1

[No. L-2821.
Jose Avelino,
respondent.

March 4, 1949]
petitioner,

vs.

Mariano

J.

Cuenco,

1.Constitutional Law; Separation of Powers; Supreme Court has no

Jurisdiction over Senate Controversy for Selection of Presiding Officer.
The subject matter of this quo warranto proceedingto declare
petitioner the rightful President of the Philippine Senate and oust
respondentis not within the jurisdiction of the Supreme Court, in view
of the separation of powers, the political nature of the controversy
(Alejandrino vs. Quezon 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192;
Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to the
Senate of the power to elect its own president, which power should not
be interfered with nor taken over by the judiciary. The selection of the
presiding officer of the Philippine Senate affects only the senators
themselves who are at liberty at any time to choose their officers,
change or reinstate them.
2.Id.; Id.; Id.; Constitutional and Political Law; Separation of Powers;
when may Supreme Court Assume Jurisdiction Over Senate
Controversy for Selection of Presiding Officer.The Supreme Court
assumed jurisdiction over this quo warranto proceeding", in the light of
events subsequent to the original resolution.
3.Id.; Id.; Id.; Quorum of Philippine Senate.The Court held that there
was a quorum in the session of the Philippine Senate (composed of
twenty-four Senators) in which twelve Senators were present, one
Senator being in the United States.

ORIGINAL ACTION in the Supreme Court. Quo warranto.

The facts are stated in the resolution of the court.
Vicente J. Francisco for petitioner.
Solicitor General Felix Angelo Bautista, Ramon Diokno and Lorenzo
M. Taada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines &
Navarro; Felixberto M. Serrano and Vicente del Rosario as amid
curiae. Avelino vs. Cuenco, 83 Phil., 17, No. L-2821 March 4, 1949

Vicente J. Francisco for petitioner.

Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno
and Lorenzo M. Taada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines &
Navarro; Felixberto M. Serrano and Vicente del Rosario as amici
curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six
justices against four resolved to deny the petition.
Without prejudice to the promulgation of a more extended opinion,
this is now written briefly to explain the principal grounds for the
denial.
The Court believes the following essential facts have been
established:
In the session of the Senate of February 18, 1949, Senator Lorenzo
M. Taadare quested that his right to speak on the next session
day, February 21, 1949, to formulate charges against the then
Senate President Jose Avelino be reserved. His request was
approved.
On February 21, 1949, hours before the opening of the session
Senator Taada and Senator Taada and Senator Prospero Sanidad
filed with the Secretary of the Senate a resolution enumerating
charges against the then Senate President and ordering the
investigation thereof.
Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at the appointed time
(10:00 A.M.), and the petitioner was already in his office, said
petitioner delayed his appearance at the session hall until about
11:35 A.M. When he finally ascended the rostrum, he did not
immediately open the session, but instead requested from the
Secretary a copy of the resolution submitted by Senators Taada
and Sanidad and in the presence of the public he read slowly and
carefully said resolution, after which he called and conferred with
his colleagues Senator Francisco and Tirona.

Shortly before 12:00 noon, due to the session be opened, the

petitioner finally called the meeting to order. Except Senator Sotto
who was confined in a hospital and Senator Confesor who is in the
United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that
the roll call be dispensed with, but Senator Tirona opposed said
motion, obviously in pursuance of a premeditated plan of petitioner
and his partisans to make use of dilatory tactics to prevent Senator
Taada from delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense
with the reading of the minutes, but this motion was likewise
opposed by Senator Tirona and David, evidently, again, in
pursuance of the above-mentioned conspiracy.
Before and after the roll call and before and after the reading of the
minutes, Senator Taada repeatedly stood up to claim his right to
deliver his one-hour privilege speech but the petitioner, then
presiding, continuosly ignored him; and when after the reading of
the minutes, Senator Taada instead on being recognized by the
Chair, the petitioner announced that he would order the arrest of
any senator who would speak without being previously recognized
by him, but all the while, tolerating the actions of his follower,
Senator Tirona, who was continuously shouting at Senator Sanidad
"Out of order!" everytime the latter would ask for recognition of
Senator Taada.
At this juncture, some disorderly conduct broke out in the Senate
gallery, as if by pre-arrangement. At about this same time Senator
Pablo Angeles David, one of the petitioner's followers, was
recognized by petitioner, and he moved for adjournment of session,
evidently, again, in pursuance of the above-mentioned conspiracy
to muzzle Senator Taada.
Senator Sanidad registered his opposition to the adjournment of the
session and this opposition was seconded by herein respondent
who moved that the motion of adjournment be submitted to a vote.
Another commotion ensued.
Senator David reiterated his motion for adjournment and herein
respondent also reiterated his opposition to the adjournment and

again moved that the motion of Senator David be submitted to a

vote.
Suddenly, the petitioner banged the gavel and abandoning the
Chair hurriedly walked out of the session hall followed by Senator
David, Tirona, Francisco, Torres, Magalona and Clarin, while the rest
of the senators remained. Whereupon Senator Melencio Arranz,
Senate President Pro-tempore, urged by those senators present
took the Chair and proceeded with the session.
Senator Cabili stood up, and asked that it be made of record it
was so made that the deliberate abandonment of the Chair by
the petitioner, made it incumbent upon Senate President Protempore Arranz and the remaining members of the Senate to
continue the session in order not to paralyze the functions of the
Senate.
Senate President Pro-tempore Arranz then suggested that
respondent be designated to preside over the session which
suggestion was carried unanimously. the respondent thereupon
took the Chair.
Upon motion of Senator Arranz, which was approved Gregorio Abad
was appointedActing Secretary, because the Assistance Secretary,
who was then acting as Secretary, had followed the petitioner when
the latter abandoned the session.
Senator Taada, after being recognized by the Chair, was then
finally able to deliver his privilege speech. Thereafter Senator
Sanidad read aloud the complete text of said Resolution (No. 68),
and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the
Chair, after the respondent had yielded it to him, Senator Sanidad
introduced Resolution No. 67, entitled "Resolution declaring vacant
the position of the President of the Senate and designated the
Honorable Mariano Jesus Cuenco Acting President of the Senate."
Put to a vote, the said resolution was unanimously approved.
Senator Cuenco took the oath.

The next day the President of the Philippines recognized the

respondent as acting president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked
the Court to declare him the rightful President of the Philippines
senate and oust respondent.
The Court has examined all principal angles of the controversy and
believes that these are the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution Nos. 68 and 67 validly approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in view of the
separation of powers, the political nature of the controversy
(Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192;
Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to
the Senate of the power to elect its own president, which power
should not be interfered with, nor taken over, by the judiciary. We
refused to take cognizance of the Vera case even if the rights of the
electors of the suspended senators were alleged affected without
any immediate remedy. A fortiori we should abstain in this case
because the selection of the presiding officer affect only the
Senators themselves who are at liberty at any time to choose their
officers, change or reinstate them. Anyway, if, as the petition must
imply to be acceptable, the majority of the Senators want petitioner
to preside, his remedy lies in the Senate Session Hall not in the
Supreme Court.
The Court will not sally into the legitimate domain of the Senate on
the plea that our refusal to intercede might lead into a crisis, even
a resolution. No state of things has been proved that might change
the temper of the Filipino people as a peaceful and law-abiding
citizens. And we should not allow ourselves to be stampeded into a
rash action inconsistent with the calm that should characterized
judicial deliberations.

The precedent of Werts vs. Roger does not apply, because among
other reasons, the situation is not where two sets of senators have
constituted themselves into two senates actually functioning as
such, (as in said Werts case), there being no question that there is
presently one Philippines Senate only. To their credit be it recorded
that petitioner and his partisans have not erected themselves
into another Senate. The petitioner's claim is merely that
respondent has not been duly elected in his place in the
same one Philippines Senate.
It is furthermore believed that the recognition accorded by the
Chief Executive to the respondent makes it advisable, more than
ever, to adopt the hands-off policy wisely enunciated by this Court
in matters of similar nature.
The second question depends upon these sub-questions. (1) Was
the session of the so-called rump Senate a continuation of the
session validly assembled with twenty two Senators in the morning
of February 21, 1949?; (2) Was there a quorum in that session? Mr.
Justice Montemayor and Mr. Justice Reyes deem it useless, for the
present to pass on these questions once it is held, as they do, that
the Court has no jurisdiction over the case. What follows is the
opinion of the other four on those four on those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the
view that the session under Senator Arranz was a continuation of
the morning session and that a minority of ten senators may not,
by leaving the Hall, prevent the other twelve senators from passing
a resolution that met with their unanimous endorsement. The
answer might be different had the resolution been approved only
by ten or less.
If the rump session was not a continuation of the morning session,
was it validly constituted? In other words, was there the majority
required by the Constitution for the transaction of the business of
the Senate? Justice Paras, Feria, Pablo and Bengzon say there was,
firstly because the minute say so, secondly, because at the
beginning of such session there were at least fourteen senators
including Senators Pendatun and Lopez, and thirdly because in view
of the absence from the country of Senator Tomas Confesor twelve
senators constitute a majority of the Senate of twelve three
senators. When the Constitution declares that a majority of "each

House" shall constitute aquorum, "the House: does not mean "all"
the members. Even a majority of all the members constitute "the
House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There
is a difference between a majority of "the House", the latter
requiring less number than the first. Therefore an absolute majority
(12) of all the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a quorum.
Mr. Justice Pablo believes furthermore than even if the twelve did
not constitute a quorum, they could have ordered the arrest of one,
at least, of the absent members; if one had been so arrested, there
would be no doubt Quorum then, and Senator Cuenco would have
been elected just the same inasmuch as there would be eleven for
Cuenco, one against and one abstained.
In fine, all the four justice agree that the Court being confronted
with the practical situation that of the twenty three senators who
may participate in the Senate deliberations in the days immediately
after this decision, twelve senators will support Senator Cuenco
and, at most, eleven will side with Senator Avelino, it would be
most injudicious to declare the latter as the rightful President of the
Senate, that office being essentially one that depends exclusively
upon the will of the majority of the senators, the rule of the Senate
about tenure of the President of that body being amenable at any
time by that majority. And at any session hereafter held with
thirteen or more senators, in order to avoid all controversy arising
from the divergence of opinion here about quorum and for the
benefit of all concerned,the said twelve senators who approved the
resolutions herein involved could ratify all their acts and thereby
place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove mentioned voted to
dismiss the petition. Without costs.

Separate Opinions
MORAN, C.J., concurring:
I believe that this Court has jurisdiction over the case.1 The present
crisis in the Senate is one that imperatively calls for the
intervention of the Court.

Respondent Cuenco cannot invoke the doctrine of non-interference

by the courts with the Senate because the legal capacity of his
group of twelve senators to acts as a senate is being challenged by
petitioner on the groundof lack of quorum (Attorney General ex rel.
Werts vs. Rogers et al., Atl. 726; 23 L. R. A., 352). If this group is
found sufficient to constitute a quorum under the Constitution, then
its proceedings should be free from interference. But if it is not
possessed of a valid quorum, then its proceedings should be
voided.
The issue as to the legal capacity of the Cuenco group to act as a
senate cannot be considered a political question the determination
of which devolves exclusively upon the Senate. That issue involves
a constitutional question which cannot be validly decided either by
the Cuenco group or by the Avelino group separately, for, if the
Cuenco group has no quorum, the Avelino has decidedly less. And
for obvious reasons, the two groups cannot act together inasmuch
as the members of the Avelino group, possibly to avoid trouble, do
not attend the sessions presided by the respondent believing as
they do that the latter was illegally elected. Upon the other hand,
the Cuenco group believing itself as possessing the
constitutional quorum and not desiring to make any semblance of
admission to the contrary, does not find it convenient to compel the
attendance of any senator of the Avelino group. Then the question
arises--who will decide the conflict between the two groups? This
anomalous situation will continue while the conflict remains
unsettled, and the conflict will remain unsettled while this Court
refuses to intervene. In the meantime the validity of all the laws,
resolutions and other measures which may be passed by the
Cuenco group will be open to doubt because of an alleged lack
of quorum in the body which authored them. This doubt may
extend, in diverse forms, to the House of Representative and to the
other agencies of the government such as the Auditor General's
Office. Thus, a general situation of uncertainty, pregnant with grave
dangers, is developing into confusion and chaos with severe harm
to the nation. This situation may, to a large extent, be stopped and
constitutional processes may be restored in the Senate if only this
Court, as the guardian of the Constitutional, were to pronounce the
final word on the constitutional mandate governing the existing
conflict between the two groups. And, in my opinion, under the
present circumstances, this Court has no other alternative but to
meet challenge of the situation which demands the utmost of
judicial temper and judicial statesmanship. As hereinbefore stated,

the present crisis in the Senate is one that imperatively calls for the
intervention of this Court.
As to the legality of respondent's election as acting President of the
Senate,2I firmly believe that although petitioner's adjournment of
the session of February 21, 1949, was illegality cannot be
countered with another illegality. The session wherein respondent
was elected as acting President of the Senate was illegal because
when Senator Mabanag raised the question of a quorum and the
roll was called, only twelve senators were present. In the
Philippines there are twenty-four senators, and therefore,
the quorum must be thirteen. The authorities on the matter are
clear.
The constitution of our state ordains that a majority of each
house shall constitute a quorum. the house of
representative consist of 125 members; 63 is a majority
and quorum. When a majority or quorum are present, the
house can do business; not otherwise. A quorum possessed
all the powers of the whole body, a majority of
which quorum must, of course, govern. (In re Gunn, 50 Kan.,
155; 32 P., 470, 476; 19 L.R.A., 519.)
Quorum as used in U. S. C. A. Const. Art. 4 sec. 8, providing
that a majority of each house shall constitute aquorum to do
business, is, for the purpose of the Assembly, not less than
the majority of the whole number of which the house may
be composed. Vacancies from death, resignation or failure to
elect cannot be deducted in ascertaining the quorum.
(Opinion of Justice, 12 Fla. 653.)
The general rule is that a quorum is a majority of all the
members and a majority of this majority may legislate and
do the work of the whole. (State vs. Ellington 117 N. C., 158;
23 S. E. 250-252, 30 L.R.A., 532; 53 Am. SR., 580.)
. . . a majority of each House is necessary to transact
business, and a minority cannot transact business, this view
being in keeping with the provision of the Constitution
permitting a smaller number than a quorumto adjourn from
day to day merely. (Earp vs. Riley, 40 OKL., 340; p. 164;
Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)

The Constitution provides that "a majority of each (house)

shall constitute a quorum to do business." In other words,
when a majority are present the House is in a position to do
business. Its capacity to transact business is then
established, created by the mere presence of a majority,
and depend upon the disposition or assent or action of any
single member or faction of the majority present. All that the
Constitution required is the presence of a majority, and
when that majority are present, the power of the House
arises. (U. S. vs.Ballin, Joseph & Co., 36 Law ed. 321, 325.)
If all the members of the select body or committee, or if all
the agents are assembled, or if all have been duly notified,
and the minority refuse, or neglect to meet with the other, a
majority of those present may act,provided those present
constitute a majority of the whole number. In other words, in
such case, a major part of the whole is necessary to
constitute a quorum, and a majority of the quorum may act.
If the major part withdraw so as to leave no quorum, the
power of the minority to act is, in general, considered to
cease. (1 Dillon, Mun. Corp. 4th ed., sec. 283.)3
Therefore, without prejudice to writing a more extensive opinion, if
necessary, I believe that respondent Mariano J. Cuenco has not
been legally elected as acting President of the Senate. It is true that
respondent Cuenco, in fact, must be the Senate President because
he represent the majority of the members now present in Manila,
and, at any new session with a quorum, upon the present senatorial
alignment, he will be elected to said office. But precisely he is now
the master of the situation, he must win his victory in accordance
with the Constitution. It is absolutely essential in the adolescent life
of our Republic to insist, strictly and uncompromisingly, on
thedemocratic principles consecrated in our Constitution. By such
efforts alone can we insure the future of our political life as a
republican form of government under the sovereignty of a
Constitution from being a mockery.
The situation now in this Court is this there are four members
who believe that there was no quorum in respondent's election as
against four other member who believe that there was
such quorum. Two members declined to render their opinion on the
matter because of their refusal to assume jurisdiction. And, one

member is absent from the Philippines. Thus, the question of

whether or not respondent has been legally elected is, to say the
least, doubtful in this Court under the present conditions. This
doubt, which taint the validity of all the laws, resolutions and other
measures that the Cuenco group has passed and may pass in the
future, can easily be dispelled by them by convening a session
wherein thirteen senators are present and by reiterating therein all
that has been previously done by them. This is a suggestion
coming from a humble citizen who is watching with a happy heart
the movement of this gallant group of prominent leaders
campaigning for a clean and honest government in this dear
country of ours.

G.R. No. 128055. April 18, 2001.*

MIRIAM DEFENSOR SANTIAGO, petitioner, vs.
SANDIGANBAYAN, FRANCIS E. GARCHITORENA, JOSE S.
BALAJADIA AND MINITA V. CHICO-NAZARIO, AS PRESIDING
JUSTICE AND MEMBERS OF THE FIRST DIVISION,
respondents.
Administrative Law; Public Officers; Preventive Suspension; Anti-Graft and
Corrupt Practices Act; Sandiganbayan; The authority of the Sandiganbayan
to order the preventive suspension of an incumbent public official charged
with violation of the provisions of Republic Act (R.A.) No. 3019 has both
legal and jurisprudential support.The authority of the Sandiganbayan to
order the preventive suspension of an incumbent public official charged
with violation of the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. It would appear, indeed, to be a ministerial duty of
the court to issue an order of suspension upon determination of the validity
of the information filed before it. Once the information is found to be
sufficient in form and substance, the court is bound to issue an order of
suspension as a matter of course, and there seems to be no ifs and buts
about it. In issuing the preventive suspension of petitioner, the
Sandiganbayan merely adhered to the clear and unequivocal mandate of
the law, as well as the jurisprudence in which the Court has, more than
once, upheld Sandiganbayans authority to decree the suspension of public
officials and employees indicted before it.
Same; Same; Same; Same; Section 13 of Republic Act No. 3019 does not
state that the public officer concerned must be suspended only in the
office where he is alleged to have committed the acts with which he has
been chargedthe use of the word office would indicate that it applies to
any office which the officer charged may be holding, and not only the
particular office under which he stands accused.Section 13 of Republic
Act No. 3019 does not state that the public officer concerned must be
suspended only in the office where he is alleged to have committed the
acts with which he has been charged. Thus, it has been held that the use
of the word office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular office under
which he stands accused.
Same; Same; Same; Same; While the imposition of suspension is not
automatic or self-operative as the validity of the information must be
determined in a pre-suspension hearing, there is no hard and fast rule as to
the conduct thereof.En passant, while the imposition of suspension is not
automatic or self-operative as the validity of the information must be
determined in a pre-suspension hearing, there is no hard and fast rule as to

the conduct thereof. It has been said that x x x No specific rules need
be laid down for such pre-suspension hearing. Suffice it to state that the
accused should be given a fair and adequate opportunity to challenge the
VALIDITY OF THE CRIMINAL PROCEEDINGS against him, e.g., that he has
not been afforded the right of due preliminary investigation; that the acts
for which he stands charged do not constitute a violation of the provisions
of Republic Act 3019 or the bribery provisions of the Revised Penal Code
which would warrant his mandatory suspension from office under section
13 of the Act; or he may present a motion to quash the information on any
of the grounds provided for in Rule 117 of the Rules of Court x x x.
Same; Same; Same; Same; Congressional Discipline; The order of
suspension prescribed by Republic Act No. 3019 is distinct from the power
of Congress to discipline its own ranks under the Constitution.The order
of suspension prescribed by Republic Act No. 3019 is distinct from the
power of Congress to discipline its own ranks under the Constitution which
provides that eachx x x house may determine the rules of its
proceedings, punish its Members for disorderly behavior, and, with the
concurrence of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty days. The
suspension contemplated in the above constitutional provision is a punitive
measure that is imposed upon determination by the Senate or the House of
Representatives, as the case may be, upon an erring member.
Same; Same; Same; Same; Same; Separation of Powers; The doctrine of
separation of powers by itself may not be deemed to have effectively
excluded members of Congress from Republic Act No. 3019 nor from its
sanctions.The doctrine of separation of powers by itself may not be
deemed to have effectively excluded members of Congress from Republic
Act No. 3019 nor from its sanctions. The maxim simply recognizes each of
the three co-equal and independent, albeit coordinate, branches of the
governmentthe Legislative, the Executive and the Judiciaryhas
exclusive prerogatives and cognizance within its own sphere of influence
and effectively prevents one branch from unduly intruding into the internal
affairs of either branch.
Separation of Powers; Judicial Review; Where the question pertains to an
affair internal to either of Congress or the Executive, the Court subscribes
to the view that unless an infringement of any specific Constitutional
proscription thereby inheres the Court should not deign substitute its own
judgment over that of any other two branches of governmentit is an
impairment or a clear disregard of a specific constitutional precept or
provision that can unbolt the steel door for judicial intervention.Section
1, Article VIII, of the 1987 Constitution, empowers the Court to act not only
in the settlement of actual controversies involving rights which are legally

demandable and enforceable, but also in the determination of 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 provision allowing the Court to look into any possible
grave abuse of discretion committed by any government instrumentality
has evidently been couched in general terms in order to make it malleable
to judicial interpretation in the light of any emerging milieu. In its normal
concept, the term has been said to imply an arbitrary, despotic, capricious
or whimsical exercise of judgment amounting to lack or excess of
jurisdiction. When the question, however, pertains to an affair internal to
either of Congress or the Executive, the Court subscribes to the view that
unless an infringement of any specific Constitutional proscription thereby
inheres the Court should not deign substitute its own judgment over that of
any of the other two branches of government. It is an impairment or a clear
disregard of a specific constitutional precept or provision that can unbolt
the steel door for judicial intervention. If any part of the Constitution is not,
or ceases to be, responsive to contemporary needs, it is the people, not
the Court, who must promptly react in the manner prescribed by the
Charter itself.

PETITION for review on certiorari of a decision of the

Sandiganbayan.
The facts are stated in the opinion of the Court.
Miriam Defensor Santiago for and in her own behalf.
The Solicitor General for respondents.
DECISION
VITUG, J.:
The Court is called upon to review the act of the
Sandiganbayan, and how far it can go, in ordering the preventive
suspension of petitioner, Mme. Senator Miriam Defensor-Santiago,
in connection with pending criminal cases filed against her for
alleged violation of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act.
The instant case arose from complaints filed by a group of
employees of the Commission of Immigration and Deportation (CID)
against petitioner, then CID Commissioner, for alleged violation of

the Anti-Graft and Corrupt Practices Act.The investigating panel,

that took over the case from Investigator Gualberto dela Llana after
having been constituted by the Deputy Ombudsman for Luzon upon
petitioners request, came up with a resolution which it referred, for
approval, to the Office of the Special Prosecutor (OSP) and the
Ombudsman. In his Memorandum, dated 26 April 1991, the
Ombudsman directed the OSP to file the appropriate informations
against petitioner. On 13 May 1991, OSP submitted to the
Ombudsman the informations for clearance; approved, forthwith,
three informations were filed on even date.
In Criminal Case No. 16698 filed before the Sandiganbayan,
petitioner was indicted thusly:
That on or about October 17, 1988, or sometime prior or
subsequent thereto, in Manila, Philippines and within the
jurisdiction of this Honorable Court, accused MIRIAM DEFENSORSANTIAGO, a public officer, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith
and manifest partiality in the exercise of her official functions, did
then and there willfully, unlawfully and criminally approve the
application for legalization of the stay of the following aliens:
Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu
Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li
Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @
Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao
Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se
Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu
Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin
Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan,
Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong,
who arrived in the Philippines after January 1, 1984 in violation of
Executive Order no. 324 dated April 13, 1988 which prohibits the
legalization of said disqualified aliens knowing fully well that said
aliens are disqualified, thereby giving unwarranted benefits to said
aliens whose stay in the Philippines was unlawfully legalized by said
accused.[1]

Two other criminal cases, one for violation of the provisions of

Presidential Decree No. 46 and the other for libel, were filed with
the Regional Trial Court of Manila, docketed, respectively, No. 9194555 and no. 91-94897.
Pursuant to the information filed with the Sandiganbayan,
Presiding Justice Francis E. Garchitorena issued an order for the
arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00)
Pesos. Petitioner posted a cash bail without need for physical
appearance as she was then recuperating from injuries sustained in
a vehicular accident. The Sandiganbayan granted her provisional
liberty until 05 June 1991 or until her physical condition would
warrant her physical appearance in court. Upon manifestation by
the Ombudsman, however, that petitioner was able to come
unaided to his office on 20 May 1991, Sandiganbayan issued an
order setting the arraignment on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her cash
bond and prayed that she be allowed provisional liberty upon a
recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition
for Certiorari with Prohibition and Preliminary Injunction before the
Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 and
a motion before the Sandiganbayan to meanwhile defer her
arraignment. The Court taking cognizance of the petition issued a
temporary restraining order.
The Sandiganbayan, thus, informed, issued an order deferring
petitioners arraignment and the consideration of her motion to
cancel the cash bond until further advice from the court.
On 13 January 1992, the Court rendered its decision dismissing
the petition and lifting the temporary restraining order. The
subsequent motion for reconsideration filed by petitioner proved
unavailing.

On 06 July 1992, in the wake of media reports announcing

petitioners intention to accept a fellowship from the John F.
Kennedy School of Government at Harvard University, the
Sandiganbayan issued an order to enjoin petitioner from leaving
the country.
On 15 October 1992, petitioner moved to inhibit
Sandiganbayan Presiding Justice Garchitorena from the case and to
defer her arraignment pending action on her motion to inhibit. On
09 November 1992, her motion was denied by the
Sandiganbayan. The following day, she filed anew a Petition
for Certiorari and Prohibition with urgent Prayer for Preliminary
Injunction with the Court, docketed G.R. No. 99289-90. At the same
time, petitioner filed a motion for bill of particulars with the
Sandiganbayan asseverating that the names of the aliens whose
applications she purportedly approved and thereby supposedly
extended undue advantage were conspicuously omitted in the
complaint.
The Court, in its resolution of 12 November 1992, directed the
Sandiganbayan to reset petitioners arraignment not later than five
days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman filed with
the Sandiganbayan a motion to admit thirty-two amended
informations. Petitioner moved for the dismissal of the 32
informations. The court, in its 11th March 1993 resolution, denied
her motion to dismiss the said informations and directed her to post
bail on the criminal cases, docketed Criminal Case No. 1837118402, filed against her.
Unrelenting, petitioner, once again came to this Court via a
Petition for Certiorari, docketed G.R. No. 109266, assailing the
03rd March 1993 resolution of the Sandiganbayan which resolved
not to disqualify its Presiding Justice, as well as its 14 th March 1993
resolution admitting the 32 Amended Informations, and seeking the
nullification thereof.

10

Initially, the Court issued a temporary restraining order

directing Presiding Justice Garchitorena to cease and desist from
sitting in the case, as well as from enforcing the 11 th March 1993
resolution ordering petitioner to post bail bonds for the 32
amended informations, and from proceeding with her arraignment
on 12 April 1993 until the matter of his disqualification would have
been resolved by the Court.

WHEREFORE, for all the foregoing, the Court hereby grants the
motion under consideration and hereby suspends the accused
Miriam Defensor-Santiago from her position as Senator of the
Republic of the Philippines and from any other government position
she may be holding at present or hereafter. Her suspension shall be
for ninety (90) days only and shall take effect immediately upon
notice.

On 02 December 1993, the Court, in its decision in G.R.

109266, directed the OSP and Ombudsman to consolidate the 32
amended informations. Conformably therewith, all the 32
informations were consolidated into one information under Criminal
Case No. 16698.

Let a copy of this Resolution be furnished to the Hon. Ernesto

Maceda, Senate President, Senate of the Philippines, Executive
House, Taft Ave., Manila, through the Hon. Secretary of the Senate,
for the implementation of the suspension herein ordered. The
Secretary of the Senate shall inform this court of the action taken
thereon within five (5) days from receipt hereof.

Petitioner, then filed with the Sandiganbayan a Motion to

Redetermine probable Cause and to dismiss or quash said
information. Pending the resolution of this incident, the prosecution
filed on 31 July 1995 with the Sandiganbayan a motion to issue an
order suspending petitioner.
On 03 August 1995, the Sandiganbayan resolved to allow the
testimony of one Rodolfo Pedellaga (Pedellaga). The presentation
was scheduled on 15 September 1995.
In the interim, the Sandiganbayan directed petitioner to file her
opposition to the 31st July 1995 motion for the prosecution within
fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the Sandiganbayan
a motion for reconsideration of its 03 rd August 1995 order which
would allow the testimony of Pedellaga. The incident, later denied
by the Sandiganbayan, was elevated to the Court via a Petition for
Review on Certiorari, entitled Miriam Defensor-Santiago vs.
Sandiganbayan, docketed G.R. No. 123792.
On 22 August 1995, petitioner filed her opposition to the
motion of the prosecution to suspend her. On 25 January 1996, the
Sandiganbayan resolved:

The said official shall likewise inform this Court of the actual date of
implementation of the suspension order as well as the expiry of the
ninetieth day thereof so that the same may be lifted at the time. [2]
Hence, the instant recourse. The petition assails the authority
of the Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a Senator of the
Republic of the Philippines, from any government position, and
furnishing a copy thereof to the Senate of the Philippines for the
implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive
suspension of an incumbent public official charged with violation of
the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. Section 13 of the statute provides:
SEC. 13. Suspension and loss of benefits. any incumbent public
officer against whom any criminal prosecution under a valid
information under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon government or
public funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all

11

retirement or gratuity benefits under any law, but if he is acquitted,

he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.
In the event that such convicted officer, who may have already
been separated from the service, has already received such
benefits he shall be liable to restitute the same to the
Government. (As amended by BP Blg. 195, March 16, 1982).
In the relatively recent case of Segovia vs. Sandiganbayan, [3] the
Court reiterated:
The validity of Section 13, R.A. 3019, as amended --- treating of the
suspension pendente lite of an accused public officer --- may no
longer be put at issue, having been repeatedly upheld by this
Court.
xxx xxx xxx
The provision of suspension pendente lite applies to all persons
indicted upon a valid information under the Act, whether they be
appointive or elective officials; or permanent or temporary
employees, or pertaining to the career or non-career service.[4]
It would appear, indeed, to be a ministerial duty of the court to
issue an order of suspension upon determination of the validity of
the information filed before it. Once the information is found to be
sufficient in form and substance, the court is bound to issue an
order of suspension as a matter of course, and there seems to be
no ifs and buts about it.[5] Explaining the nature of the preventive
suspension,
the
Court
in
the
case
of
Bayot
vs.
Sandiganbayan[6] observed:
x x x It is not a penalty because it is not imposed as a result of
judicial proceedings. In fact, if acquitted, the official concerned shall
be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension.[7]

In issuing the preventive suspension of petitioner, the

Sandiganbayan merely adhered to the clear an unequivocal
mandate of the law, as well as the jurisprudence in which the Court
has, more than once, upheld Sandiganbayans authority to decree
the suspension of public officials and employees indicted before it.
Section 13 of Republic Act No. 3019 does not state that the
public officer concerned must be suspended only in the office
where he is alleged to have committed the acts with which he has
been charged. Thus, it has been held that the use of the word
office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular
office under which he stands accused.[8]
En passan, while the imposition of suspension is not automatic
or self-operative as the validity of the information must be
determined in a pre-suspension hearing, there is no hard and fast
rule as to the conduct thereof. It has been said thatx x x No specific rules need be laid down for such pre-suspension
hearing. Suffice it to state that the accused should be given a fair
and adequate opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g. that he has not been
afforded the right of due preliminary investigation; that the acts for
which he stands charged do not constitute a violation of the
provisions of Republic Act 3019 or the bribery provisions of the
revised Penal Code which would warrant his mandatory suspension
from office under section 13 of the Act; or he may present a motion
to quash the information on any of the grounds provided for in Rule
117 of the Rules of Court x x x.
xxx xxx xxx
Likewise, he is accorded the right to challenge the propriety of his
prosecution on the ground that the acts for which he is charged do
not constitute a violation of Rep. Act 3019, or of the provisions on
bribery of the Revised Penal Code, and the right to present a
motion to quash the information on any other grounds provided in
Rule 117 of the Rules of Court.

12

However, a challenge to the validity of the criminal proceedings on

the ground that the acts for which the accused is charged do not
constitute a violation of the provisions of Rep. Act 3019, or of the
provisions on bribery of the revised Penal Code, should be treated
only in the same manner as a challenge to the criminal proceeding
by way of a motion to quash on the ground provided in Paragraph
(a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts
charged do not constitute an offense. In other words, a resolution of
the challenge to the validity of the criminal proceeding, on such
ground, should be limited to an inquiry whether the facts alleged in
the information, if hypothetically admitted, constitute the elements
of an offense punishable under Rep. Act 3019 or the provisions on
bribery of the Revised Penal Code.[9]
The law does not require that the guilt of the accused must be
established in a pre-suspension proceeding before trial on the
merits proceeds. Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of culpability against
him, (2) the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or pose a
threat to the safety and integrity of the records an other evidence
before the court could have a valid basis in decreeing preventive
suspension pending the trial of the case. All it secures to the
accused is adequate opportunity to challenge the validity or
regularity of the proceedings against him, such as, that he has not
been afforded the right to due preliminary investigation, that the
acts imputed to him do not constitute a specific crime warranting
his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of
the grounds set out in Section 3, Rule 117, of the Revised Rules on
Criminal procedure.[10]
The instant petition is not the first time that an incident
relating to petitioners case before the Sandiganbayan has been
brought to this Court. In previous occasions, the Court has been
called upon the resolve several other matters on the subject. Thus:
(1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the
Sandiganbayan from proceeding with Criminal case No. 16698 for
violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,
[12]
petitioner sought the nullification of the hold departure order

issued by the Sandiganbayan via a Motion to Restrain the

Sandiganbayan from Enforcing its Hold Departure Order with Prayer
for Issuance of a Temporary Restraining Order and/or Preliminary
Injunction, with Motion to set Pending Incident for Hearing; (3) in
Santiago vs. Garchitorena,[13] petitioner sought the nullification of
the resolution, dated 03 March 1993, in Criminal Case No. 16698 of
the Sandiganbayan (First Division) and to declare Presiding Justice
Garchitorena disqualified from acting in said criminal case, and the
resolution, dated 14 March 1993, which deemed as filed the 32
amended informations against her; and (4) in Miriam Defensor
Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the
Sandiganbayan of her motion for her reconsideration from its
03rd August 1995 order allowing the testimony of Pedellaga. In one
of these cases,[15] the Court declared:
We note that petitioner had previously filed two petitions before us
involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise
the issue of the delay in the preliminary investigation and the filing
of the information against her in those petitions. A piece-meal
presentation of issues, like the splitting of causes of action, is selfdefeating.
Petitioner next claims that the Amended informations did not
charge any offense punishable under Section 3 (e) of R.A. No. 3019
because the official acts complained of therein were authorized
under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of
approving applications for legalization of spouses and unmarried,
minor children of qualified aliens even though they had arrived in
the Philippines after December 31 1983.She concludes that the
Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the
allegations of fact in the information (People vs. Supnad, 7 SCRA
603 [1963]). Therefore, petitioner admitted hypothetically in her
motion that:

13

(1) She was a public officer;

(2) She approved the application for legalization of the
stay of aliens, who arrived in the Philippines after
January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in evident bad faith and manifest partiality in
the execution of her official functions.
The foregoing allegations of fact constitute the elements of the
offense defined in Section 3 (e) of R.A. No. 3019.[16]
The pronouncement, upholding the validity of the information
filed against petitioner, behooved Sandiganbayan to discharge its
mandated duty to forthwith issue the order of preventive
suspension.
The order of suspension prescribed by Republic Act No. 3019 is
distinct from the power of Congress to discipline its own ranks
under the Constitution which provides that eachx x x house may determine the rules of its proceedings, punish
its Members for disorderly behavior, and, with the concurrence
of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty
days.[17]
The suspension contemplated in the above constitutional
provision is a punitive measure that is imposed upon determination
by the Senate or the house of Representatives, as the case may be,
upon an erring member. Thus, in its resolution in the case of
Ceferino Paredes, Jr., vs. Sandiganbayan, et al., [18] the Court
affirmed the order of suspension of Congressman Paredes by the
Sandiganbayan, despite his protestations on the encroachment by
the court on the prerogatives of congress. The Court ruled:

x x x. Petitioners invocation of Section 16 (3), Article VI of the

Constitution which deals with the power of each House of Congress
inter alia to punish its Members for disorderly behavior, and
suspend or expel a Member by a vote of two-thirds of all its
Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days is
unavailing, as it appears to be quite distinct from the suspension
spoken of in Section 13 of RA 3019, which is not a penalty but a
preliminary, preventive measure, prescinding from the fact that the
latter is not being imposed on petitioner for misbehavior as a
Member of the House of Representatives.
The doctrine of separation of powers by itself may not be
deemed to have effectively excluded members of Congress from
Republic Act No. 3019 nor from its sanctions. The maxim simply
recognizes each of the three co-equal and independent, albeit
coordinate, branches of the government the Legislative, the
Executive and the Judiciary has exclusive prerogatives and
cognizance within its own sphere of influence and effectively
prevents one branch from unduly intruding into the internal affairs
of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1,
Article VIII, of the 1987 Constitution, empowers the Court to act not
only in the settlement of actual controversies involving rights which
are legally demandable and enforceable, but also in the
determination of 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
provision allowing the Court to look into any possible grave abuse
of discretion committed by any government instrumentality has
evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging
milieu. In its normal concept, the term has been said to imply an
arbitrary, despotic, capricious or whimsical exercise of judgment
amounting to lack or excess of jurisdiction. When the question,
however, pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view[19] that unless an
infringement of any specific Constitutional proscription
thereby inheres the Court should not deign substitute its

14

own judgment over that of any of the other two branches of

government. It is an impairment or a clear disregard of a
specific constitutional precept or provision that can unbolt
the steel door for judicial intervention. If any part of the
Constitution is not, or ceases to be, responsive to contemporary
needs, it is the people, not the Court, who must promptly react in
the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its
coverage the members of Congress and that, therefore, the
Sandiganbayan did not err in thus decreeing the assailed
preventive suspension order.
Attention might be called to the fact that Criminal Case No.
16698 has been decided by the First Division of the Sandiganbayan
on 06 December 1999, acquitting herein petitioner. The Court,
nevertheless, deems it appropriate to render this decision for future
guidance on the significant issue raised by petitioner.
WHEREFORE,
the
DISMISSED. No costs.

instant

petition

for certiorari is

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, De Leon, Jr., and Sandoval-Gutierrez, JJ., concur.

15

G.R. No. 105323. July 3, 1992.*

FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
Election Law; Commission on Election; Respondent Commissions alleged
failure to implement its own resolution is undoubtedly administrative in
nature, hence, beyond judicial interference.The alleged inaction of
respondent Comelec in ordering the deletion of Melchor Chavezs name in
the list of qualified candidates does not call for the exercise of the Courts
function of judicial review. This Court can review the decisions or orders of
the Comelec only in cases of grave abuse of discretion committed by it in
the discharge of its quasijudicial powers and not those arising from the
exercise of its administrative functions. Respondent Commissions alleged
failure to implement its own resolution is undoubtedly administrative in
nature, hence, beyond judicial interference (See Filipinas Engineering Co. v.
Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on Elections, 88 SCRA
251 [1979]; see also Pungutan v. Abubakar, 43 SCRA 1 [1972]). As aptly
observed by the Solicitor General, respondent Comelec can
administratively undo what it has administratively left undone
(Manifestation, p. 2). Moreover, respondent Comelec has in fact, on May 6,
1992 to be exact, ordered the deletion of Melchor Chavezs name not only
on the official list of candidates, but also on the election returns, tally sheet
and certificate of canvass (Comment, p. 7). Hence, petitioners allegation
that respondent Comelec failed to implement Res. No. 92-132 does not
hold water.
Same; Same; Same; Pre-proclamation cases are not allowed in elections for
President, Vice-President, Senator and member of the House of
Representatives.While the Commission has exclusive jurisdiction over
pre-proclamation controversies involving local elective officials (Sec. 242,
Omnibus Election Code), nevertheless, pre-proclamation cases are not
allowed in elections for President, Vice-President, Senator and Member of
the House of Representatives.
Same; Same; Same; Same; What is allowed is the correction of manifest
errors in the certificate of canvass or election returns.It is clear from the
above-quoted provision of the law that pre-proclamation cases (are) not
allowed in elections for President, Vice-President, Senator and Member of
the House of Representatives. What is allowed is the correction of
manifest errors in the certificate of canvass or election returns. To be
manifest, the errors must appear on the face of the certificates of canvass
or election returns sought to be corrected and/or objections thereto must
have been made before the board of canvassers and specifically noted in
the minutes of their respective proceedings.

Same; Same; Same; Same; Petitioners proper recourse is to file a regular

election protest which under the Constitution and the Omnibus Election
Code exclusively pertains to the Senate Electoral Tribunal.It is quite
obvious that petitioners prayer does not call for the correction of
manifest errors in the certificates of canvass or election returns before
the Comelec but for the re-opening of the ballot boxes and appreciation of
the ballots contained therein. Indeed, petitioner has not even pointed to
any manifest error in the certificates of canvass or election returns he
desires to be rectified. There being none, petitioners proper recourse is to
file a regular election protest which, under the Constitution and the
Omnibus Election Code, exclusively pertains to the Senate Electoral
Tribunal.
Same; Same; Same; Same; Same; Petitioner has not demonstrated any
manifest error in the certificates of canvass or election returns before the
Comelec which would warrant their correction.In the case at bar,
petitioners allegation that Chavez votes were either invalidated or
declared stray has no relation to the correctness or authenticity of the
election returns canvassed. Otherwise stated, petitioner has not
demonstrated any manifest error in the certificates of canvass or election
returns before the Comelec which would warrant their correction. As the
authenticity of the certificates of canvass or election returns are not
questioned, they must be prima facie considered valid for purposes of
canvassing the same and proclamation of the winning candidates.

PETITION for review of the decision of the Commission on Elections.

The facts are stated in the resolution of the Court.
EN BANC
BIDIN, J.:
This case was originally an urgent petition ad cautelam praying,
among others, for the issuance of a temporary restraining order
enjoining respondent Commission on Elections (Comelec) from
proclaiming the 24th highest senatorial candidate.
The antecedents facts are as follows:
On May 5, 1992, this Court issued a Resolution in G.R. No. 104704,
entitled Francisco Chavez v. Comelec, et al., disqualifying Melchor
Chavez, private respondent therein, from running for the Office of
Senator in the May 11, 1992 elections.

