.O. 464. Is there a recognized claim of executive privilege despite the revocation of E.O. 464?

ANSWER: Yes. The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional underpinnings.

In Senate v. Ermita, the executive privilege should be invoked by the President or through the Executive Secretary by order of the President. Did Executive Secretary Ermita correctly invoke the principle of executive privilege, by order of the President?

ANSWER: Yes. The Letter dated November 17, 2007 of Executive Secretary Ermita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly. Obviously, he is referring to the Office of the President. That is more than enough compliance. May the Congress require the executive to state the reasons for the claim with particularity? ANSWER: No. The 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. This is a matter of respect to a coordinate and co-equal department. (Senate v. Ermita) Is the contempt and arrest Order of Neri valid? ANSWER: No. There being a legitimate claim of executive privilege, the issuance of the contempt Order suffers from constitutional infirmity. The respondent Committees did not comply with the requirement laid down in Senate v. Ermita that the invitations should contain the possible needed statute which prompted the need for the inquiry, along with the usual indication of the subject of inquiry and the questions relative to and in furtherance thereof. The SC also find merit in the argument of the OSG that respondent Committees violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in accordance with the duly published rules of procedure. The respondent Committees issuance of the contempt Order is arbitrary and precipitate. It must be pointed out that respondent Committees did not first pass upon the claim of executive privilege and inform petitioner of their ruling. Instead, they curtly dismissed his explanation as unsatisfactory and simultaneously issued the Order citing him in contempt and ordering his immediate arrest and detention. (Neri vs. Senate, G.R. No. 180643, March 25, 2008) AKBAYAN vs. Aquino G.R. No. 170516, July 16, 2008

JPEPA Diplomatic Negotiations are Privileged Executive Privilege, an Exception to Congress' Power of Inquiry Treaty-making Power Executive Privilege vs. People's Right to Information

FACTS:

This is regarding the JPEPA, the bilateral free trade agreement ratified by the President with Japan, concerning trade in goods, rules of origin, customs procedures, paperless trading, trade in services, investment, etc.

Prior to Presidents signing of JPEPA in Sept. 2006, petitioners non-government organizations, Congresspersons, citizens and taxpayers sought via petition for mandamus and prohibition to obtain from respondents the full text of the JPEPA, including the Philippine and Japanese offers submitted during the negotiation process and all pertinent attachments and annexes thereto. Particularly, Congress through the House Committee are calling for an inquiry into the JPEPA, but at the same time, the Executive is refusing to give them the said copies until the negotiation is completed.

ISSUES: Whether or not petitioners have legal standing Whether or not the Philippine and Japanese offers during the negotiation process are privileged Whether or not the President can validly exclude Congress, exercising its power of inquiry and power to concur in treaties, from the negotiation process

RULING:

Standing

In a petition anchored upon the right of the people to information on matters of public concern, which is a public right by its very nature, petitioners need not show that they have any legal or special interest in the result, it being sufficient to show that they are citizens and, therefore, part of the general public which possesses the right. As the present petition is anchored on the right to information and petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members of the House of Representatives who additionally are suing in their capacity as such, the standing of petitioners to file the present suit is grounded in jurisprudence.

JPEPA, A Matter of Public Concern

To be covered by the right to information, the information sought must meet the threshold requirement that it be a matter of public concern xxx

From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the doctrine of executive privilege, thus constituting an exception to the right to information and the policy of full public disclosure.

Privileged Character of Diplomatic Negotiations Recognized

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity for discussion before [a treaty] is approved the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that historic confidentiality would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations.

A ruling that Philippine offers in treaty negotiations should not be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations. While, on first impression, it appears wise to deter Philippine representatives from entering into compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area of lesser importance in order to obtain more favorable terms in an area of greater national interest.

Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA negotiations constituting no exception. It bears emphasis, however, that such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not mean that it will be considered privileged in all instances. Only after a consideration of the context in which the claim is made may it be determined if there is a public interest that calls for the disclosure of the desired information, strong enough to overcome its traditionally privileged status.

Does the exception apply even though JPEPA is primarily economic and does not involve national security?

While there are certainly privileges grounded on the necessity of safeguarding national security such as those involving military secrets, not all are founded thereon. One example is the informers privilege, or the privilege of the Government not to disclose the identity of a person or persons who furnish information of violations of law to officers charged with the enforcement of that law. The suspect involved need not be so notorious as to be a threat to national security for this privilege to apply in any given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in which case not only would this be contrary to long-standing practice. It would also be highly prejudicial to law enforcement efforts in general.

Also illustrative is the privileged accorded to presidential communications, which are presumed privileged without distinguishing between those which involve matters of national security and those which do not, the rationale for the privilege being that 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.

