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G.R. No.

101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners
dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation
or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems
and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are
all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners. 1 The complaint2 was instituted as a taxpayers' class suit3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of
the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others
who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring
them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet
unborn."4 Consequently, it is prayed for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to

(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty
million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since
time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land
area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a
consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from
drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of
the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique,
rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of
the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other
aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers,
(i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the
siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying
water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to

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process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of
global warming, otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of
unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they
expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course
of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests
constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth rainforests are left,
barely 2.8% of the entire land mass of the Philippine archipelago and about 3.0 million hectares of
immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license agreements
('TLA's') to various corporations to cut the aggregate area of 3.89 million hectares for commercial logging
purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25 hectares per hour
nighttime, Saturdays, Sundays and holidays included the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable damage of this continued
trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated in paragraph 6 hereof are
already being felt, experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands
will work great damage and irreparable injury to plaintiffs especially plaintiff minors and their
successors who may never see, use, benefit from and enjoy this rare and unique natural resource
treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural resource property
he holds in trust for the benefit of plaintiff minors and succeeding generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final demand to cancel all logging permits in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing serious damage
and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with a country that is desertified (sic), bare, barren

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and devoid of the wonderful flora, fauna and indigenous cultures which the Philippines had been
abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy
enunciated in the Philippine Environmental Policy which, in pertinent part, states that it is the policy of
the State

(a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future generations of Filipinos
and;
(c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to
the Constitutional policy of the State to
a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient
use of natural resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative
of plaintiffs' right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the
unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political
question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition
to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the
motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not
only was the defendant's claim that the complaint states no cause of action against him and that it raises a political
question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this
Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in
dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the
latter in this case.8

On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations
concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section
4 of Executive Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and
healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber
License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the
same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered
protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so
requires.

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On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated
by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and
nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by
the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They
then reiterate the theory that the question of whether logging should be permitted in the country is a political question
which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban
logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without
due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due
process.

Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a
class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby
rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes
impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein
are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites
for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case
and in the instant petition, the latter being but an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well
as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and
for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be
based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned. Such a right, as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its entirety.9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as future generations. 10Needless to
say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations
to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and
arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's
challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a
specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court
notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with political color and
involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to
the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and

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to cease and desist from receiving, accepting, processing, renewing or approving new timber license
agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific
legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for
the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of
the 1987 Constitution explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of the same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and
not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in
the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation
and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to
predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the
Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the
fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful
ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment.
During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the
section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution
air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it
the correlative duty of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and conservation of the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of the country's environment and natural
resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and
lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in
order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations
of Filipinos." Section 3 thereof makes the following statement of policy:

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Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the country's forest, mineral, land, off-shore
areas and other natural resources, including the protection and enhancement of the quality of the
environment, and equitable access of the different segments of the population to the development and
the use of the country's natural resources, not only for the present generation but for future generations
as well. It is also the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation of our natural
resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987,15 specifically in
Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full
exploration and development as well as the judicious disposition, utilization, management, renewal and
conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other
natural resources, consistent with the necessity of maintaining a sound ecological balance and protecting
and enhancing the quality of the environment and the objective of making the exploration, development
and utilization of such natural resources equitably accessible to the different segments of the present as
well as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into account social and
environmental cost implications relative to the utilization, development and conservation of our natural
resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR;
however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily
responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional
mandate to control and supervise the exploration, development, utilization, and conservation of the
country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of the DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special
attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine
Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing
policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in
productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present
and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's
duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of
1987 to protect and advance the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives
rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of
discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no
further TLAs should be renewed or granted.

A cause of action is defined as:

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. . . an act or omission of one party in violation of the legal right or rights of the other; and its essential
elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the
defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of
action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint
itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for
the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged
facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute."

After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the
reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to
implead, as party defendants, the grantees thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by
the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states that:

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.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of
this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving the
settlement of conflicting rights as conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of the government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule
upon even the wisdom of the decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of
course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason
is that, even if we were to assume that the issue presented before us was political in nature, we would
still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly
provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in
the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and
to cease and desist from receiving, accepting, processing, renewing or approving new timber license

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agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the
first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment
clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government
to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands
of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify, replace or
rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or
a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:

. . . A timber license is an instrument by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. A timber license is not a contract within the purview
of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever
dictated by public interest or public welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority, federal, state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168).
Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property
or property rights (People vs. Ong Tin, 54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which the State
regulates the utilization and disposition of forest resources to the end that public welfare is promoted.
And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified
entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area
and the forest products therein. They may be validly amended, modified, replaced or rescinded by the
Chief Executive when national interests so require. Thus, they are not deemed contracts within the
purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment
clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed mandating cancellations
or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its
very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the
purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the
general welfare. In Abe vs. Foster Wheeler
28
Corp. this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The same is
understood to be subject to reasonable legislative regulation aimed at the promotion of public health,
moral, safety and welfare. In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the interest of public health, safety,
moral and general welfare.