16

The above-mentioned resolution was received by respondent

Comelec on May 6, 1992. On the same day, petitioner filed an
urgent motion with the Comelec praying that it (1) disseminate
through the fastest available means this Courts Resolution dated
May 5, 1992 to all regional election directors, provincial election
supervisors, city and municipal election registrars, boards of
election inspectors, the six (6) accredited political parties and the
general public; and (2) order said election officials to delete the
name of Melchor Chavez as printed in the certified list of
candidates tally sheets, election returns and to count all votes cast
for the disqualified Melchor Chavez in favor of Francisco I.
Chavez . . . .
On May 8, 1992, the Comelec issued Res. No. 92-1322 which
resolved to delete the name of Melchor Chavez from the list of
qualified candidates. However, it failed to order the crediting of all
Chavez votes in favor of petitioner as well as the cancellation of
Melchor Chavez name in the list of qualified candidates.
According to petitioner, the Comelec failed to perform its
mandatory function under Sec. 7, RA 7166 which states that if a
candidate has been disqualified, it shall be the duty of the
Commission to instruct without delay the deletion of the name of
said candidate.
Thus, the name of Melchor Chavez remained undeleted in the list of
qualified candidates on election day.
Confusion arose, allegedly nationwide, as the Chavez votes were
either declared stray or invalidated by the Boards of Election
Inspectors (BEIs).

all the Chavez votes, which have been declared stray or

invalidated by the BEIs, in favor of petitioner.
Petitioner maintains that the said resolution proved futile because it
did not reach all the various BEIs of the 170,354 election precincts
throughout the country on time for implementation and that the
minutes of voting did not indicate the number of Chavez votes
which were declared stray or invalidated.
On May 14, 1992, petitioner sent a letter to the Comelec requesting
the latter to devise ways and means in crediting Chavez votes in
his favor but the respondent Commission failed to act on said
letter/complaint.
On May 23, 1992, petitioner filed an urgent petition before the
respondent Comelec praying the latter to (1) implement its May 12,
1992 resolution with costs de officio; (2) to re-open the ballot boxes
in 13 provinces including the National Capital Region involving
some 80,348 precincts (p. 9 of petition) and to scan for the
Chavez votes for purposes of crediting the same in his favor; (3)
make the appropriate entries in the election returns/certificates of
canvass; and (4) to suspend the proclamation of the 24 winning
candidates.
Dissatisfied with the failure of respondent Comelec to act on his
petition, petitioner filed, as aforesaid, this urgent petition for
prohibition and mandamus, with prayer for the issuance of a
temporary restraining order, enjoining the Comelec from
proclaiming the 24th highest senatorial candidate, without first
implementing respondent Comelecs resolution of May 12, 1992
and acting upon petitioners letter/complaint dated May 14, 1992
and urgent petition dated May 22, 1992.

On May 11, 1992, Commissioner Rama of respondent Comelec

issued a directive over radio and TV ordering all Chavez votes to
be credited in favor of petitioner. Petitioner contends that the radio
and TV announcements did not reach the BEI at the 170,354
precincts nationwide. As a result, Chavez votes were not credited
in favor of petitioner.

It is the submission of petitioner that assuming only ten (10)

Chavez votes were invalidated per precinct, he would have lost at
least 1.7 million votes (considering that there are more than
170,000 precincts nationwide); the result of which will affect the 24
ranking senatorial candidates.

On May 12, 1992, Comelec issued another Resolution directing all

municipal and city election registrars throughout the country to
examine the minutes of voting submitted by the BEIs and to credit

Petitioner alleges that respondent Comelec acted capriciously and

whimsically and with grave abuse of discretion and therefore prays
that the Comelec be enjoined from proclaiming the 24th winning

17

senatorial candidate until after his petition before the Commission

is resolved.
On June 4, 1992, the Court issued a Temporary Restraining Order
enjoining respondent Comelec from proclaiming the 24th winning
senatorial candidate and set the case for hearing on June 9, 1992.
On the same day (June 4, 1992), petitioner filed a manifestation
stating that on May 30, 1992, his urgent petition dated May 22,
1992 was dismissed by respondent Comelec and prayed that the
petition ad cautelam at bar be considered a regular petition.
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave
to Intervene with Comment in Intervention praying for the dismissal
of the instant petition on the ground that the law does not allow
pre-proclamation controversy involving the election of members of
the Senate.
After hearing the arguments of the parties on June 9, 1992, the
Court resolved to lift the temporary restraining order in the
afternoon of the same day (June 9, 1992).
Coming now to the merits, We find the petition devoid of any.
As stated earlier, petitioners urgent petition dated May 22, 1992
was dismissed by respondent Comelec on May 30, 1992. Had it not
been prayed that the proclamation of the 24th winning senatorial
candidate be suspended, which this Court granted on June 4, 1992,
the instant petition would have been dismissed outright for having
become moot and academic. But even then, this Court could not
have acted favorably on petitioners plaint.
The alleged inaction of respondent Comelec in ordering the deletion
of Melchor Chavezs name in the list of qualified candidates does
not call for the exercise of the Courts function of judicial review.
This Court can review the decisions or orders of the Comelec only in
cases of grave abuse of discretion committed by it in the discharge
of its quasi-judicial powers and not those arising from the exercise
of its administrative functions. Respondent Commissions alleged
failure to implement its own resolution is undoubtedly
administrative in nature, hence, beyond judicial interference (See
Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 [1979]; see also Pungutan

v. Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor

General, respondent Comelec can administratively undo what it has
administratively left undone(Manifestation, p. 2). Moreover,
respondent Comelec has in fact, on May 6, 1992 to be exact,
ordered the deletion of Melchor Chavezs name not only on the
official list of candidates, but also on the election returns, tally
sheet and certificate of canvass (Comment, p. 7). Hence,
petitioners allegation that respondent Comelec failed to implement
Res. No. 92-132 does not hold water.
Be that as it may, there are other compelling reasons why the
instant petition is bound to fail.
A simple reading of the petition would readily show that petitioner
has no cause of action, the controversy presented being one in the
nature
of
a
pre-proclamation. **
While the Commission has exclusive jurisdiction over preproclamation controversies involving local elective officials (Sec.
242, Omnibus Election Code), nevertheless, pre-proclamation cases
are not allowed in elections for President, Vice-President, Senator
and Member of the House of Representatives.
Sec. 15 of Republic Act 7166 provides:
Sec. 15. Pre-proclamation Cases Not Allowed in Elections for
President, Vice-President, Senator, and Member of the
House of Representatives. For purposes of the elections
for
President,
Vice-President, Senator and Member of the House of
Representatives, no pre-proclamation cases shall be allowed
on matters relating to the preparation, transmission, receipt,
custody and appreciation of the election returns or the
certificate of canvass, as the case may be. However, this
does not preclude the authority of the appropriate
canvassing body motu proprio or upon written complaint of
an interested person to correct manifest errors in the
certificate of canvass or election returns before it. (emphasis
supplied)
xxx xxx xxx

18

Any objection on the election returns before the city or

municipal board of canvassers, or on the municipal
certificates of canvass before the provincial boards of
canvassers or district board of canvassers in Metro Manila
Area, shall be specifically noted in the minutes of their
respective proceedings.
It is clear from the above-quoted provision of the law that
pre-proclamation cases (are) not allowed in elections for President,
Vice-President, Senator and Member of the House of
Representatives. What is allowed is the correction of manifest
errors in the certificate of canvass or election returns. To be
manifest, the errors must appear on the face of the certificates of
canvass or election returns sought to be corrected and/or
objections thereto must have been made before the board of
canvassers and specifically noted in the minutes of their respective
proceedings.
In the case at bar, however, petitioner prays not only for a
restraining order enjoining the proclamation of the 24th highest
ranking senatorial candidate without first acting upon petitioners
letter/complaint dated May 14, 1992 and urgent petition dated May
22, 1992 but also prays that judgment be rendered requiring the
Comelec to re-open the ballot boxes in 80,348 precincts in 13
provinces therein enumerated (Petition, p. 9) including Metro
Manila, scan the ballots for Chavez votes which were invalidated
or declared stray and credit said scanned Chavez votes in favor
of petitioner.
It is quite obvious that petitioners prayer does not call for the
correction of manifest errors in the certificates of canvass or
election returns before the Comelec but for the re-opening of the
ballot boxes and appreciation of the ballots contained therein.
Indeed, petitioner has not even pointed to any manifest error in
the certificates of canvass or election returns he desires to be
rectified. There being none, petitioners proper recourse is to file a
regular election protest which, under the Constitution and the
Omnibus Election Code, exclusively pertains to the Senate Electoral
Tribunal.
Thus, Sec. 17, Art. VI of the Constitution provides that (t)he Senate
and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the

election,
returns, and qualifications of their respective
Members. . . . (emphasis supplied). The word sole underscores
the exclusivity of the Tribunals jurisdiction over election contests
relating to their respective Members (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692 [1991]; Lazatin v. House
of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara
v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal
clear that this Court has no jurisdiction to entertain the instant
petition. It is the Senate Electoral Tribunal which has exclusive
jurisdiction to act on the complaint of petitioner involving, as it
does, contest relating to the election of a member of the Senate. As
aforesaid, petitioners proper recourse is to file a regular election
protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
Petitioner argues, on the other hand, that a recount before
Senate Electoral Tribunal where he would be forced to shell out
expenses imposes not only a property requirement for
enjoyment of the right to be voted upon but also a price on
right of suffrage which would ultimately stifle the sovereign will.

the
the
the
the

The argument, however, is beside the point. The law is very clear
on the matter and it is not right for petitioner to ask this Court to
abandon settled jurisprudence, engage in judicial legislation,
amend the Constitution and alter the Omnibus Election Code. The
mandatory procedures laid down by the existing law in cases like
the one at bar must be faithfully followed lest we allow anarchy to
reign. The proper recourse is for petitioner to ask not this Court but
the Legislature to enact remedial measures.
Finally, the instant petition falls squarely with the case of Sanchez
v. Commission on Elections (153 SCRA 67 [1987]) and the
disposition arrived therein finds application in the case at bar,
mutatis mutandis:
Sanchez anchors his petition for recount and/or
reappreciation on Section 243, paragraph (b) of the
Omnibus Election Code in relation to Section 234 thereof
with regard to material defects in canvassed election
returns. He contends that the canvassed returns discarding
Sanchez votes as stray were incomplete and therefore
warrant a recount or reappreciation of the ballots under
Section 234.

19

xxx xxx xxx

. . . The fact that some votes written solely as Sanchez
were declared stray votes because of the inspectors
erroneous belief that Gil Sanchez had not been disqualified
as a candidate, involves an erroneous appreciation of the
ballots. It is established by the law as well as jurisprudence .
. . that errors in the appreciation of ballots by the board of
inspectors are proper subject for election protest and not for
recount or reappreciation of ballots.
2. The appreciation of the ballots cast in the precincts is not
a proceeding of the board of canvassers for purposes of
pre-proclamation proceedings under Section 241, Omnibus
Election Code, but of the boards of election inspectors who
are called upon to count and appreciate the votes in
accordance with the rules of appreciation provided in
Section 211, Omnibus Election Code. Otherwise stated, the
appreciation of ballots is not part of the proceedings of the
board of canvassers. The function of ballots appreciation is
performed by the boards of election inspectors at the
precinct level. (Emphasis supplied)
3. The scope of pre-proclamation controversy is limited to
the issues enumerated under Sec. 243 of the Omnibus
Election Code. The enumeration therein of the issues that
may be raised in pre-proclamation controversy is restrictive
and exclusive. In the absence of any clear showing or proof
that the election returns canvassed are incomplete or
contain material defects (sec. 234), appear to have been
tampered with, falsified or prepared under duress (sec. 235)
and/or contain discrepancies in the votes credited to any
candidate, the difference of which affects the result of the
election (sec. 236), which are the only instances where a
pre-proclamation recount may be resorted to, granted the
preservation of the integrity of the ballot box and its
contents, Sanchez petition must fail. The complete election
returns whose authenticity is not in question, must be prima
facie considered valid for the purpose of canvassing the
same and proclamation of the winning candidates.
xxx xxx xxx

7. The ground for recount relied upon by Sanchez is clearly

not among the issues that may be raised in preproclamation controversy. His allegation of invalidation of
Sanchez votes intended for him bear no relation to the
correctness and authenticity of the election returns
canvassed. Neither the Constitution nor statute has granted
the Comelec or the board of canvassers the power in the
canvass of election returns to look beyond the face thereof,
once satisfied of their authenticity (Abes v. Comelec, 21
SCRA 1252, 1256).
In the case at bar, petitioners allegation that Chavez votes were
either invalidated or declared stray has no relation to the
correctness or authenticity of the election returns canvassed.
Otherwise stated, petitioner has not demonstrated any manifest
error in the certificates of canvass or election returns before the
Comelec which would warrant their correction. As the authenticity
of the certificates of canvass or election returns are not questioned,
they must be prima facie considered valid for purposes of
canvassing the same and proclamation of the winning candidates
(Sanchez v. Comelec, supra).
Premises considered, the Court Resolved to DISMISS the instant
petition for lack of merit.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, GrioAquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.
** Ranked as the 24th winning senatorial candidate in the official
canvass of Comelec.
** Pre-proclamation controversy is defined as any question
pertaining to or affecting the proceedings of the board of
canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation,

20

transmission, receipt, custody and appreciation of the election

returns. (Sec. 241, Omnibus Election Code)
Note.In a pre-proclamation controversy, it is axiomatic that the
Comelec is not to look beyond or behind election returns which are
on their face regular and authentic returns (Dipatuan vs.
Commission on Elections, 185 SCRA 86). Chavez vs. Commission on
Elections, 211 SCRA 315, G.R. No. 105323 July 3, 1992

21

GR No. L-83767. October 27, 1988.*

FIRDAUSI SMAIL ABBAS, HOMOBONO A. ADAZA, ALEJANDRO
D. ALMENDRAS, ABUL KAHYR D. ALONTO, JUAN PONCE
ENRILE, RENE G. ESPINA, WILSON P. GAMBOA, ROILO S.
GOLEZ, ROMEO G. JALOSJOS, EVA R. ESTRADA-KALAW,
WENCESLAO R. LAGUMBAY, VICENTE P. MAGSAYSAY,
JEREMIAS U. MONTEMAYOR, BLAS F. OPLE, RAFAEL P.
PALMARES, ZOSIMO JESUS M. PAREDES, JR., VICENTE G.
PUYAT, EDITH N. RABAT, ISIDRO S. RODRIGUEZ, FRANCISCO
S. TATAD, LORENZO G. TEVES, ARTURO M. TOLENTINO, and
FERNANDO R. VELOSO, petitioners, vs. THE SENATE
ELECTORAL TRIBUNAL, respondent.
Constitutional Law; Composition of the Senate Electoral Tribunal; The
Constitutional provision clearly mandates the participation in the same
process of decision of a representative or representatives of the
Supreme Court.It seems quite clear to us that in thus providing for a
Tribunal to be staffed by both Justices of the Supreme Court and
Members of the Senate, the Constitution intended that both those
Judicial and legislative components commonly share the duty and
authority of deciding all contests relating to the election, returns and
qualifications of Senators. The respondent Tribunal correctly stated one
part of this proposition when it held that said provision x x x is a clear
expression of an intent that all (such) contests x x x shall be resolved
by a panel or body in which their (the Senators) peers in that Chamber
are represented. The other part, of course, is that the constitutional
provision just as clearly mandates the participation in the same
process of decision of a representative or representatives of the
Supreme Court.
Same; Same; Same; Quorum; The Senate Electoral Tribunal cannot
legally function as such, absent its entire membership of Senators and
no amendment of its Rules can confer on the three Justices-Members
alone the power of valid adjudication of a senatorial election contest.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting
in judgment on any case before said Tribunal. Every Member of the
Tribunal may, as his conscience dictates, refrain from participating in
the resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and impartial
judgment. What we are merely saying is that in the light of the
Constitution, the Senate Electoral Tribunal cannot legally function as
such, absent its entire membership of Senators and that no

amendment of its Rules can confer on the three Justices-Members

alone the power of valid adjudication of a senatorial election contest.
FELICIANO, J.: Concurring
Constitutional Law; Composition of the Senate Electoral Tribunal;
Quorum; Should any three (3) Senator-Members of the Senate Electoral
Tribunal voluntarily inhibit or disqualify themselves from participating
in the proceedings, a tribunal, resulting to a balance between three (3)
Justices and three (3) Senators as members, still constitute more than
a quorum.Should any three (3) Senator-Members of the Senate
Electoral Tribunal voluntarily inhibit or disqualify themselves from
participating in the proceedings in SET Case No. 002-87, a Tribunal
would result that would be balanced between the three (3) JusticeMembers and the three (3) Senator-Members and still constitute more
than a bare quorum. In such a Tribunal, both the considerations of
public policy and fair play raised by petitioners and the constitutional
intent above noted concerning the mixed judicial and legislative
composition of the Electoral Tribunals would appear to be substantially
met and served. This dnouement, however, must be voluntarily
reached and not compelled by certiorari.

SPECIAL CIVIL ACTION for certiorari to review the resolutions of the

Senate Electoral Tribunal.
The facts are stated in the resolution of the Court.
GANCAYCO, J.:
This is a Special Civil Action for certiorari to nullify and set aside the
Resolutions of the Senate Electoral Tribunal dated February 12,
1988 and May 27, 1988, denying, respectively, the petitioners'
Motion for Disqualification or Inhibition and their Motion for
Reconsideration thereafter filed.
On October 9, 1987, the petitioners filed before the respondent
Tribunal an election contest docketed as SET Case No. 002-87
against 22 candidates of the LABAN coalition who were proclaimed
senators-elect in the May 11, 1987 congressional elections by the
Commission on Elections. The respondent Tribunal was at the time
composed of three (3) Justices of the Supreme Court and six (6)
Senators, namely: Senior Associate Justice Pedro L. Yap (Chairman).

22

Associate Justices Andres R. Narvasa and Hugo E. Gutierrez, Jr., and

Senators Joseph E. Estrada, Neptali A. Gonzales, Teofisto T.
Guingona, Jose Lina, Jr., Mamintal A.J. Tamano and Victor S. Ziga.
On November 17, 1987, the petitioners, with the exception of
Senator Estrada but including Senator Juan Ponce Enrile (who had
been designated Member of the Tribunal replacing Senator Estrada,
the latter having affiliated with the Liberal Party and resigned as
the Opposition's representative in the Tribunal) filed with the
respondent Tribunal a Motion for Disqualification or Inhibition of the
Senators-Members thereof from the hearing and resolution of SET
Case No. 002-87 on the ground that all of them are interested
parties to said case, as respondents therein. Before that, Senator
Rene A.V. Saguisag, one of the respondents in the same case, had
filed a Petition to Recuse and later a Supplemental Petition to
Recuse the same Senators-Members of the Tribunal on essentially
the same ground. Senator Vicente T. Paterno, another respondent in
the same contest, thereafter filed his comments on both the
petitions to recuse and the motion for disqualification or inhibition.
Memoranda on the subject were also filed and oral arguments were
heard by the respondent Tribunal, with the latter afterwards issuing
the Resolutions now complained of.
Senator Juan Ponce Enrile in the meantime had voluntarily inhibited
himself from participating in the hearings and deliberations of the
respondent tribunal in both SET Case No. 00287 and SET Case No.
001-87, the latter being another contest filed by Augusto's Sanchez
against him and Senator Santanina T. Rasul as alternative
respondents, citing his personal involvement as a party in the two
cases.
The petitioners, in essence, argue that considerations of public
policy and the norms of fair play and due process imperatively
require the mass disqualification sought and that the doctrine of
necessity which they perceive to be the foundation petition of the
questioned Resolutions does not rule out a solution both practicable
and constitutionally unobjectionable, namely; the amendment of
the respondent Tribunal's Rules of procedure so as to permit the
contest being decided by only three Members of the Tribunal.

The proposed amendment to the Tribunal's Rules (Section 24)

requiring the concurrence of five (5) members for the adoption of
resolutions of whatever nature is a proviso that where more than
four (4) members are disqualified, the remaining members shall
constitute a quorum, if not less than three (3) including one (1)
Justice, and may adopt resolutions by majority vote with no
abstentions. Obviously tailored to fit the situation created by the
petition for disqualification, this would, in the context of that
situation, leave the resolution of the contest to the only three
Members who would remain, all Justices of this Court, whose
disqualification is not sought.
We do not agree with petitioners' thesis that the suggested device
is neither unfeasible nor repugnant to the Constitution. We opine
that in fact the most fundamental objection to such proposal lies in
the plain terms and intent of the Constitution itself which, in its
Article VI, Section 17, creates the Senate Electoral Tribunal, ordains
its composition and defines its jurisdiction and powers.
Sec. 17. The Senate and the House of
Representatives shall each have an Electoral Tribunal
which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by
the Chief Justice, and the remaining six shall be
Members of the Senate or the House of
Representatives, as the case may be, who shall be
chosen on the basis of proportional representation
from the political parties and the parties or
organizations registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal hall be its Chairman.
It seems quite clear to us that in thus providing for a Tribunal to be
staffed by both Justices of the Supreme Court and Members of the
Senate, the Constitution intended that both those "judicial' and
'legislative' components commonly share the duty and authority of

23

deciding all contests relating to the election, returns and

qualifications of Senators. The respondent Tribunal correctly stated
one part of this proposition when it held that said provision "... is a
clear expression of an intent that all (such) contests ... shall be
resolved by a panel or body in which their (the Senators') peers in
that Chamber are represented." 1 The other part, of course, is that
the constitutional provision just as clearly mandates the
participation in the same process of decision of a representative or
representatives of the Supreme Court.
Said intent is even more clearly signalled by the fact that the
proportion of Senators to Justices in the prescribed membership of
the Senate Electoral Tribunal is 2 to 1-an unmistakable indication
that the "legislative component" cannot be totally excluded from
participation in the resolution of senatorial election contests,
without doing violence to the spirit and intent of the Constitution.
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of his other
colleagues in the Senate without inviting the same objections to the
substitute's competence, the proposed mass disqualification, if
sanctioned and ordered, would leave the Tribunal no alternative but
to abandon a duty that no other court or body can perform, but
which it cannot lawfully discharge if shorn of the participation of its
entire membership of Senators.
To our mind, this is the overriding considerationthat the Tribunal
be not prevented from discharging a duty which it alone has the
power to perform, the performance of which is in the highest public
interest as evidenced by its being expressly imposed by no less
than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the
framers of the Constitution could not have been unaware of the
possibility of an election contest that would involve all 24 Senatorselect, six of whom would inevitably have to sit in judgment thereon.
Indeed, such possibility might surface again in the wake of the
1992 elections when once more, but for the last time, all 24 seats
in the Senate will be at stake. Yet the Constitution provides no

scheme or mode for settling such unusual situations or for the

substitution of Senators designated to the Tribunal whose
disqualification may be sought. Litigants in such situations must
simply place their trust and hopes of vindication in the fairness and
sense of justice of the Members of the Tribunal. Justices and
Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of
the Senate Electoral Tribunal may inhibit or disqualify himself from
sitting in judgment on any case before said Tribunal. Every Member
of the Tribunal may, as his conscience dictates, refrain from
participating in the resolution of a case where he sincerely feels
that his personal interests or biases would stand in the way of an
objective and impartial judgment. What we are merely saying is
that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of
Senators and that no amendment of its Rules can confer on the
three Justices-Members alone the power of valid adjudication of a
senatorial election contest.
The charge that the respondent Tribunal gravely abused its
discretion in its disposition of the incidents referred to must
therefore fail. In the circumstances, it acted well within law and
principle in dismissing the petition for disqualification or inhibition
filed by herein petitioners. The instant petition for certiorari is
DISMISSED for lack of merit.
SO ORDERED.
Fernandez, C.J., Melencio-Herrera, Cruz, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino, Medialdea and Regalado JJ., concur.
Narvasa, Gutierrez, Jr. and Paras, JJ., took no part.
Separate Opinions
FELICIANO, J.:, concurring:

24

I quite agree with what Mr. Justice Gancayco has written into his
opinion for the Court. I would merely like to carry forward however
slightly the analysis found in the penultimate paragraph of his
opinion.
Should any three (3) Senator-Members of the Senate Electoral
Tribunal voluntarily inhibit or disqualify themselves from
participating in the proceedings in SET Case No. 002-87, a Tribunal
would result that would be balanced between the three (3) JusticeMembers and the three (3) Senator-Members and still constitute
more than a bare quorum. In such a Tribunal, both the
considerations of public policy and fair play raised by petitioners
and the constitutional intent above noted concerning the mixed
"judicial" and "legislative" composition of the Electoral Tribunals
would appear to be substantially met and served.
This denouement, however, must be voluntarily reached and not
compelled by certiorari.

25

G.R. No. 158466. June 15, 2004.*

PABLO V. OCAMPO, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B.
CRESPO a.k.a. MARK JIMENEZ, respondents.
Election Law; Election Code; There must be a final judgment before the
election in order that the votes of a disqualified candidate can be
considered stray.In Codilla, Sr. vs. De Venecia, we expounded on the
application of Section 6, R.A. No. 6646. There, we emphasized that there
must be a final judgment before the election in order that the votes of a
disqualified candidate can be considered stray.
Same; Same; The subsequent disqualification of a candidate who obtained
the highest number of votes does not entitle the candidate who garnered
the second highest number of votes to be declared the winner.Anent the
second issue, we revert back to the settled jurisprudence that the
subsequent disqualification of a candidate who obtained the highest
number of votes does not entitle the candidate who garnered the second
highest number of votes to be declared the winner. This principle has been
reiterated in a number our decisions, such as Labo, Jr. vs. COMELEC, Abella
vs. COMELEC, Benito vs. COMELEC and Domino vs. COMELEC. As a matter
of fact, even as early as 1912, it was held that the candidate who lost in an
election cannot be proclaimed the winner in the event that the candidate
who won is found to be ineligible for the office for which he was

elected.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

DECISION
SANDOVAL-GUTIERREZ, J.:
The wreath of victory cannot be transferred from the
disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration of election in favor of the person
who obtained a plurality of votes and does not entitle a candidate
receiving the next highest number of votes to be declared elected.
[1]

This is a petition for certiorari under Rule 65 of the 1997 Rules

of Civil Procedure, as amended, filed by petitioner Pablo V.
Ocampo. He alleged that the House of Representatives Electoral
Tribunal (HRET), herein public respondent, committed grave abuse
of discretion in issuing in HRET Case No. 01-024, Pablo Ocampo vs.
Mario Mark Jimenez Crespo, the (a) Resolution[2] dated March 27,
2003 holding that protestant (herein petitioner) cannot be
proclaimed the duly elected Representative of the 6 th District of
Manila since being a second placer, he cannot be proclaimed the
first
among
the
remaining
qualified
candidates;
and (b) Resolution[3]dated June 2, 2003 denying his motion for
reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers
proclaimed private respondent Mario B. Crespo, a.k.a. Mark
Jimenez, the duly elected Congressman of the 6 th District of Manila
pursuant to the May 14, 2001elections. He was credited with
32,097 votes or a margin of 768 votes over petitioner who
obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral
protest[4] against private respondent, impugning the election in
807 precincts in the 6th District of Manila on the following
grounds: (1) misreading
of
votes
garnered
by
petitioner; (2) falsification of election returns; (3) substitution of
election returns; (4) use of marked, spurious, fake and stray
ballots; and (5) presence of ballots written by one person or two
persons. The case was docketed as HRET Case No. 01024. Petitioner prayed that a revision and appreciation of the
ballots in the 807 contested precincts be conducted; and that,
thereafter, he be proclaimed the duly elected Congressman of the
6th District of Manila.
On June 18, 2001, private respondent filed his answer with
counter-protest[5] vehemently denying that he engaged in massive
vote buying. He also opposed petitioners allegation that there is a
need for the revision and appreciation of ballots.

26

After the preliminary conference between the parties on July

12, 2001, the HRET issued a Resolution[6] limiting the issues
to: first, whether massive vote-buying was committed by private
respondent; and second,whether petitioner can be proclaimed the
duly elected Representative of the 6th District of Manila.

On March 27, 2003, the HRET issued a Resolution holding that

private respondent was guilty of vote-buying and disqualifying him
as Congressman of the 6th District of Manila. Anent the second issue
of whether petitioner can be proclaimed the duly elected
Congressman, the HRET held:

Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos.

01-020, Bienvenido Abante & Prudencio Jalandoni vs.
Mario Crespo, and 01-023, Rosenda Ann M. Ocampo vs.
Mario Crespo, issued Resolutions declaring that private respondent
is ineligible for the Office of Representative of Sixth District
of Manila for lack of residence in the district and
ordering him to vacate his office.[7] Private respondent filed a
motion for reconsideration but was denied.[8]

x x x Jurisprudence has long established the doctrine that a

second placer cannot be proclaimed the first among the
remaining qualified candidates. The fact that the candidate
who obtained the highest number of votes is later declared
to be disqualified or not eligible for the office to which he
was elected does not necessarily give the candidate who
obtained the second highest number of votes the right to
be declared the winner of the elective office. x x x

On March 12, 2003, petitioner filed a motion to implement

Section 6 of Republic Act No. 6646,[9] which reads:

It is of no moment that there is only a margin of 768 votes between

protestant and protestee. Whether the margin is ten or ten
thousand, it still remains that protestant did not receive the
mandate of the majority during the elections. Thus, to proclaim him
as the duly elected representative in the stead of protestee would
be anathema to the most basic precepts of republicanism and
democracy as enshrined within our Constitution. In effect, we would
be advocating a massive disenfranchisement of the majority of the
voters of the sixth district of Manila.

Section 6. Effects of Disqualification Case. Any candidate

who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof, order the
suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.
Petitioner averred that since private respondent was declared
disqualified in HRET Cases Nos. 01-020 and 01-023, the votes
cast for him should not be counted. And having garnered the
second highest number of votes, he (petitioner) should be declared
the winner in the May 14, 2001 elections and proclaimed the duly
elected Congressman of the 6th District of Manila.
On March 26, 2003, private respondent filed an opposition to
petitioners motion to implement the afore-quoted provision.

Congressional elections are different from local government

elections. In local government elections, when the winning
candidate for governor or mayor is subsequently disqualified, the
vice-governor or the vice-mayor, as the case may be, succeeds to
the position by virtue of the Local Government Code. It is different
in elections for representative. When a voter chooses his
congressional candidate, he chooses only one. If his choice is
concurred in by the majority of voters, that candidate is declared
the winner. Voters are not afforded the opportunity of electing a
substitute congressman in the eventuality that their first choice
dies, resigns, is disqualified, or in any other way leaves the post
vacant. There can only be one representative for that particular
legislative district. There are no runners-up or second placers. Thus,
when the person vested with the mandate of the majority is

27

disqualified from holding the post he was elected to, the only
recourse to ascertain the new choice of the electorate is to hold
another election. x x x
This does not mean that the Sixth Legislative District of Manila will
be without adequate representation in Congress. Article VI, Section
9 of the Constitution, and Republic Act No. 6645 allows Congress to
call a special election to fill up this vacancy. There are at least 13
months until the next congressional elections, which is more than
sufficient time within which to hold a special election to enable the
electorate of the Sixth District of Manila to elect their
representative.
For this reason, the Tribunal holds that protestant cannot be
proclaimed as the duly elected representative of the Sixth
legislative District of Manila.

not be voted for, and the votes cast for him shall not be
counted.
In his comment, private respondent counters that what the
law requires is that the disqualification by final judgment
takes place before the election. Here, the HRET Resolutions
disqualifying him as Representative of the 6 th District of
Manila were
rendered
long
after
the May
14,
2001 elections. He also claims that the Resolutions are not yet
final and executory because they are the subjects of certiorari
proceedings before this Court. Hence, all his votes shall be counted
and none shall be considered stray.
The HRET, in its comment, through the Office of the Solicitor
General, merely reiterates its ruling.
The petition must be dismissed.

In view of the conclusion herein reached, it is unnecessary

to rule on the recount and revision of ballots in the
protested and counter-protested precincts.
WHEREFORE, the Tribunal Resolved to:

The issues here are: (1) whether the votes cast in favor of
private respondent should not be counted pursuant to Section 6 of
R.A. No. 6646; and (2) whether petitioner, a second placer in the
May 14, 2001 congressional elections, can be proclaimed the duly
elected Congressman of the 6th District of Manila.

xxxxxx
2) DENY protestants (petitioner) Motion to Implement Section 6,
Republic Act No. 6646 by declaring the votes cast for
Mario Crespo as stray votes.
Petitioner filed a partial motion for reconsideration but was
denied. Hence, the present petition for certiorari.
Petitioner contends that the HRET committed grave abuse of
discretion when it ruled that it is unnecessary to rule on the
recount and revision of ballots in the protested and
counter-protested precincts. He maintains that it is the
ministerial duty of the HRET to implement the provisions of Section
6, R.A. No. 6646 specifically providing that any candidate who
has been declared by final judgment to be disqualified shall

The issues raised are not novel. In Codilla, Sr. vs. De Venecia,
we expounded on the application of Section 6, R.A. No.
6646. There, we emphasized that there must be a final judgment
before the election in order that the votes of a disqualified
candidate can be considered stray, thus:
[10]

Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election

Code require a final judgment before the election for the votes
of a disqualified candidate to be considered stray. Hence, when a
candidate has not yet been disqualified by final judgment during
the election day and was voted for, the votes cast in his favor
cannot be declared stray. To do so would amount to
disenfranchising the electorate in whom sovereignty resides.

28

The obvious rationale behind the foregoing ruling is that in

voting for a candidate who has not been disqualified by final
judgment during the election day, the people voted for him
bona fide, without any intention to misapply their franchise,
and in the honest belief that the candidate was then
qualified to be the person to whom they would entrust the
exercise of the powers of government.[11]
In the present case, private respondent was declared
disqualified almost twenty-two (22) months after the May 14,
2001 elections. Obviously, the requirement of final judgment
before election is absent. Therefore, petitioner can not invoke
Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled
jurisprudence that the subsequent disqualification of a candidate
who obtained the highest number of votes does not entitle the
candidate who garnered the second highest number of votes to be
declared the winner.[12] This principle has been reiterated in a
number our decisions, such as Labo, Jr. vs. COMELEC,[13] Abella vs.
COMELEC,[14] Benito vs. COMELEC[15] and Domino vs. COMELEC.
[16]
As a matter of fact, even as early as 1912, it was held that the
candidate who lost in an election cannot be proclaimed the winner
in the event that the candidate who won is found to be ineligible for
the office for which he was elected.[17]
In Geronimo vs. Ramos,[18] if the winning candidate is not
qualified and cannot qualify for the office to which he was elected,
a permanent vacancy is thus created. The second placer is just
that, a second placer he lost in the elections, he was repudiated by
either the majority or plurality of voters. He could not be
proclaimed winner as he could not be considered the first among
the qualified candidates. To rule otherwise is to misconstrue the
nature of the democratic electroral process and the sociological and
psychological underpinnings behind voters preferences.[19]
At any rate, the petition has become moot and academic. The
Twelfth Congress formally adjourned on June 11, 2004. And on May
17,
2004,
the
City
Board
of
Canvassers
proclaimed

Bienvenido Abante the duly elected Congressman of the Sixth

District of Manila pursuant to the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal,
we ruled that a case becomes moot and academic when there is
no more actual controversy between the parties or no useful
purpose can be served in passing upon the merits. Worth
reiterating is our pronouncement in Gancho-on vs. Secretary of
Labor and Employment, thus:[21]
[20]

It is a rule of universal application, almost, that courts of justice

constituted to pass upon substantial rights will not consider
questions in which no actual interests are involved; they decline
jurisdiction of moot cases. And where the issue has become moot
and academic, there is no justiciable controversy, so that a
declaration thereon would be of no practical use or value. There is
no actual substantial relief to which petitioner would be entitled
and which would be negated by the dismissal of the petition.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Carpio, Austria-Martinez,
Callejo, Sr., Azcuna, and Tinga, JJ., concur.

Carpio-Morales,

Puno, J., no part. Participated in HRET case.

Vitug, J., on official leave.
Panganiban, J., no part. Participated in deliberations in HRET.
Quisumbing, J., no part prior action in HRET.
Ynares-Santiago, J., on leave.
Corona, J., on official leave.

29

30

G.R. No. 192984.February 28, 2012.*

ROLANDO D. LAYUG, petitioner, vs. COMMISSION ON
ELECTIONS, MARIANO VELARDE (alias BROTHER MIKE)
and BUHAY PARTY-LIST, respondents.
Constitutional Law; Congress; House of Representatives Electoral
Tribunal (HRET); The House of Representatives Electoral Tribunal
(HRET) shall be the sole judge of all contests relating to the election,
returns, and qualifications of its Members.Section 17, Article VI of the
1987 Constitution provides that the House of Representatives Electoral
Tribunal (HRET) shall be the sole judge of all contests relating to the
election, returns, and qualifications of its Members. Section 5 (1) of the
same Article identifies who the members of the House are: Sec. 5.
(1). The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who
shall be elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance with
the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional,
and sectoral parties or organizations. (Underscoring added).
Same; Same; The members of the House of Representatives are of two
kinds: (1) members who shall be elected from legislative districts; and
(2) those who shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations.Clearly, the
members of the House of Representatives are of two kinds: (1)
members who shall be elected from legislative districts; and (2) those
who shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations. In this case, Buhay
Party-List was entitled to two seats in the House that went to its first
two nominees, Mariano Michael DM. Velarde, Jr. and William Irwin C.
Tieng. On the other hand, Brother Mike, being the fifth nominee, did
not get a seat and thus had not become a member of the House of
Representatives. Indubitably, the HRET has no jurisdiction over the
issue of Brother Mikes qualifications.
Same; Same; Commission on Elections (COMELEC); Party-List System
Act; Section 6 of said Party-List System Act states that the COMELEC
may motu proprio or upon verified complaint of any interested party,

remove or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition.Neither
does the HRET have jurisdiction over the qualifications of Buhay PartyList, as it is vested by law, specifically, the Party-List System Act, upon
the COMELEC. Section 6 of said Act states that the COMELEC may
motu proprio or upon verified complaint of any interested party,
remove or cancel, after due notice and hearing, the registration of any
national, regional or sectoral party, organization or coalition xxx.
Accordingly, in the case of Abayon vs. HRET, We ruled that the HRET
did not gravely abuse its discretion when it dismissed the petitions for
quo warranto against Aangat Tayo party-list and Bantay party-list
insofar as they sought the disqualifications of said party-lists. Thus, it is
the Court, under its power to review decisions, orders, or resolutions of
the COMELEC provided under Section 7, Article IX-A of the 1987
Constitution and Section 1, Rule 37 of the COMELEC Rules of Procedure
that has jurisdiction to hear the instant petition.
Remedial Law; Civil Procedure; Pleadings and Practice; Every pleading
must be signed by the party or counsel representing him, stating in
either case his address which should not be a post office box.A party
may sue or defend an action pro se. Under Section 3, Rule 7 of the
Rules of Court, (e)very pleading must be signed by the party or
counsel representing him, stating in either case his address which
should not be a post office box. x x x From the fact alone that the
address which Layug furnished the COMELEC was incorrect, his
pretensions regarding the validity of the proceedings and promulgation
of the Resolution dated June 15, 2010 for being in violation of his
constitutional right to due process are doomed to fail. His refusal to
rectify the error despite knowledge thereof impels Us to conclude that
he deliberately stated an inexistent address with the end in view of
delaying the proceedings upon the plea of lack of due process. As the
COMELEC aptly pointed out, Layug contemptuously made a mockery of
election laws and procedure by appearing before the Commission by
himself or by different counsels when he wants to, and giving a
fictitious address to ensure that he does not receive mails addressed to
him. He cannot thus be allowed to profit from his own wrongdoing. To
rule otherwise, considering the circumstances in the instant case,
would place the date of receipt of pleadings, judgments and processes
within Layugs power to determine at his pleasure. This, We cannot
countenance.