In the same way that the privilege for judicial deliberations does not depend on the nature of the case deliberated upon, so presidential communications are privileged whether they involve matters of national security.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, one significant qualification being that the Executive cannot, any more than the other branches of government, invoke a general confidentiality privilege to shield its officials and employees from investigations by the proper governmental institutions into possible criminal wrongdoing. This qualification applies whether the privilege is being invoked in the context of a judicial trial or a congressional investigation conducted in aid of legislation.

Closely related to the presidential communications privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co, deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, the objective of the privilege being to enhance the quality of agency decisions.

The diplomatic negotiations privilege bears a close resemblance to the deliberative process and presidential communications privilege. It may be readily perceived that the rationale for the confidential character of diplomatic negotiations, deliberative process, and presidential communications is similar, if not identical.

The earlier discussion on PMPF v. Manglapus shows that the privilege for diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding such negotiations from public view. Similar to the privilege for presidential communications, the diplomatic negotiations privilege seeks, through the same means, to protect the independence in decision-making of the President, particularly in its capacity as the sole organ of the nation in its external relations, and its sole representative with foreign nations. And, as with the deliberative process privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the information per se, but because the information is part of a process of deliberation which, in pursuit of the public interest, must be presumed confidential.

Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the privileged character of the deliberative process.

Does diplomatic privilege only apply to certain stages of the negotiation process?

In Chavez v. PEA and Chavez v. PCGG, the Court held that with regard to the duty to disclose definite propositions of the government, such duty does not include recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order.

Treaty-making power of the President

xxx they (petitioners) argue that the President cannot exclude Congress from the JPEPA negotiations since whatever power and authority the President has to negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.

The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and international agreements, but the power to fix tariff rates, import and export quotas, and other taxes xxx.

As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the article on the Executive Department.

xxx

While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by the President only be delegation of that body, it has long been recognized that the power to enter into treaties is vested directly and exclusively in the President, subject only to the concurrence of at least two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of the President to enter into trade agreements with foreign nations provided under P.D. 1464 may be interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis to hold the President or its representatives accountable to Congress for the conduct of treaty negotiations.

This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the requirement of Senate concurrence, since the President must still enure that all treaties will substantively conform to all the relevant provisions of the Constitution.

It follows from the above discussion that Congress, while possessing vast legislative powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence, such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it is not even Congress as a while that has been given the authority to concur as a means of checking the treaty-making power of the President, but only the Senate.

Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the House of Representatives fail to present a sufficient showing of need that the information sought is critical to the performance of the functions of Congress, functions that do not include treaty-negotiation.

Did the respondents alleged failure to timely claim executive privilege constitute waiver of such privilege?

That respondent invoked the privilege for the first time only in their Comment to the present petition does not mean that the claim of privilege should not be credited. Petitioners position presupposes that an assertion of the privilege should have been made during the House Committee investigations, failing which respondents are deemed to have waived it.

xxx (but) Respondents failure to claim the privilege during the House Committee hearings may not, however, be construed as a waiver thereof by the Executive branch. xxx what respondents received from the House Committee and petitioner-Congressman Aguja were mere requests for information. And as priorly stated, the House Committee itself refrained from pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance.

The privilege is an exemption to Congress power of inquiry. So long as Congress itself finds no cause to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents failure to invoke the privilege during the House Committee investigations did not amount to waiver thereof.

Showing of Need Test

In executive privilege controversies, the requirement that parties present a sufficient showing of need only means, in substance, that they should show a public interest in favor of disclosure sufficient in degree to overcome the claim of privilege. Verily, the Court in such cases engages in a balancing of interests. Such a balancing of interests is certainly not new in constitutional adjudication involving fundamental rights.

xxx However, when the Executive has as in this case invoked the privilege, and it has been established that the subject information is indeed covered by the privilege being claimed, can a party overcome the same by merely asserting that the information being demanded is a matter of public concern, without any further showing required? Certainly not, for that would render the doctrine of executive privilege of no force and effect whatsoever as a limitation on the right to information, because then the sole test in such controversies would be whether an information is a matter of public concern.