8
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General,30 to wit:

Under our form of government the use of property and the making of contracts are normally matters of
private and not of public concern. The general rule is that both shall be free of governmental interference.
But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may
at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the public to regulate it in the common
interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent
Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their
complaint to implead as defendants the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs. SO ORDERED.

9
G.R. No. 91649 May 14, 1991

ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES MARANAN AND LORENZO SANCHEZ,petitioners,
vs.
PHILIPPINE AMUSEMENTS AND GAMING CORPORATION (PAGCOR), respondent.

H.B. Basco & Associates for petitioners.


Valmonte Law Offices collaborating counsel for petitioners.
Aguirre, Laborte and Capule for respondent PAGCOR.

PARAS, J.:

A TV ad proudly announces:

"The new PAGCOR responding through responsible gaming."

But the petitioners think otherwise, that is why, they filed the instant petition seeking to annul the Philippine Amusement
and Gaming Corporation (PAGCOR) Charter PD 1869, because it is allegedly contrary to morals, public policy and order,
and because

A. It constitutes a waiver of a right prejudicial to a third person with a right recognized by law. It waived the Manila
City government's right to impose taxes and license fees, which is recognized by law;

B. For the same reason stated in the immediately preceding paragraph, the law has intruded into the local
government's right to impose local taxes and license fees. This, in contravention of the constitutionally enshrined
principle of local autonomy;

C. It violates the equal protection clause of the constitution in that it legalizes PAGCOR conducted gambling,
while most other forms of gambling are outlawed, together with prostitution, drug trafficking and other vices;

D. It violates the avowed trend of the Cory government away from monopolistic and crony economy, and toward
free enterprise and privatization. (p. 2, Amended Petition; p. 7, Rollo)

In their Second Amended Petition, petitioners also claim that PD 1869 is contrary to the declared national policy of the
"new restored democracy" and the people's will as expressed in the 1987 Constitution. The decree is said to have a
"gambling objective" and therefore is contrary to Sections 11, 12 and 13 of Article II, Sec. 1 of Article VIII and Section 3 (2) of
Article XIV, of the present Constitution (p. 3, Second Amended Petition; p. 21, Rollo).

The procedural issue is whether petitioners, as taxpayers and practicing lawyers (petitioner Basco being also the Chairman
of the Committee on Laws of the City Council of Manila), can question and seek the annulment of PD 1869 on the alleged
grounds mentioned above.

The Philippine Amusements and Gaming Corporation (PAGCOR) was created by virtue of P.D. 1067-A dated January 1, 1977
and was granted a franchise under P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain gambling
casinos on land or water within the territorial jurisdiction of the Philippines." Its operation was originally conducted in the
well known floating casino "Philippine Tourist." The operation was considered a success for it proved to be a potential
source of revenue to fund infrastructure and socio-economic projects, thus, P.D. 1399 was passed on June 2, 1978 for
PAGCOR to fully attain this objective.

Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable the Government to regulate and centralize
all games of chance authorized by existing franchise or permitted by law, under the following declared policy

Sec. 1. Declaration of Policy. It is hereby declared to be the policy of the State to centralize and integrate all
games of chance not heretofore authorized by existing franchises or permitted by law in order to attain the
following objectives:

(a) To centralize and integrate the right and authority to operate and conduct games of chance into one corporate
entity to be controlled, administered and supervised by the Government.

(b) To establish and operate clubs and casinos, for amusement and recreation, including sports gaming pools,
(basketball, football, lotteries, etc.) and such other forms of amusement and recreation including games of chance,
which may be allowed by law within the territorial jurisdiction of the Philippines and which will: (1) generate
sources of additional revenue to fund infrastructure and socio-civic projects, such as flood control programs,
beautification, sewerage and sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population
Control and such other essential public services; (2) create recreation and integrated facilities which will expand
and improve the country's existing tourist attractions; and (3) minimize, if not totally eradicate, all the evils,
malpractices and corruptions that are normally prevalent on the conduct and operation of gambling clubs and
casinos without direct government involvement. (Section 1, P.D. 1869)

10
To attain these objectives PAGCOR is given territorial jurisdiction all over the Philippines. Under its Charter's repealing
clause, all laws, decrees, executive orders, rules and regulations, inconsistent therewith, are accordingly repealed, amended
or modified.