31

Same; Special Civil Actions; Mandamus; Mandamus, as a remedy, is

available to compel the doing of an act specifically enjoined by law as
a duty. It cannot compel the doing of an act involving the exercise of
discretion one way or the other.Mandamus, as a remedy, is available
to compel the doing of an act specifically enjoined by law as a duty. It
cannot compel the doing of an act involving the exercise of discretion
one way or the other. Section 3, Rule 65 of the Rules of Court clearly
provides: SEC. 3. Petition for mandamus.When any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes
another from the use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered commanding the
respondent, immediately or at some other time to be specified by the
court, to do the act required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the petitioner by
reason of the wrongful acts of the respondent.
Same; Civil Procedure; Motions; A motion without a notice of hearing is
considered pro forma.It should likewise be pointed out that the
aforesaid Motion for Reconsideration was filed without the requisite
notice of hearing. We have held time and again that the failure to
comply with the mandatory requirements under Sections 4 and 5 of
Rule 15 of the Rules of Court renders the motion defective. As a rule, a
motion without a notice of hearing is considered pro forma. None of the
acceptable exceptions obtain in this case.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
DECISION
PERLAS-BERNABE, J.:
In this Petition for Certiorari under Rule 65 of the Rules of Court
with prayer for temporary restraining order and preliminary

injunction, petitioner Rolando D. Layug seeks to (1) enjoin the

implementation of the Resolution1 of the Commission on Elections
(COMELEC) Second Division, dated June 15, 2010, which denied his
petition to disqualify respondent Buhay Hayaan Yumabong PartyList (hereinafter Buhay Party-List) from participating in the 2010
Party-List Elections, and Mariano Velarde (Brother Mike) from being
its nominee; (2) nullify Buhay Party-List's proclamation under
COMELEC En Banc NBC Resolution1 No.10-034 dated July 30, 2010;
and (3) compel the COMELEC En Banc to rule on his Motion for
Reconsideration2 dated 28 July 2010.
The Facts
On March 31, 2010, petitioner Rolando D. Layug (Layug), in his
capacity as a taxpayer and concerned citizen, filed pro se a Petition
to Disqualify3 (SPA No. 10-016 [DCN]) Buhay Party-List from
participating in the May 10, 2010 elections, and Brother Mike from
being its nominee. He argued that Buhay Party-List is a mere
extension of the El Shaddai, which is a religious sect. As such, it is
disqualified from being a party-list under Section 5, Paragraph 2,
Article VI of the 1987 Constitution4, as well as Section 6, Paragraph
1 of Republic Act (R.A.) No. 79415, otherwise known as the PartyList System Act. Neither does Brother Mike, who is allegedly a
billionaire real estate businessman and the spiritual leader of El
Shaddai, qualify as one who belongs to the marginalized and
underrepresented sector xxx, as required of party-list nominees
under Section 6 (7) of COMELEC Resolution No. 8807 6, the Rules on
Disqualification Cases Against Nominees of Party-List
Groups/Organizations Participating in the May 10, 2010 Automated
National and Local Elections.
In their Answer1 thereto, Buhay Party-List and Brother Mike
claimed that Buhay Party-List is not a religious sect but a political
party possessing all the qualifications of a party-list. It is composed
of groups for the elderly, the women, the youth, the handicapped,
as well as the professionals, and Brother Mike belongs to the
marginalized and underrepresented elderly group. They likewise
argued that nominees from a political party such as Buhay Party-

32

List need not even come from the marginalized and

underrepresented sector.
Record shows that Layug received a copy of the aforesaid
Answer only at the hearing conducted on April 20, 2010 after his
lawyer, Atty. Rustico B. Gagate, manifested that his client has not
received the same. Counsel for private respondents explained that
their liaison officer found Layug's given address #70 Dr. Pilapil St.,
Barangay San Miguel, Pasig City to be inexistent. To this, Atty.
Gagate was said to have retorted as follows: The good counsel for
the respondent could send any Answer or processes or pleadings to
may (sic) address at Bambang, Nueva Vizcaya Your Honor, they
could come over all the way to Nueva Vizcaya, we will entertain
him.2

0343 proclaiming Buhay Party-List as a winner entitled to two (2)

seats in the House of Representatives. Being the fifth nominee,
however, Brother Mike was not proclaimed as the representative of
Buhay Party-List.
Meanwhile, on July 28, 2010, Layug moved for reconsideration of
the Resolution dated June 15, 2010 before the COMELEC En
Banc claiming denial of due process for failure of the COMELEC to
serve him, his representatives or counsels a copy of said
Resolution. He alleged that it was only on July 26, 2010, after
learning about it in the newspapers, that he personally secured a
copy of the Resolution from the COMELEC.4His motion for
reconsideration, however, was denied by the COMELEC Second
Division in its Order5 dated August 4, 2010 for being filed out of
time.
The Issues

On June 15, 2010, the COMELEC Second Division issued a

Resolution3 denying the petition for lack of substantial evidence. A
copy thereof was sent to Layug via registered mail at #70 Dr. Pilapil
Street, Barangay San Miguel, Pasig City. However, the mail was
returned unserved with the following notation of the postmaster:
1st 6/23/10 unknown; 2nd 6/25/10 unknown; and 3rd attempt 6/28/10
RTS INSUFFICIENT ADDRESS. Subsequently, in its Order1 dated July
26, 2010, the COMELEC Second Division found Layug to be a
phantom petitioner by seeing to it that pleadings, orders and
judicial notices addressed to him are not received by him because
the address he gave and maintains is fictitious. Accordingly, Layug
was deemed to have received on June 23, 2010 a copy of the
Resolution dated June 15, 2010 and, there being no motion for
reconsideration filed within the reglementary period, said
Resolution was declared final and executory. It was entered2 in the
Book of Entries of Judgment on July 28, 2010.
As a consequence of such entry, the COMELEC En Banc,
sitting as the National Board of Canvassers for Party-List,
promulgated on July 30, 2010 NBC Resolution No. 10-

Aggrieved, Layug filed this petition imputing grave abuse of

discretion on the part of the COMELEC for the following acts and
omissions:
I. THE COMELEC SECOND
DIVISION DID NOT ISSUE A
NOTICE OF PROMULGATION TO
THE PETITIONERS COUNSEL AS
REQUIRED BY RULE 13 OF THE
RULES OF COURT, THEREBY
COMMITTING A CLEAR VIOLATION
OF PROCEDURAL DUE PROCESS;
and

II. BY ISSUING THE 30 JULY 2010

RESOLUTION, THE COMELEC EN
BANC UNLAWFULLY NEGLECTED

33

THE PERFORMANCE OF AN ACT

WHICH THE LAW SPECIFICALLY
ENJOINS AS A DUTY RESULTING
FROM ITS OFFICE, WHICH IS TO
HEAR AND DECIDE THE
PETITIONERS MOTION FOR
RECONSIDERATION WHICH WAS
TIMELY FILED.1
In their respective Comments2 to the petition, respondents
assail the jurisdiction of the Court arguing that, with the
proclamation of Buhay Party-List on July 30, 2010 and the
assumption into office of its representatives, Mariano Michael DM.
Velarde, Jr. and William Irwin C. Tieng, it is now the House of
Representatives Electoral Tribunal that has the sole and exclusive
jurisdiction over questions relating to their qualifications.
With regard to the issue on denial of due process,
respondents maintain that, by providing an incorrect address to
which a copy of the Resolution dated June 15, 2010 was duly sent
and by refusing to rectify the error in the first instance when it was
brought to his attention, Layug cannot now be heard to complain.
We rule for the respondents.
The Ruling of the Court

I. The Court not

the HRET has
jurisdiction
over the
present
petition.
Section 17, Article VI of the 1987 Constitution provides that the
House of Representatives Electoral Tribunal (HRET) shall be
the sole judge of all contests relating to the election, returns, and

qualifications of its Members. Section 5 (1) of the same Article

identifies who the "members" of the House are:
Sec. 5. (1). The House of
Representatives shall be composed of
not more than two hundred and
fifty members, unless otherwise fixed
by law, who shall be elected from
legislative districts apportioned among
the provinces, cities, and the
Metropolitan Manila area in accordance
with the number of their respective
inhabitants, and on the basis of a
uniform and progressive ratio, and
those who, as provided by law, shall be
elected through a party list system of
registered national, regional, and
sectoral parties or
organizations. (Underscoring added).
Clearly, the members of the House of Representatives are of two
kinds: (1) members who shall be elected from legislative districts;
and (2) those who shall be elected through a party-list system of
registered national, regional, and sectoral parties or
organizations.1 In this case, Buhay Party-List was entitled to two
seats in the House that went to its first two nominees, Mariano
Michael DM. Velarde, Jr. and William Irwin C. Tieng. On the other
hand, Brother Mike, being the fifth nominee, did not get a seat and
thus had not become a member of the House of Representatives.
Indubitably, the HRET has no jurisdiction over the issue of Brother
Mike's qualifications.
Neither does the HRET have jurisdiction over the qualifications of
Buhay Party-List, as it is vested by law, specifically, the Party-List
System Act, upon the COMELEC. Section 6 of said Act states
that the COMELEC may motu proprio or upon verified complaint of
any interested party, remove or cancel, after due notice and
hearing, the registration of any national, regional or sectoral party,
organization or coalition xxx.Accordingly, in the case of Abayon vs.

34

HRET,1 We ruled that the HRET did not gravely abuse its discretion
when it dismissed the petitions for quo warranto against Aangat
Tayo party-list and Bantay party-list insofar as they sought the
disqualifications of said party-lists.
Thus, it is the Court, under its power to review decisions,
orders, or resolutions of the COMELEC provided under Section 7,
Article IX-A of the 1987 Constitution2 and Section 1, Rule 37 of the
COMELEC Rules of Procedure3 that has jurisdiction to hear the
instant petition.

II. Layug was

not denied due
process.
A party may sue or defend an action pro se.4 Under Section 3, Rule
7 of the Rules of Court, (e)very pleading must be signed by the
party or counsel representing him, stating in either case his
address which should not be a post office box.
A judicious perusal of the records shows that Layug filed pro
se both the Petition to Disqualify1 and his Position Paper2 before the
COMELEC Second Division. In the Petition to Disqualify, he stated
his address as #70 Dr. Pilapil Street, Barangay San
Miguel, Pasig City. While Atty. Rustico B. Gagate appeared as
counsel for Layug during the hearing conducted on April 20, 2010,
he nonetheless failed to provide either his or his client's complete
and correct address despite the manifestation that counsel for
private respondents could not personally serve the Answer on
Layug due to the inexistence of the given address. Neither did the
Position Paper that was subsequently filed pro se on April 23, 2010
indicate any forwarding address.
It should be stressed that a copy of the Resolution dated June 15,
2010 was mailed to Layug at his stated address at #70 Dr. Pilapil
Street, Barangay San Miguel, Pasig City, which however was
returned to sender (COMELEC) after three attempts due to

insufficiency of said address, as evidenced by certified true copies

of the registry return receipt3, as well as the envelope4 containing
the Resolution; the Letter5 of Pasig City Central Post Office
Postmaster VI Erlina M. Pecante; the Certification6 dated November
2, 2010 of the Postmaster of Pasig City Post Office; and the Affidavit
of Service7 of COMELEC Bailiff Arturo F. Forel dated August 13,
2010. Consequently, the COMELEC deemed Layug to have received
a copy of the Resolution on June 23, 2010, the date the postmaster
made his first attempt to serve it. There being no motion for
reconsideration filed, the COMELEC issued an Order8 on July 26,
2010 declaring the Resolution final and executory, which thereafter
became the basis for the issuance of the assailed COMELEC En
Bancs NBC Resolution1 No. 10-034 dated July 30, 2010.
From the fact alone that the address which Layug furnished the
COMELEC was incorrect, his pretensions regarding the validity of
the proceedings and promulgation of the Resolution dated June 15,
2010 for being in violation of his constitutional right to due process
are doomed to fail.2 His refusal to rectify the error despite
knowledge thereof impels Us to conclude that he deliberately
stated an inexistent address with the end in view of delaying the
proceedings upon the plea of lack of due process. As the COMELEC
aptly pointed out, Layug contemptuously made a mockery of
election laws and procedure by appearing before the Commission
by himself or by different counsels when he wants to, and giving a
fictitious address to ensure that he does not receive mails
addressed to him.3 He cannot thus be allowed to profit from his own
wrongdoing. To rule otherwise, considering the circumstances in the
instant case, would place the date of receipt of pleadings,
judgments and processes within Layug's power to determine at his
pleasure. This, Wecannot countenance.
It bears stressing that the finality of a decision or resolution is a
jurisdictional event which cannot be made to depend on the
convenience of a party.4 Decisions or resolutions must attain finality
at some point and its attainment of finality should not be made
dependent on the will of a party.

35

In sum, the Court finds no grave abuse of discretion

amounting to lack or excess of jurisdiction attributable to the
COMELEC in issuing NBC Resolution No. 10-034 dated July 30, 2010
proclaiming Buhay Party-List as a winner in the May 10, 2010
elections on the basis of the final and executory Resolution dated
June 15, 2010 denying the petition to disqualify private
respondents.
III. Mandamus does not lie to compel the COMELEC En
Banc to rule on Layugs Motion for Reconsideration.
Mandamus, as a remedy, is available to compel the doing of
an act specifically enjoined by law as a duty. It cannot compel the
doing of an act involving the exercise of discretion one way or the
other.1 Section 3, Rule 65 of the Rules of Court clearly provides:
SEC. 3. Petition for mandamus When any
tribunal, corporation, board, officer or
person unlawfully neglects the
performance of an act which the law
specifically enjoins as a duty resulting
from an office, trust, or station, or unlawfully
excludes another from the use and enjoyment
of a right or office to which such other is
entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file
a verified petition in the proper court, alleging
the facts with certainty and praying that
judgment be rendered commanding the
respondent, immediately or at some other
time to be specified by the court, to do the act
required to be done to protect the rights of
the petitioner, and to pay the damages
sustained by the petitioner by reason of the
wrongful acts of the respondent. (Emphasis
supplied)

In this case, the COMELEC En Banc cannot be compelled to

resolve Layugs Motion for Reconsideration2 of the Resolution dated
June 15, 2010 that was filed on July 28, 2010 after said Resolution
had already attained finality. In fact, the COMELEC Second Division
denied the same Motion in its Order3 dated August 4, 2010
precisely for the reason that it was filed out of time.
It should likewise be pointed out that the aforesaid Motion
for Reconsideration was filed without the requisite notice of
hearing. We have held time and again that the failure to comply
with the mandatory requirements under Sections 41 and 52 of Rule
15 of the Rules of Court renders the motion defective. As a rule, a
motion without a notice of hearing is considered pro forma.3 None
of the acceptable exceptions obtain in this case.
Moreover, the Motion was filed by a new counsel Evasco,
Abinales and Evasco Law Offices without a valid substitution or
withdrawal of the former counsel. Thus said the COMELEC:
5. In spite of the finding that
petitioner's given address '#70 Dr.
Pilapil St., Barangay San Miguel, Pasig
City' cannot be found, a new counsel,
'Evasco Abinales and Evasco Law
Offices' filed on July 20, 2010, an 'ENTRY
OF APPEARANCE AS COUNSEL (for
petitioner Layug) WITH
MANIFESTATION', at the bottom of which
appear the name and signature of
petitioner Roland D. Layug expressing
his conforme, with his given (sic) at the
same '#70 Dr. Pilapil St., Barangay San
Miguel, Pasig City;' it is noted that the
entry of appearance of a new counsel is
without the benefit of the withdrawal of
the former counsel.4
Considering, therefore, Layug's utter disregard of the rules of
procedure for which he deserves no empathy, the Court finds that

36

the COMELEC exercised its discretion within the bounds of the law
thus warranting the dismissal of the instant case.
WHEREFORE, the instant Petition for Certiorari is
hereby DISMISSED.
Notes.Once the party or organization of the party-list nominee
has been proclaimed and the nominee has taken his oath and
assumed office as member of the House of Representatives, the
COMELECs jurisdiction over election contests relating to his
qualifications ends and the House of Representatives Electoral
Tribunals (HRETs) own jurisdiction begins. (Abayon vs. House of
Representatives Electoral Tribunal, 612 SCRA 375 [2010])
In an exercise as important as an election, the Comelec cannot
make a declaration and impose a deadline for the correction of
errors and omissions prior to printing, of the published list of
participating party-list groups in the election, and, thereafter,
expect everyone to accept its excuses when it backtracks on its
announced declaration. (Philippine Guardians Brotherhood, Inc. vs.
Commission on Elections, 646 SCRA 63 [2011])

37

G.R. No. 192474.June 26, 2012.*

ROMEO M. JALOSJOS, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS and DAN ERASMO, SR., respondents.

DECISION

G.R. No. 192704.June 26, 2012.*

ABAD, J.:

DAN ERASMO, SR., petitioner, vs. ROMEO M. JALOSJOS, JR. and

HON. COMMISSION ON ELECTIONS, respondents.

These cases reiterate the demarcation line between the jurisdiction

of the Commission on Elections (COMELEC) and the House of
Representatives Electoral Tribunal (HRET).

G.R. No. 193566.June 26, 2012.*

DAN ERASMO, SR., petitioner, vs. ROMEO M. JALOSJOS, JR.,
respondent.

Election Law; Commission on Elections (COMELEC); House of

Representatives Electoral Tribunal (HRET); Jurisdiction; The Court has
already settled the question of when the jurisdiction of the COMELEC
ends and when that of the House of Representatives Electoral Tribunal
(HRET) beginsthe proclamation of a congressional candidate
following the election divests COMELEC of jurisdiction over disputes
relating to the election, returns, and qualifications of the proclaimed
Representative in favor of the HRET.While the Constitution vests in
the COMELEC the power to decide all questions affecting elections,
such power is not without limitation. It does not extend to contests
relating to the election, returns, and qualifications of members of the
House of Representatives and the Senate. The Constitution vests the
resolution of these contests solely upon the appropriate Electoral
Tribunal of the Senate or the House of Representatives. The Court has
already settled the question of when the jurisdiction of the COMELEC
ends and when that of the HRET begins. The proclamation of a
congressional candidate following the election divests COMELEC of
jurisdiction over disputes relating to the election, returns, and
qualifications of the proclaimed Representative in favor of the HRET.

SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Romeo B. Macalintal and Edgardo Carlo L Vista, II for Romeo M.
Jalosjos, Jr.
E.O. Gana and Partners and Quirino G. Esguerra, Jr. for Dan
Erasmo, Sr.

The Facts and the Case

In May 2007 Romeo M. Jalosjos, Jr., petitioner in G.R. 192474, ran
for Mayor of Tampilisan, Zamboanga del Norte, and won. While
serving as Tampilisan Mayor, he bought a residential house and lot
inBarangay Veterans Village,
Ipil,
Zamboanga
Sibugay
and
renovated and furnished the same. In September 2008 he began
occupying the house.
After eight months or on May 6, 2009 Jalosjos applied with the
Election Registration Board (ERB) of Ipil, Zamboanga Sibugay, for
the transfer of his voters registration record to Precinct 0051F
of BarangayVeterans Village. Dan Erasmo, Sr., respondent in G.R.
192474, opposed the application. [1] After due proceedings, the ERB
approved Jalosjos application and denied Erasmos opposition. [2]
Undeterred, Erasmo filed a petition to exclude Jalosjos from the list
of registered voters of Precinct 0051F before the 1 st Municipal
Circuit Trial Court of Ipil-Tungawan-R.T. Lim (MCTC). [3] After hearing,
the MCTC rendered judgment on August 14, 2009, excluding
Jalosjos from the list of registered voters in question. The MCTC
found that Jalosjos did not abandon his domicile in Tampilisan since
he continued even then to serve as its Mayor. Jalosjos
appealed[4] his case to the Regional Trial Court (RTC)
of Pagadian City[5] which affirmed the MCTC Decision on September
11, 2009.
Jalosjos elevated the matter to the Court of Appeals (CA) through a
petition for certiorari with an application for the issuance of a writ
of preliminary injunction.[6] On November 26, 2009 the CA granted
his application and enjoined the courts below from enforcing their
decisions, with the result that his name was reinstated in

38

the Barangay Veterans Villages voters list pending the resolution of

the petition.
On November 28, 2009 Jalosjos filed his Certificate of Candidacy
(COC) for the position of Representative of the Second District of
Zamboanga Sibugay for the May 10, 2010 National Elections. This
prompted Erasmo to file a petition to deny due course to or cancel
his COC before the COMELEC,[7] claiming that Jalosjos made
material misrepresentations in that COC when he indicated in it
that he resided in Ipil, Zamboanga Sibugay. But the Second Division
of the COMELEC issued a joint resolution, dismissing Erasmos
petitions for insufficiency in form and substance.[8]
While Erasmos motion for reconsideration was pending before the
COMELEC En Banc, the May 10, 2010 elections took place, resulting
in Jalosjos winning the elections for Representative of the Second
District of Zamboanga Sibugay. He was proclaimed winner on May
13, 2010.[9]
Meantime, on June 2, 2010 the CA rendered judgment in the voters
exclusion case before it,[10] holding that the lower courts erred in
excluding Jalosjos from the voters list of Barangay Veterans Village
in Ipil since he was qualified under the Constitution and Republic
Act 8189[11] to vote in that place. Erasmo filed a petition for review
of the CA decision before this Court in G.R. 193566.
Back to the COMELEC, on June 3, 2010 the En Banc granted
Erasmos motion for reconsideration and declared Jalosjos ineligible
to seek election as Representative of the Second District of
Zamboanga Sibugay. It held that Jalosjos did not satisfy the
residency requirement since, by continuing to hold the position of
Mayor of Tampilisan, Zamboanga Del Norte, he should be deemed
not to have transferred his residence from that place
to Barangay Veterans Village in Ipil, Zamboanga Sibugay.
Both Jalosjos and Erasmo came up to this Court on certiorari. In
G.R. 192474, Jalosjos challenges the COMELECs finding that he did
not meet the residency requirement and its denial of his right to
due process, citing Roces v. House of Representatives Electoral
Tribunal.[12] In G.R. 192704, Erasmo assails the COMELEC En Bancs
failure to annul Jalosjos proclamation as elected Representative of
the Second District of Zamboanga Sibugay despite his declared
ineligibility.

Subsequently, the Court ordered the consolidation of the three

related petitions.[13] In its comment,[14] the Office of the Solicitor
General (OSG) sought the dismissal of Erasmos petitions and the
grant of that of Jalosjos since all such petitions deal with the latters
qualifications as proclaimed Representative of the district
mentioned. The OSG claims that under Section 17, Article VI of the
1987 Constitution, jurisdiction over this issue lies with the HRET.
Threshold Issue Presented
The threshold issue presented is whether or not the Supreme Court
has jurisdiction at this time to pass upon the question of Jalosjos
residency qualification for running for the position of
Representative of the Second District of Zamboanga Sibugay
considering that he has been proclaimed winner in the election and
has assumed the discharge of that office.
The Courts Ruling
While the Constitution vests in the COMELEC the power to decide
all questions affecting elections, [15] such power is not without
limitation. It does not extend to contests relating to the election,
returns, and qualifications of members of the House of
Representatives and the Senate. The Constitution vests the
resolution of these contests solely upon the appropriate Electoral
Tribunal of the Senate or the House of Representatives.[16]
The Court has already settled the question of when the
jurisdiction of the COMELEC ends and when that of the HRET
begins. The proclamation of a congressional candidate following the
election divests COMELEC of jurisdiction over disputes relating to
the election, returns, and qualifications of the proclaimed
Representative in favor of the HRET.[17]
Here, when the COMELEC En Banc issued its order dated
June 3, 2010, Jalosjos had already been proclaimed on May 13,
2010 as winner in the election. [18] Thus, the COMELEC acted without
jurisdiction when it still passed upon the issue of his qualification
and declared him ineligible for the office of Representative of the
Second District of Zamboanga Sibugay.
It is of course argued, as the COMELEC law department
insisted, that the proclamation of Jalosjos was an exception to the

39

above-stated rule.[19] Since the COMELEC declared him ineligible to

run for that office, necessarily, his proclamation was void following
the ruling in Codilla, Sr. v. De Venecia.[20] For Erasmo, the COMELEC
still has jurisdiction to issue its June 3, 2010 order based on Section
6 of Republic Act 6646. Section 6 provides:
Section 6. Effects of Disqualification Case. Any
candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any
reason a candidate is not declared by final
judgment before an election to be disqualified and he
is voted for and receives the winning number of
votes in such election, the Court or Commission shall
continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the
proclamation of such candidate whenever the
evidence of his guilt is strong.
Here, however, the fact is that on election day of 2010 the
COMELEC En Banc had as yet to resolve Erasmos appeal from the
Second Divisions dismissal of the disqualification case against
Jalosjos.Thus, there then existed no final judgment deleting Jalosjos
name from the list of candidates for the congressional seat he
sought. The last standing official action in his case before election
day was the ruling of the COMELECs Second Division that allowed
his name to stay on that list. Meantime, the COMELEC En Banc did
not issue any order suspending his proclamation pending its final
resolution of his case. With the fact of his proclamation and
assumption of office, any issue regarding his qualification for the
same, like his alleged lack of the required residence, was solely for
the HRET to consider and decide. [21]
Consequently, the Court holds in G.R. 192474 that the
COMELEC En Banc exceeded its jurisdiction in declaring Jalosjos
ineligible for the position of representative for the Second District of
Zamboanga Sibugay, which he won in the elections, since it had
ceased to have jurisdiction over his case. Necessarily, Erasmos
petitions (G.R. 192704 and G.R. 193566) questioning the validity of
the registration of Jalosjos as a voter and the COMELECs failure to

annul his proclamation also fail. The Court cannot usurp the power
vested by the Constitution solely on the HRET.[22]
WHEREFORE,
the
Court GRANTS the
petition
in
G.R.
192474, REVERSES and SETS ASIDE the respondent Commission
on
Elections
En
Bancs
order
dated
June
3,
2010,
and REINSTATES the Commissions Second Division resolution
dated February 23, 2010 in SPA 09-114(DC), entitled Dan Erasmo,
Sr. v. Romeo Jalosjos Jr. Further, the Court DISMISSES the petitions
in G.R. 192704 and G.R. 193566 for lack of jurisdiction over the
issues they raise.
SO ORDERED.
Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin,
Del Castillo, Villarama, Jr., Perez, Sereno, Reyes and Perlas-Bernabe,
JJ., concur.
Mendoza, J., On Official Leave.
[19]

In Mutuc v. Commission on Elections, 130 Phil. 663, 672 (1968),

the Court held that: It is indeed true that after proclamation the
usual remedy of any party aggrieved in an election is to be found
in an election protest. But that is so only on the assumption
that there has been a valid proclamation. Where as in the
case at bar the proclamation itself is illegal, the assumption
of office cannot in any way affect the basic issues. (Emphasis
supplied)
Petition in G.R. No. 192474 granted, Commission on Elections En
Bancs order reversed and set aside and resolution of Commission
on Elections Second Division reinstated. Petitions in G.R. No.
192704 and G.R. No. 193566 dismissed.
Notes.The House of Representatives Electoral Tribunal (HRET) has
jurisdiction to pass upon the qualifications of party-list nominees
after their proclamation and assumption of office. (Bello vs.
Commission on Elections, 637 SCRA 59 [2010])
Since the representative of the elected party-list organization
becomes a member of the House of Representatives, contests
relating to the qualifications of the said party-list representative is
within the jurisdiction of the House of Representatives Electoral

40

Tribunal (HRET). (ABC [Alliance for Barangay Concerns] Party List

vs. Commission on Elections, 646 SCRA 93 [2011]) Jalosjos, Jr. vs.
Commission on Elections, 674 SCRA 530, G.R. No. 192474 June 26,
2012

41

G.R. No. 106971. October 20, 1992.*

TEOFISTO T. GUINGONA, JR., AND LAKAS-NATIONAL UNION
OF CHRISTIAN DEMOCRATS (LAKAS-NUCD), petitioners, vs.
NEPTALI A. GONZALES, ALBERTO ROMU-LO AND WIGBERTO
E.
TAADA,
respondents.
NATIONALIST
PEOPLES
COALITION, petitioner-in-intervention.
Constitutional Law; Commission on Appointments; Where constitutional
issues are properly raised in the context of the alleged facts,
procedural questions acquire a relatively minor significance and the
transcendental importance to the public of the case demands that they
be settled promptly and definitely brushing aside xxx technicalities of
procedure.There is no doubt that the issues involved herein are
constitutional in nature and are of vital importance to our nation. They
involve the interpretation of Section 18, Article VI of the Constitution
which creates a Commission on Appointments. Where constitutional
issues are properly raised in the context of the alleged facts,
procedural questions acquire a relatively minor significance, and the
transcendental importance to the public of the case demands that
they be settled promptly and definitely brushing aside x x x
technicalities of procedure.
Same; Same; Provision of Section 18 on proportional representation
mandatory in character.The provision of Section 18 on proportional
representation is mandatory in character and does not leave any
discretion to the majority party in the Senate to disobey or disregard
the rule on proportional representation; otherwise, the party with a
majority representation in the Senate or the House of Representatives
can by sheer force of numbers impose its will on the hapless minority.
Same; Same; Court does not agree with respondents claim that it is
mandatory to elect 12 Senators to the Commission on Appointments.
We do not agree with respondents claim that it is mandatory to elect
12 Senators to the Commission on Appointments. The Constitution
does not contemplate that the Commission on Appointments must
necessarily include twelve (12) senators and twelve (12) members of
the House of Representatives. What the Constitution requires is that
there be at least a majority of the entire membership. Under Section
18, the Commission shall rule by majority vote of all the members and
in Section 19, the Commission shall meet only while Congress is in
session, at the call of its Chairman or a majority of all its members to
discharge such powers and functions herein conferred upon it.
Same; Same; The Constitution does not require the election and
presence of twelve (12) Senators and twelve (12) members of the
House of Representatives in order that the Commission may function.

It is quite evident that the Constitution does not require the election
and presence of twelve (12) senators and twelve (12) members of the
House of Representatives in order that the Commission may function.
Other instances may be mentioned of Constitutional collegial bodies
which perform their functions even if not fully constituted and even if
their composition is expressly specified by the Constitution. Among
these are the Supreme Court, Civil Service Commission, Commission
on Election, Commission on Audit. They perform their functions so long
as there is the required quorum, usually a majority of its membership.
The Commission on Appointments may perform its functions and
transact its business even if only ten (10) senators are elected thereto
as long as a quorum exists.
Same; Same; Court declares the election of Senator Alberto Romulo
and Senator Wigberto Taada as members of the Commission on
Appointments as null and void for being in violation of the rule on
proportional representation under Section 18 of Article VI of the 1987
Constitution of the Philippines.In the light of the foregoing and on the
basis of the applicable rules and jurisprudence on the matter before
this Court, We declare the election of Senator Alberto Romulo and
Senator Wigberto Taada as members of the Commission on
Appointments as null and void for being in violation of the rule on
proportional representation under Section 18 of Article VI of the 1987
Constitution of the Philippines. Accordingly, a writ of prohibition is
hereby issued ordering the said respondents Senator Romulo and
Senator Taada to desist from assuming, occupying and discharging
the functions of members of the Commission on Appointments; and
ordering the respondent Senate President Neptali Gonzales, in his
capacity as ex-officio Chairman of the Commission on Appointments, to
desist from recognizing the membership of the respondent Senators
and from allowing and permitting them from sitting and participating
as members of said Commission.

PETITION for prohibition to prohibit the respondent senators from

sitting and assuming the position of members of the Commission
on Appointments.
The facts are stated in the opinion of the Court.
Ricardo C. Nepomuceno for petitioners.
Estelito P. Mendoza for Intervenor NPC.
Gonzales, Batiller, Bilog & Associates for respondents.

42

CAMPOS, JR., J.:

This is a petition for Prohibition to prohibit respondents Senator
Alberto Romulo and Wigberto Taada from sitting and assuming the
position of members of the Commission on Appointments and to
prohibit Senators Neptali Gonzales, as ex-officio Chairman, of said
Commission from recognizing and allowing the respondent senators
to sit as members thereof.
As a result of the national elections held last May 11, 1992, the
Senate is composed of the following members or Senators
representing the respective political affiliations:
LDP 15 senators
NPC 5 senators
LAKAS-NUCD 3 senators
LP-PDP-LABAN 1 senator
Applying the mathematical formula agreed to by the parties as
follow as:
No. of senators of a political party x 12 seats

Total no. of senators elected

the resulting composition of the senate based on the rule of
proportional representation of each political party with
elected representatives in the Senate, is as follows:
Political Party/ Proportional
Political Coalition Membership Representatives
LDP 15 7.5 members
NPC 5 2.5 members
LAKAS-NUCD 3 1.5 members
LP-PDP-LABAN 1 .5 members

At the organization meeting of the Senate held on August 27, 1992,

Senator Romulo in his capacity as Majority Floor Leader nominated,
for and in his behalf of the LDP, eight (8) senators for membership
in the Commission on Appointments, namely Senators Angara,
Herrera, Alvarez, Aquino, Mercado, Ople, Sotto and Romulo. The
nomination of the eight senators 2 was objected to by Petitioner,
Senator Guingona, as Minority Floor Leader, and Senator John
Osmea, in representation of the NPC. To resolve the impasse,
Senator Arturo Tolentino proposed a compromise to the effect that
Senate elect 3
. . . 12 members to the Commission on
Appointments, eight coming from the LDP, two
coming from NPC, one coming from the Liberal Party,
with the understanding that there are strong
reservations against this proportion of these numbers
so that if later on in action in the Supreme Court, if
any party is found to have an excess in
representation, and if any party is found to have a
deficiency in representation, that party will be
entitled to nominate and have elected by this body
its additional representatives.
The proposed compromise above stated was a temporary
arrangement and, inspite of the objections of Senator
Guingona and Osmea, to enable the Commission on
Appointments to be organized by the election of its
members, it was approved. The elected members consisted
of eight LDP, one LP-PDP-LABAN, two NPC and one LAKASNUCD.
On September 23, 1992, Senator Teofisto Guingona. Jr., in his behalf
and in behalf of Lakas-National Union of Christian Democrats
(LAKAS-NUCD), filed a petition for the issuance of a writ of
prohibition to prohibit the respondent Senate President Neptali
Gonzales, as ex-officio Chairman of the Commission on
Appointments, from recognizing the membership of Senators
Alberto Romulo as the eight senator elected by the LDP, and
Wigberto E. Taada, as the lone member representing the LP-PDP-

43

LABAN, in the Commission on Appointments, on the ground that the

proposed compromise of Senator Tolentino was violative of the rule
of proportional representation, and that it is the right of the
minority political parties in the Senate, consistent with the
Constitution, 4 to combine their fractional representation in the
Commission on Appointments to complete one seat therein, and to
decide who, among the senators in their ranks, shall be additionally
nominated and elected thereto.
Section 18 Article VI of the Constitution of 1987 provides fro the
creation of a Commission on Appointments and the allocation of its
membership, as follows:
Sec. 18. There shall be a Commission on
Appointments consisting of the President of the
Senate as ex-officio Chairman, twelve members of
the House of Representatives, elected by each house
on the basis of proportional representation from the
political parties or organizations registered under the
party list system represented therein. The Chairman
of the Commission shall not vote except in case of a
tie. The Commission shall act on all appointments
submitted to it within the session days of the
Congress from their submission of all the members.
(Emphasis supplied.)
Based on the mathematical computation of proportional
representation of the various political parties with elected senators
in the senators in the Senate, each of these political parties is
entitled to a fractional membership in the Commission on
Appointments as stated in the first paragraph of this
decision. 5 Each political party has a claim to an extra half seat, and
the election of respondents Senator Romulo and Senator Taada to
the Commission on Appointments by the LDP majority is precisely
questioned by the petitioners because, according to them, it unduly
increased the membership of LDP and LP-PDP-LABAN in the
commission and reduced the membership of the LAKAS-NUCD and
NPC correspondingly. In view of the conflicting claims of each of the
political parties/coalition duly represented in the Senate to a

fractional membership in the Commission on Appointments, the

election of respondents Senator Romulo and Senator Taada has
become controversial and its validity questionable. Hence, this
petition. It has been established that the legality of filling up the
membership of the Commission on Appointments is a justiciable
issue and not a political question. 6
We deem it necessary to resolve the respondents' argument as to
the nature of the instant petition. There is no doubt that the issues
involved herein are constitutional in nature and are of vital
importance to our nation. They involve the interpretation of Section
18, Article VI of the Constitution which creates a Commission on
Appointments. Where constitutional issues are properly raised in
the context of the alleged facts, procedural questions acquire a
relatively minor significance 7 and the "transcendental importance
to the public of the case demands that they be settled promptly
and definitely brushing aside . . . technicalities of procedure". 8
For the purpose of resolving the case at bar, the instant petition
may be regarded as one of prohibition 9 wherein the Senate is
claimed to have acted without or in excess of its jurisdiction when it
designated respondent Senator Romulo as eighth member of the
Commission on Appointments, upon nomination by the LDP, and
respondent Senator Taada as LP nominee, notwithstanding, that,
in both instance, LDP and LP are each entitled only to "half a
member". In the alternative, the petition may be regarded as one
for mandamus, 10 in which it is claimed that the LAKAS-NUCD and
NPC were unlawfully excluded from the use and enjoyment of a
right or office to which each is entitled. Considering the importance
of the case at bar and in keeping with the Court's duty under the
Constitution to keep the other branches of the government within
the limits of the Constitution and the laws of the land, this Court
has decided to brush aside legal technicalities of procedure and
take cognizance of this case.
The issues for determination by this Court may be stated as
follows:

44

1) Whether the election of Senators Alberto Romulo

and Wigberto E. Taada as members of the
Commission on Appointments is in accordance with
the provision of Section 18 of Article VI of the 1987
Constitution.
2) If said membership of the respondent senators in
the Commission is violative of the Constitutional
provision, did the respondent Senate act in grave
abuse of discretion in electing the respondent
Senators?
3) If there was grave abuse of discretion by
respondent Senate, acting through the LDP majority,
should a writ of prohibition enjoining, prohibiting and
restraining respondent Senators from sitting as
members of and participating in the proceeding of
the Commission on Appointments be issued?
It is an established fact to which all the parties agree that the
mathematical representation of each of the political parties
represented in the Senate is as follows:
LDP 7.5
NPC .5
LAKAS-NUCD 2.5
LP-PDP-LABAN 1.5
It is also a fact accepted by all such parties that each of
them entitled to a fractional membership on the basis of the
rule on proportional representation of each of the political
parties. A literal interpretation of Section 18 of Article VI of
the Constitution leads to no other manner of application
than as above. The problem is what to do with the fraction
of .5 or 1/2 to which each of the parties is entitled. The LDP
majority in the Senate converted a fractional half

membership into a whole membership of one senator by

adding one half or .5 to 7.5 to be able to elect Senator
Romulo. In so doing one other party's fractional membership
was correspondingly reduced leaving the latter's
representation in the Commission on Appointments to less
than their proportional representation in the Senate. This is
clearly a violation of Section 18 because it is no longer in
compliance with its mandate that membership in the
Commission be based on the proportional representation of
the political parties. The election of Senator Romulo gave
more representation to the LDP and reduced the
representation of one political party either the LAKASNUCD or the NPC.
On the claim of Senator Taada that under the ruling in the case of
Senator Lorenzo Taada, 11 and the cases of Senator Juan Ponce
Enrile, he has a right to be elected as a member of the Commission
on Appointments because of: (a) the physical impossibility of
dividing a person, so that the fractional membership must be
rounded up into one senator; (b) being the sole elected senator of
his party, his party is entitled to be represented in the Commission
on Appointments; (c) having been elected senator, rounding up into
one full senator his fractional membership is consistent with the
provision and spirit of the Constitution and would be in full accord
with the principle of republicanism that emphasizes democracy.
The cases of the two former senators mentioned cannot be invoked
as a precedent in support of incumbent Senator Taada's claim to a
membership in the present Commission on Appointments. In the
time of his illustrious father, out of 24 elected senators in the upper
chamber of Congress, 23 belonged to the Nacionalista Party, while
Senator Lorenzo Taada, who belonged to the Citizen's Party, was
the lone opposition. By force of circumstance, he became a
member of the Commission on Appointments because he alone
represented the minority party. Had there been another senator
belonging to a party other than the Citizens' Party, this problem of
who should sit as the sole representative of the opposition party
would have arisen. In the case of Senator Ponce Enrile, there were
two senators elected from the opposition party, namely, he and
Senator Estrada. Applying the rule of proportional representation

45

mentioned earlier (see formula), the opposition was entitled to full

member (not a fractional membership). Senator Enrile was thus
legally nominated and elected as the minority representative in the
Senate. In the present case, if there were a political parties in the
Senate, and We follow Senators Taada's claim that he is entitled to
full membership as lone representative of his party, We the
anomaly of having 13 senators, where the Constitution allows only
twelve (12) in the Commission on Appointments.
We find the respondents' claim to membership in the Commission
on Appointments by nomination and election of the LDP majority in
the Senate as not in accordance with Section 18 of Article VI of the
1987 Constitution and therefore violative of the same because it is
not in compliance with the requirements that twelve senators shall
be elected on the basis of proportional representation of the
resulting fractional membership of the political parties represented
therein. To disturb the resulting fractional membership of the
political parties in the Commission on Appointments by adding
together two halves to make a whole is a breach of the rule on
proportional representation because it will give the LDP an added
member in the Commission by utilizing the fractional membership
of the minority political party, who is deprived of half a
representation.
The provision of Section 18 on proportional representation is
mandatory in character and does not leave any discretion to the
majority party in the Senate to disobey or disregard the rule on
proportional representation; otherwise, the party with a majority
representation in the Senate or the House of Representatives can
by sheer force of number impose its will on the hapless minority. By
requiring a proportional representation in the Commission on
Appointments, Section 18 in effect works as a check on the
majority party in the Senate and helps to maintain the balance of
power. No party can claim more than what it is entitled to under
such rule. To allow it to elect more than its proportional share of
members is to confer upon such a party a greater share in the
membership in the Commission on Appointments and more power
to impose its will on the minority, who by the same token, suffers a
diminution of its rightful membership in the Commission.

Section 18, also assures representation in the Commission on

Appointments of any political party who succeeds in electing
members to the Senate, provided that the number of senators so
elected enables it to put a representative in the Commission on
Appointments. Drawing from the ruling in the case of Coseteng
vs. Mitra, Jr., 12 a political party must have at least two senators in
the Senate to be able to have a representatives in the Commission
on Appointments, so that any number less than 2 will not entitle
such a party a membership in the Commission on Appointments.
This applies to the respondent Senator Taada.
We lay down the following guidelines accordingly:
1) In the Senate, political party or coalition must
have at least two duly elected senators for every
seat in the Commission on Appointments.
2) Where there are more than two political parties
represented in the Senate, a political party/coalition
with a single senator in the Senate cannot
constitutionally claims seat in the Commission.
We do not agree with respondents' claim that it is
mandatory to elect 12 Senators to the Commission on
Appointments. The Constitution does not contemplate that
the Commission on Appointments must necessarily include
twelve (12) senators and twelve (12) members of the House
of Representatives. What the Constitution requires is that
there be at least a majority of the entire membership. Under
Section 18, the Commission shall rule by majority vote of all
the members and in Section 19, the Commission shall meet
only while congress is in session, at the call of its Chairman
or a majority of all its members "to discharge such powers
and functions herein conferred upon it". Implementing the
above provisions of the Constitution, Section 10 Chapter 3 of
the Rules of the Commission on Appointments, provides as
follows:

46

Sec. 10. Place of Meeting and Quorum: The

Commission shall meet at either the session hall of
the Senate or the House of Representatives upon call
of the Chairman or as the Commission may
designate. The presence of at least thirteen (13)
members is necessary to constitute a quorum.
Provided, however, that at least four (4) of the
members constituting the quorum should come from
either house. . . .
It is quite evident that the Constitution does not require the
election and presence of twelve (12) senators and twelve (12)
members of the House of Representatives in order that the
Commission may function. Other instances may be mentioned of
Constitutional collegial bodies which perform their composition is
expressly specified by the Constitution. Among these are the
Supreme
Court, 13 Civil Service Commission, 14 Commission on
Election, 15 Commission on Audit. 16 They perform their function so
long and there is the required quorum, usually a majority of its
membership. The Commission on Appointments may perform its
functions and transact it s business even if only ten (10) senators
are elected thereto as long as a quorum exists.
It may also be mentioned that while the Constitution provides for
equal membership from the Senate and the House of
Representatives in the Commission on Appointments, the senators
on the one hand, and the representatives, on the other, do not vote
separately but jointly, and usually along party lines. Even if Senator
Taada would not be able sit in the Commission on Appointments,
the LP-LDP-LABAN would still be represented in the Commission by
congressman Ponce Enrile who has become a member of the LP. On
the other hand, there is nothing to stop any of the political party in
order to fill up the two vacancies resulting from this decision.
Assuming that the Constitution intended that there be always
twelve (12) senators in the Commission on Appointments, the
instant situation cannot be rectified by the Senate in disregard of
the rule on proportional representation. The election of senator

Romulo and Senator Taada as members of the Commission on

Appointments by the LDP majority in the Senate was clearly a
violation of Section 18 of Article VI of the 1987 Constitution. Their
nomination and election by the LDP majority by sheer force of
superiority in numbers during the Senate organization meeting of
August 27, 1992 was done in grave abuse of discretion. Where
power is exercised in a manner inconsistent with the command of
the Constitution, and by reason of numerical strength, knowingly
and not merely inadvertently, said exercise amounts to abuse of
authority granted by law and grave abuse of discretion is properly
found to exist.
In the light of the foregoing and on the basis of the applicable rules
and jurisprudence on the matter before this Court, We declare the
election of Senator Alberto Romulo and Senator Wigberto Taada as
members of the Commission on Appointments as null and void for
being in violation of the rule on proportional representation under
Section 18 of Article VI of the 1987 Constitution of the Philippines.
Accordingly, a writ of prohibition is hereby issued ordering the said
respondents Senator Romulo and Senator Taada to desist from
assuming, occupying and discharging the functions of members of
the Commission on Appointments; and ordering the respondents
Senate President Neptali Gonzales, in his capacity as ex-officio
Chairman of the Commission on Appointments, to desist from
recognizing the membership of the respondent Senators and from
allowing and permitting them from sitting and participating as
members of said Commission.
SO ORDERED.
Narvasa C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, GrioAquino, Regalado, Davide, Romero, Nocon and Bellosillo, JJ., concur.
Medialdea, J., is on leave,

Election of the respondent Senators as members of the

Commission on Appointments, null and void.

47

Note.There is no doubt that the appointment of the House

membership in the Commission on Appointments was done on the
basis of proportional representation of the political parties
(Coseteng vs. Mitra, Jr., 187 SCRA 377).