Right to information vis-a-vis Executive Privilege

xxx the Court holds that, in determining whether an information is covered by the right to information, a specific showing of need for such information is not a relevant consideration, but only whether the same is a matter of public concern. When, however, the government has claimed executive privilege, and it has established that the information is indeed covered by the same, then the party demanding it, if it is to overcome the privilege, must show that that information is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political, and economic decision-making. Prof. Randolf S. David, et al., Vs. Gloria Macapagal-Aroyo et al., G.R. No. 171396

Facts : On February 24, 2006, as the nation celebrated the 20th Anniversary of Edsa People Power I, President Arroyo issued PP 1017 declaring a state of national emergency, she cited that over the past three months, element 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 adventurist the historical enemies of the democratic Philippine State who are now in a tactical alliance and engaged in a concerted systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004, On the same day, The President issued G.O. No. 5 implementing PP 1017. By the virtue of power vested upon the President by the Constitution and Commander in chief of the Republic of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, the president call upon the Armed Forces of the Philippines and the Philippine National Police, to prevent and suppress acts of terrorism and lawless violence in the country.

The Office of the President announced the cancellation of all programs and activities related to the 20th anniversary celebration of edsa people power 1; and revoked the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for purpose of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrest and takeover of facilities, including media, can already be implemented.

Undeterred by the announcements that rallies and public protest would not be allowed, members of Kilusang Mayo Uno and National Federation of Labor Unions, marched from various parts of Metro Manila with the intention of converging

at the EDSA shrine. Those who where already near EDSA were violently dispersed by huge cluster of anti-riot police. The same police action was used against the protesters marching forward to Cubao, Quezon City and the corner of Santolan street and EDSA. That same evening, hundreds of riot police broke up an EDSA celebration rally held along Ayala Avenue and Paseo de Roxas street in Makaty City.

During the dispersal of the rallyist along EDSA, police arrested without warrant petitioner Randolf S. David, a Proffesor of 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 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.

A few minutes later after the search and seizure at the Daily Tribune. The police surrounded the premises of another pro-opposition paper, Malaya and its sister publication, tabloid Abante.

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis party and Chairman of Kilusang Mayo Uno, while leaving his farmhouse in Bulacan. The police showed a warrant for his arrest gated 1985. Beltrans lawyer explained that the warrant, which stemmed form a case of inciting to rebellion filed during the Marcos regime, had long been quashed. When members of petitioner KMU went to Camp Crame to visit beltran, they were told they could not be admitted because PP 1017 and G.O. No.5. Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at the Sulo Hotel in Quezon City. Retired Major General Ramon Montao, former head of the Philippine Constabulary, were arrested while with his wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite. Attempts were made to arrest Bayan Muna Represenatative Satur Ocampo, Teodoro Casio, Anakpawis Representative Rafael Mariano, Gabriela Representative Liza Maza, Bayan Muna Representative Jose Virador was arrested at a PAL ticket Office in Davao City, Later, he was turned to the custody of the House of Representative where the Batasan % decided to stay indefinitely.

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, and issued Proclamation No. 1021.

Issue: Whether the issuance of PP 1017 is Constitutional, Whether the provision of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated by the President, and provision declaring national emergency under section 17, article VII of the Constitution is Constitutional. Whether G.O. No. 5 is Constitutional Whether the dispersal and warrantless arrest, the warrantless search are Constitutional.

Held: PP 1017 is constitutional insofar as it constitute 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. However, PP 1017s extraneous provisions giving the President express or implied power to issue decrees to direct AFP to enforce obedience to all laws even those not related to lawless violence as decrees promulgated by the President; and 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 element, 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 provisions of PP 1017. Significantly, it also provides valid standard that the military and the police should take necessary and appropriate actions and measure to suppress and prevent acts of lawless violence. But the word acts of terrorism found in G.O. No. 5 have not been denounced generally in media, no law has been enacted to guide the military, and eventually the courts, to determine the limits of the AFPs 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 trhat the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; the dispersal of rallies and warrantless arrest of the KMU and NAFLUKMU members; the imposition of standard on media or any prior restraint on the press; and the warrantless search of the tribune offices and whimsical seizure of some article 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

Wherefore, The Petitions are partly granted. The court rules that PP 1017 is Constitutional insofar as it constitute a call by the 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 which the AFP and the PNP should implement PP 1017, 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 legislature, such portion of G.O. No. 5 is declared Unconstitutional.

The warrantless arrest of Randolf S. David and Ronal Llamas; the dispersal and warrantless arrest of KMU and NAFLUKMU members during their rallies, in 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 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.

The operative portion of PP 1017 may be divided into three important provisions, as noted in the brackets above.

1. Calling-out power The validity of this power is already settled in Sanlakas. However, there is a distinction between the Presidents authority to declare a state of rebellion (in Sanlakas) and the authority to proclaim a state of national emergency. In declaring a state of national emergency under PP 1017, President Arroyo did not only rely on Section 18, Article VII of the Constitution. She also relied on Section 17, Article XII, a provision on the States 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 Sanlakas.