48

G.R. No. 180643.September 4, 2008.*

ROMULO L. NERI, petitioner, vs. SENATE COMMITTEE ON
ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND
COMMERCE, AND SENATE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY, respondents.
Presidency; Executive Privilege; Separation of Powers; Legislative Inquiries
in Aid of Legislation; There is a recognized presumptive presidential
communications privilege; The presidential communications privilege is
fundamental to the operation of government and inextricably rooted in the
separation of powers under the Constitution.Respondent Committees
argue as if this were the first time the presumption in favor of the
presidential communications privilege is mentioned and adopted in our
legal system. That is far from the truth. The Court, in the earlier case of
Almonte v. Vasquez, 244 SCRA 286 (1995), affirmed that the presidential
communications privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution.
Even Senate v. Ermita, 488 SCRA 1 (2006), the case relied upon by
respondent Committees, reiterated this concept. There, the Court
enumerated the cases in which the claim of executive privilege was
recognized, among them Almonte v. Chavez, Chavez v. Presidential
Commission on Good Government (PCGG), 299 SCRA 744 (1998) and
Chavez v. PEA, 384 SCRA 152 (2002). The Court articulated in these cases
that there are certain types of information which the government may
withhold from the public, that there is a governmental privilege against
public disclosure with respect to state secrets regarding military,
diplomatic and other national security matters; and that the right to
information does not extend to matters recognized as privileged
information under the separation of powers, by which the Court meant
Presidential conversations, correspondences, and discussions in closeddoor Cabinet meetings.
Same; Same; Same; Same; When an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from
disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such
that the presumption in this situation inclines heavily against executive
secrecy and in favor of disclosure.Respondent Committees observation
that this Courts Decision reversed the presumption that inclines heavily
against executive secrecy and in favor of disclosure arises from a
piecemeal interpretation of the said Decision. The Court has repeatedly
held that in order to arrive at the true intent and meaning of a decision, no

specific portion thereof should be isolated and resorted to, but the decision
must be considered in its entirety. Note that the aforesaid presumption is
made in the context of the circumstances obtaining in Senate v. Ermita,
488 SCRA 1 (2006), which declared void Sections 2(b) and 3 of Executive
Order (E.O.) No. 464, Series of 2005. The pertinent portion of the decision
in the said case reads: From the above discussion on the meaning and
scope of executive privilege, both in the United States and in this
jurisprudence, 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. (Emphasis and underscoring
supplied) Obviously, the last sentence of the above-quoted paragraph in
Senate v. Ermita refers to the exemption being claimed by the executive
officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their
positions in the Executive Branch. This means that when an executive
official, who is one of those mentioned in the said Sec. 2(b) of E.O. No. 464,
claims to be exempt from disclosure, there can be no presumption of
authorization to invoke executive privilege given by the President to said
executive official, such that the presumption in this situation inclines
heavily against executive secrecy and in favor of disclosure.
Same; Same; Same; Same; Words and Phrases; Quintessential and NonDelegable, Defined; The fact that a power is subject to the concurrence of
another entity does not make such power less executive; Quintessential
is defined as the most perfect embodiment of something, the concentrated
essence of substance; Non-delegable means that a power or duty cannot
be delegated to another or, even if delegated, the responsibility remains
with the obligor; The fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a
complete report of its decision before contracting or guaranteeing foreign
loans, does not diminish the executive nature of the power.The fact that
a power is subject to the concurrence of another entity does not make such
power less executive. Quintessential is defined as the most perfect
embodiment of something, the concentrated essence of substance. On the
other hand, non-delegable means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with
the obligor. The power to enter into an executive agreement is in essence
an executive power. This authority of the President to enter into executive

49

agreements without the concurrence of the Legislature has traditionally

been recognized in Philippine jurisprudence. Now, the fact that the
President has to secure the prior concurrence of the Monetary Board, which
shall submit to Congress a complete report of its decision before
contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.
Same; Same; Same; Same; Same; Doctrine of Operational Proximity; The
doctrine of operational proximity was laid down precisely to limit the
scope of the presidential communications privilege.It must be stressed
that the doctrine of operational proximity was laid down in In re: Sealed
Case, No. 96-3124, June 17, 1997, 121 F.3d 729, 326 U.S. App. D.C. 276,
precisely to limit the scope of the presidential communications privilege.
The U.S. court was aware of the dangers that a limitless extension of the
privilege risks and, therefore, carefully cabined its reach by explicitly
confining it to White House staff, and not to staffs of the agencies, and
then only to White House staff that has operational proximity to direct
presidential decision-making.
Same; Same; Same; Same; Same; Same; Organizational Test; In
determining which test to usewhether the Operational Proximity Test or
the Organizational Testthe main consideration is to limit the availability
of executive privilege only to officials who stand proximate to the
President, not only by reason of their function, but also by reason of their
positions in the Executives organizational structure.In the case at bar,
the danger of expanding the privilege to a large swath of the executive
branch (a fear apparently entertained by respondents) is absent because
the official involved here is a member of the Cabinet, thus, properly within
the term advisor of the President; in fact, her alter ego and a member of
her official family. Nevertheless, in circumstances in which the official
involved is far too remote, this Court also mentioned in the Decision the
organizational test laid down in Judicial Watch, Inc. v. Department of
Justice, 365 F 3d. 1108, 361 U.S. App. D.C. 183, 64 Fed. R. Evid. Serv.141.
This goes to show that the operational proximity test used in the Decision
is not considered conclusive in every case. In determining which test to
use, the main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by reason of
their function, but also by reason of their positions in the Executives
organizational structure. Thus, respondent Committees fear that the scope
of the privilege would be unnecessarily expanded with the use of the
operational proximity test is unfounded.
Same; Same; Same; Same; 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.It

must be stressed that the Presidents claim of executive privilege is not

merely founded on her generalized interest in confidentiality. The Letter
dated November 15, 2007 of Executive Secretary Ermita specified
presidential communications privilege in relation to diplomatic and
economic relations with another sovereign nation as the bases for the
claim. Thus, the Letter stated: The context in which executive privilege is
being invoked is that the information sought to be disclosed might impair
our diplomatic as well as economic relations with the Peoples Republic of
China. Given the confidential nature in which this information were
conveyed to the President, he cannot provide the Committee any further
details of these conversations, without disclosing the very thing the
privilege is designed to protect. (emphasis supplied) Even in Senate v.
Ermita, 488 SCRA 1 (2006), it was held that 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 for a coordinate and co-equal
department.
Same; Same; Same; Same; Considering that the information sought
through the three (3) questions subject of this Petition involves the
Presidents dealings with a foreign nation, with more reason, the Court is
wary of approving the view that Congress may peremptorily inquire into
not only official, documented acts of the President but even her
confidential and informal discussions with her close advisors on the pretext
that said questions serve some vague legislative need.Considering that
the information sought through the three (3) questions subject of this
Petition involves the Presidents dealings with a foreign nation, with more
reason, this Court is wary of approving the view that Congress may
peremptorily inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her close advisors
on the pretext that said questions serve some vague legislative need.
Regardless of who is in office, this Court can easily foresee unwanted
consequences of subjecting a Chief Executive to unrestricted congressional
inquiries done with increased frequency and great publicity. No Executive
can effectively discharge constitutional functions in the face of intense and
unchecked legislative incursion into the core of the Presidents decisionmaking process, which inevitably would involve her conversations with a
member of her Cabinet.
Same; Same; Same; Public Officers; Right to Information; Accountability
and Transparency; The constitutional right of the people to information and
the constitutional policies on public accountability and transparency are
the twin postulates vital to the effective functioning of a democratic
government.There is no debate as to the importance of the constitutional
right of the people to information and the constitutional policies on public

50

accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can
become prey to the whims and caprices of those to whom the power has
been delegated if they are denied access to information. And the policies
on public accountability and democratic government would certainly be
mere empty words if access to such information of public concern is
denied. In the case at bar, this Court, in upholding executive privilege with
respect to three (3) specific questions, did not in any way curb the publics
right to information or diminish the importance of public accountability and
transparency.
Same; Same; Same; Same; Same; Same; The right to information is not an
absolute rightthat there is a recognized public interest in the
confidentiality of such information covered by executive privilege is a
recognized principle in other democratic States.This Court did not rule
that the Senate has no power to investigate the NBN Project in aid of
legislation. There is nothing in the assailed Decision that prohibits
respondent Committees from inquiring into the NBN Project. They could
continue the investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents investigation the three (3)
questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer
the said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in
the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an
absolute right. Indeed, the constitutional provisions cited by respondent
Committees do not espouse an absolute right to information. By their
wording, the intention of the Framers to subject such right to the regulation
of the law is unmistakable.
Same; Same; Same; Same; Same; Same; 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
and neither does the right to information grant a citizen the power to exact
testimony from government officials.The right primarily involved here is
the right of respondent Committees to obtain information allegedly in aid
of legislation, not the peoples right to public information. This is the
reason why we stressed in the assailed Decision the distinction between
these two rights. As laid down in Senate v. Ermita, 488 SCRA 1 (2006), 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 and neither does the right to
information grant a citizen the power to exact testimony from government

officials. As pointed out, these rights belong to Congress, not to the

individual citizen. It is worth mentioning at this juncture that the parties
here are respondent Committees and petitioner Neri and that there was no
prior request for information on the part of any individual citizen. This
Court will not be swayed by attempts to blur the distinctions between the
Legislatures right to information in a legitimate legislative inquiry and the
publics right to information.
Same; Same; Same; Same; The Court cannot uphold the view that when a
constitutionally guaranteed privilege or right is validly invoked by a witness
in the course of a legislative investigation, the legislative purpose of the
Committees questions can be sufficiently supported by the expedient of
mentioning statutes and/or pending bills to which their inquiry as a whole
may have relevancethe presumption of privilege can only be overturned
by a showing of compelling need for disclosure of the information covered
by executive privilege.It must be clarified that the Decision did not pass
upon the nature of respondent Committees inquiry into the NBN Project. To
reiterate, this Court recognizes respondent Committees power to
investigate the NBN Project in aid of legislation. However, this Court cannot
uphold the view that when a constitutionally guaranteed privilege or right
is validly invoked by a witness in the course of a legislative investigation,
the legislative purpose of respondent Committees questions can be
sufficiently supported by the expedient of mentioning statutes and/or
pending bills to which their inquiry as a whole may have relevance. The
jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a
showing of compelling need for disclosure of the information covered by
executive privilege.
Same; Same; Same; Same; The need for hard facts in crafting legislation
cannot be equated with the compelling or demonstratively critical and
specific need for facts which is so essential to the judicial power to
adjudicate actual controversies.The need for hard facts in crafting
legislation cannot be equated with the compelling or demonstratively
critical and specific need for facts which is so essential to the judicial
power to adjudicate actual controversies. Also, the bare standard of
pertinency set in Arnault cannot be lightly applied to the instant case,
which unlike Arnault involves a conflict between two (2) separate, co-equal
and coordinate Branches of the Government.
Same; Same; Same; Same; Whatever test we may apply, the starting point
in resolving the conflicting claims between the Executive and the
Legislative Branches is the recognized existence of the presumptive
presidential communications privilege.Whatever test we may apply, the
starting point in resolving the conflicting claims between the Executive and

51

the Legislative Branches is the recognized existence of the presumptive

presidential communications privilege. This is conceded even in the
Dissenting Opinion of the Honorable Chief Justice Puno, which states: A
hard look at Senate v. Ermita ought to yield the conclusion that it bestowed
a qualified presumption in favor of the Presidential communications
privilege. As shown in the previous discussion, U.S. v. Nixon, as well as the
other related Nixon cases Sirica and Senate Select Committee on
Presidential Campaign Activities, et al. v. Nixon in the D.C. Court of
Appeals, as well as subsequent cases all recognize that there is a
presumptive privilege in favor of Presidential communications. The
Almonte case quoted U.S. v. Nixon and recognized a presumption in favor
of confidentiality of Presidential communications.

Anent the function to curb graft and corruption, it must be stressed that
respondent Committees need for information in the exercise of this
function is not as compelling as in

Same; Same; Same; Same; The presumption in favor of Presidential

communications puts the burden on the respondent Senate Committees to
overturn the presumption by demonstrating their specific need for the
information to be elicited by the answers to the three (3) questions subject
of this case, to enable them to craft legislationfor sure, a factual basis for
situations covered by bills is not critically needed before legislative bodies
can come up with relevant legislation unlike in the adjudication of cases by
courts of law.The presumption in favor of Presidential communications
puts the burden on the respondent Senate Committees to overturn the
presumption by demonstrating their specific need for the information to be
elicited by the answers to the three (3) questions subject of this case, to
enable them to craft legislation. Here, there is simply a generalized
assertion that the information is pertinent to the exercise of the power to
legislate and a broad and non-specific reference to pending Senate bills. It
is not clear what matters relating to these bills could not be determined
without the said information sought by the three (3) questions. As correctly
pointed out by the Honorable Justice Dante O. Tinga in his Separate
Concurring Opinion: If respondents are operating under the premise that
the president and/or her executive officials have committed wrongdoings
that need to be corrected or prevented from recurring by remedial
legislation, the answer to those three questions will not necessarily bolster
or inhibit respondents from proceeding with such legislation. They could
easily presume the worst of the president in enacting such legislation. For
sure, a factual basis for situations covered by bills is not critically needed
before legislatives bodies can come up with relevant legislation unlike in
the adjudication of cases by courts of law.

Same; Same; Same; Same; Same; While it may be a worthy endeavor to

investigate the potential culpability of high government officials, including
the President, in a given government transaction, it is simply not a task for
the Senate to performthe role of the Legislature is to make laws, not to
determine anyones guilt of a crime or wrongdoing.The general thrust
and the tenor of the three (3) questions is to trace the alleged bribery to
the Office of the President. While it may be a worthy endeavor to
investigate the potential culpability of high government officials, including
the President, in a given government transaction, it is simply not a task for
the Senate to perform. The role of the Legislature is to make laws, not to
determine anyones guilt of a crime or wrongdoing. Our Constitution has
not bestowed upon the Legislature the latter role. Just as the Judiciary
cannot legislate, neither can the Legislature adjudicate or prosecute.

Same; Same; Same; Same; Oversight Function; Anent the function to curb
graft and corruption, it must be stressed that respondent Committees
need for information in the exercise of this function is not as compelling as
in instances when the purpose of the inquiry is legislative in nature
curbing graft and corruption is merely an oversight function of Congress.

instances when the purpose of the inquiry is legislative in nature. This is

because curbing graft and corruption is merely an oversight function of
Congress. And if this is the primary objective of respondent Committees in
asking the three (3) questions covered by privilege, it may even contradict
their claim that their purpose is legislative in nature and not oversight. In
any event, whether or not investigating graft and corruption is a legislative
or oversight function of Congress, respondent Committees investigation
cannot transgress bounds set by the Constitution.

Same; Same; Same; Same; Same; Congress; There is no Congressional

power to expose for the sake of exposure.No matter how noble the
intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of
who is/are liable for a crime or illegal activity, the investigation of the role
played by each official, the determination of who should be haled to court
for prosecution and the task of coming up with conclusions and finding of
facts regarding anomalies, especially the determination of criminal guilt,
are not functions of the Senate. Congress is neither a law enforcement nor
a trial agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of the
Congress, i.e. legislation. Investigations conducted solely to gather
incriminatory evidence and punish those investigated are indefensible.
There is no Congressional power to expose for the sake of exposure.
Same; Same; Same; Same; Same; Ombudsman; Courts; The Office of the
Ombudsman is the body properly equipped by the Constitution and our
laws to preliminarily determine whether or not the allegations of anomaly

52

are true and who are liable therefor, and the same holds true for our courts
upon which the Constitution reposes the duty to determine criminal guilt
with finality.It is important to stress that complaints relating to the NBN
Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. Under our Constitution,
it is the Ombudsman who has the duty to investigate 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. The Office of the
Ombudsman is the body properly equipped by the Constitution and our
laws to preliminarily determine whether or not the allegations of anomaly
are true and who are liable therefor. The same holds true for our courts
upon which the Constitution reposes the duty to determine criminal guilt
with finality. Indeed, the rules of procedure in the Office of the Ombudsman
and the courts are well-defined and ensure that the constitutionally
guaranteed rights of all persons, parties and witnesses alike, are protected
and safeguarded.
Same; Same; Congress; The Legislatures need for information in an
investigation of graft and corruption cannot be deemed compelling enough
to pierce the confidentiality of information validly covered by executive
privilege.Should respondent Committees uncover information related to
a possible crime in the course of their investigation, they have the
constitutional duty to refer the matter to the appropriate agency or branch
of government. Thus, the Legislatures need for information in an
investigation of graft and corruption cannot be deemed compelling enough
to pierce the confidentiality of information validly covered by executive
privilege. As discussed above, the Legislature can still legislate on graft
and corruption even without the information covered by the three (3)
questions subject of the petition.
Same; Same; Same; Legislative inquiries, unlike court proceedings, are not
subject to the exacting standards of evidence essential to arrive at
accurate factual findings to which to apply the law; Every person, from the
highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a
competent court or body.Legislative inquiries, unlike court proceedings,
are not subject to the exacting standards of evidence essential to arrive at
accurate factual findings to which to apply the law. Hence, Section 10 of
the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provides that technical rules of evidence applicable to judicial proceedings
which do not affect substantive rights need not be observed by the
Committee. Court rules which prohibit leading, hypothetical, or repetitive
questions or questions calling for a hearsay answer, to name a few, do not
apply to a legislative inquiry. Every person, from the highest public official

to the most ordinary citizen, has the right to be presumed innocent until
proven guilty in proper proceedings by a competent court or body.
Same; Congress; An unconstrained congressional investigative power, like
an unchecked Executive, generates its own abuses.Respondent
Committees second argument rests on the view that the ruling in Senate
v. Ermita, 488 SCRA 1 (2006), requiring invitations or subpoenas to 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 is not provided for by the
Constitution and is merely an obiter dictum. On the contrary, the Court
sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the
investigative power of Congress has been abused (or has the potential for
abuse) have been raised many times. Constant exposure to congressional
subpoena takes its toll on the ability of the Executive to function
effectively. The requirements set forth in Senate v. Ermita are modest
mechanisms that would not unduly limit Congress power. The legislative
inquiry must be confined to permissible areas and thus, prevent the
roving commissions referred to in the U.S. case, Kilbourn v. Thompson,
103 U.S. 168 (1880). Likewise, witnesses have their constitutional right to
due process. They should be adequately informed what matters are to be
covered by the inquiry. It will also allow them to prepare the pertinent
information and documents. To our mind, these requirements concede too
little political costs or burdens on the part of Congress when viewed vis-vis the immensity of its power of inquiry.
Same; Courts; Judicial Review; While it is true that the Court must refrain
from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court
has the duty to look into Congress compliance therewith.Anent the third
argument, respondent Committees contend that their Rules of Procedure
Governing Inquiries in Aid of Legislation (the Rules) are beyond the reach
of this Court. While it is true that this Court must refrain from reviewing the
internal processes of Congress, as a co-equal branch of government,
however, when a constitutional requirement exists, the Court has the duty
to look into Congress compliance therewith. We cannot turn a blind eye to
possible violations of the Constitution simply out of courtesy.
Same; Same; Contempt; The Court does not believe that respondent
Committees have the discretion to set aside their rules anytime they wish,
and this is especially true where what is involved is the contempt power; It
must be stressed that the Rules are not promulgated to benefit legislative
committeesmore than anybody else, it is the witness who has the

53

highest stake in the proper observance of the Rules.Obviously the

deliberation of the respondent Committees that led to the issuance of the
contempt order is flawed. Instead of being submitted to a full debate by all
the members of the respondent Committees, the contempt order was
prepared and thereafter presented to the other members for signing. As a
result, the contempt order which was issued on January 30, 2008 was not a
faithful representation of the proceedings that took place on said date.
Records clearly show that not all of those who signed the contempt order
were present during the January 30, 2008 deliberation when the matter
was taken up. Section 21, Article VI of the Constitution states that: 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 person appearing in or affected
by such inquiries shall be respected. (Emphasis supplied) All the limitations
embodied in the foregoing provision form part of the witness settled
expectation. If the limitations are not observed, the witness settled
expectation is shattered. Here, how could there be a majority vote when
the members in attendance are not enough to arrive at such majority?
Petitioner has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has been fully
deliberated upon. There is a greater measure of protection for the witness
when the concerns and objections of the members are fully articulated in
such proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed
that the Rules are not promulgated for their benefit. More than anybody
else, it is the witness who has the highest stake in the proper observance
of the Rules.
Senate; Certainly, there is no debate that the Senate as an institution is
continuing, as it is not dissolved as an entity with each national election
or change in the composition of its members, but in the conduct of its dayto-day business the Senate of each Congress acts separately and
independently of the Senate of the Congress before it.On the nature of
the Senate as a continuing body, this Court sees fit to issue a
clarification. Certainly, there is no debate that the Senate as an institution
is continuing, as it is not dissolved as an entity with each national
election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts
separately and independently of the Senate of the Congress before it. The
Rules of the Senate itself confirms this when it states: RULE XLIV
UNFINISHED BUSINESS SEC. 123. Unfinished business at the end of the
session shall be taken up at the next session in the same status. All
pending matters and proceedings shall terminate upon the expiration of

one (1) Congress, but may be taken by the succeeding Congress as if

present for the first time. (emphasis supplied) Undeniably from the
foregoing, all pending matters and proceedings, i.e. unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is
merely optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the first
time. The logic and practicality of such a rule is readily apparent
considering that the Senate of the succeeding Congress (which will
typically have a different composition as that of the previous Congress)
should not be bound by the acts and deliberations of the Senate of which
they had no part. If the Senate is a continuing body even with respect to
the conduct of its business, then pending matters will not be deemed
terminated with the expiration of one Congress but will, as a matter of
course, continue into the next Congress with the same status.
Same; Rules on Legislative Inquiries; It is incumbent upon the Senate to
publish the rules for its legislative inquiries in each Congress or otherwise
make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to
sufficiently put public on notice.Section 136 of the Senate Rules quoted
above takes into account the new composition of the Senate after an
election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin
their term. However, it is evident that the Senate has determined that its
main rules are intended to be valid from the date of their adoption until
they are amended or repealed. Such language is conspicuously absent
from the Rules. The Rules simply state (t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general
circulation. The latter does not explicitly provide for the continued
effectivity of such rules until they are amended or repealed. In view of the
difference in the language of the two sets of Senate rules, it cannot be
presumed that the Rules (on legislative inquiries) would continue into the
next Congress. The Senate of the next Congress may easily adopt different
rules for its legislative inquiries which come within the rule on unfinished
business. The language of Section 21, Article VI of the Constitution
requiring that the inquiry be conducted in accordance with the duly
published rules of procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative inquiries in each Congress or
otherwise make the published rules clearly state that the same shall be
effective in subsequent Congresses or until they are amended or repealed
to sufficiently put public on notice. If it was the intention of the Senate for
its present rules on legislative inquiries to be effective even in the next

54

Congress, it could have easily adopted the same language it had used in
its main rules regarding effectivity.
Same; Same; Not all orders issued or proceedings conducted pursuant to
the subject Rules are null and voidonly those that result in violation of
the rights of witnesses should be considered null and void, considering that
the rationale for the publication is to protect the rights of witnesses as
expressed in Section 21, Article VI of the Constitution.Lest the Court be
misconstrued, it should likewise be stressed that not all orders issued or
proceedings conducted pursuant to the subject Rules are null and void.
Only those that result in violation of the rights of witnesses should be
considered null and void, considering that the rationale for the publication
is to protect the rights of witnesses as expressed in Section 21, Article VI of
the Constitution. Sans such violation, orders and proceedings are
considered valid and effective.
Separation of Powers; Checks and Balances; In a free and democratic
society, the interests of these Executive and Legislative branches
inevitably clash, but each must treat the other with official courtesy and
respect.On a concluding note, we are not unmindful of the fact that the
Executive and the Legislature are political branches of government. In a
free and democratic society, the interests of these branches inevitably
clash, but each must treat the other with official courtesy and respect. This
Court wholeheartedly concurs with the proposition that it is imperative for
the continued health of our democratic institutions that we preserve the
constitutionally mandated checks and balances among the different
branches of government.
Same; Same; Accountability and Transparency; There is no question that
any story of government malfeasance deserves an inquiry into its veracity,
but the best venue for this noble undertaking is not in the political
branches of governmentthe customary partisanship and the absence of
generally accepted rules on evidence are too great an obstacle in arriving
at the truth or achieving justice that meets the test of the constitutional
guarantee of due process of law.While this Court finds laudable the
respondent Committees well-intentioned efforts to ferret out corruption,
even in the highest echelons of government, such lofty intentions do not
validate or accord to Congress powers denied to it by the Constitution and
granted instead to the other branches of government. There is no question
that any story of government malfeasance deserves an inquiry into its
veracity. As respondent Committees contend, this is founded on the
constitutional command of transparency and public accountability. The
recent clamor for a search for truth by the general public, the religious
community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the
best venue for this noble undertaking is not in the political branches of

government. The customary partisanship and the absence of generally

accepted rules on evidence are too great an obstacle in arriving at the
truth or achieving justice that meets the test of the constitutional
guarantee of due process of law. We believe the people deserve a more
exacting search for truth than the process here in question, if that is its
objective. Neri vs. Senate Committee on Accountability of Public Officers

and Investigations, 564 SCRA 152, G.R. No. 180643 September 4,

2008
DECISION
LEONARDO-DE CASTRO, J.:
At bar is a petition for certiorari under Rule 65 of the Rules of Court
assailing the show
cause Letter[1] dated November 22,
2007 and
[2]
contempt Order dated January
30,
2008 concurrently
issued
byrespondent
Senate Committees on Accountability of Public Officers and
Investigations,[3] Trade and Commerce,[4] and National Defense and
Security[5] against petitioner
Romulo
L.
Neri, former Director General of the
National Economic
and Development Authority (NEDA).
The facts, as culled from the pleadings, are as follows:
On April 21, 2007, the Department of Transportation and
Communication (DOTC) entered into a contract with Zhong Xing
Telecommunications Equipment (ZTE) for the supply of equipment and
services for the National Broadband Network (NBN) Project in the
amount of U.S. $ 329,481,290 (approximately P16 Billion Pesos). The
Project was to be financed by the Peoples Republic of China.
In connection with this NBN Project, various Resolutions were
introduced in the Senate, as follows:
(1) P.S. Res. No. 127, introduced by Senator Aquilino Q.
Pimentel, Jr., entitled RESOLUTION DIRECTING THE BLUE
RIBBON COMMITTEE AND THE COMMITTEE ON TRADE
AND INDUSTRY TO INVESTIGATE, IN AID OF
LEGISLATION, THE CIRCUMSTANCES LEADING TO THE
APPROVAL OF THE BROADBAND CONTRACT WITH ZTE
AND THE ROLE PLAYED BY THE OFFICIALS CONCERNED
IN GETTING IT CONSUMMATED AND TO MAKE
RECOMMENDATIONS TO HALE TO THE COURTS OF LAW
THE PERSONS RESPONSIBLE FOR ANY ANOMALY IN
CONNECTION
THEREWITH AND TO PLUG THE

55

LOOPHOLES, IF ANY IN THE BOT LAW AND OTHER

PERTINENT LEGISLATIONS.
(2) P.S. Res. No. 144, introduced by Senator Mar
Roxas,
entitled RESOLUTION
URGING
PRESIDENT
GLORIA MACAPAGAL ARROYO TO DIRECT THE
CANCELLATION OF THE ZTE CONTRACT

CONTRACTING LOANS CLASSIFIED AS OFFICIAL

DEVELOPMENT ASSISTANCE, AMENDING FOR THE
PURPOSE REPUBLIC ACT NO. 8182, AS AMENDED BY
REPUBLIC ACT NO. 8555, OTHERWISE KNOWN AS
THE OFFICIAL DEVELOPMENT ASSISTANCE ACT OF
1996, AND FOR OTHER PURPOSES; and
3.

Senate Bill No. 1317, introduced by Senator

Miriam Defensor Santiago, entitled AN ACT
MANDATING CONCURRENCE TO INTERNATIONAL
AGREEMENTS AND EXECUTIVE AGREEMENTS.

(3) P.S. Res. No. 129, introduced by Senator Panfilo M.

Lacson,
entitled
RESOLUTION
DIRECTING
THE
COMMITTEE ON NATIONAL DEFENSE AND SECURITY TO
CONDUCT AN INQUIRY IN AID OF LEGISLATION INTO THE
NATIONAL SECURITY IMPLICATIONS OF AWARDING THE
NATIONAL BROADBAND NETWORK CONTRACT TO THE
CHINESE FIRM ZHONG XING TELECOMMUNICATIONS
EQUIPMENT COMPANY LIMITED (ZTE CORPORATION)
WITH THE END IN VIEW OF PROVIDING REMEDIAL
LEGISLATION THAT WILL PROTECT OUR NATIONAL
SOVEREIGNTY, SECURITY AND TERRITORIAL INTEGRITY.

Respondent Committees initiated the investigation by sending

invitations to certain personalities and cabinet officials involved
in the NBN Project. Petitioner was among those invited. He was
summoned to appear and testify on September 18, 20, and 26
and October 25, 2007. However, he attended only the September 26
hearing, claiming he was out of town during the other dates.

(4) P.S. Res. No. 136, introduced by Senator Miriam

Defensor Santiago, entitled RESOLUTION DIRECTING
THE PROPER SENATE COMMITTEE TO CONDUCT AN
INQUIRY, IN AID OF LEGISLATION, ON THE LEGAL AND
ECONOMIC
JUSTIFICATION
OF
THE
NATIONAL
BROADBAND NETWORK (NBN) PROJECT OF THE
NATIONAL GOVERNMENT.

In the September 18, 2007 hearing, businessman Jose de Venecia III

testified that several high executive officials and power brokers were
using their influence to push the approval of the NBN Project by the
NEDA. It appeared that the Project was initially approved as a BuildOperate-Transfer (BOT) project but, on March 29, 2007, the NEDA
acquiesced to convert it into a government-to-government project, to
be financed through a loan from the Chinese Government.

At the same time, the investigation was claimed to be relevant to the

consideration of three (3) pending bills in the Senate, to wit:

On September 26, 2007, petitioner testified before respondent

Committees for eleven (11) hours. He disclosed that then Commission
on Elections (COMELEC) Chairman Benjamin Abalos offered him P200
Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Arroyo about the bribery attempt
and that she instructed him not to accept the bribe. However, when
probed further on what they discussed about the NBN Project,
petitioner refused to answer, invoking executive privilege. In particular,
he refused to answer the questions on (a) whether or not President
Arroyo followed up the NBN Project,[6] (b) whether or not she directed
him to prioritize it,[7] and (c) whether or not she directed him to
approve.[8]

1.

2.

Senate Bill No. 1793, introduced by Senator Mar

Roxas, entitled AN ACT SUBJECTING TREATIES,
INTERNATIONAL
OR
EXECUTIVE
AGREEMENTS
INVOLVING FUNDING IN THE PROCUREMENT OF
INFRASTRUCTURE
PROJECTS,
GOODS,
AND
CONSULTING SERVICES TO BE INCLUDED IN THE
SCOPE
AND
APPLICATION
OF
PHILIPPINE
PROCUREMENT
LAWS, AMENDING
FOR
THE
PURPOSE REPUBLIC ACT NO. 9184, OTHERWISE
KNOWN AS THE GOVERNMENT PROCUREMENT
REFORM ACT, AND FOR OTHER PURPOSES;
Senate Bill No. 1794, introduced by Senator Mar
Roxas, entitled AN ACT IMPOSING SAFEGUARDS IN

Unrelenting,
respondent
Committees
issued
a Subpoena
Ad
Testificandum to petitioner, requiring him to appear and testify
on November 20, 2007.

56

However, in the Letter dated November 15, 2007, Executive Secretary

Eduardo R. Ermita requested respondent Committees to dispense with
petitioners testimony on the ground of executive privilege. The
pertinent portion of the letter reads:

President will have a chilling effect on the President, and

will hamper her in the effective discharge of her duties
and responsibilities, if she is not protected by the
confidentiality of her conversations.

With reference to the subpoena ad testificandum issued

to Secretary Romulo Neri to appear and testify again on
20 November 2007 before the Joint Committees you
chair, it will be recalled that Sec. Neri had already
testified and exhaustively discussed the ZTE / NBN
project, including his conversation with the President
thereon last 26 September 2007.

The context in which executive privilege is being

invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic
relations with the Peoples Republic of China. Given the
confidential nature in which these information were
conveyed to the President, he cannot provide the
Committee any further details of these conversations,
without disclosing the very thing the privilege is
designed to protect.

Asked to elaborate further on his conversation with the

President, Sec. Neri asked for time to consult with his
superiors in line with the ruling of the Supreme Court
in Senate v. Ermita, 488 SCRA 1 (2006).
Specifically, Sec. Neri sought guidance on the possible
invocation of executive privilege on the following
questions, to wit:
a)

Whether the President followed up

the (NBN) project?
b)
Were you dictated to prioritize the
ZTE?
c)
Whether the President said to go
ahead and approve the project after
being told about the alleged bribe?
Following the ruling in Senate v. Ermita, the foregoing
questions fall under conversations and correspondence
between the President and public officials which are
considered executive privilege (Almonte v. Vasquez,
G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250,
July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the
exercise of her executive and policy decision making
process. The expectation of a President to the
confidentiality
of
her
conversations
and
correspondences, like the value which we accord
deference for the privacy of all citizens, is the necessity
for protection of the public interest in candid, objective,
and even blunt or harsh opinions in Presidential
decision-making. Disclosure of conversations of the

In light of the above considerations, this Office is

constrained to invoke the settled doctrine of executive
privilege as refined in Senate v. Ermita, and has advised
Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily
interrogated on the subject in an unprecedented 11hour hearing, wherein he has answered all questions
propounded to him except the foregoing questions
involving executive privilege, we therefore request that
his testimony on 20 November 2007 on the ZTE / NBN
project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees. Thus, on November 22, 2007, the latter issued the show
cause Letter requiring him to explain why he should not be cited in
contempt. The Letter reads:
Since you have failed to appear in the said hearing, the
Committees on Accountability of Public Officers and
Investigations (Blue Ribbon), Trade and Commerce and
National Defense and Security require you to show
cause why you should not be cited in contempt under
Section 6, Article 6 of the Rules of the Committee on
Accountability of Public Officers and Investigations (Blue
Ribbon).
The Senate expects your explanation on or before 2
December 2007.

57

On November 29, 2007, petitioner replied to respondent

Committees, manifesting that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were
those he claimed to be covered by executive privilege, thus:
It was not my intention to snub the last Senate
hearing. In fact, I have cooperated with the task of the
Senate in its inquiry in aid of legislation as shown by my
almost 11 hours stay during the hearing on 26
September 2007.During said hearing, I answered all the
questions that were asked of me, save for those which I
thought was covered by executive privilege, and which
was confirmed by the Executive Secretary in his Letter
15 November 2007. In good faith, after that exhaustive
testimony, I thought that what remained were only the
three questions, where the Executive Secretary claimed
executive
privilege. Hence,
his
request that my presence be dispensed with.
Be that as it may, should there be new matters
that were not yet taken up during the 26 September
2007 hearing, may I be furnished in advance as to what
else I need to clarify, so that as a resource person, I
may adequately prepare myself.
In addition, petitioner submitted a letter prepared by his
counsel, Atty. Antonio R. Bautista, stating, among others that: (1) his
(petitioner) non-appearance was upon the order of the President;
and (2) his conversation with President Arroyo dealt with delicate and
sensitive national security and diplomatic matters relating to the
impact of the bribery scandal involving high government officials and
the possible loss of confidence of foreign investors and lenders in the
Philippines. The letter ended with a reiteration of petitioners request
that he be furnished in advance as to what else he needs to clarify so
that he may adequately prepare for the hearing.
In the interim, on December 7, 2007, petitioner filed with this
Court
the
present
petition
for certiorari assailing
the show
cause Letter dated November 22, 2007.
Respondent Committees found petitioners explanations
unsatisfactory. Without responding to his request for advance notice of
the matters that he should still clarify, they issued the Order dated
January 30, 2008, citing him in contempt of respondent Committees
and ordering his arrest and detention at the Office of the Senate

Sergeant-At-Arms until such time that he would appear and give his
testimony. The said Order states:
ORDER
For failure to appear and testify in the
Committees hearing on Tuesday, September 18, 2007;
Thursday, September 20, 2007; Thursday, October 25,
2007; and Tuesday, November 20, 2007, despite
personal notice and Subpoenas Ad Testificandum sent
to and received by him, which thereby delays, impedes
and obstructs, as it has in fact delayed, impeded and
obstructed the inquiry into the subject reported
irregularities, AND for failure to explain satisfactorily
why he should not be cited for contempt (Neri letter of
29 November 2007), herein attached) ROMULO L.
NERI is hereby cited in contempt of this (sic)
Committees and ordered arrested and detained in
the Office of the Senate Sergeant-At-Arms until
such time that he will appear and give his
testimony.
The Sergeant-At-Arms is hereby directed to carry
out and implement this Order and make a return hereof
within twenty four (24) hours from its enforcement.
SO ORDERED.
On the same date, petitioner moved for the reconsideration of
the above Order.[9] He insisted that he has not shown any contemptible
conduct worthy of contempt and arrest. He emphasized his willingness
to testify on new matters, however, respondent Committees did not
respond to his request for advance notice of questions. He also
mentioned the petition for certiorari he filed on December 7, 2007.
According to him, this should restrain respondent Committees from
enforcing the show cause Letter through the issuance of declaration
of contempt and arrest.
In
view
of respondent
Committees
issuance
of the
contempt Order, petitioner filed on February 1, 2008 a Supplemental
Petition for Certiorari (With Urgent Application for TRO/Preliminary
Injunction),seeking to restrain the implementation of the said
contempt Order.

58

On February 5, 2008, the Court issued a Status Quo Ante

Order (a) enjoining respondent Committees from implementing
their contempt Order, (b) requiring the parties to observe the status
quo prevailing priorto the issuance of the assailed order,
and (c) requiring respondent Committees to file their comment.

and
policy
decision-making
and (ii)information, which might impair our
diplomatic as well as economic relations with
the Peoples Republic of China?
1.b. Did petitioner Neri correctly invoke executive
privilege to avoid testifying on his conversations
with the President on the NBN contract on his
assertions that the said conversations dealt
with delicate and sensitive national
security and diplomatic matters relating to
the impact of bribery scandal involving
high government officials and the possible
loss of confidence of foreign investors and
lenders in the Philippines x x x within the
principles laid down in Senate v. Ermita (488
SCRA 1 [2006])?

Petitioner
contends
that
respondent
Committees show
cause Letter and
contempt Order were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. He
stresses
that
his
conversations with President Arroyo are candid discussions meant
to explore options in making policy decisions. According to him,
these discussions dwelt on the impact of the bribery scandal
involving high government officials on the countrys diplomatic
relations and economic and military affairs and the possible
loss of confidence of foreign investors and lenders in
the Philippines. He also emphasizes that his claim of executive
privilege is upon the order of the President and within the parameters
laid down in Senate v. Ermita[10] and United States v. Reynolds.
[11]
Lastly, he argues that he is precluded from disclosing
communications made
to him in official confidence under Section 7[12] of Republic Act No.
6713,
otherwise known as Code of Conduct and Ethical Standards for Public
Officials and Employees, and Section 24[13] (e) of Rule 130 of the Rules
of Court.

1.c Will the claim of executive privilege in this case

violate
the
following provisions
of
the
Constitution:
Sec. 28, Art. II (Full public disclosure of all
transactions involving public interest)
Sec. 7, Art. III (The right of the people to
information on matters of public concern)

Respondent Committees assert the contrary. They argue

that (1) petitioners testimony is material and pertinent in the
investigation conducted in aid of legislation; (2) there is no valid
justification for petitioner to claim executive privilege; (3) there is no
abuse of their authority to order petitioners arrest; and (4) petitioner
has not come to court with clean hands.

Sec. 1, Art. XI (Public office is a public trust)

Sec. 17, Art. VII (The President shall ensure
that the laws be faithfully executed)
and the due process clause and the principle of
separation of powers?

In the oral argument held last March 4, 2008, the following

issues were ventilated:
1.

What communications between the President and

petitioner Neri are covered by the principle of
executive privilege?
1.a Did Executive Secretary Ermita correctly invoke
the principle of executive privilege, by order of
the President, to cover (i) conversations of
the President in the exercise of her executive

2.

What is the proper procedure to be followed in

invoking executive privilege?

3.

Did the Senate Committees gravely abuse their

discretion in ordering the arrest of petitioner for
non-compliance with the subpoena?

59

After the oral argument, the parties were directed to manifest

to the Court within twenty-four (24) hours if they are amenable to the
Courts proposal of allowing petitioner to immediately resume his
testimony before the Senate Committees to answer the other
questions of the Senators without prejudice to the decision on the
merits of this pending petition. It was understood that petitioner may
invoke executive privilege in the course of the Senate Committees
proceedings, and if the respondent Committees disagree thereto, the
unanswered questions will be the subject of a supplemental pleading
to be resolved along with the three (3) questions subject of the present
petition.[14] At the same time, respondent Committees were directed to
submit several pertinent documents.[15]
The Senate did not agree with the proposal for the reasons
stated in the Manifestation dated March 5, 2008. As to the required
documents, the Senate and respondent Committees manifested that
they would not be able to submit the latters Minutes of all meetings
and the Minute Book because it has never been the historical and
traditional legislative practice to keep them. [16] They instead submitted
the Transcript of Stenographic Notes of respondent Committees joint
public hearings.
On March 17, 2008, the Office of the Solicitor General (OSG) filed
a Motion for Leave to Intervene and to Admit Attached
Memorandum, founded on the following arguments:
(1) The communications between petitioner and the
President are covered by the principle of executive
privilege.
(2) Petitioner was not summoned by respondent
Senate Committees in accordance with the lawmaking bodys power to conduct inquiries in aid of
legislation as laid down in Section 21, Article VI of
the Constitution and Senate v. Ermita.
(3) Respondent Senate Committees gravely abused its
discretion
for
alleged
non-compliance
with
the Subpoena dated November 13, 2007.
The Court granted the OSGs motion the next day, March 18,
2008.
As the foregoing facts unfold, related events transpired.

On March 6, 2008, President Arroyo issued Memorandum

Circular No. 151, revoking Executive Order No. 464 and Memorandum
Circular No. 108. She advised executive officials and employees to
follow and abide by the Constitution, existing laws and jurisprudence,
including, among others, the case of Senate v. Ermita[17] when they are
invited to legislative inquiries in aid of legislation.
At the core of this controversy are the two (2) crucial queries,
to wit:
First, are the communications elicited by the subject three (3)
questions covered by executive privilege?
And second, did respondent Committees commit grave abuse of
discretion in issuing the contempt Order?
We grant the petition.
At the outset, a glimpse at the landmark case of Senate v.
Ermita[18] becomes imperative. Senate draws in bold strokes the
distinction between the legislative and oversight powers of the
Congress,
as
embodied
under
Sections
21
and
22,
respectively, of Article VI of the Constitution, to wit:
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.
SECTION 22. The heads of department may upon their
own initiative, with the consent of the President, or
upon the request of either House, or 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.