2. Take Care Power 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 first part is valid. As the Executive in whom the executive power is vested, the primary function of the President is to enforce the laws as well as to formulate policies to be embodied in existing laws. 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. However, the President cannot issue decrees similar to those issued by former President Ferdinand Marcos under PP 1081 (declaring martial law). Presidential Decrees are laws which are of the same category and binding force as statutes. PP 1017 is, therefore, unconstitutional insofar as it grants President Arroyo the authority to promulgate decrees. 3. Power to Take Over PP 1017 authorizes the President to call the military not only to enforce obedience to all the laws and to all decrees, but also to act pursuant to the provision of Section 17, Article XII:

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? According to the Supreme Court, 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. However, Section 17 must be understood as an aspect of the emergency powers clause. When Section 17 speaks of the State, it refers to Congress, not the President. The exercise of emergency powers, such as the taking over of privately

owned public utility or business affected with public interest, requires a delegation from Congress in accordance with Section 23, Article VI of the Constitution, the requirements of which are: (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.

Nevertheless, a distinction must be drawn between the Presidents authority to declare a state of national emergency and to exercise emergency powers. The President is authorized to 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 takeover 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 SBeltran is among the petitioners in this case. He together with others was charged for libel by the president. Cory herself filed a complaint-affidavit against him and others. Makasiar averred that Cory cannot file a complaint affidavit because this would defeat her immunity from suit. He grounded his contention on the principle that a president cannot be sued. However, if a president would sue then the president would allow herself to be placed under the courts jurisdiction and conversely she would be consenting to be sued back. Also, considering the functions of a president, the president may not be able to appear in court to be a witness for herself thus she may be liable for contempt.

BELTRAN VS MAKASIAR SSUE: Whether or not such immunity can be invoked by Beltran, a person other than the president.

HELD: 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-holders 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 Presidents behalf. Thus, an accused like Beltran et al, 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 courts jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the Presidents prerogative. It is a decision that cannot be assumed and imposed by any other person.tate under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

SOLIVEN V MAKASIAR PER CURIAM; November 14, 1988 NATURE - Petition for certiorari and prohibition to review the decision of Manila RTC FACTS - This case consists of three consolidated petitions (Soliven v Makasiar, Beltra v Makasiar and Beltran v ExecutiveSecretary).- The President asked for the prosecution of a newspaper columnist, the publisher and chairman of the editorialboard, the business manager and the managing editor for libel. Petitioners Claims

- With regard to the third issue, the Presidents immunity from suit results to an automatic correlation that he is also not allowed from filing suits- If criminal suits were allowed, the President may subsequently become a prosecution witness.- This would, in an indirect way, defeat her privilege of immunity from suit, as by testifying on the witness stand, shewould be exposing herself to possible contempt of court or perjury. ISSUES 1. WON petitioners were denied due process when informations for libel were filed against them although the findingof the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by thePresident2. WON the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrestwithout personally examining the complainant and the witnesses, if any, to determine probable cause3. WON the President of the Philippines, under the Constitution, may initiate criminal proceedings against thepetitioners through the filing of a complaint-affidavit HELD 1. Ratio Due process of law does not require that the respondent in a criminal case actually file his counter-affidavitsbefore the preliminary investigation is deemed completed. All that is required is that the respondent be given theOpportunity to submit counter-affidavits if he is so minded. Reasoning Instead of submitting his counter-affidavits, he filed a "Motion to Declare Proceedings Closed", in effect waiving hisright to refute the complaint by filing counter-affidavits.-The first issue was rendered moot and academic because of events that unfolded.- March 30, 1988 DOJ secretary denied the motion for reconsideration of the petitioners and upheld the resolutionof the DOJ undersecretary which sustained the findings of the city fiscal of a prima facie case against the petitioners.- April 7, 1988

 a second motion for reconsideration was denied by the DOJ secretary- On appeal the President (through the Executive Secretary) affirmed the resolution of the DOJ secretary- The argument of the petitioners that they have not been granted the administrative remedies available does nothold water.With regard to Beltrans arguments that he was denied due process of law in the preliminary investigation: 2. Ratio What the Constitution underscores is the exclusive and personal responsibility of the issuing judge tosatisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for theissuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Reasoning - It is not accurate to say that the judge should personally examine the complainant and the witnesses in determiningprobable cause.- Procedure to be followed by the judge (based on established doctrine and procedure): 1. personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on based on these documents, issue a warrant of arrest2. if he finds no basis for 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- The Supreme Court unanimously adopted Circular # 12 which established the guidelines for the issuance of awarrant of arrest.- In this case, there is no showing that the respondent judge has deviated from the established procedure.The second issue calls for an evaluation of Sec. 2 of Art. 3 (on the right of the people to be secure in their persons,houses, papers and effects from unreasonable searches and seizures). The said provision states that the judge should personally determine the probable cause before a search warrant can be issued. 3. The privilege of immunity from suit granted to the President may be waived should the Chief Executive choose tosubmit him/herself to the jurisdiction of the Court since no Constitutional provision bars her from doing so.In the issue regarding the chilling effect this suit would have on freedom of speech, the Court has decided to defer judgment on that CASE DIGEST: ESTRADA VS. ARROYO; ESTRADA VS. DESIERTO