60

Senate cautions that while the above provisions are closely

related and complementary to each other, they should not be
considered
as
pertaining
to
the
same
power
of
Congress. Section 21 relates to the power to conduct inquiries in aid of
legislation. Its aim is to elicit information that may be used for
legislation. On the other hand, Section 22 pertains to the power to
conduct a question hour, the objective of which is to obtain information
in pursuit of Congress oversight function. [19] Simply stated, while both
powers allow Congress or any of its committees to conduct inquiry,
their objectives are different.
This distinction gives birth to another distinction with regard to
the
use
of
compulsory
process.
Unlike
in
Section
21,
Congress cannot compel the appearance of executive officials under
Section 22. The Courts pronouncement in Senate v. Ermita[20] is clear:
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.
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. (Emphasis
supplied.)

The availability of the power of judicial review to resolve the

issues raised in this case has also been settled in Senate v. Ermita,
when it held:
As evidenced by the American experience during
the so-called McCarthy era, however, the right of
Congress to conduct inquiries in aid of legislation is, in
theory, no less susceptible to abuse than executive or
judicial power. It may thus be subjected to judicial review
pursuant to the Courts certiorari powers under Section 1,
Article VIII of the Constitution.
Hence, this decision.
I
The Communications Elicited by the
Three (3) Questions are Covered by
Executive Privilege
We start with the basic premises where the parties have
conceded.
The power of Congress to conduct inquiries in aid of
legislation is broad. This is based on the proposition that 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.[21] Inevitably, adjunct thereto is the compulsory
process to enforce it. But, the power, broad as it is, has limitations. To
be valid, it is imperative that it is done in accordance with the Senate
or House duly published rules of procedure and that the rights of the
persons appearing in or affected by such inquiries be respected.
The power extends even to executive officials and the only way
for them to be exempted is through a valid claim of executive privilege.
[22]
This directs us to the consideration of the question -- is there a
recognized claim of executive privilege despite the revocation
of E.O. 464?
AThere is a Recognized Claim
of Executive Privilege Despite the
Revocation of E.O. 464
At this juncture, it must be stressed that the revocation of E.O. 464
does not in any way diminish our concept of executive privilege. This

61

is because this concept has Constitutional underpinnings. Unlike

theUnited States which has further accorded the concept with
statutory status by enacting the Freedom of Information Act[23] and
the Federal Advisory Committee Act,[24] the Philippines has retained
its constitutional origination, occasionally interpreted only by this
Court in various cases. The most recent of these is the case of Senate
v. Ermita where this Court declared unconstitutional substantial
portions of E.O. 464. In this regard, it is worthy to note that Executive
Ermitas Letter dated November 15, 2007 limits its bases for the claim
of executive privilege to Senate v. Ermita, Almonte v. Vasquez,
[25]
and Chavez v. PEA.[26] There was never a mention of E.O. 464.
While
these
cases, especially Senate
v.
Ermita,[27] have
comprehensively discussed the concept of executive privilege, we
deem it imperative to explore it once more in view of the clamor for
this Court to clearly define the communications covered by executive
privilege.
The Nixon and post-Watergate cases established the broad
contours
of
the presidential
communications
privilege.
[28]
In United States v. Nixon,[29] the U.S. Court recognized a great
public interest in preserving the confidentiality of conversations
that take place in the Presidents performance of his official
duties. It
thus
considered
presidential
communications
as presumptively privileged. Apparently, the presumption is
founded
on
the Presidents
generalized
interest
in
confidentiality. The privilege is said to be necessary to guarantee
the candor of presidential advisors and to provide the President
and those who assist him with freedom 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.
In In Re: Sealed Case,[30] the U.S. Court of Appeals delved
deeper. It ruled that there are two (2) kinds of executive privilege; one
is the presidential communications privilege and, the other is
thedeliberative
process
privilege. The
former
pertains
to communications, documents or other materials that reflect
presidential decision-making and deliberations and that the
President believes should remain confidential. The latter
includes advisory
opinions,
recommendations
and
deliberations comprising part of a process by which
governmental decisions and policies are formulated.
Accordingly,
they
are
characterized
by
marked
distinctions. Presidential
communications
privilege applies
to decision-making of the President while, the deliberative

process
privilege,
to decision-making
of executive officials. The first is rooted in the constitutional
principle of separation of power and the Presidents unique
constitutional
role; the second on common law privilege. Unlike thedeliberative
process
privilege, the presidential communications privilege applies to
documents in their entirety, and covers final and postdecisional materials as well as pre-deliberative ones [31] As a
consequence, congressional or judicial negation of the presidential
communications privilege is always subject to greater scrutiny than
denial of the deliberative process privilege.
Turning on who are the officials covered by the presidential
communications privilege, In Re: Sealed Case confines the privilege
only to White House Staff that has operational proximity to direct
presidential decision-making. Thus, the privilege is meant to
encompass only those functions that form the core of
presidential authority, involving what the court characterized as
quintessential
and
non-delegable
Presidential
power, such
as commander-in-chief power, appointment and removal power, the
power to grant pardons and reprieves, the sole-authority to receive
ambassadors and other public officers, the power to negotiate treaties,
etc.[32]
The situation in Judicial Watch, Inc. v. Department of Justice [33] tested
the In Re: Sealed Case principles. There, while the presidential decision
involved is the exercise of the Presidents pardon power, a nondelegable, core-presidential function, the Deputy Attorney General and
the Pardon Attorney were deemed to be too remote from the President
and
his
senior White House advisors to be protected. The Courtconceded that
functionally those officials were performing a task directly related to
the Presidents pardon power, but concluded that an organizational test
was more appropriate for confining the potentially broad sweep that
would result from the In Re: Sealed Cases functional test. The majority
concluded that, the lesser protections of the deliberative process
privilege would suffice. That privilege was, however, found insufficient
to justify the confidentiality of the 4,341 withheld documents.
But more specific classifications of communications covered by
executive privilege are made in older cases. Courts ruled early that the
Executive has a right to withhold documents that might
reveal military or state secrets,[34] identity of government
informers in some circumstances, ,[35] and information related to

62

pending investigations.[36] An area where the privilege is highly

revered is in foreign relations. In United States v. Curtiss-Wright
Export Corp.[37] the U.S. Court, citing President George Washington,
pronounced:
The nature of foreign negotiations requires
caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full
disclosure of all the measures, demands, or eventual
concessions which may have been proposed or
contemplated would be extremely impolitic, for this
might have a pernicious influence on future
negotiations or produce immediate inconveniences,
perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was
one cogent reason for vesting the power of making
treaties in the President, with the advice and consent of
the Senate, the principle on which the body was formed
confining it to a small number of members. To admit,
then, a right in the House of Representatives to demand
and to have as a matter of course all the papers
respecting a negotiation with a foreign power would be
to establish a dangerous precedent.
Majority of the above jurisprudence have found their way in our
jurisdiction. In Chavez v. PCGG[38], this Court held that there is a
governmental privilege against public disclosure with respect to state
secrets
regarding
military,
diplomatic
and
other
security
matters. In Chavez v. PEA,[39] there is also a recognition of the
confidentiality of Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. In Senate v. Ermita, the
concept
of presidential
communications
privilege is
fully
discussed.
As may be gleaned from the above discussion, the claim of
executive privilege is highly recognized in cases where the subject of
inquiry relates to a power textually committed by the Constitution to
the President, such as the area of military and foreign relations. Under
our Constitution, the President is the repository of the commander-inchief,[40] appointing,[41] pardoning,[42] and
diplomatic[43] powers.Consistent with the doctrine of separation of
powers, the information relating to these powers may enjoy greater
confidentiality than others.

The
above
cases,
especially, Nixon,
In
Re
Sealed
Case and Judicial
Watch, somehow
provide
the
elements
of presidential communications privilege, to wit:
1) The protected communication must relate to a
quintessential and non-delegable presidential
power.
2)

The communication must be authored or solicited

and received by a close advisor of the President
or the President himself. The judicial test is that
an advisor must be in operational proximity with
the President.

3)

The presidential
communications
privilege remains a qualified privilege that may
be overcome by a showing of adequate need,
such that the information sought likely contains
important evidence and by the unavailability of
the information elsewhere by an appropriate
investigating authority.[44]

In the case at bar, Executive Secretary Ermita premised his claim of

executive privilege on the ground that the communications elicited by
the three (3) questions fall under conversation and correspondence
between the President and public officials necessary in her executive
and policy decision-making process and, that the information sought to
be disclosed might impair our diplomatic as well as economic relations
with the Peoples Republic of China. Simply put, the bases
are presidential communications privilege and executive privilege
on matters relating to diplomacy or foreign relations.
Using the above elements, we are convinced that, indeed, the
communications elicited by the three (3) 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.
[45]
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

63

the unavailability of the information elsewhere by an appropriate

investigating authority.
The third element deserves a lengthy discussion.
United States v. Nixon held that a claim of executive privilege is
subject to balancing against other interest. In other words,
confidentiality in executive privilege is not absolutely protected by
the Constitution. The U.S. Court held:
[N]either the doctrine of separation of powers, nor the
need for confidentiality of high-level communications,
without more, can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process
under all circumstances.
The foregoing is consistent with the earlier case of Nixon v. Sirica,
[46]
where it was held that presidential communications are
presumptively privileged and that the presumption can be overcome
only by mere showing of public need by the branch seeking access to
conversations. The courts are enjoined to resolve the competing
interests of the political branches of the government in the manner
that preserves the essential functions of each Branch.[47] Here, the
record is bereft of any categorical explanation from respondent
Committees
to
show
a
compelling
or
citical
need for the answers to the three (3) questions in the enactment of a
law. Instead, the questions veer more towards the exercise of the
legislative oversight function under Section 22 of Article VI rather than
Section 21 of the same Article. Senate v. Ermitaruled that the the
oversight function of Congress may be facilitated by
compulsory process only to the extent that it is performed in
pursuit of legislation. It is conceded that it is difficult to draw the
line between an inquiry in aid of legislation and an inquiry in the
exercise of oversight function of Congress. In this regard, much will
depend on the content of the questions and the manner the inquiry is
conducted.
Respondent Committees argue that a claim of executive
privilege does not guard against a possible disclosure of a crime or
wrongdoing. We see no dispute on this. It is settled in United States v.
Nixon[48] that demonstrated, specific need for evidence in pending
criminal trial outweighs the Presidents generalized interest in
confidentiality. However,
the
present
cases distinction
with
the Nixon case
is
very
evident. In Nixon, there is a pending criminal proceeding
where the information is requested and it is the demands of due

process of law and the fair administration of criminal justice that the
information be disclosed. This is the reason why the U.S.
Court was quick to limit the scope of its decision. It stressed that it
is not concerned here with the balance between the Presidents
generalized interest in confidentiality x x x and congressional
demands for information. Unlike in Nixon, the information here is
elicited, not in a criminal proceeding, but in a legislative inquiry. In this
regard, Senate v. Ermitastressed that the validity of the claim of
executive privilege depends not only on the ground invoked but, also,
on the procedural setting or the context in which the claim is
made. Furthermore, in Nixon, the President did not interpose any claim
of need to protect military, diplomatic or sensitive national security
secrets. In the present case, Executive Secretary Ermita categorically
claims executive privilege on the grounds of presidential
communications privilege in relation to her executive and policy
decision-making process and diplomatic secrets.
The respondent Committees should cautiously tread into the
investigation of matters which may present a conflict of interest that
may provide a ground to inhibit the Senators participating in the
inquiry if later on an impeachment proceeding is initiated on the same
subject matter of the present Senate inquiry. Pertinently, in Senate
Select Committee on Presidential Campaign Activities v. Nixon,[49] it
was held that since an impeachment proceeding had been initiated by
a House Committee, the Senate Select Committees immediate
oversight need for five presidential tapes should give way to the House
Judiciary Committee which has the constitutional authority to inquire
into presidential impeachment. The Court expounded on this issue in
this wise:
It is true, of course, 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. The Congress learned this as to its own
privileges in Gravel v. United States, as did the judicial
branch, in a sense, in Clark v. United States, and the
executive branch itself in Nixon v. Sirica. But
under Nixon v. Sirica, the showing required to
overcome
the
presumption
favoring
confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material
might reveal,but, instead, on the nature and
appropriateness
of
the
function
in
the

64

performance of which the material was sought,

and the degree to which the material was
necessary to its fulfillment. Here also our task
requires and our decision implies no judgment
whatever
concerning
possible
presidential
involvement in culpable activity. On the contrary,
we think the sufficiency of the Committee's
showing must depend solely on whether the
subpoenaed evidence is demonstrably critical to
the responsible fulfillment of the Committee's
functions.
In its initial briefs here, the Committee argued
that it has shown exactly this. It contended that
resolution, on the basis of the subpoenaed tapes, of the
conflicts in the testimony before it would aid in a
determination whether legislative involvement in
political campaigns is necessary and could help
engender the public support needed for basic reforms in
our
electoral
system. Moreover,
Congress
has,
according to the Committee, power to oversee the
operations of the executive branch, to investigate
instances of possible corruption and malfeasance in
office, and to expose the results of its investigations to
public view. The Committee says that with respect to
Watergate-related matters, this power has been
delegated to it by the Senate, and that to exercise its
power responsibly, it must have access to the
subpoenaed tapes.
We turn first to the latter contention. In the
circumstances of this case, we need neither deny that
the Congress may have, quite apart from its legislative
responsibilities, a general oversight power, nor explore
what the lawful reach of that power might be under the
Committee's constituent resolution. Since passage of
that resolution, the House Committee on the Judiciary
has begun an inquiry into presidential impeachment.
The investigative authority of the Judiciary Committee
with respect to presidential conduct has an express
constitutional source. x x x We have been shown no
evidence indicating that Congress itself attaches
any particular value to this interest. In these
circumstances, we think the need for the tapes
premised solely on an asserted power to
investigate
and
inform
cannot
justify
enforcement of the Committee's subpoena.

The sufficiency of the Committee's showing of

need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the
performance of its legislative functions. There is a clear
difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged
in like functions. While fact-finding by a legislative
committee is undeniably a part of its task,
legislative judgments normally depend more on
the
predicted
consequences
of
proposed
legislative
actions
and
their
political
acceptability, than on precise reconstruction of
past events; Congress frequently legislates on the
basis of conflicting information provided in its hearings.
In contrast, the responsibility of the grand jury turns
entirely on its ability to determine whether there is
probable cause to believe that certain named
individuals did or did not commit specific crimes. If, for
example, as in Nixon v. Sirica, one of those crimes is
perjury concerning the content of certain conversations,
the grand jury's need for the most precise evidence, the
exact text of oral statements recorded in their original
form, is undeniable. We see no comparable need in
the legislative process, at least not in the
circumstances of this case. Indeed, whatever force
there might once have been in the Committee's
argument that the subpoenaed materials are necessary
to its legislative judgments has been substantially
undermined by subsequent events. (Emphasis supplied)
Respondent Committees further contend that the grant of
petitioners claim of executive privilege violates the constitutional
provisions on the right of the people to information on matters of
public concern.[50] We might have agreed with such contention if
petitioner did not appear before them at all. But petitioner made
himself available to them during the September 26 hearing, where he
was questioned for eleven (11) hours. Not only that, he expressly
manifested his willingness to answer more questions from the
Senators, with the exception only of those covered by his claim of
executive privilege.
The right to public information, like any other right, is subject to
limitation. Section 7 of Article III provides:

65

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 provision itself expressly provides the limitation,
i.e. as may be provided by law. Some of these laws are Section 7 of
Republic
Act
(R.A.)
No.
6713,[51] Article
229[52] of
[53]
the Revised Penal Code,Section 3 (k)
of R.A. No. 3019, and Section
24(e)[54] of Rule 130 of the Rules of Court. These are in addition to what
our body of jurisprudence classifies as confidential[55] and what our
Constitution considers as belonging to the larger concept of executive
privilege. Clearly, there is a recognized public interest in the
confidentiality of certain information. We find the information subject of
this case belonging to such kind.
More than anything else, though, 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 former
cannot claim that every legislative inquiry is an exercise of the peoples
right to information. The distinction between such rights is laid down
in Senate v. Ermita:
There are, it bears noting, 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.
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.

The members of respondent Committees should not invoke as

justification in their exercise of power a right properly belonging to the
people in general. This is because when they discharge their power,
they do so as public officials and members of Congress. Be that as it
may, the right to information must be balanced with and should give
way, in appropriate cases, to constitutional precepts particularly those
pertaining to delicate interplay of executive-legislative powers and
privileges which is the subject of careful review by numerous decided
cases.
B- The Claim of Executive Privilege
is Properly Invoked
We now proceed to the issue -- whether the claim is
properly invoked by the President. Jurisprudence teaches that for
the claim to be properly invoked, there must be a formal claim of
privilege, lodged by the head of the department which has control over
the matter.[56] A formal and proper claim of executive privilege requires
a precise and certain reason for preserving their confidentiality.[57]
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. In Senate v. Ermita, a less
categorical letter was even adjudged to be sufficient.
With regard to the existence of precise and certain reason, we find the
grounds relied upon by Executive Secretary Ermita specific enough so
as not to leave respondent Committees in the dark on how the
requested information could be classified as privileged. The case
of Senate v. Ermita only requires that an allegation be made whether
the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc. The particular ground must only be
specified. The enumeration is not even intended to be comprehensive.
[58]
The following statement of grounds satisfies the requirement:
The context in which executive privilege is being
invoked is that the information sought to be disclosed
might impair our diplomatic as well as economic

66

relations with the Peoples Republic of China. Given the

confidential nature in which these information were
conveyed to the President, he cannot provide the
Committee any further details of these conversations,
without disclosing the very thing the privilege is
designed to protect.
At any rate, as held further in Senate v. Ermita, [59] 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.
II
Respondent Committees Committed
Grave Abuse of Discretion in Issuing
the Contempt Order
Grave abuse of discretion means such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other
words where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law.[60]
It must be reiterated that when respondent Committees issued
the show cause Letter dated November 22, 2007, petitioner replied
immediately, manifesting that it was not his intention to ignore the
Senate hearing and that he thought the only remaining questions were
the three (3) questions he claimed to be covered by executive
privilege. In addition thereto, he submitted Atty. Bautistas
letter, stating that his non-appearance was upon the order of the
President and specifying the reasons why his conversations with
President Arroyo are covered by executive privilege. Both
correspondences include an expression of his willingness to
testify again, provided he be furnished in advance copies of
the questions. Without responding to his request for advance list of
questions, respondent Committees issued the Order dated January 30,
2008, citing him in contempt of respondent Committees and ordering
his arrest and detention at the Office of the Senate Sergeant-At-Arms
until
such
time
that
he
would
appear
and
give
his
testimony. Thereupon, petitioner filed a motion for reconsideration,
informing respondent Committees that he had filed the present
petition for certiorari.

Respondent Committees committed grave abuse of discretion in

issuing the contempt Order in view of five (5) reasons.
First, there being a legitimate claim of executive privilege, the
issuance of the contempt Order suffers from constitutional infirmity.
Second, 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. Compliance with
this requirement is imperative, both under Sections 21 and 22 of
Article VI of the Constitution. This must be so to ensure that the rights
of both persons appearing in or affected by such inquiry are
respected as mandated by said Section 21 and by virtue of the express
language of Section 22. Unfortunately, despite petitioners repeated
demands, respondent Committees did not send him an advance list of
questions.
Third, a reading of the transcript of respondent Committees January
30, 2008 proceeding reveals that only a minority of the members of
the Senate Blue Ribbon Committee was present during the
deliberation.[61] Section 18 of the Rules of Procedure Governing
Inquiries in Aid of Legislation provides that:
The Committee, by a vote of majority of all its
members, may punish for contempt any witness before
it who disobeys any order of the Committee or refuses
to be sworn or to testify or to answer proper questions
by the Committee or any of its members.
Clearly, the needed vote is a majority of all the members of the
Committee. Apparently, members who did not actually participate in
the deliberation were made to sign the contempt Order. Thus, there is
a cloud of doubt as to the validity of the contempt Order dated January
30, 2008. We quote the pertinent portion of the transcript, thus:
THE CHAIRMAN (SEN. CAYETANO, A). For
clarification. x x x The Chair will call either a
caucus or will ask the Committee on Rules if
there is a problem. Meaning, if we do not have
the sufficient numbers. But if we have a sufficient
number, we will just hold a caucus to be able to
implement that right away becauseAgain, our
Rules provide that any one held in contempt and

67

ordered arrested, need the concurrence of a

majority of all members of the said committee
and we have three committees conducting this.
So thank you very much to the members
SEN. PIMENTEL. Mr. Chairman.
THE CHAIRMAN (SEN. CAYETANO,A). May I
recognize the Minority Leader and give him the
floor, Senator Pimentel.
SEN. PIMENTEL. Mr. Chairman, there is no
problem, I think, with consulting the other
committees. But I am of the opinion that the Blue
Ribbon Committee is the lead committee, and
therefore, it should have preference in enforcing
its own decisions. Meaning to say, it is not
something that is subject to consultation with
other committees. I am not sure that is the right
interpretation. I think that once we decide here,
we enforce what we decide, because otherwise,
before we know it, our determination is watered
down by delay and, you know, the so-called
consultation that inevitably will have to take
place if we follow the premise that has been
explained.
So my suggestion, Mr. Chairman, is the Blue
Ribbon Committee should not forget its the lead
committee here, and therefore, the will of the lead
committee prevails over all the other, you, know
reservations that other committees might have who are
only secondary or even tertiary committees, Mr.
Chairman.
THE CHAIRMAN (SEN. CAYETANO, A.) Thank
you very much to the Minority Leader. And I agree with
the wisdom of his statements. I was merely mentioning
that under Section 6 of the Rules of the Committee and
under Section 6, The Committee by a vote of a majority
of all its members may punish for contempt any witness
before it who disobeys any order of the Committee.
So the Blue Ribbon Committee is more than willing to
take that responsibility. But we only have six

members here today, I am the seventh as chair

and so we have not met that number. So I am
merely stating that, sir, that when we will prepare the
documentation, if a majority of all members sign and I
am following the Sabio v. Gordon rule wherein I do
believe, if I am not mistaken, Chairman Gordon
prepared the documentation and then either in caucus
or in session asked the other members to sign. And
once the signatures are obtained, solely for the purpose
that Secretary Neri or Mr. Lozada will not be able to
legally question our subpoena as being insufficient in
accordance with law.
SEN. PIMENTEL. Mr. Chairman, the caution that the
chair is suggesting is very well-taken. But Id like to
advert to the fact that the quorum of the committee is
only two as far as I remember. Any two-member
senators attending a Senate committee hearing provide
that quorum, and therefore there is more than a
quorum demanded by our Rules as far as we are
concerned now, and acting as Blue Ribbon Committee,
as Senator Enrile pointed out. In any event, the
signatures that will follow by the additional members
will only tend to strengthen the determination of this
Committee to put its foot forward put down on what is
happening in this country, Mr. Chairman, because it
really looks terrible if the primary Committee of the
Senate, which is the Blue Ribbon Committee, cannot
even sanction people who openly defy, you know, the
summons of this Committee. I know that the Chair is
going through an agonizing moment here. I know
that. But nonetheless, I think we have to uphold, you
know, the institution that we are representing because
the alternative will be a disaster for all of us, Mr.
Chairman. So having said that, Id like to reiterate my
point.
THE CHAIRMAN (SEN. CAYETANO, A.) First of all, I
agree 100 percent with the intentions of the Minority
Leader. But let me very respectfully disagree with
the legal requirements. Because, yes, we can
have a hearing if we are only two but both under
Section 18 of the Rules of the Senate and under
Section 6 of the Rules of the Blue Ribbon
Committee, there is a need for a majority of all

68

members if it is a case of contempt and

arrest. So, I am simply trying to avoid the court
rebuking the Committee, which will instead of
strengthening will weaken us. But I do agree, Mr.
Minority Leader, that we should push for this and show
the executive branch that the well-decided the issue
has been decided upon the Sabio versus Gordon
case. And its very clear that we are all allowed to call
witnesses. And if they refure or they disobey not only
can we cite them in contempt and have them
arrested. x x x [62]
Fourth, we find merit in the argument of the OSG that respondent
Committees likewise violated Section 21 of Article VI of the
Constitution, requiring that the inquiry be in accordance with the duly
published rules of procedure. We quote the OSGs explanation:
The phrase duly published rules of procedure requires
the Senate of every Congress to publish its rules of
procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it
or after it. Since Senatorial elections are held every
three (3) years for one-half of the Senates membership,
the composition of the Senate also changes by the end
of each term. Each Senate may thus enact a different
set of rules as it may deem fit.Not having published
its Rules of Procedure, the subject hearings in aid
of legislation conducted by the 14th Senate, are
therefore, procedurally infirm.
And fifth, 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.
A fact worth highlighting is that petitioner is not an unwilling
witness. He manifested several times his readiness to testify before
respondent Committees. He refused to answer the three (3) questions
because he was ordered by the President to claim executive
privilege. It behooves respondent Committees to first rule on the claim
of executive privilege and inform petitioner of their finding thereon,

instead
of
peremptorily
dismissing
his
explanation
as
unsatisfactory. Undoubtedly,
respondent Committees actions constitute grave abuse of discretion fo
r
being arbitrary and for denying petitioner due process of law. The same
quality
afflicted
their
conduct
when
they (a) disregarded
petitioners motion for reconsideration alleging that he had filed the
present petition before this Court and (b) ignored petitioners repeated
request for an advance list of questions, if there be any aside from the
three (3) questions as to which he claimed to be covered by executive
privilege.
Even the courts are repeatedly advised to exercise the power of
contempt judiciously and sparingly with utmost self-restraint with the
end in view of utilizing the same for correction and preservation of the
dignity of the court, not for retaliation or vindication. [63] Respondent
Committees should have exercised the same restraint, after all
petitioner is not even an ordinary witness. He holds a high position in a
co-equal branch of government.
In this regard, it is important to mention that many incidents of
judicial review could have been avoided if powers are discharged with
circumspection and deference. Concomitant with the doctrine of
separation of powers is the mandate to observe respect to a co-equal
branch of the government.
One last word.
The Court was accused of attempting to abandon its constitutional
duty when it required the parties to consider a proposal that would
lead to a possible compromise. The accusation is far from the truth.
The Court did so, only to test a tool that other jurisdictions find to be
effective in settling similar cases, to avoid a piecemeal consideration of
the questions for review and to avert a constitutional crisis between
the executive and legislative branches of government.
In United States v. American Tel. & Tel Co., [64] the court
refrained from deciding the case because of its desire to avoid a
resolution that might disturb the balance of power between the two
branches and inaccurately reflect their true needs. Instead, it
remanded the record to the District Court for further proceedings
during which the parties are required to negotiate a settlement. In the
subsequent case of United States v. American Tel. &Tel Co., [65] it was
held that much of this spirit of compromise is reflected in the
generality of language found in the Constitution. It proceeded to state:

69

Under this view, the coordinate branches do not exist in

an exclusively adversary relationship to one another
when a conflict in authority arises. Rather each branch
should take cognizance of an implicit constitutional
mandate to seek optimal accommodation through a
realistic evaluation of the needs of the conflicting
branches in the particular fact situation.
It thereafter concluded that: The Separation of Powers
often impairs efficiency, in terms of dispatch and the
immediate functioning of government. It is the longterm staying power
ofgovernment that
is
enhanced
by
the mutual accommodation required
by the separation
of
powers.
In rendering this decision, the Court emphasizes once more that the
basic principles of constitutional law cannot be subordinated to the
needs of a particular situation. As magistrates, our mandate is to rule
objectively and dispassionately, always mindful of Mr. Justice
Holmes
warning on the dangers inherent in cases of this nature, thus:
some accident of immediate and overwhelming
interestappeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of
hydraulic pressure which makes what previously was
clear seem doubtful, and before which even well settled
principles of law will bend.[66]
In this present crusade to search for truth, we should turn to the
fundamental constitutional principles
which underlie
our tripartite
system of government, where the Legislature enacts the law, the
Judiciary
interprets it and the
Executive
implements it. They are considered
separate, coequal, coordinate and supreme within their respective spheres but,
imbued with a system of checks and balances to prevent
unwarranted exercise of power. The Courts mandate is to preserve
these constitutional principles at all times to keep the political
branches of government within constitutional bounds in the exercise
of their respective powers and prerogatives, even if it be in the search
for truth. This is the only way we can preserve the stability of
our democratic institutions and uphold the Rule of Law.

WHEREFORE, the petition is hereby GRANTED. The subject Order

dated January 30, 2008, citing petitioner Romulo L. Neri in contempt of
the Senate Committees and directing his arrest and detention, is
hereby nullified.
SO ORDERED.
TERESITA J. LEONARDO DE CASTRO
Associate Justice

70

G.R. No. 170338.December 23, 2008.*

VIRGILIO O. GARCILLANO, petitioner, vs. THE HOUSE OF
REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY,
INFORMATION
AND
COMMUNICATIONS
TECHNOLOGY,
and
SUFFRAGE AND ELECTORAL REFORMS, respondents.
G.R. No. 179275.December 23, 2008.*
SANTIAGO
JAVIER
RANADA
and OSWALDO D. AGCAOILI,
petitioners, vs. THE SENATE OF THE REPUBLIC OF THE
PHILIPPINES, REPRESENTED BY THE SENATE PRESIDENT THE
HONORABLE MANUEL VILLAR, respondent.
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention.
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO,
RODOLFO G. BIAZON, PANFILO M. LACSON, LOREN B. LEGARDA,
M.A. JAMBY A.S. MADRIGAL, and ANTONIO F. TRILLANES,
respondents-intervenors.
Remedial Law; Actions; Legal Standing; Concept of legal standing or locus
standi explained in Tolentino vs COMELEC.In Tolentino v. COMELEC, 420
SCRA 438 (2004), we explained that [l]egal standing or locus standi
refers to a personal and substantial interest in a case such that the party
has sustained or will sustain direct injury because of the challenged
governmental act x x x, thus, generally, a party will be allowed to litigate
only when (1) he can show that he has personally suffered some actual or
threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and
(3) the injury is likely to be redressed by a favorable action. The gist of the
question of standing is whether a party has alleged such a personal stake
in the outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.
Same; Same; Same; In recent cases, Court has relaxed the stringent direct
injury test.Considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent direct
injury test. David v. Macapagal-Arroyo, 489 SCRA 160 (2006), articulates
that a liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions
involving the constitutionality or validity of laws, regulations and rulings.
The fairly recent Chavez v. Gonzales, 545 SCRA 441 (2008), even permitted
a non-member of the broadcast media, who failed to allege a personal
stake in the outcome of the controversy, to challenge the acts of the
Secretary of Justice and the National Telecommunications Commission. The
majority, in the said case, echoed the current policy that this Court has
repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that

greatly impact on public interest, in keeping with the Courts duty under
the 1987 Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them.
Same; Same; Moot and Academic; Court dismissed G.R. No. 170338 for
being moot and academic; The exercise by the Court of judicial power is
limited to the determination and resolution of actual cases and
controversies.The Court, however, dismisses G.R. No. 170338 for being
moot and academic. Repeatedly stressed in our prior decisions is the
principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. By actual
cases, we mean existing conflicts appropriate or ripe for judicial
determination, not conjectural or anticipatory, for otherwise the decision of
the Court will amount to an advisory opinion. The power of judicial inquiry
does not extend to hypothetical questions because any attempt at
abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Neither will the Court determine
a moot question in a case in which no practical relief can be granted. A
case becomes moot when its purpose has become stale. It is unnecessary
to indulge in academic discussion of a case presenting a moot question as
a judgment thereon cannot have any practical legal effect or, in the nature
of things, cannot be enforced.
Constitutional Law; Legislative Inquiry; Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly
published rules of procedure; The requisite of publication of the rules is
intended to satisfy the basic requirements of due process.As to the
petition in G.R. No. 179275, the Court grants the same. The Senate cannot
be allowed to continue with the conduct of the questioned legislative
inquiry without duly published rules of procedure, in clear derogation of the
constitutional requirement. Section 21, Article VI of the 1987 Constitution
explicitly provides that [t]he Senate or the House of Representatives, or
any of its respective committees may conduct inquiries in aid of legislation
in accordance with its duly published rules of procedure. The requisite of
publication of the rules is intended to satisfy the basic requirements of due
process. Publication is indeed imperative, for it will be the height of
injustice to punish or otherwise burden a citizen for the transgression of a
law or rule of which he had no notice whatsoever, not even a constructive
one. What constitutes publication is set forth in Article 2 of the Civil Code,
which provides that [l]aws shall take effect after 15 days following the
completion of their publication either in the Official Gazette, or in a
newspaper of general circulation in the Philippines. The respondents in
G.R. No. 179275 admit in their pleadings and even on oral argument that
the Senate Rules of Procedure Governing Inquiries in Aid of Legislation had
been published in newspapers of general circulation only in 1995 and in

71

2006. With respect to the present Senate of the 14th Congress, however,
of which the term of half of its members commenced on June 30, 2007, no
effort was undertaken for the publication of these rules when they first
opened their session.
Same; Same; The absence of any amendment to the rules cannot justify
the Senates defiance of the clear and unambiguous language of Section
21, Article VI of the Constitution; The constitutional mandate to publish the
said rules prevails over any custom, practice or tradition followed by the
Senate.Respondents justify their non-observance of the constitutionally
mandated publication by arguing that the rules have never been amended
since 1995 and, despite that, they are published in booklet form available
to anyone for free, and accessible to the public at the Senates internet
web page. The Court does not agree. The absence of any amendment to
the rules cannot justify the Senates defiance of the clear and
unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may
conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction whether
or not these rules have undergone amendments or revision. The
constitutional mandate to publish the said rules prevails over any custom,
practice or tradition followed by the Senate.
Same; Same; Statutes; Internet; Republic Act (R.A.) No. 8792, otherwise
known as the Electronic Commerce Act of 2000, does not make the
internet a medium for publishing laws, rules and regulations.The
invocation by the respondents of the provisions of R.A. No. 8792, otherwise
known as the Electronic Commerce Act of 2000, to support their claim of
valid publication through the internet is all the more incorrect. R.A. 8792
considers an electronic data message or an electronic document as the
functional equivalent of a written document only for evidentiary purposes.
In other words, the law merely recognizes the admissibility in evidence (for
their being the original) of electronic data messages and/or electronic
documents. It does not make the internet a medium for publishing laws,
rules and regulations.
Same; Same; The recent publication does not cure the infirmity of the
inquiry sought to be prohibited by the instant petitions.The Senate
caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila
Bulletin and Malaya. While we take judicial notice of this fact, the recent
publication does not cure the infirmity of the inquiry sought to be
prohibited by the instant petitions. Insofar as the consolidated cases are
concerned, the legislative investigation subject thereof still could not be
undertaken by the respondent Senate Committees, because no published
rules governed it, in clear contravention of the Constitution.
PUNO, C.J., Dissenting Opinion:

Constitutional Law; Legislative Inquiry; A faithful adherence of the case at

bar to the Neri Ruling would yield the conclusion that the Garci tapes
investigation may be conducted even without the published Rules of
Procedure Governing Inquiries, and that only those orders and proceedings
that result in the violation of the rights of the witnesses may be considered
null and void.It will be recalled that in the March 25 Neri Decision, the
Court struck down not the entire proceedings of the Senate investigation
on the NBN-ZTE deal for want of published Rules of Procedure Governing
Inquiries, but only the Order dated January 30, 2008, citing petitioner
Romulo L. Neri in contempt of the Senate Committees and directing his
arrest and detention (January 30 Contempt Order) as stated in the
dispositive portion of the Decision. A faithful adherence of the case at bar
to the Neri Ruling would yield the conclusion that the Garci tapes
investigation may be conducted even without the published Rules of
Procedure Governing Inquiries, and that only those orders and proceedings
that result in the violation of the rights of the witnesses may be considered
null and void. The ponencia did not, however, show which orders or
proceedings resulted in this violation and, instead, made a blanket
prohibition of the conduct of the Garci tapes investigation for want of
published Rules of Procedure Governing Inquiries.
Same; Same; In both the March 25 Neri Decision and the September 4 Neri
Resolution, the Court did not invalidate the entire Senate investigation
proceedings conducted in accordance with the Rules of Procedure
Governing Inquiries, which were not published in the 14th Congress.In
both the March 25 Neri Decision and the September 4 Neri Resolution, the
Court did not invalidate the entire Senate investigation proceedings
conducted in accordance with the Rules of Procedure Governing Inquiries,
which were not published in the 14th Congress. In fact, the Court ruled on
the issue of executive privilege raised in said proceedings. It struck down
only the January 30 Contempt Order against therein petitioner Neri for
failure to comply with Section 18 of the Rules of Procedure Governing
Inquiries, while at the same time holding these rules as constitutionally
infirm for want of publication.
Same; Same; The continuing effectivity of the Senate Rules from one
Congress to the next, which the Court acknowledged in its September 4
Neri Resolution, evinces the nature of the Senate as a continuing body
governed by its continuing Senate Rules.The continuing effectivity of the
Senate Rules from one Congress to the next, which the Court
acknowledged in its September 4 Neri Resolution, evinces the nature of the
Senate as a continuing body governed by its continuing Senate Rules. If
the Senate were not a continuing body, there would be no reason for the
Senate Rules to likewise have a continuing effect. In contradistinction, the
effectivity of the Rules of Proceedings of the House of Representatives
(House Rules)which is admittedly not a continuing body, as the terms of

72

all congressmen end at the same timeterminates upon the expiration of

one Congress. Thus, Rule 1, Section 1 of the 14th Congress House Rules
adopted on November 20, 2007 reflects the practice of the House of
Representatives of adopting rules of proceedings on its first meeting and
organization upon the opening of a succeeding Congress.
Same; Same; As a general rule, one-time publication suffices to satisfy the
due process requirement to inform the public of a rule that would govern it
and affect its rights.As a general rule, one-time publication suffices to
satisfy the due process requirement to inform the public of a rule that
would govern it and affect its rights. It is not uncommon for laws and rules
to provide that they shall take effect upon a certain date following
publication in a newspaper of general circulation without having to state
that they shall remain in force until they are amended or repealed for
them to have continuing effect. These laws and rules are published only
once, and yet they continue to be in force. The Court itself employs this
language in its rules as shown in the recently promulgated Rule on the Writ
of Habeas Data and Rule on the Writ of Amparo.
Same; Same; The exception to the general rule that one-time publication
suffices for a law or rule to have continuing effect is when there are
circumstances or factors that interrupt this continuity.The exception to
the general rule that one-time publication suffices for a law or rule to have
continuing effect is when there are circumstances or factors that interrupt
this continuity. An example is the discontinuation of the existence of the
House of Representatives as a legislative body, which terminates the
effectivity of its published Rules of Procedure Governing Inquiries and
requires the publication of these rules in the succeeding Congress for them
to take effect. As discussed above and in my Dissents to the March 25 Neri
Decision and September 4 Neri Resolution, the Senate, unlike the House of
Representatives, is a continuing body. Thus, contrary to the holding of the
ponencia, the Senates Rules of Procedure Governing Inquiries, sans
amendment, need not be published by the Senate of every Congress and
need not also state that they shall remain in force until they are amended
or repealed for them to be effective from one Congress to the next. Quite
the opposite of the ponencias ruling, in the absence of language stating
that the Rules of Procedure Governing Inquiries shall not continue in effect
from one Congress to the next, these rules shall have continuing effect.
Same; Anti-Wiretapping Law; What Republic Act (R.A.) 4200 penalizes are
the acts of secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein.A private
communication is characterized as such based not on the content of the
communication, but on the context that it was said in private and not for
public consumption. That the content or nature of the communication is
immaterial was ruled in Ramirez v. Court of Appeals, 248 SCRA 590 (1995),
viz.: ... the nature of the conversations is immaterial to a violation of the

statute. The substance of the same need not be specifically alleged in the
information. What R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret
recording of a private communication by means of a tape recorder would
suffice to constitute an offense under Section 1 of R.A. 4200.
Same; Same; Republic Act (R.A.) No. 4200 provides for exceptions when
wiretapping is allowed by written order of the court.R.A. No. 4200,
however, provides for exceptions when wiretapping is allowed by written
order of the court under Section 3, viz.: Section 3. Nothing contained in this
Act, however, shall render it unlawful or punishable for any peace officer,
who is authorized by a written order of the Court, to execute any of the
acts declared to be unlawful in the two preceding sections in cases
involving the crimes of treason, espionage, provoking war and disloyalty in
case of war, piracy, mutiny in the high seas, rebellion, conspiracy and
proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, inciting to sedition, kidnapping as defined by the Revised
Penal Code, and violations of Commonwealth Act No. 616, punishing
espionage and other offenses against national security: Provided, That
such written order shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the
witnesses he may produce and a showing: (1) that there are reasonable
grounds to believe that any of the crimes enumerated hereinabove has
been committed or is being committed or is about to be committed:
Provided, however, That in cases involving the offenses of rebellion,
conspiracy and proposal to commit rebellion, inciting to rebellion, sedition,
conspiracy to commit sedition, and inciting to sedition, such authority shall
be granted only upon prior proof that a rebellion or acts of sedition, as the
case may be, have actually been or are being committed; (2) that there are
reasonable grounds to believe that evidence will be obtained essential to
the conviction of any person for, or to the solution of, or to the prevention
of, any of such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Same; Same; Republic Act (R.A.) No. 4200 makes illegally wiretapped
communications inadmissible in any proceeding.To further give teeth to
the above prohibition, R.A. No. 4200 makes illegally wiretapped
communications inadmissible in any proceeding, viz.: Section 4. Any
communication or spoken word, or the existence, contents, substance,
purport, effect, or meaning of the same or any part thereof, or any
information therein contained obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in
evidence in any judicial, quasi-judicial, legislative or administrative hearing
or investigation.

73

Same; Same; The exception under Section 1 in relation to Section 3 of

Republic Act (R.A.) No. 4200 does not include the use of illegally
wiretapped communication for purposes of prosecuting violations of R.A.
No. 4200 itself.The exception under Section 1 in relation to Section 3 of
R.A. No. 4200 does not include the use of illegally wiretapped
communication for purposes of prosecuting violations of R.A. No. 4200
itself as the Court did in Ramirez. Not reading this exception into the law
would impede the prosecution of the acts it prohibits and contradict the
very purpose for adopting the law as clearly stated in its title, An Act to
Prohibit and Penalize Wire Tapping and Other Related Violations of the
Privacy of Communication, and for Other Purposes. Well-settled is the rule
in statutory construction that where there is ambiguity, such
interpretation as will avoid inconvenience and absurdity is to be adopted.
Interpretatio talis in ambiguis semper frienda est, ut evitatur inconveniens
et absurdum. R.A. No. 4200 should be given a sensible construction, so as
to give effect to its rationale and intent and thus avoid an unjust or absurd
interpretation. The ineluctable conclusion is that the use of illegally
wiretapped communication must be allowed in a prosecution under R.A.
No. 4200 precisely to deter the commission of illegal wiretapping.
REYES, J., Concurring and Dissenting Opinion:
Remedial Law; Actions; Moot and Academic; While it is true that the Court
is not absolutely precluded from resolving issues that are otherwise moot,
no compelling circumstance is present here that would warrant the
exercise of judicial review.One of the requisites of judicial power is the
presence of an actual controversy. Courts are prohibited from deciding
hypothetical, conjectural or anticipatory questions despite their vast
judicial power. Otherwise, a decision rendered would amount to nothing
but an advisory opinion, which would not augur well with the function of
courts as arbiters of controversies. While it is true that the Court is not
absolutely precluded from resolving issues that are otherwise moot, no
compelling circumstance is present here that would warrant the exercise of
judicial review.
Same; Same; Same; When a case is impressed with public interest, a
relaxation of the application of the rules is in order.Courts should not be
shackled by stringent rules which would result in manifest injustice. Rules
of procedure are tools crafted to facilitate, not to frustrate, the attainment
of justice. Thus, their strict and rigid application, if they result in
technicalities that tend to frustrate rather than promote substantial justice,
must be eschewed. Substantial rights must not be prejudiced by a rigid
and technical application of the rules in the altar of expediency. When a
case is impressed with public interest, a relaxation of the application of the
rules is in order. Time and again, this Court has suspended its own rules
and excepted a particular case from their operation whenever the higher
interests of justice so require.

Constitutional Law; Legislative Inquiry; There is nothing in the

constitutional provision that commands that every new Congress must
publish its rules of procedure.The Constitutional provision requiring
publication of Senate rules is contained in Section 21, Article VI of the 1987
Constitution, which reads: 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. The
above provision only requires a duly published rule of procedure for
inquiries in aid of legislation. It is silent on republication. There is nothing in
the constitutional provision that commands that every new Congress must
publish its rules of procedure. Implicitly, republication is necessary only
when there is an amendment or revision to the rules. This is required under
the due process clause of the Constitution.

SPECIAL CIVIL ACTIONS in the Supreme Court. Prohibition.

The facts are stated in the opinion of the Court.
Eddie U. Tamondong, Tomas A. Garcillano and Rodolfo G. Palattao
for Virgilio O. Garcillano.
M.M. Lazaro & Associates for petitioners.
Ongkiko, Kalaw, Manhit & Acorda Law Offices for petitioner in G.R.
No. 179275.
Leonardo B. Palicte III for public respondents.
Gana & Manlangit Law Office for respondents-intervenors.
Garcillano vs. House of Representatives Committees on Public
Information, Public Order and Safety, National Defense and
Security, Information and Communications Technology, and
Suffrage and Electoral Reforms, 575 SCRA 170, G.R. No. 170338
December 23, 2008

NACHURA, J.:

74

More than three years ago, tapes ostensibly containing a

wiretapped conversation purportedly between the President of
the Philippines and a high-ranking official of the Commission on
Elections (COMELEC) surfaced. They captured unprecedented public
attention and thrust the country into a controversy that placed the
legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously
referred to as the Hello Garci tapes, allegedly contained the Presidents
instructions to COMELEC Commissioner Virgilio Garcillano to
manipulate in her favor results of the 2004 presidential elections.
These recordings were to become the subject of heated legislative
hearings conducted separately by committees of both Houses of
Congress.[1]
In the House of Representatives (House), on June 8, 2005, then
Minority Floor Leader Francis G. Escudero delivered a privilege speech,
Tale of Two Tapes, and set in motion a congressional investigation
jointly conducted by the Committees on Public Information, Public
Order and Safety, National Defense and Security, Information and
Communications Technology, and Suffrage and Electoral Reforms
(respondent House Committees). During the inquiry, several versions
of the wiretapped conversation emerged. But on July 5, 2005, National
Bureau of Investigation (NBI) Director Reynaldo Wycoco, Atty. Alan
Paguia and the lawyer of former NBI Deputy Director Samuel Ong
submitted to the respondent House Committees seven alleged original
tape recordings of the supposed three-hour taped conversation. After
prolonged and impassioned debate by the committee members on the
admissibility and authenticity of the recordings, the tapes were
eventually played in the chambers of the House.[2]
On August 3, 2005, the respondent House Committees decided
to suspend the hearings indefinitely. Nevertheless, they decided to
prepare committee reports based on the said recordings and the
testimonies of the resource persons.[3]
Alarmed by these developments, petitioner Virgilio O.
Garcillano (Garcillano) filed with this Court a Petition for Prohibition and
Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction[4] docketed as G.R. No. 170338. He prayed that
the respondent House Committees be restrained from using these tape
recordings of the illegally obtained wiretapped conversations in their
committee reports and for any other purpose. He further implored that
the said recordings and any reference thereto be ordered stricken off
the records of the inquiry, and the respondent House Committees

directed to desist from further using the recordings in any of the House
proceedings.[5]
Without reaching its denouement, the House discussion and
debates on the Garci tapes abruptly stopped.
After more than two years of quiescence, Senator Panfilo
Lacson roused the slumbering issue with a privilege speech, The
Lighthouse That Brought Darkness. In his discourse, Senator Lacson
promised to provide the public the whole unvarnished truth the whats,
whens, wheres, whos and whys of the alleged wiretap, and sought an
inquiry into the perceived willingness of telecommunications providers
to participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacsons
speech was referred to the Senate Committee on National Defense and
Security, chaired by Senator Rodolfo Biazon, who had previously filed
two bills[6] seeking to regulate the sale, purchase and use of
wiretapping equipment and to prohibit the Armed Forces of the
Philippines (AFP) from performing electoral duties.[7]
In the Senates plenary session the following day, a lengthy
debate ensued when Senator Richard Gordon aired his concern on the
possible transgression of Republic Act (R.A.) No. 4200[8] if the body
were to conduct a legislative inquiry on the matter. On August 28,
2007, Senator Miriam Defensor-Santiago delivered a privilege speech,
articulating her considered view that the Constitution absolutely bans
the use, possession, replay or communication of the contents of the
Hello Garci tapes. However, she recommended a legislative
investigation into the role of the Intelligence Service of the AFP (ISAFP),
the Philippine National Police or other government entities in the
alleged illegal wiretapping of public officials.[9]
On September 6, 2007, petitioners Santiago Ranada and
Oswaldo Agcaoili, retired justices of the Court of Appeals, filed before
this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction,
[10]
docketed as G.R. No. 179275, seeking to bar the Senate from
conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section
3, Article III of the Constitution.[11]
As the Court did not issue an injunctive writ, the Senate
proceeded with its public hearings on the Hello Garci tapes on
September 7,[12] 17[13] and October 1,[14] 2007.

75

Intervening as respondents,[15] Senators Aquilino Q. Pimentel,

Jr., Benigno Noynoy C. Aquino, Rodolfo G. Biazon, Panfilo M. Lacson,
Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F. Trillanes filed
their Comment[16] on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument.[17]
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the
ISAFP and one of the resource persons summoned by the Senate to
appear and testify at its hearings, moved to intervene as petitioner in
G.R. No. 179275.[18]
On November 20, 2007, the Court resolved to consolidate G.R.
Nos. 170338 and 179275.[19]
It may be noted that while both petitions involve the Hello Garci
recordings, they have different objectivesthe first is poised at
preventing the playing of the tapes in the House and their subsequent
inclusion in the committee reports, and the second seeks to prohibit
and stop the conduct of the Senate inquiry on the wiretapped
conversation.
The Court dismisses the first petition, G.R. No. 170338, and
grants the second, G.R. No. 179275.
-IBefore delving into the merits of the case, the Court shall first
resolve the issue on the parties standing, argued at length in their
pleadings.
In Tolentino v. COMELEC,[20] we explained that [l]egal standing
or locus standi refers to a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury because
of the challenged governmental act x x x, thus,
generally, a party will be allowed to litigate only when
(1) he can show that he has personally suffered some
actual or threatened injury because of the allegedly
illegal conduct of the government; (2) the injury is fairly
traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.[21]

The gist of the question of standing is whether a party has alleged such
a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.[22]
However, considering that locus standi is a mere procedural
technicality, the Court, in recent cases, has relaxed the stringent direct
injury test. David v. Macapagal-Arroyo[23] articulates that a liberal policy
has been observed, allowing ordinary citizens, members of Congress,
and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. [24] The fairly
recent Chavez v. Gonzales[25] even permitted a non-member of the
broadcast media, who failed to allege a personal stake in the outcome
of the controversy, to challenge the acts of the Secretary of Justice and
the National Telecommunications Commission. The majority, in the said
case, echoed the current policy that this Court has repeatedly and
consistently refused to wield procedural barriers as impediments to its
addressing and resolving serious legal questions that greatly impact on
public interest, in keeping with the Courts duty under the 1987
Constitution to determine whether or not other branches of
government have kept themselves within the limits of the Constitution
and the laws, and that they have not abused the discretion given to
them.[26]
In G.R. No. 170338, petitioner Garcillano justifies his standing to
initiate the petition by alleging that he is the person alluded to in the
Hello Garci tapes. Further, his was publicly identified by the members
of the respondent committees as one of the voices in the recordings.
[27]
Obviously, therefore, petitioner Garcillano stands to be directly
injured by the House committees actions and charges of electoral
fraud. The Court recognizes his standing to institute the petition for
prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their
standing by alleging that they are concerned citizens, taxpayers, and
members of the IBP. They are of the firm conviction that any attempt to
use the Hello Garci tapes will further divide the country. They wish to
see the legal and proper use of public funds that will necessarily be
defrayed in the ensuing public hearings. They are worried by the
continuous violation of the laws and individual rights, and the blatant
attempt to abuse constitutional processes through the conduct of
legislative inquiries purportedly in aid of legislation.[28]

76

Intervenor Sagge alleges violation of his right to due process

considering that he is summoned to attend the Senate hearings
without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid
of Legislation, but also of the intended legislation which underpins the
investigation. He further intervenes as a taxpayer bewailing the
useless and wasteful expenditure of public funds involved in the
conduct of the questioned hearings.[29]
Given that petitioners Ranada and Agcaoili allege an interest in
the execution of the laws and that intervenor Sagge asserts his
constitutional right to due process,[30] they satisfy the requisite
personal stake in the outcome of the controversy by merely being
citizens of the Republic.
Following the Courts ruling in Francisco, Jr. v. The House of
Representatives,[31] we find sufficient petitioners Ranadas and Agcaoilis
and intervenor Sagges allegation that the continuous conduct by the
Senate of the questioned legislative inquiry will necessarily involve the
expenditure of public funds.[32] It should be noted that in Francisco,
rights personal to then Chief Justice Hilario G. Davide, Jr. had been
injured by the alleged unconstitutional acts of the House of
Representatives, yet the Court granted standing to the petitioners
therein for, as in this case, they invariably invoked the vindication of
their own rightsas taxpayers, members of Congress, citizens,
individually or in a class suit, and members of the bar and of the legal
professionwhich were also supposedly violated by the therein assailed
unconstitutional acts.[33]
Likewise, a reading of the petition in G.R. No. 179275 shows
that the petitioners and intervenor Sagge advance constitutional issues
which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. The issues are of transcendental
and paramount importance not only to the public but also to the Bench
and the Bar, and should be resolved for the guidance of all.[34]
Thus, in the exercise of its sound discretion and given the
liberal attitude it has shown in prior cases climaxing in the more recent
case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.
- II The Court, however, dismisses G.R. No. 170338 for being moot
and academic. Repeatedly stressed in our prior decisions is the
principle that the exercise by this Court of judicial power is limited to

the determination and resolution of actual cases and controversies.

[35]
By actual cases, we mean existing conflicts appropriate or ripe for
judicial determination, not conjectural or anticipatory, for otherwise the
decision of the Court will amount to an advisory opinion. The power of
judicial inquiry does not extend to hypothetical questions because any
attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions unrelated to actualities. [36] Neither
will the Court determine a moot question in a case in which no
practical relief can be granted. A case becomes moot when its purpose
has become stale.[37] It is unnecessary to indulge in academic
discussion of a case presenting a moot question as a judgment thereon
cannot have any practical legal effect or, in the nature of things,
cannot be enforced.[38]
In G.R. No. 170338, petitioner Garcillano implores from the
Court, as aforementioned, the issuance of an injunctive writ to prohibit
the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise
prays that the said tapes be stricken off the records of the House
proceedings. But the Court notes that the recordings were already
played in the House and heard by its members. [39] There is also the
widely publicized fact that the committee reports on the Hello Garci
inquiry were completed and submitted to the House in plenary by the
respondent committees.[40] Having been overtaken by these events,
the Garcillano petition has to be dismissed for being moot and
academic. After all, prohibition is a preventive remedy to restrain the
doing of an act about to be done, and not intended to provide a
remedy for an act already accomplished.[41]
- III As to the petition in G.R. No. 179275, the Court grants the
same. The Senate cannot be allowed to continue with the conduct of
the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly
provides that [t]he Senate or the House of Representatives, or any of
its respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The requisite of
publication of the rules is intended to satisfy the basic requirements of
due process.[42] Publication is indeed imperative, for it will be the height
of injustice to punish or otherwise burden a citizen for the
transgression of a law or rule of which he had no notice whatsoever,
not even a constructive one.[43] What constitutes publication is set forth

77

in Article 2 of the Civil Code, which provides that [l]aws shall take
effect after 15 days following the completion of their publication either
in the Official Gazette, or in a newspaper of general circulation in
thePhilippines.[44]
The respondents in G.R. No. 179275 admit in their pleadings
and even on oral argument that the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006. [45] With
respect to the present Senate of the 14 th Congress, however, of which
the term of half of its members commenced on June 30, 2007, no effort
was undertaken for the publication of these rules when they first
opened their session.
Recently, the Court had occasion to rule on this very same
question. In Neri v. Senate Committee on Accountability of Public
Officers and Investigations,[46] we said:
Fourth, we find merit in the argument of the
OSG that respondent Committees likewise violated
Section 21 of Article VI of the Constitution, requiring
that the inquiry be in accordance with the duly
published rules of procedure. We quote the OSGs
explanation:
The phrase duly published rules
of procedure requires the Senate of
every Congress to publish its rules of
procedure governing inquiries in aid of
legislation because every Senate is
distinct from the one before it or after
it. Since Senatorial elections are held
every three (3) years for one-half of the
Senates membership, the composition of
the Senate also changes by the end of
each term. Each Senate may thus enact
a different set of rules as it may deem
fit. Not having published its Rules of
Procedure, the subject hearings in
aid of legislation conducted by the
14th Senate,
are
therefore,
procedurally infirm.

Justice Antonio T. Carpio, in his Dissenting and Concurring

Opinion, reinforces this ruling with the following rationalization:
The present Senate under the 1987 Constitution is no
longer a continuing legislative body. The present Senate
has twenty-four members, twelve of whom are elected
every three years for a term of six years each. Thus, the
term of twelve Senators expires every three years,
leaving less than a majority of Senators to
continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a
majority of Senators to constitute a quorum to do
business. Applying the same reasoning in Arnault v.
Nazareno, the Senate under the 1987 Constitution is not
a continuing body because less than majority of the
Senators continue into the next Congress. The
consequence is that the Rules of Procedure must be
republished by the Senate after every expiry of the term
of twelve Senators.[47]
The subject was explained with greater lucidity in our Resolution[48] (On
the Motion for Reconsideration) in the same case, viz.:
On the nature of the Senate as a continuing body, this
Court sees fit to issue a clarification. Certainly, there is
no debate that the Senate as an institution is
continuing, as it is not dissolved as an entity with each
national election or change in the composition of its
members. However, in the conduct of its day-to-day
business the Senate of each Congress acts separately
and independently of the Senate of the Congress before
it. The Rules of the Senate itself confirms this when it
states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the
end of the session shall be taken up at
the next session in the same status.
All
pending
matters
and
proceedings shall terminate upon
the expiration of one (1) Congress,

78

but may be taken by the succeeding

Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and
proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress
are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the
succeeding Congress to take up such unfinished
matters, not in the same status, but as if
presented for the first time. The logic and practicality
of such a rule is readily apparent considering that the
Senate of the succeeding Congress (which will typically
have a different composition as that of the previous
Congress) should not be bound by the acts and
deliberations of the Senate of which they had no part.If
the Senate is a continuing body even with respect to
the conduct of its business, then pending matters will
not be deemed terminated with the expiration of one
Congress but will, as a matter of course, continue into
the next Congress with the same status.
This dichotomy of the continuity of the Senate as an
institution and of the opposite nature of the conduct of
its business is reflected in its Rules. The Rules of the
Senate (i.e. the Senates main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in
which the Senators elected in the
preceding elections shall begin their
term of office, the President may endorse
the Rules to the appropriate committee
for amendment or revision.
The Rules may also be amended by
means of a motion which should be
presented at least one day before its
consideration, and the vote of the
majority of the Senators present in the
session shall be required for its approval.
RULE LII

DATE OF TAKING EFFECT

SEC. 137. These Rules shall take effect
on the date of their adoption and shall
remain in force until they are amended
or repealed.
Section 136 of the Senate Rules quoted above takes
into account the new composition of the Senate after an
election and the possibility of the amendment or
revision of the Rules at the start of each session in
which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined
that its main rules are intended to be valid from the
date of their adoption until they are amended or
repealed. Such language is conspicuously absent from
the Rules. The Rulessimply state (t)hese Rules shall take
effect seven (7) days after publication in two (2)
newspapers of general circulation. The latter does not
explicitly provide for the continued effectivity of such
rules until they are amended or repealed. In view of the
difference in the language of the two sets of Senate
rules, it cannot be presumed that the Rules (on
legislative inquiries) would continue into the next
Congress. The Senate of the next Congress may easily
adopt different rules for its legislative inquiries which
come within the rule on unfinished business.
The language of Section 21, Article VI of the
Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of
procedure is categorical. It is incumbent upon the
Senate to publish the rules for its legislative inquiries in
each Congress or otherwise make the published rules
clearly state that the same shall be effective in
subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules
on legislative inquiries to be effective even in the next
Congress, it could have easily adopted the same
language it had used in its main rules regarding
effectivity.

79

Respondents justify their non-observance of the constitutionally

mandated publication by arguing that the rules have never been
amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the
Senates internet web page.[49]
The Court does not agree. The absence of any amendment to
the rules cannot justify the Senates defiance of the clear and
unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees
may conduct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction
whether or not these rules have undergone amendments or revision.
The constitutional mandate to publish the said rules prevails over any
custom, practice or tradition followed by the Senate.
Justice Carpios response to the same argument raised by the
respondents is illuminating:
The publication of the Rules of Procedure in the
website of the Senate, or in pamphlet form available at
the Senate, is not sufficient under the Taada v.
Tuvera ruling which requires publication either in the
Official Gazette or in a newspaper of general
circulation. The Rules of Procedure even provide that
the rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation,
precluding any other form of publication.Publication in
accordance with Taada is mandatory to comply with the
due process requirement because the Rules of
Procedure put a persons liberty at risk. A person who
violates the Rules of Procedure could be arrested and
detained by the Senate.
The invocation by the respondents of the provisions of R.A. No.
8792,[50] otherwise known as the Electronic Commerce Act of 2000, to
support their claim of valid publication through the internet is all the
more incorrect. R.A. 8792 considers an electronic data message or an
electronic document as the functional equivalent of a written
document only for evidentiary purposes.[51] In other words, the law
merely recognizes the admissibility in evidence (for their being the
original) of electronic data messages and/or electronic documents. [52] It
does not make the internet a medium for publishing laws, rules and
regulations.

Given this discussion, the respondent Senate Committees,

therefore, could not, in violation of the Constitution, use its
unpublished rules in the legislative inquiry subject of these
consolidated cases. The conduct of inquiries in aid of legislation by the
Senate has to be deferred until it shall have caused the publication of
the rules, because it can do so only in accordance with its duly
published rules of procedure.
Very recently, the Senate caused the publication of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation in
the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the
infirmity of the inquiry sought to be prohibited by the instant
petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by
the respondent Senate Committees, because no published rules
governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary
to discuss the other issues raised in the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED,
and the petition in G.R. No. 179275 is GRANTED. Let a writ of
prohibition be issued enjoining the Senate of the Republic of
thePhilippines and/or any of its committees from conducting any
inquiry in aid of legislation centered on the Hello Garci tapes.
SO ORDERED.

80

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, COMPAERA 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 OSMEA 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.
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 CASIO, 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.
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.
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.
G.R. No. 169834. April 20, 2006.*
PDP-LABAN, petitioner, vs. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, respondent.
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.

Constitutional Law; Republicanism; Public Officers; Public Accountability

and Transparency; Right to Information; A transparent government is one
of the hallmarks of a truly republican state; History has been a witness to
the fact that the power to withhold information lends itself to abuse,
hence, the necessity to guard it zeal-ously.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. 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.
Same; Judicial Review; Requisites.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.
Same; Same; Executive Order No. 464 (E.O. 464); Locus Standi; Legislators;
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.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. E.O. 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
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.

81

Same; Same; Same; Same; Same; Party-list representatives likewise are

allowed to sue to question the constitutionality of E.O. 464, 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.In the same vein, party-list representatives Satur
Ocampo (Bayan Muna), Teodoro Casio (Bayan Muna), Joel Virador (Bayan
Muna), Crispin Beltran (Anak-pawis), 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.
Same; Same; Same; Same; Same; A national political party likewise meets
the standing requirement, provided that it has obtained three seats in the
House of Representatives in a national elections, which entitles it to
participate in the legislative process.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. 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.
Same; Same; Same; Same; Same; Citizen Suits; 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.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, 415 SCRA 44, 136
(2003), 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.
Same; Same; Same; Same; Political Parties; The allegation that E.O. 464
hampers a political partys legislative agenda is vague and uncertain, and
at best is only 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.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. 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 PDPLaban 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. In fine, PDP-Labans alleged interest as a
political party does not suffice to clothe it with legal standing.
Same; Same; Same; Case or Controversy Requirement; E.O. 464 does not
require either deliberate withholding of consent or an express prohibition
issuing from the President in order to bar officials from appearing before
Congress; It would be a sheer abandonment of duty if the Supreme Court
would refrain from passing on the constitutionality 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.
Same; Presidency; Congress; Separation of Powers; Checks and Balances;
Power of Inquiry; Congress has authority to inquire into the operations of
the executive branch, and its power of inquiry extends to executive officials
who are the most familiar with and informed on executive operations.
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

82

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.
Same; Same; Same; Same; Same; Same; Executive Privilege; 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.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, and in its very title, a discussion of executive
privilege is crucial for determining the constitutionality of E.O. 464.
Same; Same; Executive Privilege; Words and Phrases; The phrase
executive privilege is not new in this jurisdiction; Executive privilege has
been defined as the power of the Government to withhold information
from the public, the courts, and the Congress, as well as the right of the
President and high-level executive branch officers to withhold information
from Congress, the courts, and ultimately the public.The phrase
executive privilege is not new in this jurisdiction. It has been used even
prior to the promulgation of the 1986 Constitution. 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. 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.
Executive privilege is, nonetheless, not a clear or unitary concept.It has
encompassed claims of varying kinds. 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.
Same; Same; Same; Varieties of Executive Privilege.One variety of the
privilege, Tribe explains, is the state secrets privilege invoked by U.S.
Presidents, beginning with Washington, on the ground that the information
is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the
privilege of the Government not to disclose the identity of persons who
furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal

deliberations has been said to attach to intragovernmental documents

reflecting advisory opinions, recommendations and deliberations
comprising part of a process by which governmental decisions and policies
are formulated.
Same; Same; Same; 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.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.
Same; Same; Same; 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; The extraordinary character
of the exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.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.
Same; Same; Same; Congress; Power of Inquiry; Question Hour; In the
context of a parliamentary system of government, the question hour has
a definite meaningit 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, corresponding to what is known in
Britain as the question period.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, corresponding to what is known in Britain as the question
period. There was a specific provision for a question hour in the 1973
Constitution 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

83

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.
Same; Same; Same; Same; Same; Same; Separation of Powers; The
framers of the 1987 Constitution removed the mandatory nature of
appearance by department heads during the question hour in the present
Constitution so as to conform more fully to a system of separation of
powers.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. 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.
Same; Same; Same; Same; Same; 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, but when the inquiry in
which Congress requires their appearance is in aid of legislation under
Section 21, Article VI of the Constitution, the appearance is mandatory for
the same reasons stated in Arnault v. Nazareno, 87 Phil. 29 (1950); The
oversight function of Congress may be facilitated by compulsory process
only to the extent that it is performed in pursuit of legislation.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. 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.
Same; Same; Same; Same; Same; When Congress exercises its power of
inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilegethey are not exempt by the mere
fact that they are department heads.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 powerthe 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.
Same; Same; Same; Same; Same; Executive Order No. 464; Section 1 of
E.O. 464, 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 said Section 22,
but could not be applied to appearances of department heads in inquiries
in aid of legislation; The requirement to secure presidential consent under
Section 1, limited as it is only to appearances in the question hour, is valid
on its face.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

84

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.
Same; Same; Same; Same; Same; Words and Phrases; Execu-tive privilege
is properly invoked in relation to specific categories of information and not
to categories of persons; The reference in Sec. 2(b) of E.O. 464 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).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 2Nature, 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.

Same; Same; Same; Same; Same; While there is no Philippine case that
directly addresses the issue whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. Public Estates Authority,
384 SCRA 152 (2002), that certain information in the possession of the
executive may validly be claimed as privileged even against Congress,
such as Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings.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. Public Estates Authority,
384 SCRA 152, 189 (2002), 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. (Emphasis and italics 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.
Same; Same; Same; Same; Same; While the validity of claim 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 privilege, a defect that renders it invalid per se; Certainly,
Congress has the right to know why the executive considers the requested
information privileged; A claim of privilege, being a claim of exemption
from an obligation to disclose information, must be clearly asserted.
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, closeddoor Cabinet meetings, etc.). While Section 2(a) enumerates the types of
information that are covered by the privilege under the challenged order,

85

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.
Same; Same; Same; Same; Same; Separation of Powers; Due respect for a
co-equal branch of government demands no less than a claim of privilege
clearly stating the grounds therefor.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., 364 U.S. 372, 81 S.Ct. 138, 5 L.Ed. 2d 136 (1960): We think the
Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is
highly relevant to these questions. For it is as true here as it was there,
that if (petitioner) had legitimate reasons for failing to produce the records
of the association, a decent respect for the House of Representatives, by
whose authority the subpoenas issued, would have required that (he) state
(his) reasons for noncompliance upon the return of the writ. Such a
statement would have given the Subcommittee an opportunity to avoid the
blocking of its inquiry by taking other appropriate steps to obtain the
records. To deny the Committee the opportunity to consider the objection
or remedy is in itself a contempt of its authority and an obstruction of its
processes. His failure to make any such statement was a patent evasion
of the duty of one summoned to produce papers before a congressional
committee[, and] cannot be condoned.
Same; Same; Same; Same; Same; Same; 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.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. Thus, Hoffman v. U.S. declares:
The witness is not exonerated from answering merely because he

declares that in so doing he would incriminate himselfhis 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
xx
Same; Same; Same; Same; Same; The claim of privilege under Section 3 of
E.O. 464 in relation to Section 2(b) is invalid per se since it is not asserted
but merely implied.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.
Same; Same; Same; Same; Same; No infirmity can be imputed to Section
2(a) of E.O. 464 as it merely provides guidelines, binding only on the heads
of office mentioned in Section 2(b), on what is covered by executive
privilege.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.
Same; Same; Same; Right to Information; 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.Section 2(b) in relation to Section 3 virtually provides that, once the
head of office determines that a certain information is privileged, such
determination is presumed to bear the Presidents authority and has the
effect of prohibiting the official from appearing before Congress, subject
only to the express pronouncement of the President that it is allowing the
appearance of such official. These provisions thus allow the President to
authorize claims of privilege by mere silence. Such presumptive
authorization, however, is contrary to the exceptional nature of the

86

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,
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
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.
Same; Same; Same; Delegation of Powers; In light of the highly exceptional
nature of the privilege, the Court finds it essential to limit to the President
the power to invoke the privilege, though she may 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.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.
Same; Same; Same; Separation of Powers; 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.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.

Same; Same; Same; Executive Order No. 464; Section 3 of E.O. 464 is
essentially an authorization for implied claims of executive privilege, for
which reason it must be invalidatedthat such authorization is partly
motivated by the need to ensure respect for such officials does not change
the infirm nature of the authorization itself.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.
Same; Same; Same; Same; Right to Information; Power of Inquiry; There
are 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.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.
Same; Same; Same; Same; Same; To the extent that investigations in aid
of legislation are generally conducted in public, any executive issuance
tending to unduly limit disclosures of information which being presumed to
be in aid of legislation, is presumed to be a matter of public concern.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 Congressopinions which they can then
communicate to their representatives and other government officials
through the various legal means allowed by their freedom of expression.

87

Thus holds Valmonte v. Belmonte, 170 SCRA 256 [1989]: It is in the interest
of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the
peoples will. Yet, this open dialogue can be effective only to the extent
that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the
issues and have access to information relating thereto can such bear fruit.
(Emphasis and italics supplied) The impairment of the right of the people
to information as a consequence of E.O. 464 is, therefore, in the sense
explained above, just as direct as its violation of the legislatures power of
inquiry.
Same; Same; Same; Same; Same; Publication; Due Process; 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 publicationit is a matter of public
interest which members of the body politic may question before the
Supreme Court; Due process requires that the people should have been
apprised of this issuance before it was implemented.While E.O. 464
applies only to officials of the executive branch, it does not follow that the
same is exempt from the need for publication. On the need for publishing
even those statutes that do not directly apply to people in general, Taada
v. Tuvera, 146 SCRA 446 (1986), 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. (Emphasis and italics 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.
Republicanism; Right to Information; What 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.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. (Italics supplied) 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 valueour right as a people to
take part in government.

SPECIAL CIVIL ACTIONS in the Supreme Court. Certiorari and

Prohibition.
The facts are stated in the opinion of the Court.
Orlando E. Mendiola for petitioners in G.R. No. 171246.
Francisco I. Chavez for and in his own behalf in G.R. No. 169660.
Melizel F. Asuncion, Raoul P. Barbarona, Raissa H. Jajurie, Carlos P.
Medina, Jr., Ma. Lourdes Zerelda S. Pacuribot and Marlon J. Manuel for
petitioner ALG in G.R. No. 169667.
Luis Ma. Gil L. Gana for petitioners in G.R. No. 169834.
Neri Javier Colmenares for petitioners in G.R. No. 169659.
Pacifico A. Agabin for petitioner in G.R. No. 169777.
Aquilino LL. Pimentel III for petitioner in G.R. No. 169834.
The Solicitor General for respondent.
David Jonathan V. Yap for Senate of the Philippines

DECISION

88

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 invitations[2] 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
letter[3] dated September 27, 2005, requested for its postponement
due to a pressing operational situation that demands [his] utmost
personal attention while some of the invited AFP officers are currently
attending to other urgent operational matters.
On September 28, 2005, Senate President Franklin M. Drilon received
from Executive Secretary Eduardo R. Ermita a letter[4] dated September
27, 2005 respectfully request[ing] for the postponement of the hearing
[regarding the NorthRail project] to which various officials of the
Executive Department have been invited in order to afford said officials
ample time and opportunity to study and prepare for the various issues

89

so that they may better enlighten the Senate Committee on its

investigation.
Senate President Drilon, however, wrote[5] 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
letter[6] 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:
i.
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);
ii.
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).
iii.
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);
iv.
Discussion
in
close-door
Cabinet
meetings
(Chavez
v.
Presidential
Commission on Good Government, G.R.
No. 130716, 9 December 1998);
v.
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:
i.
Senior officials of executive departments who in
the judgment of the department heads are
covered by the executive privilege;
ii.
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;
iii.
Philippine National Police (PNP) officers with rank
of chief superintendent or higher and such other

90

officers who in the judgment of the Chief of the

PNP are covered by the executive privilege;
iv.
Senior national security officials who in the
judgment of the National Security Adviser are
covered by the executive privilege; and
v.
Such other officers as may be determined by the
President.
SECTION 3. Appearance of Other Public Officials Before
Congress. All public officials enumerated in Section
2 (b) hereof shall secure prior consent of the
President prior to appearing before either House
of Congress to ensure the observance of the principle
of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public
officials appearing in inquiries in aid of legislation.
(Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another
letter[8] informing him that officials of the Executive Department invited
to appear at the meeting [regarding the NorthRail project] will not be
able to attend the same without the consent of the President, pursuant
to [E.O. 464] and that said officials have not secured the required
consent from the President. On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga
sent a letter[9] to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of
the [AFP] is authorized to appear before any Senate or Congressional
hearings without seeking a written approval from the President and
that no approval has been granted by the President to any AFP officer
to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005.
Despite the communications received from Executive Secretary Ermita
and Gen. Senga, the investigation scheduled by the Committee on
National Defense and Security pushed through, with only Col. Balutan
and Brig. Gen. Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from
testifying before legislative inquiries without her approval, Brig. Gen.
Gudani and Col. Balutan were relieved from their military posts and
were made to face court martial proceedings.

As to the NorthRail project hearing scheduled on September 29, 2005,

Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in
response to the invitations sent to the following government
officials:Light Railway Transit Authority Administrator Melquiades
Robles, Metro Rail Transit Authority Administrator Roberto Lastimoso,
Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then
Presidential Legal Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC) Undersecretary Guiling
Mamonding, DOTC Secretary Leandro Mendoza, Philippine National
Railways General Manager Jose Serase II, Monetary Board Member
Juanita
Amatong,
Bases
Conversion
Development
Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.
[10]
NorthRail President Cortes sent personal regrets likewise citing E.O.
464.[11]
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659,
169660, and 169667, for certiorari and prohibition, were filed before
this Court challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House
of Representatives Members Satur Ocampo, Crispin Beltran, Rafael
Mariano, Liza Maza, Joel Virador and Teodoro Casino, COURAGE, an
organization of government employees, and Counsels for the Defense
of Liberties (CODAL), a group of lawyers dedicated to the promotion of
justice, democracy and peace, all claiming to have standing to file the
suit because of the transcendental importance of the issues they
posed, pray, in their petition that E.O. 464 be declared null and void for
being unconstitutional; that respondent Executive Secretary Ermita, in
his capacity as Executive Secretary and alter-ego of President Arroyo,
be prohibited from imposing, and threatening to impose sanctions on
officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on
their rights and impedes them from fulfilling their respective
obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on its
right as a political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their rights and duties
as members of Congress to conduct investigation in aid of legislation
and conduct oversight functions in the implementation of
laws; COURAGE alleges that the tenure of its members in public office
is predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by Congress; and
CODAL alleges that its members have a sworn duty to uphold the rule
of law, and their rights to information and to transparent governance
are threatened by the imposition of E.O. 464.

91

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.
(ALG), alleging that as a coalition of 17 legal resource nongovernmental 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.
[12]

On October 11, 2005, Petitioner Senate of the Philippines,

alleging that it has a vital interest in the resolution of the issue of the
validity of E.O. 464 for it stands to suffer imminent and material injury,
as it has already sustained the same with its continued enforcement
since it directly interferes with and impedes the valid exercise of the
Senates powers and functions and conceals information of great public
interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party
with members duly elected into the Philippine Senate and House of
Representatives, filed a similar petition for certiorari and prohibition,
docketed as G.R. No. 169834, alleging that it is affected by the
challenged E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress, particularly in the
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 letter[14] dated February 6, 2006, Senator Biazon
reiterated his invitation to Gen. Senga for him and other military
officers to attend the hearing on the alleged wiretapping scheduled on
February 10, 2005. Gen. Senga replied, however, by letter[15] dated
February 8, 2006, that [p]ursuant to Executive Order No. 464, th[e]
Headquarters requested for a clearance from the President to allow
[them] to appear before the public hearing and that they will attend

once [their] request is approved by the President. As none of those

invited appeared, the hearing on February 10, 2006 was cancelled.[16]
In 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
theGinintuang 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
butmost 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 Management[18] 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. Gonzalez[20] and Department of Interior and
Local Government Undersecretary Marius P. Corpus[21] 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

92

up; instead, the parties were instructed to discuss it in their respective

memoranda.

2. Whether E.O. 464 violates the right of the people to information on

matters of public concern; and

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.

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.

[22]

Before proceeding to resolve the issue of the constitutionality of E.O.

464, ascertainment of whether the requisites for a valid exercise of the
Courts power of judicial review are present is in order.

Petitioners in G.R. No. 169660[23] and G.R. No. 169777[24] filed

their memoranda on March 7, 2006, while those in G.R. No.
169667[25] and G.R. No. 169834[26] filed theirs the next day or on March
8, 2006. Petitioners in G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their
motion for extension to file memorandum[27] was granted, subsequently
filed a manifestation[28] 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
constitutional provisions:
Art.
Art.
Art.
Art.
Art.
Art.
Art.
Art.

that

E.O.

464

violates

the

following

VI, Sec. 21[30]

VI, Sec. 22[31]
VI, Sec. 1[32]
XI, Sec. 1[33]
III, Sec. 7[34]
III, Sec. 4[35]
XIII, Sec. 16 [36]
II, Sec. 28[37]

Respondents Executive Secretary Ermita et al., on the other

hand, pray in their consolidated memorandum[38] on March 13, 2006 for
the dismissal of the petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;

Essential requisites for judicial review

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.

93

As for Bayan Munas alleged interest as a party-list representing

the marginalized and underrepresented, and that of the other
petitioner groups and individuals who profess to have standing as
advocates and defenders of the Constitution, respondents contend that
such interest falls short of that required to confer standing on them as
parties injured-in-fact.[40]
Respecting petitioner Chavez, respondents contend that
Chavez may not claim an interest as a taxpayer for the implementation
of E.O. 464 does not involve the exercise of taxing or spending power.
[41]

With regard to the petition filed by the Senate, respondents argue that
in the absence of a personal or direct injury by reason of the issuance
of E.O. 464, the Senate and its individual members are not the proper
parties to assail the constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism
Association
v.
Ongpin[42] 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 legislation[45] 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 copetitioners COURAGE and CODAL is rendered unnecessary.[49]
In filing their respective petitions, Chavez, the ALG which claims to be
an organization of citizens, and the incumbent members of the IBP
Board of Governors and the IBP in behalf of its lawyer members,
[50]
invoke their constitutional right to information on matters of public
concern, asserting that the right to information, curtailed and violated
by E.O. 464, is essential to the effective exercise of other constitutional
rights[51] 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. InFranciso 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

94

raising the questions being raised. [54] The first and last determinants
not being present as no public funds or assets are involved and
petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that E.O. 464
hampers its legislative agenda is vague and uncertain, and at best is
only a generalized interest which it shares with the rest of the political
parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a
form traditionally capable of judicial resolution.[55] In fine, PDP-Labans
alleged interest as a political party does not suffice to clothe it with
legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of
the executive officials invited by the Senate to its hearings after the
issuance of E.O. 464, particularly those on the NorthRail project and
the wiretapping controversy.
Respondents counter that there is no case or controversy, there
being no showing that President Arroyo has actually withheld her
consent or prohibited the appearance of the invited officials.[56] These
officials, they claim, merely communicated to the Senate that they
have not yet secured the consent of the President, not that the
President prohibited their attendance.[57] Specifically with regard to the
AFP officers who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend without the
Presidents consent was based on its role as Commander-in-Chief of the
Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an
unfounded apprehension that the President will abuse its power of
preventing the appearance of officials before Congress, and that such
apprehension is not sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not
withheld her consent or prohibited the appearance of the officials
concerned immaterial in determining the existence of an actual case
or controversy insofar as E.O. 464 is concerned. For E.O. 464 does
not require either a deliberate withholding of consent or an
express prohibition issuing from the President in order to bar
officials from appearing before Congress.

As the implementation of the challenged order has already resulted in

the absence of officials invited to the hearings of petitioner Senate of
the Philippines, it would make no sense to wait for any further event
before considering the present case ripe for adjudication. Indeed, it
would be sheer abandonment of duty if this Court would now refrain
from passing on the constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials
before Congress, deprives Congress of the information in the
possession of these officials. To resolve the question of whether such
withholding of information violates the Constitution, consideration of
the general power of Congress to obtain information, otherwise known
as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution which reads:
SECTION
21. The
Senate
or
the
House
of
Representatives or any of its respective committees
may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall
be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in
the unicameral legislature established therein the Batasang
Pambansa and its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless,
in Arnault v. Nazareno,[58] a case decided in 1950 under that
Constitution, the Court already recognized that the power of inquiry is
inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous
purchase of the Buenavista and Tambobong Estates by the Rural
Progress Administration. Arnault, who was considered a leading witness
in the controversy, was called to testify thereon by the Senate. On
account of his refusal to answer the questions of the senators on an
important point, he was, by resolution of the Senate, detained for

95

contempt.Upholding the Senates power to punish Arnault for contempt,

this Court held:
Although there is no provision in the Constitution
expressly investing either House of Congress with power
to make investigations and exact testimony to the end
that it may exercise its legislative functions advisedly
and effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the
power of inquiry with process to enforce it is an
essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite
information which is not infrequently true recourse must
be had to others who do possess it. Experience has
shown that mere requests for such information are
often unavailing, and also that information which
is volunteered is not always accurate or complete;
so some means of compulsion is essential to
obtain what is needed.[59] . . . (Emphasis and
underscoring supplied)
That this power of inquiry is broad enough to cover officials of the
executive branch may be deduced from the same case. The power of
inquiry, the Court therein ruled, is co-extensive with the power to
legislate.[60] The matters which may be a proper subject of legislation
and those which may be a proper subject of investigation are one. It
follows that the operation of government, being a legitimate subject for
legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of
inquiry. Besides being related to the expenditure of public funds of
which Congress is the guardian, the transaction, the Court held, also
involved government agencies created by Congress and officers whose
positions it is within the power of Congress to regulate or even abolish.
Since Congress has authority to inquire into the operations of the
executive branch, it would be incongruous to hold that the power of
inquiry does not extend to executive officials who are the most familiar
with and informed on executive operations.

As discussed in Arnault, the power of inquiry, with process to enforce it,

is grounded on the necessity of information in the legislative process. If
the information possessed by executive officials on the operation of
their offices is necessary for wise legislation on that subject, by parity
of reasoning, Congress has the right to that information and the power
to compel the disclosure thereof.
As evidenced by the American experience during the so-called
McCarthy era, however, the right of Congress to conduct inquiries in
aid of legislation is, in theory, no less susceptible to abuse than
executive or judicial power. It may thus be subjected to judicial review
pursuant to the Courts certiorari powers under Section 1, Article VIII of
the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,
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.
[61]

Section 21, Article VI likewise establishes crucial safeguards

that proscribe the legislative power of inquiry. The provision requires
that the inquiry be done in accordance with the Senate or Houses duly
published rules of procedure, necessarily implying the constitutional
infirmity of an inquiry conducted without duly published rules of
procedure. Section 21 also mandates that the rights of persons
appearing in or affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees in the Bill of
Rights.
These abuses are, of course, remediable before the courts,
upon the proper suit filed by the persons affected, even if they belong
to the executive branch. Nonetheless, there may be exceptional
circumstances, none appearing to obtain at present, wherein a clear
pattern of abuse of the legislative power of inquiry might be
established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such

96

instances, depending on the particulars of each case, attempts by the

Executive Branch to forestall these abuses may be accorded judicial
sanction.

process by which governmental decisions and policies are

formulated. [68]
Tribes comment is supported by the ruling in In re Sealed Case, thus:

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.