G.R. No. 146738 Estrada vs. Arroyo

G.R. No 146710-15 Estrada vs. Desierto

March 2, 2001

FACTS:

Estrada was inaugurated as president of the Republic of the Philippines on June 30, 1998 with Gloria Macapagal-Arroyo as his Vice President.

In October 2000, Ilocos Sur governor Luis Chavit Singson, a close friend the President, alleged that he had personally given Estrada money as payoff from jueteng hidden in a bank account known as Jose Velarde a grassroots-based numbers game. Singsons allegation also caused controversy across the nation, which culminated in the House of Representatives filing of an impeachment case against Estrada on November 13, 2000. House Speaker Manny Villar fasttracked the impeachment complaint. The impeachment suit was brought to the Senate and an impeachment court was formed, with Chief Justice Hilario Davide, Jr. as presiding officer. Estrada, pleaded not guilty.

The expos immediately ignited reactions of rage. On January 18, a crowd continued to grow at EDSA, bolstered by students from private schools and left-wing organizations. Activists from the group Bayan and Akbayan as well as lawyers of the Integrated Bar of the Philippines and other bar associations joined in the thousands of protesters.

On January 19, The Philippine National Police and the Armed Forces of the Philippines also withdrew their support for Estrada and joined the crowd at EDSA Shrine.

At 2:00pm, Estrada appeared on television for the first time since the beginning of the protests and maintains that he will not resign. He said that he wanted the impeachment trial to continue, stressing that only a guilty verdict will remove him from office.

At 6:15pm, Estrada again appeared on television, calling for a snap presidential election to be held concurrently with congressional and local elections on May 14, 2001. He added that he will not run in this election.

OnJanuary 20, the Supreme Court declared that the seat of presidency was vacant, saying that Estrada constructively resigned his post. Noon of the same day, Gloria Macapagal-Arroyo took her oath of office in the presence of the crowd at EDSA, becoming the 14th president of the Philippines.

At 2:00 pm, Estrada released a letter saying he had strong and serious doubts about the legality and constitutionality of her proclamation as president, but saying he would give up his office to avoid being an obstacle to healing the nation. Estrada and his family later left Malacaang Palace.

A heap of cases then succeeded Estradas leaving the palace, which he countered by filing a peition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent Ombudsman from conducting any further proceedings in cases filed against him not until his term as president ends. He also 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. ISSUE: 1.) Whether or not the case at bar a political or justiciable issue. If justiciable, whether or not petitioner Estrada was a president-on-leave or did he truly resign. 2.) Whether or not petitioner may invokeimmunity from suits. HELD: The Court defines a political issue as 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. The Court made a distinction between the Aquino presidency and the Arroyo presidency. The Court said that while the Aquino government was a government spawned by the direct demand of the people in defiance to the 1973 Constitution, overthrowing the old government entirely, the Arroyo government on the other hand was a government exercising under the 1987 constitution, wherein only the office of the president was affected. In the former, it The question of whether the previous president (president Estrada) truly resigned subjects it to judicial review. The Court held that the issue is legal and not political. For the president to be deemed as having resigned, there must be an intent to resign and the intent must be coupled by acts of relinquishment. It is important to follow the succession of events that struck petitioner prior his leaving the palace. Furthermore, the quoted statements extracted from the Angara diaries, detailed Estradas implied resignation On top of all these, the press release he issued regarding is acknowledgement of the oath-taking of Arroyo as president despite his questioning of its legality and his emphasis on leaving the presidential seat for the sake of peace. The Court held that petitioner Estrada had resigned by the use of the totality test: prior, contemporaneous and posterior facts and circumstantial evidence bearing a material relevance on the issue.

As to the issue of the peitioners contention that he is immuned from suits, the Court held that petitioner is no longer entitled to absolute immunity from suit. The Court added that, given the intent of the 1987 Constitution to breathe life to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim executive immunity for his alleged criminal acts committed while a sitting President. From the deliberations, the intent of the framers is clear that the immunity of the president from suit is concurrent only with his tenure(the term during which the incumbent actually holds office) and not his term (time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another)