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)

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]

The entry in Blacks Law Dictionary on executive privilege is similarly

instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of
separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary
citizen
or
organization where
such
exemption
is necessary to the discharge of highly important
executive responsibilities involved in maintaining
governmental operations, and extends not only
to military and diplomatic secrets but also to documents
integral to an appropriate exercise of the executive
domestic decisional and policy making functions, that
is, those documents reflecting the frank expression
necessary
in
intra-governmental
advisory
and
deliberative
communications.[70] (Emphasis
and
underscoring supplied)

Executive privilege is, nonetheless, not a clear or unitary concept. [66] It

has encompassed claims of varying kinds.[67] Tribe, in fact, comments
that while it is customary to employ the phrase executive privilege, it
may
be
more
accurate
to
speak
of
executive privileges since presidential refusals to furnish information
may be actuated by any of at least three distinct kinds of
considerations, and may be asserted,with differing degrees of success,
in the context of either judicial or legislative investigations.
One variety of the privilege, Tribe explains, is the state secrets
privilege invoked by U.S. Presidents, beginning with Washington, on
the ground that the information is of such nature that its disclosure
would subvert crucial military or diplomatic objectives. Another
variety is the informers privilege, or the privilege of the Government
not to disclose the identity of persons who furnish information of
violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been
said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a

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]

97

The leading case on executive privilege in the United States is U.S. v.

Nixon, [72] decided in 1974. In issue in that case was the validity of
President Nixons claim of executive privilege against a subpoena
issued by a district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The claim of
privilege was based on the Presidents general interest in the
confidentiality of his conversations and correspondence. The U.S. Court
held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to
the extent that it relates to the effective discharge of a Presidents
powers. The Court, nonetheless, rejected the Presidents claim of
privilege, ruling that the privilege must be balanced against the public
interest in the fair administration of criminal justice. Notably, the Court
was careful to clarify that it was not there addressing the issue of
claims of privilege in a civil litigation or against congressional demands
for information.
Cases in the U.S. which involve claims of executive privilege against
Congress are rare.[73] Despite frequent assertion of the privilege to
deny information to Congress, beginning with President Washingtons
refusal to turn over treaty negotiation records to the House of
Representatives, the U.S. Supreme Court has never adjudicated the
issue.[74] However, the U.S. Court of Appeals for the District of Columbia
Circuit, in a case decided earlier in the same year as Nixon, recognized
the Presidents privilege over his conversations against a congressional
subpoena.[75] Anticipating the balancing approach adopted by the U.S.
Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that
would be served by disclosure to the Committee. Ruling that the
balance favored the President, the Court declined to enforce the
subpoena. [76]
In this jurisdiction, the doctrine of executive privilege was recognized
by this Court in Almonte v. Vasquez.[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

98

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
anyinformation which might be covered by executive privilege. In
fact, in marked contrast to Section 3 vis--vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior
consent under Section 1 is grounded on Article VI, Section 22 of the
Constitution on what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their
own initiative, with the consent of the President, or
upon the request of either House, as the rules of each
House shall provide, appear before and be heard by
such House on any matter pertaining to their
departments. Written questions shall be submitted to
the President of the Senate or the Speaker of the House
of Representatives at least three days before their
scheduled appearance. Interpellations shall not be
limited to written questions, but may cover matters
related thereto. When the security of the State or the
public interest so requires and the President so states in
writing, the appearance shall be conducted in executive
session.
Determining the validity of Section 1 thus requires an examination of
the meaning of Section 22 of Article VI. Section 22 which provides for
the question hour must be interpreted vis--vis Section 21 which
provides for the power of either House of Congress to conduct inquiries

in aid of legislation. As the following excerpt of the deliberations of the

Constitutional Commission shows, the framers were aware that these
two provisions involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section
20 [now Section 22 on the Question Hour] yesterday, I
noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of
Representatives or before the Senate. I have a
particular problem in this regard, Madam President,
because in our experience in the Regular Batasang
Pambansa as the Gentleman himself has experienced in
the interim Batasang Pambansa one of the most
competent inputs that we can put in our committee
deliberations, either in aid of legislation or in
congressional investigations, is the testimonies of
Cabinet ministers. We usually invite them, but if they do
not come and it is a congressional investigation, we
usually issue subpoenas.
I want to be clarified on a statement made by
Commissioner Suarez when he said that the fact
that the Cabinet ministers may refuse to come to
the
House
of
Representatives
or
the
Senate [when requested under Section 22] does
not mean that they need not come when they are
invited or subpoenaed by the committee of either
House when it comes to inquiries in aid of
legislation or congressional investigation. According
to Commissioner Suarez, that is allowed and their
presence can be had under Section 21 . Does the
gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President,
because Section 20 refers only to what was
originally the Question Hour, whereas, Section 21
would refer specifically to inquiries in aid of
legislation, under which anybody for that matter, may
be summoned and if he refuses, he can be held in
contempt
of
the
House.[83] (Emphasis
and
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and
the question hour. While attendance was meant to be discretionary in
the question hour, it was compulsory in inquiries in aid of

99

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.

would be very, very essential not only in the application

of check and balance but also, in effect, in aid of
legislation.

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.

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?

THE PRESIDING OFFICER

Davide is recognized.

(Mr.

Jamir). Commissioner

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

MR. DAVIDE.
supplied)

Yes.[84] (Emphasis

and

underscoring

Consistent with their statements earlier in the deliberations,

Commissioners Davide and Maambong proceeded from the same
assumption that these provisions pertained to two different functions
of the legislature. Both Commissioners understood that the power to
conduct inquiries in aid of legislation is different from the power to
conduct inquiries during the question hour. Commissioner Davides only
concern was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other. Neither
Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners alone. From the
above-quoted exchange, Commissioner Maambongs committee the
Committee on Style shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other
hand, was speaking in his capacity as Chairman of the Committee on
the Legislative Department. His views may thus be presumed as
representing that of his Committee.
In the context of a parliamentary system of government, the question
hour has a definite meaning. It is a period of confrontation initiated by
Parliament to hold the Prime Minister and the other ministers
accountable for their acts and the operation of the government,
[85]
corresponding to what is known in Britain as the question
period. There was a specific provision for a question hour in the 1973
Constitution[86] 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

100

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
onlyrequest 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

101

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 longstanding custom.

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.

By the same token, members of the Supreme Court are also exempt
from this power of inquiry. Unlike the Presidency, judicial power is
vested in a collegial body; hence, each member thereof is exempt on
the basis not only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the judiciary. This
point is not in dispute, as even counsel for the Senate, Sen. Joker
Arroyo, admitted it during the oral argument upon interpellation of the
Chief Justice.

The 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
ofejusdem generis, the determination by the President under this
provision is intended to be based on a similar finding of coverage
under executive privilege.

Having established the proper interpretation of Section 22, Article VI of

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

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.

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

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature,
scope and coverage of executive privilege, the reference to persons
being covered by the executive privilege may be read as an
abbreviated way of saying that the person is in possession of
information which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall thus proceed on
the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the
President that an official is covered by the executive privilege, such
official is subjected to the requirement that he first secure the consent
of the President prior to appearing before Congress. This requirement
effectively bars the appearance of the official concerned unless the
same is permitted by the President. The proviso allowing the President
to give its consent means nothing more than that the President may
reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination
by a head of office, authorized by the President under E.O. 464, or by
the President herself, that such official is in possession of information
that is covered by executive privilege. This determination then
becomes the basis for the officials not showing up in the legislative
investigation.

102

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)

possesses information that is covered by executive privilege. Thus,

although it is not stated in the letter that such determination has been
made, the same must be deemed implied. Respecting the statement
that the invited officials have not secured the consent of the President,
it only means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion
that the executive branch, either through the President or the heads of
offices authorized under E.O. 464, has made a determination that the
information required by the Senate is privileged, and that, at the time
of writing, there has been no contrary pronouncement from the
President. In fine, an implied claim of privilege has been made by the
executive.
While there is no Philippine case that directly addresses the issue of
whether executive privilege may be invoked against Congress, it is
gathered from Chavez v. PEA that certain information in the possession
of the executive may validly be claimed as privileged even against
Congress. Thus, the case holds:

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.

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 closeddoor Cabinet meetings which, like internaldeliberations 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)

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

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.

103

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
isnot 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. Vasquez[94] and, more in point, against a
committee of the Senate in Senate Select Committee on Presidential
Campaign Activities v. Nixon.[95]
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the
potential harm resulting from disclosure impossible,
thereby preventing the Court from balancing such harm
against plaintiffs needs to determine whether to
override any claims of privilege.[96] (Underscoring
supplied)
And so is U.S. v. Article of Drug:[97]
On the present state of the record, this Court is not
called upon to perform this balancing operation. In
stating
its
objection
to
claimants
interrogatories, government asserts, and nothing
more, that the disclosures sought by claimant
would inhibit the free expression of opinion that
non-disclosure
is
designed
to
protect. The
government has not shown nor even alleged that those
who evaluated claimants product were involved in
internal policymaking, generally, or in this particular
instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the
privilege is based must be established. To find
these interrogatories objectionable, this Court would
have to assume that the evaluation and classification of
claimants products was a matter of internal policy
formulation, an assumption in which this Court is
unwilling to indulge sua sponte.[98] (Emphasis and
underscoring supplied)
Mobil Oil Corp. v. Department of Energy[99] similarly emphasizes that an
agency must provide precise and certain reasons for preserving the
confidentiality of requested information.

104

Black v. Sheraton Corp. of America[100] amplifies, thus:

A formal and proper claim of executive privilege
requires a specific designation and description of the
documents within its scope as well as precise and
certain
reasons
for
preserving
their
confidentiality. Without this specificity, it is impossible
for a court to analyze the claim short of disclosure of
the very thing sought to be protected. As the affidavit
now stands, the Court has little more than its sua
sponte speculation with which to weigh the applicability
of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite
the fact that a claim was made by the proper executive
as Reynolds requires, the Court can not recognize the
claim in the instant case because it is legally insufficient
to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such
a broad claim in which the Defendant has given
no precise or compelling reasons to shield these
documents from outside scrutiny, would make a
farce of the whole procedure.[101] (Emphasis and
underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands
no less than a claim of privilege clearly stating the grounds
therefor. Apropos is the following ruling in McPhaul v. U.S:[102]
We think the Courts decision in United States v. Bryan,
339 U.S. 323, 70 S. Ct. 724, is highly relevant to these
questions. For it is as true here as it was there, that if
(petitioner) had legitimate reasons for failing to produce
the records of the association, a decent respect for
the House of Representatives, by whose authority
the subpoenas issued, would have required that
(he) state (his) reasons for noncompliance upon
the return of the writ.Such a statement would have
given the Subcommittee an opportunity to avoid the
blocking of its inquiry by taking other appropriate steps
to obtain the records. To deny the Committee the
opportunity to consider the objection or remedy
is in itself a contempt of its authority and an
obstruction of its processes. His failure to make any
such statement was a patent evasion of the duty of one
summoned to produce papers before a congressional

committee[, and] cannot be condoned. (Emphasis and

underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state
the reasons for the claim with such particularity as to compel
disclosure of the information which the privilege is meant to protect.
[103]
A useful analogy in determining the requisite degree of particularity
would be the privilege against self-incrimination. Thus, Hoffman v. U.S.
[104]
declares:
The witness is not exonerated from answering merely
because he declares that in so doing he would
incriminate himself his say-so does not of itself
establish the hazard of incrimination. It is for the
court to say whether his silence is justified, and
to require him to answer if it clearly appears to
the court that he is mistaken. However, if the
witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually
required to be established in court, he would be
compelled to surrender the very protection which the
privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the
implications of the question, in the setting in
which it is asked, that a responsive answer to the
question or an explanation of why it cannot be
answered might be dangerous because injurious
disclosure could result. x x x (Emphasis and
underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to
Section 2(b) is thus invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and certain reasons for the claim,
it merely invokes E.O. 464, coupled with an announcement that the
President has not given her consent. It is woefully insufficient for
Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates
the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.

105

No infirmity, however, can be imputed to Section 2(a) as it

merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive privilege. It
does not purport to be conclusive on the other branches of
government. It may thus be construed as a mere expression of opinion
by the President regarding the nature and scope of executive privilege.
Petitioners, however, assert as another ground for invalidating
the challenged order the alleged unlawful delegation of authority to the
heads of offices in Section 2(b). Petitioner Senate of the Philippines, in
particular, cites the case of the United States where, so it claims, only
the President can assert executive privilege to withhold information
from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once
the head of office determines that a certain information is privileged,
such determination is presumed to bear the Presidents authority and
has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus
allow the President to authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as already
discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch,[105] or in those instances where
exemption from disclosure is necessary to the discharge of highly
importantexecutive 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

106

to his right to information does not have the same obligatory force as
a subpoena duces tecum issued by Congress. Neither does the right to
information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to
an individual citizen.
Thus, while Congress is composed of representatives elected by
the people, it does not follow, except in a highly qualified sense, that in
every exercise of its power of inquiry, the people are exercising their
right to information.
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such investigations
necessarily deprives the people of information which, being presumed
to be in aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to information which
they can use in formulating their own opinions on the matter before
Congress opinions which they can then communicate to their
representatives and other government officials through the various
legal means allowed by their freedom of expression. Thus
holds Valmonte v. Belmonte:
It is in the interest of the State that the
channels
for
free
political
discussion
be
maintained to the end that the government may
perceive and be responsive to the peoples
will. Yet, this open dialogue can beeffective only
to the extent that the citizenry is informed and
thus able to formulate its will intelligently. Only
when the participants in the discussion are aware of the
issues and have access to information relating thereto
can such bear fruit.[107] (Emphasis and underscoring
supplied)
The impairment of the right of the people to information as a
consequence of E.O. 464 is, therefore, in the sense explained above,
just as direct as its violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does
not follow that the same is exempt from the need for publication. On

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

107

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.

108

G.R. No. 115455. August 25, 1994.*

ARTURO M. TOLENTINO, petitioner, vs. THE SECRETARY OF
FINANCE and THE COMMISSIONER OF INTERNAL REVENUE,
respondents.
G.R. No. 115525. August 25, 1994.*
JUAN T. DAVID, petitioner, vs. TEOFISTO T. GUINGONA, JR., as
Executive Secretary; ROBERTO DE OCAMPO, as Secretary of
Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal
Revenue; and their AUTHORIZED AGENTS OR REPRESENTATIVES,
respondents.
G.R. No. 115543. August 25, 1994.*
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES,
petitioners, vs. THE SECRETARY OF THE DEPARTMENT OF FINANCE;
THE COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND
BUREAU OF CUSTOMS, respondents.
G.R. No. 115544. August 25, 1994.*
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.;
KAMAHALAN
PUBLISHING
CORPORATION;
PHILIPPINE
JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L. DIMALANTA,
petitioners, vs. HON. LIWAYWAY V. CHATO, in her capacity as
Commissioner of Internal Revenue; HON. TEOFISTO T. GUINGONA,
JR., in his capacity as Executive Secretary; and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115754. August 25, 1994.*
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC.,
(CREBA), petitioner, vs. THE COMMISSIONER OF INTERNAL
REVENUE, respondent.
G.R. No. 115781. August 25, 1994.*
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME
CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM
TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE TAN,
FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V. VICTORINO,
JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS
FOR
BROTHERHOOD,
INTEGRITY
AND
NATIONALISM,
INC.
(MABINI), FREEDOM FROM DEBT COALITION, INC., PHILIPPINE
BIBLE SOCIETY, INC., and WIGBERTO TAADA, petitioners, vs. THE
EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE
COMMISSIONER OF INTERNAL REVENUE and THE COMMISSIONER
OF CUSTOMS, respondents.
G.R. No. 115852. August 25, 1994.*
PHILIPPINE AIRLINES, INC. petitioner, vs. THE SECRETARY OF
FINANCE, and COMMISSIONER OF
G.R. No. 115873. August 25, 1994.*

COOPERATIVE UNION OF THE PHILIPPINES, petitioners, vs. HON.

LIWAYWAY V. CHATO, in her capacity as the Commissioner of
Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his
capacity as Executive Secretary, and HON. ROBERTO B. DE
OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115931. August 25, 1994.*
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC., and
ASSOCIATION OF PHILIPPINE BOOKSELLERS, petitioners, vs. HON.
ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON.
LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue and
HON. GUILLERMO PARAYNO, JR., in his capacity as the
Commissioner of Customs, respondents.
Constitutional Law; Statutes; Taxation; Origin of revenue bills; A bill
originating in the House of Representatives may undergo such extensive
changes in the Senate that the result may be a rewriting of the whole; As a
result of the Senate action, a distinct bill may be produced and to insist
that a revenue statute must substantially be the same as the House bill
would be to deny the Senates power not only to concur with
amendments but also to propose amendments.Petitioners contention
is that Republic Act No. 7716 did not originate exclusively in the House of
Representatives as required by Art. VI, 24 of the Constitution, because it
is in fact the result of the consolidation of two distinct bills, H. No. 11197
and S. No. 1630. In this connection, petitioners point out that although Art.
VI, 24 was adopted from the American Federal Constitution, it is notable
in two respects: the verb shall originate is qualified in the Philippine
Constitution by the word exclusively and the phrase as on other bills in
the American version is omitted. This means, according to them, that to be
considered as having originated in the House, Republic Act No. 7716 must
retain the essence of H. No. 11197. This argument will not bear analysis. To
begin with, it is not the lawbut the revenue billwhich is required by the
Constitution to originate exclusively in the House of Representatives. It is
important to emphasize this, because a bill originating in the House may
undergo such extensive changes in the Senate that the result may be a
rewriting of the whole. The possibility of a third version by the conference
committee will be discussed later. At this point, what is important to
note is that, as a result of the Senate action, a distinct bill may be
produced. To insist that a revenue statuteand not only the bill which
initiated the legislative process culminating in the enactment of the law
must substantially be the same as the House bill would be to deny the
Senates power not only to concur with amendments but also to
propose amendments. It would be to violate the coequality of legislative
power of the two houses of Congress and in fact make the House superior
to the Senate.

109

Same; Same; Same; Same; Legislative power is vested in the Congress of

the Philippines, consisting of a Senate and a House of Representatives,
not in any particular chamber.The contention that the constitutional
design is to limit the Senates power in respect of revenue bills in order to
compensate for the grant to the Senate of the treaty-ratifying power and
thereby equalize its powers and those of the House overlooks the fact that
the powers being compared are different. We are dealing here with the
legislative power which under the Constitution is vested not in any
particular chamber but in the Congress of the Philippines, consisting of a
Senate and a House of Represen-tatives. The exercise of the treatyratifying power is not the exercise of legislative power. It is the exercise of
a check on the executive power. There is, therefore, no justification for
comparing the legislative powers of the House and of the Senate on the
basis of the possession of such nonlegislative power by the Senate. The
possession of a similar power by the U.S. Senate has never been thought
of as giving it more legislative powers than the House of Representatives.
Same; Same; Same; Same; There is really no difference between the
Senate preserving the House Bill up to the enacting clause and then
writing its own version following the enacting clause and, on the other
hand, separately presenting a bill of its own on the same subject matter.
It is insisted, however, that S. No. 1630 was passed not in substitution of H.
No. 11197 but of another Senate bill (S. No. 1129) earlier filed and that
what the Senate did was merely to take [H. No. 11197] into consideration
in enacting S. No. 1630. There is really no difference between the Senate
preserving H. No. 11197 up to the enacting clause and then writing its own
version following the enacting clause (which, it would seem, petitioners
admit is an amendment by substitution), and, on the other hand,
separately presenting a bill of its own on the same subject matter. In either
case the result are two bills on the same subject.
Same; Same; Same; Same; The Constitution simply means that the
initiative for filing revenue, tariff, or tax bills, bills authorizing an increase
of the public debt, private bills and bills of local application
must come from the House of Representatives and that it does not prohibit
the filing in the Senate of a substitute bill in anticipation of its receipt of
the bill from the House.Indeed, what the Constitution simply means is
that the initiative for filing revenue, tariff, or tax bills, bills authorizing an
increase of the public debt, private bills and bills of local application must
come from the House of Representatives on the theory that, elected as
they are from the districts, the members of the House can be expected to
be more sensitive to the local needs and problems. On the other hand, the
senators, who are elected at large, are expected to approach the same
problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws. Nor does the Constitution prohibit the
filing in the Senate of a substitute bill in anticipation of its receipt of the bill

from the House, so long as action by the Senate as a body is withheld

pending receipt of the House bill.
Same; Same; Presidential certification on urgency of a bill dispenses with
the requirement not only of printing but also that of reading the bill on
separate days.The presidential certification dispensed with the
requirement not only of printing but also that of reading the bill on
separate days. The phrase except when the President certifies to the
necessity of its immediate enactment, etc. in Art. VI, 26(2) qualifies the
two stated conditions before a bill can become a law: (i) the bill has passed
three readings on separate days and (ii) it has been printed in its final form
and distributed three days before it is finally approved. In other words, the
unless clause must be read in relation to the except clause, because
the two are really coordinate clauses of the same sentence. To construe
the except clause as simply dispensing with the second requirement in
the unless clause (i.e., printing and distribution three days before final
approval) would not only violate the rules of grammar. It would also negate
the very premise of the except clause: the necessity of securing the
immediate enactment of a bill which is certified in order to meet a public
calamity or emergency. For if it is only the printing that is dispensed with
by presidential certification, the time saved would be so negligible as to be
of any use in insuring immediate enactment. It may well be doubted
whether doing away with the necessity of printing and distributing copies
of the bill three days before the third reading would insure speedy
enactment of a law in the face of an emergency requiring the calling of a
special election for President and Vice-President. Under the Constitution
such a law is required to be made within seven days of the convening of
Congress in emergency session.
Same; Same; Judicial Review; While the sufficiency of the factual basis of
the suspension of the writ of habeas corpus or declaration of martial law is
subject to judicial review because basic rights of individuals may be at
hazard, the factual basis of presidential certification of bills, which involves
doing away with procedural requirements designed to insure that bills are
duly considered by members of Congress, certainly should elicit a different
standard of review.It is nonetheless urged that the certification of the bill
in this case was invalid because there was no emergency, the condition
stated in the certification of a growing budget deficit not being an
unusual condition in this country. It is noteworthy that no member of the
Senate saw fit to controvert the reality of the factual basis of the
certification. To the contrary, by passing S. No. 1630 on second and third
readings on March 24, 1994, the Senate accepted the Presidents
certification. Should such certifi-cation be now reviewed by this Court,
especially when no evidence has been shown that, because S. No. 1630
was taken up on second and third readings on the same day, the members
of the Senate were deprived of the time needed for the study of a vital

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piece of legislation? The sufficiency of the factual basis of the suspension

of the writ of habeas corpus or declaration of martial law under Art. VII,
18, or the existence of a national emergency justifying the delegation of
extraordinary powers to the President under Art. VI, 23(2), is subject to
judicial review because basic rights of individuals may be at hazard. But
the factual basis of presidential certification of bills, which involves doing
away with procedural requirements designed to insure that bills are duly
considered by members of Congress, certainly should elicit a different
standard of review.
Same; Same; Bicameral Conference Committee; A third version of the bill
may result from the conference committee, which is considered an
amendment in the nature of a substitute, the only requirement being
that the third version be germane to the subject of the House and Senate
bills.As to the possibility of an entirely new bill emerging out of a
Conference Committee, it has been explained: Under congressional rules of
procedure, conference committees are not expected to make any material
change in the measure at issue, either by deleting provisions to which both
houses have already agreed or by inserting new provisions. But this is a
difficult provision to enforce. Note the problem when one house amends a
proposal originating in either house by striking out everything following the
enacting clause and substituting provisions which make it an entirely new
bill. The versions are now altogether different, permitting a conference
committee to draft essentially a new bill . . . . The result is a third version,
which is considered an amendment in the nature of a substitute, the only
requirement for which being that the third version be germane to the
subject of the House and Senate bills.
Same; Same; Same; The report of the conference committee needs the
approval of both houses of Congress to become valid as an act of the
legislative department.Indeed, this Court recently held that it is within
the power of a conference committee to include in its report an entirely
new provision that is not found either in the House bill or in the Senate bill.
If the committee can propose an amendment consisting of one or two
provisions, there is no reason why it cannot propose several provisions,
collectively considered as an amendment in the nature of a substitute, so
long as such amendment is germane to the subject of the bills before the
committee. After all, its report was not final but needed the approval of
both houses of Congress to become valid as an act of the legislative
department. The charge that in this case the Conference Committee acted
as a third legislative chamber is thus without any basis.
Same; Same; Same; Separation of Powers; It is common place in Congress
that conference committee reports include new matters which, though
germane, have not been committed to the committee, and if a change is
desired in the practice, it must be sought in Congress since this question is
not covered by any constitutional provision but is only an internal rule of

each house.To be sure, nothing in the Rules limits a conference

committee to a consideration of conflicting provisions. But Rule XLIV, 112
of the Rules of the Senate is cited to the effect that If there is no Rule
applicable to a specific case the precedents of the Legislative Department
of the Philippines shall be resorted to, and as a supplement of these, the
Rules contained in Jeffersons Manual. The following is then quoted from
the Jeffersons Manual: The managers of a conference must confine
themselves to the differences committed to them . . . and may not include
subjects not within disagreements, even though germane to a question in
issue. Note that, according to Rule XLIX, 112, in case there is no specific
rule applicable, resort must be to the legislative practice. The Jeffersons
Manual is resorted to only as supplement. It is common place in Congress
that conference committee reports include new matters which, though
germane, have not been committed to the committee. This practice was
admitted by Senator Raul S. Roco, petitioner in G.R. No. 115543, during the
oral argument in these cases. Whatever, then, may be provided in the
Jeffersons Manual must be considered to have been modified by the
legislative practice. If a change is desired in the practice it must be sought
in Congress since this question is not covered by any constitutional
provision but is only an internal rule of each house. Thus, Art. VI, 16(3) of
the Constitution provides that Each House may determine the rules of its
proceedings . . . .
Same; Same; Same; Same; Bill-Drafting; The use of brackets and capital
letters to indicate changes is a standard practice in bill-drafting; The
Supreme Courts concern is with the procedural requirements of the
Constitution for the enactment of laws, not the enforcement of internal
Rules of Congress since parliamentary rules are merely procedural and
with their observance the courts have no concern.This observation
applies to the other contention that the Rules of the two chambers were
likewise disregarded in the preparation of the Conference Committee
Report because the Report did not contain a detailed and sufficiently
explicit statement of changes in, or amendments to, the subject measure.
The Report used brackets and capital letters to indicate the changes. This
is a standard practice in bill-drafting. We cannot say that in using these
marks and symbols the Committee violated the Rules of the Senate and
the House. Moreover, this Court is not the proper forum for the
enforcement of these internal Rules. To the contrary, as we have already
ruled, parliamentary rules are merely procedural and with their
observance the courts have no concern. Our concern is with the
procedural requirements of the Constitution for the enactment of laws. As
far as these requirements are concerned, we are satisfied that they have
been faithfully observed in these cases.
Same; Same; Same; Same; The three-reading requirement refers only to
bills introduced for the first time in either house of Congress, not to the

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conference committee report.Art. VI, 26(2) must, therefore, be

construed as referring only to bills introduced for the first time in either
house of Congress, not to the conference committee report. For if the
purpose of requiring three readings is to give members of Congress time to
study bills, it cannot be gainsaid that H. No. 11197 was passed in the
House after three readings; that in the Senate it was considered on first
reading and then referred to a committee of that body; that although the
Senate committee did not report out the House bill, it submitted a version
(S. No. 1630) which it had prepared by taking into consideration the
House bill; that for its part the Conference Committee consolidated the two
bills and prepared a compromise version; that the Conference Committee
Report was thereafter approved by the House and the Senate, presumably
after appropriate study by their members. We cannot say that, as a matter
of fact, the members of Congress were not fully informed of the provisions
of the bill. The allegation that the Conference Committee usurped the
legislative power of Congress is, in our view, without warrant in fact and in
law.
Same; Same; Same; Same; Enrolled Bill Doctrine; An enrolled copy of a bill
is conclusive not only of its provisions but also of its due enactment.
Whatever doubts there may be as to the formal validity of Republic Act No.
7716 must be resolved in its favor. Our cases manifest firm adherence to
the rule that an enrolled copy of a bill is conclusive not only of its
provisions but also of its due enactment. Not even claims that a proposed
constitutional amendment was invalid because the requisite votes for its
approval had not been obtained or that certain provisions of a statute had
been smuggled in the printing of the bill have moved or persuaded us to
look behind the proceedings of a coequal branch of the government. There
is no reason now to depart from this rule.
Same; Same; Same; Same; Same; While the enrolled bill rule is not
absolute, the Supreme Court should decline the invitation to go behind the
enrolled copy of the bill where allegations that the constitutional
procedures for the passage of bills have not been observed have no more
basis than another allegation that the Conference Committee
surreptitiously inserted provisions into a bill which it had prepared.No
claim is here made that the enrolled bill rule is absolute. In fact in one
case we went behind an enrolled bill and consulted the Journal to
determine whether certain provisions of a statute had been approved by
the Senate in view of the fact that the President of the Senate himself, who
had signed the enrolled bill, admitted a mistake and withdrew his
signature, so that in effect there was no longer an enrolled bill to consider.
But where allegations that the constitutional procedures for the passage of
bills have not been observed have no more basis than another allegation
that the Conference Committee surreptitiously inserted provisions into a
bill which it had prepared, we should decline the invitation to go behind the

enrolled copy of the bill. To disregard the enrolled bill rule in such cases
would be to disregard the respect due the other two departments of our
government.
Same; Same; Titles of Bills; The constitutional requirement that every bill
passed by Congress shall embrace only one subject which shall be
expressed in its title is intended to prevent surprise upon the members of
Congress and to inform the people of pending legislation so that, if they
wish to, they can be heard regarding it.The question is whether this
amendment of 103 of the NIRC is fairly embraced in the title of Republic
Act No. 7716, although no mention is made therein of P.D. No. 1590 as
among those which the statute amends. We think it is, since the title states
that the purpose of the statute is to expand the VAT system, and one way
of doing this is to widen its base by withdrawing some of the exemptions
granted before. To insist that P.D. No. 1590 be mentioned in the title of the
law, in addition to 103 of the NIRC, in which it is specifically referred to,
would be to insist that the title of a bill should be a complete index of its
content. The constitutional requirement that every bill passed by Congress
shall embrace only one subject which shall be expressed in its title is
intended to prevent surprise upon the members of Congress and to inform
the people of pending legislation so that, if they wish to, they can be heard
regarding it. If, in the case at bar, petitioner did not know before that its
exemption had been withdrawn, it is not because of any defect in the title
but perhaps for the same reason other statutes, although published, pass
unnoticed until some event somehow calls attention to their existence.
Indeed, the title of Republic Act No. 7716 is not any more general than the
title of PALs own franchise under P.D. No. 1590, and yet no mention is
made of its tax exemption.
Same; Same; Same; The trend is to construe the constitutional
requirement in such a manner that courts do not unduly interfere with the
enactment of necessary legislation.The trend in our cases is to construe
the constitutional requirement in such a manner that courts do not unduly
interfere with the enactment of necessary legislation and to consider it
sufficient if the title expresses the general subject of the statute and all its
provisions are germane to the general subject thus expressed.
Same; Same; Public Utilities; Franchises; The grant of a franchise for the
operation of a public utility is subject to amendment, alteration or repeal
by Congress when the common good so requires.In contrast, in the case
at bar, Republic Act No. 7716 expressly amends PALs franchise (P.D. No.
1590) by specifically excepting from the grant of exemptions from the VAT
PALs exemption under P.D. No. 1590. This is within the power of Congress
to do under Art. XII, 11 of the Constitution, which provides that the grant
of a franchise for the operation of a public utility is subject to amendment,
alteration or repeal by Congress when the common good so requires.

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Same; Taxation; Expanded Value Added Tax Law; Bill of Rights; Freedom of
Expression; Even with due recognition of its high estate and its importance
in a democratic society, the press is not immune from general regulation
by the State.To be sure, we are not dealing here with a statute that on its
face operates in the area of press freedom. The PPIs claim is simply that,
as applied to newspapers, the law abridges press freedom. Even with due
recognition of its high estate and its importance in a democratic society,
however, the press is not immune from general regulation by the State.
Same; Same; Same; Same; Same; Equal Protection Clause; The VAT law
would perhaps be open to the charge of discriminatory treatment if the
only privilege withdrawn had been that granted to the press.What it
contends is that by withdrawing the exemption previously granted to print
media transactions involving printing, publication, importation or sale of
newspapers, Republic Act No. 7716 has singled out the press for
discriminatory treatment and that within the class of mass media the law
discriminates against print media by giving broadcast media favored
treatment. We have carefully examined this argument, but we are unable
to find a differential treatment of the press by the law, much less any
censorial motivation for its enactment. If the press is now required to pay a
value-added tax on its transactions, it is not because it is being singled out,
much less targeted, for special treatment but only because of the removal
of the exemption previously granted to it by law. The withdrawal of
exemption is all that is involved in these cases. Other transactions, likewise
previously granted exemption, have been delisted as part of the scheme to
expand the base and the scope of the VAT system. The law would perhaps
be open to the charge of discriminatory treatment if the only privilege
withdrawn had been that granted to the press. But that is not the case.
Same; Same; Same; Same; Same; Same; There is a reasonable basis for
the classification and different treatment between print media and
broadcast media.Nor is impermissible motive shown by the fact that print
media and broadcast media are treated differently. The press is taxed on
its transactions involving printing and publication, which are different from
the transactions of broadcast media. There is thus a reasonable basis for
the classification.
Same; Same; Same; Same; Freedom of Religion; The Free Exercise of
Religion Clause does not prohibit imposing a generally applicable sales and
use tax on the sale of religious materials by a religious organization.What
has been said above also disposes of the allegations of the PBS that the
removal of the exemption of printing, publication or importation of books
and religious articles, as well as their printing and publication, likewise
violates freedom of thought and of conscience. For as the U.S. Supreme
Court unanimously held in Jimmy Swaggart Ministries v. Board of
Equalization, the Free Exercise of Religion Clause does not prohibit

imposing a generally applicable sales and use tax on the sale of religious
materials by a religious organization.
Same; Same; Same; Same; The VAT registration fee is a mere
administrative fee, one not imposed on the exercise of a privilege, much
less a constitutional right.In this case, the fee in 107, although a fixed
amount (P1,000), is not imposed for the exercise of a privilege but only for
the purpose of defraying part of the cost of registration. The registration
requirement is a central feature of the VAT system. It is designed to provide
a record of tax credits because any person who is subject to the payment
of the VAT pays an input tax, even as he collects an output tax on sales
made or services rendered. The registration fee is thus a mere
administrative fee, one not imposed on the exercise of a privilege, much
less a constitutional right.
Same; Same; Same; Same; Due Process; Hierarchy of Values; When
freedom of the mind is imperiled by law, it is freedom that commands a
momentum of respect and when property is imperiled, it is the lawmakers
judgment that commands respect.There is basis for passing upon claims
that on its face the statute violates the guarantees of freedom of speech,
press and religion. The possible chilling effect which it may have on the
essential freedom of the mind and conscience and the need to assure that
the channels of communication are open and operating importunately
demand the exercise of this Courts power of review. There is, however, no
justification for passing upon the claims that the law also violates the rule
that taxation must be progressive and that it denies petitioners right to
due process and the equal protection of the laws. The reason for this
different treatment has been cogently stated by an eminent authority on
constitutional law thus: [W]hen freedom of the mind is imperiled by law, it
is freedom that commands a momentum of respect; when property is
imperiled it is the lawmakers judgment that commands respect. This dual
standard may not precisely reverse the presumption of constitutionality in
civil liberties cases, but obviously it does set up a hierarchy of values
within the due process clause.
Same; Same; Same; The legislature is not required to adhere to a policy of
all or none in choosing the subject of taxation.On the other hand, the
CUPs contention that Congress withdrawal of exemption of producers
cooperatives, marketing cooperatives, and service cooperatives, while
maintaining that granted to electric cooperatives, not only goes against
the constitutional policy to promote cooperatives as instruments of social
justice (Art. XII, 15) but also denies such cooperatives the equal
protection of the law is actually a policy argument. The legislature is not
required to adhere to a policy of all or none in choosing the subject of
taxation.
Same; Same; Same; Regressivity is not a negative standard for courts to
enforce since what Congress is required by the Constitution to do is to

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evolve a progressive system of taxation.Indeed, regressivity is not a

negative standard for courts to enforce. What Congress is required by the
Constitution to do is to evolve a progressive system of taxation. This is a
directive to Congress, just like the directive to it to give priority to the
enactment of laws for the enhancement of human dignity and the
reduction of social, economic and political inequalities (Art. XIII, 1), or for
the promotion of the right to quality education (Art. XIV, 1). These
provisions are put in the Constitution as moral incentives to legislation, not
as judicially enforceable rights.
Same; Same; Same; Contract Clause; Contracts; Not only are existing laws
read into contracts in order to fix obligations as between parties, but the
reservation of essential attributes of sovereign power is also read into
contracts as a basic postulate of the legal order.Only slightly less
abstract but nonetheless hypothetical is the contention of CREBA that the
imposition of the VAT on the sales and leases of real estate by virtue of
contracts entered into prior to the effectivity of the law would violate the
constitutional provision that No law impairing the obligation of contracts
shall be passed. It is enough to say that the parties to a contract cannot,
through the exercise of prophetic discernment, fetter the exercise of the
taxing power of the State. For not only are existing laws read into contracts
in order to fix obligations as between parties, but the reservation of
essential attributes of sovereign power is also read into contracts as a
basic postulate of the legal order. The policy of protecting contracts against
impairment presupposes the maintenance of a government which retains
adequate authority to secure the peace and good order of society.
Same; Same; Same; Same; Same; Contract Clause is not a limitation on
the power of taxation save only where a tax exemption was granted for a
valid consideration.In truth, the Contract Clause has never been thought
as a limitation on the exercise of the States power of taxation save only
where a tax exemption has been granted for a valid consideration. Such is
not the case of PAL in G.R. No. 115852, and we do not understand it to
make this claim. Rather, its position, as discussed above, is that the
removal of its tax exemption cannot be made by a general, but only by a
specific, law.
Same; Judicial Review; Public actions by non-Hohfeldian or ideological
plaintiffs are now cognizable provided they meet the standing requirement
of the Constitution; There must be before the Court a fully developed
factual record that alone can impart to its adjudication the impact of
actuality to insure that decision-making is informed and well-grounded.
The substantive issues raised in some of the cases are presented in
abstract, hypothetical form because of the lack of a concrete record. We
accept that this Court does not only adjudicate private cases; that public
actions by non-Hohfeldian or ideological plaintiffs are now cognizable
provided they meet the standing requirement of the Constitution; that

under Art. VIII, 1, 2 the Court has a special function of vindicating

constitutional rights. Nonetheless the feeling cannot be escaped that we do
not have before us in these cases a fully developed factual record that
alone can impart to our adjudication the impact of actuality to insure that
decision-making is informed and well grounded. Needless to say, we do not
have power to render advisory opinions or even jurisdiction over petitions
for declaratory judgment. In effect we are being asked to do what the
Conference Committee is precisely accused of having done in these cases
to sit as a third legislative chamber to review legislation.
Same; Same; The duty of the Court to exercise its power of judicial review
must still be performed in the context of a concrete case or controversy;
That the other departments of the government may have committed a
grave abuse of discretion is not an independent ground for exercising the
Courts power.It does not add anything, therefore, to invoke this duty
to justify this Courts intervention in what is essentially a case that at best
is not ripe for adjudication. That duty must still be performed in the context
of a concrete case or controversy, as Art. VIII, 5(2) clearly defines our
jurisdiction in terms of cases, and nothing but cases. That the other
departments of the government may have committed a grave abuse of
discretion is not an independent ground for exercising our power. Disregard
of the essential limits imposed by the case and controversy requirement
can in the long run only result in undermining our authority as a court of

law. For, as judges, what we are called upon to render is judgment

according to law, not according to what may appear to be the opinion
of the day.

MENDOZA, J.:
The value-added tax (VAT) is levied on the sale, barter or exchange of
goods and properties as well as on the sale or exchange of services. It
is equivalent to 10% of the gross selling price or gross value in money
of goods or properties sold, bartered or exchanged or of the gross
receipts from the sale or exchange of services. Republic Act No. 7716
seeks to widen the tax base of the existing VAT system and enhance its
administration by amending the National Internal Revenue Code.
These are various suits for certiorari and prohibition, challenging the
constitutionality of Republic Act No. 7716 on various grounds
summarized in the resolution of July 6, 1994 of this Court, as follows:

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I. Procedural Issues:
A. Does Republic Act No. 7716 violate Art. VI, 24 of the
Constitution?
B. Does it violate Art. VI, 26(2) of the Constitution?
C. What is the extent of the power of the Bicameral
Conference Committee?
II. Substantive Issues:
A. Does the law violate the following provisions in the
Bill of Rights (Art. III)?
1. 1
2. 4
3. 5
4. 10
B. Does the law violate the following other provisions of
the Constitution?
1. Art. VI, 28(1)
2. Art. VI, 28(3)
These questions will be dealt in the order they are stated above. As will
presently be explained not all of these questions are judicially
cognizable, because not all provisions of the Constitution are self
executing and, therefore, judicially enforceable. The other departments
of the government are equally charged with the enforcement of the
Constitution, especially the provisions relating to them.
I. PROCEDURAL ISSUES

The contention of petitioners is that in enacting Republic Act No. 7716,

or the Expanded Value-Added Tax Law, Congress violated the
Constitution because, although H. No. 11197 had originated in the
House of Representatives, it was not passed by the Senate but was
simply consolidated with the Senate version (S. No. 1630) in the
Conference Committee to produce the bill which the President signed
into law. The following provisions of the Constitution are cited in
support of the proposition that because Republic Act No. 7716 was
passed in this manner, it did not originate in the House of
Representatives and it has not thereby become a law:
Art. VI, 24: All appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local
application, and private bills shall originate exclusively
in the House of Representatives, but the Senate may
propose or concur with amendments.
Id., 26(2): No bill passed by either House shall become
a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have
been distributed to its Members three days before its
passage, except when the President certifies to the
necessity of its immediate enactment to meet a public
calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and
the yeasand nays entered in the Journal.
It appears that on various dates between July 22, 1992 and August 31,
1993, several bills 1 were introduced in the House of Representatives
seeking to amend certain provisions of the National Internal Revenue
Code relative to the value-added tax or VAT. These bills were referred
to the House Ways and Means Committee which recommended for
approval a substitute measure, H. No. 11197, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT)
SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS
ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 106, 107, 108
AND 110 OF TITLE IV, 112, 115 AND 116 OF TITLE V,
AND 236, 237 AND 238 OF TITLE IX, AND REPEALING

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SECTIONS 113 AND 114 OF TITLE V, ALL OF THE

NATIONAL INTERNAL REVENUE CODE, AS AMENDED
The bill (H. No. 11197) was considered on second reading starting
November 6, 1993 and, on November 17, 1993, it was approved by the
House of Representatives after third and final reading.
It was sent to the Senate on November 23, 1993 and later referred by
that body to its Committee on Ways and Means.
On February 7, 1994, the Senate Committee submitted its report
recommending approval of S. No. 1630, entitled
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT)
SYSTEM TO WIDEN ITS TAX BASE AND ENHANCE ITS
ADMINISTRATION, AMENDING FOR THESE PURPOSES
SECTIONS 99, 100, 102, 103, 104, 105, 107, 108, AND
110 OF TITLE IV, 112 OF TITLE V, AND 236, 237, AND
238 OF TITLE IX, AND REPEALING SECTIONS 113, 114
and 116 OF TITLE V, ALL OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES
It was stated that the bill was being submitted "in substitution of
Senate Bill No. 1129, taking into consideration P.S. Res. No. 734 and
H.B. No. 11197."
On February 8, 1994, the Senate began consideration of the bill (S. No.
1630). It finished debates on the bill and approved it on second reading
on March 24, 1994. On the same day, it approved the bill on third
reading by the affirmative votes of 13 of its members, with one
abstention.
H. No. 11197 and its Senate version (S. No. 1630) were then referred to
a conference committee which, after meeting four times (April 13, 19,
21 and 25, 1994), recommended that "House Bill No. 11197, in
consolidation with Senate Bill No. 1630, be approved in accordance
with the attached copy of the bill as reconciled and approved by the
conferees."

The Conference Committee bill, entitled "AN ACT RESTRUCTURING THE

VALUE-ADDED TAX (VAT) SYSTEM, WIDENING ITS TAX BASE AND
ENHANCING ITS ADMINISTRATION AND FOR THESE PURPOSES
AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES," was thereafter approved by the House of Representatives
on April 27, 1994 and by the Senate on May 2, 1994. The enrolled bill
was then presented to the President of the Philippines who, on May 5,
1994, signed it. It became Republic Act No. 7716. On May 12, 1994,
Republic Act No. 7716 was published in two newspapers of general
circulation and, on May 28, 1994, it took effect, although its
implementation was suspended until June 30, 1994 to allow time for
the registration of business entities. It would have been enforced on
July 1, 1994 but its enforcement was stopped because the Court, by
the vote of 11 to 4 of its members, granted a temporary restraining
order on June 30, 1994.
First. Petitioners' contention is that Republic Act No. 7716 did not
"originate exclusively" in the House of Representatives as required by
Art. VI, 24 of the Constitution, because it is in fact the result of the
consolidation of two distinct bills, H. No. 11197 and S. No. 1630. In this
connection, petitioners point out that although Art. VI, SS 24 was
adopted from the American Federal Constitution, 2 it is notable in two
respects: the verb "shall originate" is qualified in the Philippine
Constitution by the word "exclusively" and the phrase "as on other
bills" in the American version is omitted. This means, according to
them, that to be considered as having originated in the House,
Republic Act No. 7716 must retain the essence of H. No. 11197.
This argument will not bear analysis. To begin with, it is not the law
but the revenue bill which is required by the Constitution to
"originate exclusively" in the House of Representatives. It is important
to emphasize this, because a bill originating in the House may undergo
such extensive changes in the Senate that the result may be a
rewriting of the whole. The possibility of a third version by the
conference committee will be discussed later. At this point, what is
important to note is that, as a result of the Senate action, a distinct bill
may be produced. To insist that a revenue statute and not only the
bill which initiated the legislative process culminating in the enactment
of the law must substantially be the same as the House bill would be
to deny the Senate's power not only to "concur with amendments" but
also to "propose amendments." It would be to violate the coequality of

116

legislative power of the two houses of Congress and in fact make the
House superior to the Senate.
The contention that the constitutional design is to limit the Senate's
power in respect of revenue bills in order to compensate for the grant
to the Senate of the treaty-ratifying power 3 and thereby equalize its
powers and those of the House overlooks the fact that the powers
being compared are different. We are dealing here with the legislative
power which under the Constitution is vested not in any particular
chamber but in the Congress of the Philippines, consisting of "a Senate
and a House of Representatives." 4 The exercise of the treaty-ratifying
power is not the exercise of legislative power. It is the exercise of a
check on the executive power. There is, therefore, no justification for
comparing the legislative powers of the House and of the Senate on
the basis of the possession of such nonlegislative power by the Senate.
The possession of a similar power by the U.S. Senate 5 has never been
thought of as giving it more legislative powers than the House of
Representatives.
In the United States, the validity of a provision ( 37) imposing an ad
valorem tax based on the weight of vessels, which the U.S. Senate had
inserted in the Tariff Act of 1909, was upheld against the claim that the
provision was a revenue bill which originated in the Senate in
contravention of Art. I, 7 of the U.S. Constitution. 6 Nor is the power to
amend limited to adding a provision or two in a revenue bill emanating
from the House. The U.S. Senate has gone so far as changing the
whole of bills following the enacting clause and substituting its own
versions. In 1883, for example, it struck out everything after the
enacting clause of a tariff bill and wrote in its place its own measure,
and the House subsequently accepted the amendment. The U.S.
Senate likewise added 847 amendments to what later became the
Payne-Aldrich Tariff Act of 1909; it dictated the schedules of the Tariff
Act of 1921; it rewrote an extensive tax revision bill in the same year
and recast most of the tariff bill of 1922. 7 Given, then, the power of
the Senate to propose amendments, the Senate can propose its own
version even with respect to bills which are required by the
Constitution to originate in the House.
It is insisted, however, that S. No. 1630 was passed not in substitution
of H. No. 11197 but of another Senate bill (S. No. 1129) earlier filed
and that what the Senate did was merely to "take [H. No. 11197] into

consideration" in enacting S. No. 1630. There is really no difference

between the Senate preserving H. No. 11197 up to the enacting clause
and then writing its own version following the enacting clause (which,
it would seem, petitioners admit is an amendment by substitution),
and, on the other hand, separately presenting a bill of its own on the
same subject matter. In either case the result are two bills on the same
subject.
Indeed, what the Constitution simply means is that the initiative for
filing revenue, tariff, or tax bills, bills authorizing an increase of the
public debt, private bills and bills of local application must come from
the House of Representatives on the theory that, elected as they are
from the districts, the members of the House can be expected to be
more sensitive to the local needs and problems. On the other hand, the
senators, who are elected at large, are expected to approach the same
problems from the national perspective. Both views are thereby made
to bear on the enactment of such laws.
Nor does the Constitution prohibit the filing in the Senate of a
substitute bill in anticipation of its receipt of the bill from the House, so
long as action by the Senate as a body is withheld pending receipt of
the House bill. The Court cannot, therefore, understand the alarm
expressed over the fact that on March 1, 1993, eight months before
the House passed H. No. 11197, S. No. 1129 had been filed in the
Senate. After all it does not appear that the Senate ever considered it.
It was only after the Senate had received H. No. 11197 on November
23, 1993 that the process of legislation in respect of it began with the
referral to the Senate Committee on Ways and Means of H. No. 11197
and the submission by the Committee on February 7, 1994 of S. No.
1630. For that matter, if the question were simply the priority in the
time of filing of bills, the fact is that it was in the House that a bill (H.
No. 253) to amend the VAT law was first filed on July 22, 1992. Several
other bills had been filed in the House before S. No. 1129 was filed in
the Senate, and H. No. 11197 was only a substitute of those earlier
bills.
Second. Enough has been said to show that it was within the power of
the Senate to propose S. No. 1630. We now pass to the next argument
of petitioners that S. No. 1630 did not pass three readings on separate
days as required by the Constitution 8 because the second and third
readings were done on the same day, March 24, 1994. But this was

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because on February 24, 1994 9 and again on March 22, 1994, 10 the
President had certified S. No. 1630 as urgent. The presidential
certification dispensed with the requirement not only of printing but
also that of reading the bill on separate days. The phrase "except when
the President certifies to the necessity of its immediate enactment,
etc." in Art. VI, 26(2) qualifies the two stated conditions before a bill
can become a law: (i) the bill has passed three readings on separate
days and (ii) it has been printed in its final form and distributed three
days before it is finally approved.
In other words, the "unless" clause must be read in relation to the
"except" clause, because the two are really coordinate clauses of the
same sentence. To construe the "except" clause as simply dispensing
with the second requirement in the "unless" clause (i.e., printing and
distribution three days before final approval) would not only violate the
rules of grammar. It would also negate the very premise of the
"except" clause: the necessity of securing the immediate enactment of
a bill which is certified in order to meet a public calamity or emergency.
For if it is only the printing that is dispensed with by presidential
certification, the time saved would be so negligible as to be of any use
in insuring immediate enactment. It may well be doubted whether
doing away with the necessity of printing and distributing copies of the
bill three days before the third reading would insure speedy enactment
of a law in the face of an emergency requiring the calling of a special
election for President and Vice-President. Under the Constitution such a
law is required to be made within seven days of the convening of
Congress in emergency session. 11
That upon the certification of a bill by the President the requirement of
three readings on separate days and of printing and distribution can be
dispensed with is supported by the weight of legislative practice. For
example, the bill defining the certiorari jurisdiction of this Court which,
in consolidation with the Senate version, became Republic Act No.
5440, was passed on second and third readings in the House of
Representatives on the same day (May 14, 1968) after the bill had
been certified by the President as urgent. 12
There is, therefore, no merit in the contention that presidential
certification dispenses only with the requirement for the printing of the
bill and its distribution three days before its passage but not with the
requirement of three readings on separate days, also.

It is nonetheless urged that the certification of the bill in this case was
invalid because there was no emergency, the condition stated in the
certification of a "growing budget deficit" not being an unusual
condition in this country.
It is noteworthy that no member of the Senate saw fit to controvert the
reality of the factual basis of the certification. To the contrary, by
passing S. No. 1630 on second and third readings on March 24, 1994,
the Senate accepted the President's certification. Should such
certification be now reviewed by this Court, especially when no
evidence has been shown that, because S. No. 1630 was taken up on
second and third readings on the same day, the members of the
Senate were deprived of the time needed for the study of a vital piece
of legislation?
The sufficiency of the factual basis of the suspension of the writ
of habeas corpus or declaration of martial law under Art. VII, 18, or
the existence of a national emergency justifying the delegation of
extraordinary powers to the President under Art. VI, 23(2), is subject
to judicial review because basic rights of individuals may be at hazard.
But the factual basis of presidential certification of bills, which involves
doing away with procedural requirements designed to insure that bills
are duly considered by members of Congress, certainly should elicit a
different standard of review.
Petitioners also invite attention to the fact that the President certified
S. No. 1630 and not H. No. 11197. That is because S. No. 1630 was
what the Senate was considering. When the matter was before the
House, the President likewise certified H. No. 9210 the pending in the
House.
Third. Finally it is contended that the bill which became Republic Act
No. 7716 is the bill which the Conference Committee prepared by
consolidating H. No. 11197 and S. No. 1630. It is claimed that the
Conference Committee report included provisions not found in either
the House bill or the Senate bill and that these provisions were
"surreptitiously" inserted by the Conference Committee. Much is made
of the fact that in the last two days of its session on April 21 and 25,
1994 the Committee met behind closed doors. We are not told,
however, whether the provisions were not the result of the give and
take that often mark the proceedings of conference committees.

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Nor is there anything unusual or extraordinary about the fact that the
Conference Committee met in executive sessions. Often the only way
to reach agreement on conflicting provisions is to meet behind closed
doors, with only the conferees present. Otherwise, no compromise is
likely to be made. The Court is not about to take the suggestion of a
cabal or sinister motive attributed to the conferees on the basis solely
of their "secret meetings" on April 21 and 25, 1994, nor read anything
into the incomplete remarks of the members, marked in the transcript
of stenographic notes by ellipses. The incomplete sentences are
probably due to the stenographer's own limitations or to the
incoherence that sometimes characterize conversations. William Safire
noted some such lapses in recorded talks even by recent past
Presidents of the United States.
In any event, in the United States conference committees had been
customarily held in executive sessions with only the conferees and
their staffs in attendance. 13 Only in November 1975 was a new rule
adopted requiring open sessions. Even then a majority of either
chamber's conferees may vote in public to close the meetings. 14
As to the possibility of an entirely new bill emerging out of a
Conference Committee, it has been explained:

Indeed, this Court recently held that it is within the power of a

conference committee to include in its report an entirely new provision
that is not found either in the House bill or in the Senate bill. 17 If the
committee can propose an amendment consisting of one or two
provisions, there is no reason why it cannot propose several provisions,
collectively considered as an "amendment in the nature of a
substitute," so long as such amendment is germane to the subject of
the bills before the committee. After all, its report was not final but
needed the approval of both houses of Congress to become valid as an
act of the legislative department. The charge that in this case the
Conference Committee acted as a third legislative chamber is thus
without any basis. 18
Nonetheless, it is argued that under the respective Rules of the Senate
and the House of Representatives a conference committee can only act
on the differing provisions of a Senate bill and a House bill, and that
contrary to these Rules the Conference Committee inserted provisions
not found in the bills submitted to it. The following provisions are cited
in support of this contention:
Rules of the Senate
Rule XII:

Under congressional rules of procedure, conference

committees are not expected to make any material
change in the measure at issue, either by deleting
provisions to which both houses have already agreed or
by inserting new provisions. But this is a difficult
provision to enforce. Note the problem when one house
amends a proposal originating in either house by
striking out everything following the enacting clause
and substituting provisions which make it an entirely
new bill. The versions are now altogether different,
permitting a conference committee to draft essentially a
new bill. . . . 15
The result is a third version, which is considered an "amendment in the
nature of a substitute," the only requirement for which being that the
third version be germane to the subject of the House and Senate
bills. 16

26. In the event that the Senate does not agree with
the House of Representatives on the provision of any bill
or joint resolution, the differences shall be settled by a
conference committee of both Houses which shall meet
within ten days after their composition.
The President shall designate the members of the
conference committee in accordance with subparagraph
(c), Section 3 of Rule III.
Each Conference Committee Report shall contain a
detailed and sufficiently explicit statement of the
changes in or amendments to the subject measure, and
shall be signed by the conferees.
The consideration of such report shall not be in order
unless the report has been filed with the Secretary of

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the Senate and copies thereof have been distributed to

the Members.
(Emphasis added)
Rules of the House of Representatives
Rule XIV:
85. Conference Committee Reports. In the event
that the House does not agree with the Senate on the
amendments to any bill or joint resolution, the
differences may be settled by conference committees
of both Chambers.
The consideration of conference committee reports shall
always be in order, except when the journal is being
read, while the roll is being called or the House is
dividing on any question. Each of the pages of such
reports shall be signed by the conferees. Each report
shall contain a detailed, sufficiently explicit statement
of the changes in or amendments to the subject
measure.
The consideration of such report shall not be in order
unless copies thereof are distributed to the Members:
Provided, That in the last fifteen days of each session
period it shall be deemed sufficient that three copies of
the report, signed as above provided, are deposited in
the office of the Secretary General.
(Emphasis added)
To be sure, nothing in the Rules limits a conference committee to a
consideration of conflicting provisions. But Rule XLIV, 112 of the Rules
of the Senate is cited to the effect that "If there is no Rule applicable to
a specific case the precedents of the Legislative Department of the
Philippines shall be resorted to, and as a supplement of these, the
Rules contained in Jefferson's Manual." The following is then quoted
from the Jefferson's Manual:

The managers of a conference must confine themselves

to the differences committed to them. . . and may not
include subjects not within disagreements, even though
germane to a question in issue.
Note that, according to Rule XLIX, 112, in case there is no specific
rule applicable, resort must be to the legislative practice. The
Jefferson's Manual is resorted to only as supplement. It is common
place in Congress that conference committee reports include new
matters which, though germane, have not been committed to the
committee. This practice was admitted by Senator Raul S. Roco,
petitioner in G.R. No. 115543, during the oral argument in these cases.
Whatever, then, may be provided in the Jefferson's Manual must be
considered to have been modified by the legislative practice. If a
change is desired in the practice it must be sought in Congress since
this question is not covered by any constitutional provision but is only
an internal rule of each house. Thus, Art. VI, 16(3) of the Constitution
provides that "Each House may determine the rules of its
proceedings. . . ."
This observation applies to the other contention that the Rules of the
two chambers were likewise disregarded in the preparation of the
Conference Committee Report because the Report did not contain a
"detailed and sufficiently explicit statement of changes in, or
amendments to, the subject measure." The Report used brackets and
capital letters to indicate the changes. This is a standard practice in
bill-drafting. We cannot say that in using these marks and symbols the
Committee violated the Rules of the Senate and the House. Moreover,
this Court is not the proper forum for the enforcement of these internal
Rules. To the contrary, as we have already ruled, "parliamentary rules
are merely procedural and with their observance the courts have no
concern." 19 Our concern is with the procedural requirements of the
Constitution for the enactment of laws. As far as these requirements
are concerned, we are satisfied that they have been faithfully observed
in these cases.
Nor is there any reason for requiring that the Committee's Report in
these cases must have undergone three readings in each of the two
houses. If that be the case, there would be no end to negotiation since
each house may seek modifications of the compromise bill. The nature
of the bill, therefore, requires that it be acted upon by each house on a

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"take it or leave it" basis, with the only alternative that if it is not
approved by both houses, another conference committee must be
appointed. But then again the result would still be a compromise
measure that may not be wholly satisfying to both houses.
Art. VI, 26(2) must, therefore, be construed as referring only to bills
introduced for the first time in either house of Congress, not to the
conference committee report. For if the purpose of requiring three
readings is to give members of Congress time to study bills, it cannot
be gainsaid that H. No. 11197 was passed in the House after three
readings; that in the Senate it was considered on first reading and then
referred to a committee of that body; that although the Senate
committee did not report out the House bill, it submitted a version (S.
No. 1630) which it had prepared by "taking into consideration" the
House bill; that for its part the Conference Committee consolidated the
two bills and prepared a compromise version; that the Conference
Committee Report was thereafter approved by the House and the
Senate, presumably after appropriate study by their members. We
cannot say that, as a matter of fact, the members of Congress were
not fully informed of the provisions of the bill. The allegation that the
Conference Committee usurped the legislative power of Congress is, in
our view, without warrant in fact and in law.
Fourth. Whatever doubts there may be as to the formal validity of
Republic Act No. 7716 must be resolved in its favor. Our
cases 20 manifest firm adherence to the rule that an enrolled copy of a
bill is conclusive not only of its provisions but also of its due
enactment. Not even claims that a proposed constitutional amendment
was invalid because the requisite votes for its approval had not been
obtained 21 or that certain provisions of a statute had been "smuggled"
in the printing of the bill 22 have moved or persuaded us to look behind
the proceedings of a coequal branch of the government. There is no
reason now to depart from this rule.
No claim is here made that the "enrolled bill" rule is absolute. In fact in
one case 23 we "went behind" an enrolled bill and consulted the Journal
to determine whether certain provisions of a statute had been
approved by the Senate in view of the fact that the President of the
Senate himself, who had signed the enrolled bill, admitted a mistake
and withdrew his signature, so that in effect there was no longer an
enrolled bill to consider.

But where allegations that the constitutional procedures for the

passage of bills have not been observed have no more basis than
another allegation that the Conference Committee "surreptitiously"
inserted provisions into a bill which it had prepared, we should decline
the invitation to go behind the enrolled copy of the bill. To disregard
the "enrolled bill" rule in such cases would be to disregard the respect
due the other two departments of our government.
Fifth. An additional attack on the formal validity of Republic Act No.
7716 is made by the Philippine Airlines, Inc., petitioner in G.R. No.
11582, namely, that it violates Art. VI, 26(1) which provides that
"Every bill passed by Congress shall embrace only one subject which
shall be expressed in the title thereof." It is contended that neither H.
No. 11197 nor S. No. 1630 provided for removal of exemption of PAL
transactions from the payment of the VAT and that this was made only
in the Conference Committee bill which became Republic Act No. 7716
without reflecting this fact in its title.
The title of Republic Act No. 7716 is:
AN ACT RESTRUCTURING THE VALUE- ADDED TAX (VAT)
SYSTEM, WIDENING ITS TAX BASE AND ENHANCING ITS
ADMINISTRATION, AND FOR THESE PURPOSES
AMENDING AND REPEALING THE RELEVANT PROVISIONS
OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, AND FOR OTHER PURPOSES.
Among the provisions of the NIRC amended is 103, which originally
read:
103. Exempt transactions. The following shall be
exempt from the value-added tax:
....
(q) Transactions which are exempt under special laws or
international agreements to which the Philippines is a
signatory. Among the transactions exempted from the
VAT were those of PAL because it was exempted under
its franchise (P.D. No. 1590) from the payment of all
"other taxes . . . now or in the near future," in

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consideration of the payment by it either of the

corporate income tax or a franchise tax of 2%.
As a result of its amendment by Republic Act No. 7716, 103 of the
NIRC now provides:

AN ACT GRANTING A NEW FRANCHISE TO PHILIPPINE

AIRLINES, INC. TO ESTABLISH, OPERATE, AND MAINTAIN
AIR-TRANSPORT SERVICES IN THE PHILIPPINES AND
BETWEEN THE PHILIPPINES AND OTHER COUNTRIES.

....

The trend in our cases is to construe the constitutional requirement in

such a manner that courts do not unduly interfere with the enactment
of necessary legislation and to consider it sufficient if the title
expresses the general subject of the statute and all its provisions are
germane to the general subject thus expressed. 24

(q) Transactions which are exempt under special laws,

except those granted under Presidential Decree Nos. 66,
529, 972, 1491, 1590. . . .

It is further contended that amendment of petitioner's franchise may

only be made by special law, in view of 24 of P.D. No. 1590 which
provides:

103. Exempt transactions. The following shall be

exempt from the value-added tax:

The effect of the amendment is to remove the exemption granted to

PAL, as far as the VAT is concerned.
The question is whether this amendment of 103 of the NIRC is fairly
embraced in the title of Republic Act No. 7716, although no mention is
made therein of P.D. No. 1590 as among those which the statute
amends. We think it is, since the title states that the purpose of the
statute is to expand the VAT system, and one way of doing this is to
widen its base by withdrawing some of the exemptions granted before.
To insist that P.D. No. 1590 be mentioned in the title of the law, in
addition to 103 of the NIRC, in which it is specifically referred to,
would be to insist that the title of a bill should be a complete index of
its content.
The constitutional requirement that every bill passed by Congress shall
embrace only one subject which shall be expressed in its title is
intended to prevent surprise upon the members of Congress and to
inform the people of pending legislation so that, if they wish to, they
can be heard regarding it. If, in the case at bar, petitioner did not know
before that its exemption had been withdrawn, it is not because of any
defect in the title but perhaps for the same reason other statutes,
although published, pass unnoticed until some event somehow calls
attention to their existence. Indeed, the title of Republic Act No. 7716
is not any more general than the title of PAL's own franchise under P.D.
No. 1590, and yet no mention is made of its tax exemption. The title of
P.D. No. 1590 is:

This franchise, as amended, or any section or provision

hereof may only be modified, amended, or repealed
expressly by a special law or decree that shall
specifically modify, amend, or repeal this franchise or
any section or provision thereof.
This provision is evidently intended to prevent the amendment of the
franchise by mere implication resulting from the enactment of a later
inconsistent statute, in consideration of the fact that a franchise is a
contract which can be altered only by consent of the parties. Thus
in Manila Railroad Co. v.
Rafferty, 25 it was held that an Act of the U.S. Congress, which provided
for the payment of tax on certain goods and articles imported into the
Philippines, did not amend the franchise of plaintiff, which exempted it
from all taxes except those mentioned in its franchise. It was held that
a special law cannot be amended by a general law.
In contrast, in the case at bar, Republic Act No. 7716 expressly amends
PAL's franchise (P.D. No. 1590) by specifically excepting from the grant
of exemptions from the VAT PAL's exemption under P.D. No. 1590. This
is within the power of Congress to do under Art. XII, 11 of the
Constitution, which provides that the grant of a franchise for the
operation of a public utility is subject to amendment, alteration or
repeal by Congress when the common good so requires.
II. SUBSTANTIVE ISSUES

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A. Claims of Press Freedom, Freedom of Thought and Religious

Freedom
The Philippine Press Institute (PPI), petitioner in G.R. No. 115544, is a
nonprofit organization of newspaper publishers established for the
improvement of journalism in the Philippines. On the other hand,
petitioner in G.R. No. 115781, the Philippine Bible Society (PBS), is a
nonprofit organization engaged in the printing and distribution of bibles
and other religious articles. Both petitioners claim violations of their
rights under 4 and 5 of the Bill of Rights as a result of the
enactment of the VAT Law.
The PPI questions the law insofar as it has withdrawn the exemption
previously granted to the press under 103 (f) of the NIRC. Although
the exemption was subsequently restored by administrative regulation
with respect to the circulation income of newspapers, the PPI presses
its claim because of the possibility that the exemption may still be
removed by mere revocation of the regulation of the Secretary of
Finance. On the other hand, the PBS goes so far as to question the
Secretary's power to grant exemption for two reasons: (1) The
Secretary of Finance has no power to grant tax exemption because this
is vested in Congress and requires for its exercise the vote of a
majority of all its members 26 and (2) the Secretary's duty is to execute
the law.
103 of the NIRC contains a list of transactions exempted from VAT.
Among the transactions previously granted exemption were:

among others." The exemption of "circulation income" has left income

from advertisements still subject to the VAT.
It is unnecessary to pass upon the contention that the exemption
granted is beyond the authority of the Secretary of Finance to give, in
view of PPI's contention that even with the exemption of the circulation
revenue of print media there is still an unconstitutional abridgment of
press freedom because of the imposition of the VAT on the gross
receipts of newspapers from advertisements and on their acquisition of
paper, ink and services for publication. Even on the assumption that no
exemption has effectively been granted to print media transactions, we
find no violation of press freedom in these cases.
To be sure, we are not dealing here with a statute that on its
face operates in the area of press freedom. The PPI's claim is simply
that, as applied to newspapers, the law abridges press freedom. Even
with due recognition of its high estate and its importance in a
democratic society, however, the press is not immune from general
regulation by the State. It has been held:
The publisher of a newspaper has no immunity from the
application of general laws. He has no special privilege
to invade the rights and liberties of others. He must
answer for libel. He may be punished for contempt of
court. . . . Like others, he must pay equitable and
nondiscriminatory taxes on his business. . . . 27
The PPI does not dispute this point, either.

(f) Printing, publication, importation or sale of books and

any newspaper, magazine, review, or bulletin which
appears at regular intervals with fixed prices for
subscription and sale and which is devoted principally
to the publication of advertisements.
Republic Act No. 7716 amended 103 by deleting (f) with the result
that print media became subject to the VAT with respect to all aspects
of their operations. Later, however, based on a memorandum of the
Secretary of Justice, respondent Secretary of Finance issued Revenue
Regulations No. 11-94, dated June 27, 1994, exempting the "circulation
income of print media pursuant to 4 Article III of the 1987 Philippine
Constitution guaranteeing against abridgment of freedom of the press,

What it contends is that by withdrawing the exemption previously

granted to print media transactions involving printing, publication,
importation or sale of newspapers, Republic Act No. 7716 has singled
out the press for discriminatory treatment and that within the class of
mass media the law discriminates against print media by giving
broadcast media favored treatment. We have carefully examined this
argument, but we are unable to find a differential treatment of the
press by the law, much less any censorial motivation for its enactment.
If the press is now required to pay a value-added tax on its
transactions, it is not because it is being singled out, much less
targeted, for special treatment but only because of the removal of the
exemption previously granted to it by law. The withdrawal of exemption

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is all that is involved in these cases. Other transactions, likewise

previously granted exemption, have been delisted as part of the
scheme to expand the base and the scope of the VAT system. The law
would perhaps be open to the charge of discriminatory treatment if the
only privilege withdrawn had been that granted to the press. But that
is not the case.
The situation in the case at bar is indeed a far cry from those cited by
the PPI in support of its claim that Republic Act No. 7716 subjects the
press to discriminatory taxation. In the cases cited, the discriminatory
purpose was clear either from the background of the law or from its
operation. For example, in Grosjean v. American Press Co., 28 the law
imposed a license tax equivalent to 2% of the gross receipts derived
from advertisements only on newspapers which had a circulation of
more than 20,000 copies per week. Because the tax was not based on
the volume of advertisement alone but was measured by the extent of
its circulation as well, the law applied only to the thirteen large
newspapers in Louisiana, leaving untaxed four papers with circulation
of only slightly less than 20,000 copies a week and 120 weekly
newspapers which were in serious competition with the thirteen
newspapers in question. It was well known that the thirteen
newspapers had been critical of Senator Huey Long, and the Longdominated legislature of Louisiana respondent by taxing what Long
described as the "lying newspapers" by imposing on them "a tax on
lying." The effect of the tax was to curtail both their revenue and their
circulation. As the U.S. Supreme Court noted, the tax was "a deliberate
and calculated device in the guise of a tax to limit the circulation of
information to which the public is entitled in virtue of the constitutional
guaranties." 29 The case is a classic illustration of the warning that the
power to tax is the power to destroy.
In the other case 30 invoked by the PPI, the press was also found to
have been singled out because everything was exempt from the "use
tax" on ink and paper, except the press. Minnesota imposed a tax on
the sales of goods in that state. To protect the sales tax, it enacted a
complementary tax on the privilege of "using, storing or consuming in
that state tangible personal property" by eliminating the residents'
incentive to get goods from outside states where the sales tax might
be lower. The Minnesota Star Tribune was exempted from both taxes
from 1967 to 1971. In 1971, however, the state legislature amended
the tax scheme by imposing the "use tax" on the cost of paper and ink
used for publication. The law was held to have singled out the press

because (1) there was no reason for imposing the "use tax" since the
press was exempt from the sales tax and (2) the "use tax" was laid on
an "intermediate transaction rather than the ultimate retail sale."
Minnesota had a heavy burden of justifying the differential treatment
and it failed to do so. In addition, the U.S. Supreme Court found the law
to be discriminatory because the legislature, by again amending the
law so as to exempt the first $100,000 of paper and ink used, further
narrowed the coverage of the tax so that "only a handful of publishers
pay any tax at all and even fewer pay any significant amount of
tax." 31 The discriminatory purpose was thus very clear.
More recently, in Arkansas Writers' Project, Inc. v. Ragland, 32 it was
held that a law which taxed general interest magazines but not
newspapers and religious, professional, trade and sports journals was
discriminatory because while the tax did not single out the press as a
whole, it targeted a small group within the press. What is more, by
differentiating on the basis of contents (i.e., between general interest
and special interests such as religion or sports) the law became
"entirely incompatible with the First Amendment's guarantee of
freedom of the press."
These cases come down to this: that unless justified, the differential
treatment of the press creates risks of suppression of expression. In
contrast, in the cases at bar, the statute applies to a wide range of
goods and services. The argument that, by imposing the VAT only on
print media whose gross sales exceeds P480,000 but not more than
P750,000, the law discriminates 33 is without merit since it has not
been shown that as a result the class subject to tax has been
unreasonably narrowed. The fact is that this limitation does not apply
to the press along but to all sales. Nor is impermissible motive shown
by the fact that print media and broadcast media are treated
differently. The press is taxed on its transactions involving printing and
publication, which are different from the transactions of broadcast
media. There is thus a reasonable basis for the classification.
The cases canvassed, it must be stressed, eschew any suggestion that
"owners of newspapers are immune from any forms of ordinary
taxation." The license tax in the Grosjean case was declared invalid
because it was "one single in kind, with a long history of hostile misuse
against the freedom of the
press." 34 On the other hand, Minneapolis Star acknowledged that "The

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First Amendment does not prohibit all regulation of the press [and that]
the States and the Federal Government can subject newspapers to
generally applicable economic regulations without creating
constitutional problems." 35
What has been said above also disposes of the allegations of the PBS
that the removal of the exemption of printing, publication or
importation of books and religious articles, as well as their printing and
publication, likewise violates freedom of thought and of conscience. For
as the U.S. Supreme Court unanimously held in Jimmy Swaggart
Ministries v. Board of Equalization, 36 the Free Exercise of Religion
Clause does not prohibit imposing a generally applicable sales and use
tax on the sale of religious materials by a religious organization.
This brings us to the question whether the registration provision of the
law, 37 although of general applicability, nonetheless is invalid when
applied to the press because it lays a prior restraint on its essential
freedom. The case ofAmerican Bible Society v. City of Manila 38 is cited
by both the PBS and the PPI in support of their contention that the law
imposes censorship. There, this Court held that an ordinance of the
City of Manila, which imposed a license fee on those engaged in the
business of general merchandise, could not be applied to the
appellant's sale of bibles and other religious literature. This Court relied
on Murdock v. Pennsylvania, 39 in which it was held that, as a license
fee is fixed in amount and unrelated to the receipts of the taxpayer,
the license fee, when applied to a religious sect, was actually being
imposed as a condition for the exercise of the sect's right under the
Constitution. For that reason, it was held, the license fee "restrains in
advance those constitutional liberties of press and religion and
inevitably tends to suppress their exercise." 40
But, in this case, the fee in 107, although a fixed amount (P1,000), is
not imposed for the exercise of a privilege but only for the purpose of
defraying part of the cost of registration. The registration requirement
is a central feature of the VAT system. It is designed to provide a record
of tax credits because any person who is subject to the payment of the
VAT pays an input tax, even as he collects an output tax on sales made
or services rendered. The registration fee is thus a mere administrative
fee, one not imposed on the exercise of a privilege, much less a
constitutional right.

For the foregoing reasons, we find the attack on Republic Act No. 7716
on the ground that it offends the free speech, press and freedom of
religion guarantees of the Constitution to be without merit. For the
same reasons, we find the claim of the Philippine Educational
Publishers Association (PEPA) in G.R. No. 115931 that the increase in
the price of books and other educational materials as a result of the
VAT would violate the constitutional mandate to the government to
give priority to education, science and technology (Art. II, 17) to be
untenable.
B. Claims of Regressivity, Denial of Due Process, Equal Protection, and
Impairment of Contracts
There is basis for passing upon claims that on its face the statute
violates the guarantees of freedom of speech, press and religion. The
possible "chilling effect" which it may have on the essential freedom of
the mind and conscience and the need to assure that the channels of
communication are open and operating importunately demand the
exercise of this Court's power of review.
There is, however, no justification for passing upon the claims that the
law also violates the rule that taxation must be progressive and that it
denies petitioners' right to due process and that equal protection of the
laws. The reason for this different treatment has been cogently stated
by an eminent authority on constitutional law thus: "[W]hen freedom of
the mind is imperiled by law, it is freedom that commands a
momentum of respect; when property is imperiled it is the lawmakers'
judgment that commands respect. This dual standard may not
precisely reverse the presumption of constitutionality in civil liberties
cases, but obviously it does set up a hierarchy of values within the due
process clause." 41
Indeed, the absence of threat of immediate harm makes the need for
judicial intervention less evident and underscores the essential nature
of petitioners' attack on the law on the grounds of regressivity, denial
of due process and equal protection and impairment of contracts as a
mere academic discussion of the merits of the law. For the fact is that
there have even been no notices of assessments issued to petitioners
and no determinations at the administrative levels of their claims so as
to illuminate the actual operation of the law and enable us to reach

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sound judgment regarding so fundamental questions as those raised in

these suits.
Thus, the broad argument against the VAT is that it is regressive and
that it violates the requirement that "The rule of taxation shall be
uniform and equitable [and] Congress shall evolve a progressive
system of taxation." 42Petitioners in G.R. No. 115781 quote from a
paper, entitled "VAT Policy Issues: Structure, Regressivity, Inflation and
Exports" by Alan A. Tait of the International Monetary Fund, that "VAT
payment by low-income households will be a higher proportion of their
incomes (and expenditures) than payments by higher-income
households. That is, the VAT will be regressive." Petitioners contend
that as a result of the uniform 10% VAT, the tax on consumption goods
of those who are in the higher-income bracket, which before were
taxed at a rate higher than 10%, has been reduced, while basic
commodities, which before were taxed at rates ranging from 3% to 5%,
are now taxed at a higher rate.
Just as vigorously as it is asserted that the law is regressive, the
opposite claim is pressed by respondents that in fact it distributes the
tax burden to as many goods and services as possible particularly to
those which are within the reach of higher-income groups, even as the
law exempts basic goods and services. It is thus equitable. The goods
and properties subject to the VAT are those used or consumed by
higher-income groups. These include real properties held primarily for
sale to customers or held for lease in the ordinary course of business,
the right or privilege to use industrial, commercial or scientific
equipment, hotels, restaurants and similar places, tourist buses, and
the like. On the other hand, small business establishments, with annual
gross sales of less than P500,000, are exempted. This, according to
respondents, removes from the coverage of the law some 30,000
business establishments. On the other hand, an occasional paper 43 of
the Center for Research and Communication cities a NEDA study that
the VAT has minimal impact on inflation and income distribution and
that while additional expenditure for the lowest income class is only
P301 or 1.49% a year, that for a family earning P500,000 a year or
more is P8,340 or 2.2%.
Lacking empirical data on which to base any conclusion regarding
these arguments, any discussion whether the VAT is regressive in the
sense that it will hit the "poor" and middle-income group in society

harder than it will the "rich," as the Cooperative Union of the

Philippines (CUP) claims in G.R. No. 115873, is largely an academic
exercise. On the other hand, the CUP's contention that Congress'
withdrawal of exemption of producers cooperatives, marketing
cooperatives, and service cooperatives, while maintaining that granted
to electric cooperatives, not only goes against the constitutional policy
to promote cooperatives as instruments of social justice (Art. XII, 15)
but also denies such cooperatives the equal protection of the law is
actually a policy argument. The legislature is not required to adhere to
a policy of "all or none" in choosing the subject of taxation. 44
Nor is the contention of the Chamber of Real Estate and Builders
Association (CREBA), petitioner in G.R. 115754, that the VAT will reduce
the mark up of its members by as much as 85% to 90% any more
concrete. It is a mere allegation. On the other hand, the claim of the
Philippine Press Institute, petitioner in G.R. No. 115544, that the VAT
will drive some of its members out of circulation because their profits
from advertisements will not be enough to pay for their tax liability,
while purporting to be based on the financial statements of the
newspapers in question, still falls short of the establishment of facts by
evidence so necessary for adjudicating the question whether the tax is
oppressive and confiscatory.
Indeed, regressivity is not a negative standard for courts to enforce.
What Congress is required by the Constitution to do is to "evolve a
progressive system of taxation." This is a directive to Congress, just
like the directive to it to give priority to the enactment of laws for the
enhancement of human dignity and the reduction of social, economic
and political inequalities (Art. XIII, 1), or for the promotion of the right
to "quality education" (Art. XIV, 1). These provisions are put in the
Constitution as moral incentives to legislation, not as judicially
enforceable rights.
At all events, our 1988 decision in Kapatiran 45 should have laid to rest
the questions now raised against the VAT. There similar arguments
made against the original VAT Law (Executive Order No. 273) were held
to be hypothetical, with no more basis than newspaper articles which
this Court found to be "hearsay and [without] evidentiary value." As
Republic Act No. 7716 merely expands the base of the VAT system and
its coverage as provided in the original VAT Law, further debate on the
desirability and wisdom of the law should have shifted to Congress.

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Only slightly less abstract but nonetheless hypothetical is the

contention of CREBA that the imposition of the VAT on the sales and
leases of real estate by virtue of contracts entered into prior to the
effectivity of the law would violate the constitutional provision that "No
law impairing the obligation of contracts shall be passed." It is enough
to say that the parties to a contract cannot, through the exercise of
prophetic discernment, fetter the exercise of the taxing power of the
State. For not only are existing laws read into contracts in order to fix
obligations as between parties, but the reservation of essential
attributes of sovereign power is also read into contracts as a basic
postulate of the legal order. The policy of protecting contracts against
impairment presupposes the maintenance of a government which
retains adequate authority to secure the peace and good order of
society. 46
In truth, the Contract Clause has never been thought as a limitation on
the exercise of the State's power of taxation save only where a tax
exemption has been granted for a valid consideration. 47 Such is not
the case of PAL in G.R. No. 115852, and we do not understand it to
make this claim. Rather, its position, as discussed above, is that the
removal of its tax exemption cannot be made by a general, but only by
a specific, law.
The substantive issues raised in some of the cases are presented in
abstract, hypothetical form because of the lack of a concrete record.
We accept that this Court does not only adjudicate private cases; that
public actions by "non-Hohfeldian" 48 or ideological plaintiffs are now
cognizable provided they meet the standing requirement of the
Constitution; that under Art. VIII, 1, 2 the Court has a "special
function" of vindicating constitutional rights. Nonetheless the feeling
cannot be escaped that we do not have before us in these cases a fully
developed factual record that alone can impart to our adjudication the
impact of actuality 49 to insure that decision-making is informed and
well grounded. Needless to say, we do not have power to render
advisory opinions or even jurisdiction over petitions for declaratory
judgment. In effect we are being asked to do what the Conference
Committee is precisely accused of having done in these cases to sit
as a third legislative chamber to review legislation.
We are told, however, that the power of judicial review is not so much
power as it is duty imposed on this Court by the Constitution and that

we would be remiss in the performance of that duty if we decline to

look behind the barriers set by the principle of separation of powers.
Art. VIII, 1, 2 is cited in support of this view:
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government.
To view the judicial power of review as a duty is nothing new. Chief
Justice Marshall said so in 1803, to justify the assertion of this power
in Marbury v. Madison:
It is emphatically the province and duty of the judicial
department to say what the law is. Those who apply the
rule to particular cases must of necessity expound and
interpret that rule. If two laws conflict with each other,
the courts must decide on the operation of each. 50
Justice Laurel echoed this justification in 1936 in Angara v. Electoral
Commission:
And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims
of authority under the Constitution and to establish for
the parties in an actual controversy the rights which
that instrument secures and guarantees to them. 51
This conception of the judicial power has been affirmed in several
cases 52 of this Court following Angara.
It does not add anything, therefore, to invoke this "duty" to justify this
Court's intervention in what is essentially a case that at best is not ripe
for adjudication. That duty must still be performed in the context of a

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concrete case or controversy, as Art. VIII, 5(2) clearly defines our

jurisdiction in terms of "cases," and nothing but "cases." That the other
departments of the government may have committed a grave abuse of
discretion is not an independent ground for exercising our power.
Disregard of the essential limits imposed by the case and controversy
requirement can in the long run only result in undermining our
authority as a court of law. For, as judges, what we are called upon to
render is judgment according to law, not according to what may
appear to be the opinion of the day.
_______________________________
In the preceeding pages we have endeavored to discuss, within limits,
the validity of Republic Act No. 7716 in its formal and substantive
aspects as this has been raised in the various cases before us. To sum
up, we hold:
(1) That the procedural requirements of the Constitution have been
complied with by Congress in the enactment of the statute;
(2) That judicial inquiry whether the formal requirements for the
enactment of statutes beyond those prescribed by the Constitution

have been observed is precluded by the principle of separation of

powers;
(3) That the law does not abridge freedom of speech, expression or the
press, nor interfere with the free exercise of religion, nor deny to any of
the parties the right to an education; and
(4) That, in view of the absence of a factual foundation of record,
claims that the law is regressive, oppressive and confiscatory and that
it violates vested rights protected under the Contract Clause are
prematurely raised and do not justify the grant of prospective relief by
writ of prohibition.
WHEREFORE, the petitions in these cases are DISMISSED.
Bidin, Quiason, and Kapunan, JJ., concur.