It is reported that PAGCOR is the third largest source of government revenue, next to the Bureau of Internal Revenue and
the Bureau of Customs. In 1989 alone, PAGCOR earned P3.43 Billion, and directly remitted to the National Government a
total of P2.5 Billion in form of franchise tax, government's income share, the President's Social Fund and Host Cities' share.
In addition, PAGCOR sponsored other socio-cultural and charitable projects on its own or in cooperation with various
governmental agencies, and other private associations and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of December 31, 1989, PAGCOR was
employing 4,494 employees in its nine (9) casinos nationwide, directly supporting the livelihood of Four Thousand Four
Hundred Ninety-Four (4,494) families.

But the petitioners, are questioning the validity of P.D. No. 1869. They allege that the same is "null and void" for being
"contrary to morals, public policy and public order," monopolistic and tends toward "crony economy", and is violative of the
equal protection clause and local autonomy as well as for running counter to the state policies enunciated in Sections 11
(Personal Dignity and Human Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social Justice) of Article XIII
and Section 2 (Educational Values) of Article XIV of the 1987 Constitution.

This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and the most deliberate consideration by the
Court, involving as it does the exercise of what has been described as "the highest and most delicate function which
belongs to the judicial department of the government." (State v. Manuel, 20 N.C. 144; Lozano v. Martinez, 146 SCRA 323).

As We enter upon the task of passing on the validity of an act of a co-equal and coordinate branch of the government We
need not be reminded of the time-honored principle, deeply ingrained in our jurisprudence, that a statute is presumed to
be valid. Every presumption must be indulged in favor of its constitutionality. This is not to say that We approach Our task
with diffidence or timidity. Where it is clear that the legislature or the executive for that matter, has over-stepped the limits
of its authority under the constitution, We should not hesitate to wield the axe and let it fall heavily, as fall it must, on the
offending statute (Lozano v. Martinez, supra).

In Victoriano v. Elizalde Rope Workers' Union, et al, 59 SCRA 54, the Court thru Mr. Justice Zaldivar underscored the

. . . thoroughly established principle which must be followed in all cases where questions of constitutionality as
obtain in the instant cases are involved. All presumptions are indulged in favor of constitutionality; one who
attacks a statute alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may
work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports
the statute, it will be upheld and the challenger must negate all possible basis; that the courts are not concerned
with the wisdom, justice, policy or expediency of a statute and that a liberal interpretation of the constitution in
favor of the constitutionality of legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd534, 539; Spurbeck v.
Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio, 46 SCRA 734, 739 [1970]; Peralta v.
Commission on Elections, 82 SCRA 30, 55 [1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited
in Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521, 540)

Of course, there is first, the procedural issue. The respondents are questioning the legal personality of petitioners to file the
instant petition.

Considering however the importance to the public of the case at bar, and in keeping with the Court's duty, under the 1987
Constitution, to determine whether or not the 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, the Court has brushed aside
technicalities of procedure and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa Pamahalaan ng
Pilipinas Inc. v. Tan, 163 SCRA 371)

With particular regard to the requirement of proper party as applied in the cases before us, We hold that the same
is satisfied by the petitioners and intervenors because each of them has sustained or is in danger of sustaining an
immediate injury as a result of the acts or measures complained of. And even if, strictly speaking they are not
covered by the definition, it is still within the wide discretion of the Court to waive the requirement and so remove
the impediment to its addressing and resolving the serious constitutional questions raised.

In the first Emergency Powers Cases, ordinary citizens and taxpayers were allowed to question the constitutionality
of several executive orders issued by President Quirino although they were involving only an indirect and general
interest shared in common with the public. The Court dismissed the objection that they were not proper parties
and ruled that "the transcendental importance to the public of these cases demands that they be settled promptly
and definitely, brushing aside, if we must technicalities of procedure." We have since then applied the exception in
many other cases. (Association of Small Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA
343).

Having disposed of the procedural issue, We will now discuss the substantive issues raised.

11
Gambling in all its forms, unless allowed by law, is generally prohibited. But the prohibition of gambling does not mean that
the Government cannot regulate it in the exercise of its police power.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact
legislation that may interfere with personal liberty or property in order to promote the general welfare." (Edu v. Ericta, 35
SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty or property, (2) in order to foster the
common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon, 163 SCRA 386).

Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done,
provides enough room for an efficient and flexible response to conditions and circumstances thus assuming the greatest
benefits. (Edu v. Ericta, supra)

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the charter. Along with the
taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has
been credited, refers to it succinctly as the plenary power of the state "to govern its citizens". (Tribe, American
Constitutional Law, 323, 1978). The police power of the State is a power co-extensive with self-protection and is most aptly
termed the "law of overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most
essential, insistent, and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a dynamic force that enables
the state to meet the agencies of the winds of change.

What was the reason behind the enactment of P.D. 1869?

P.D. 1869 was enacted pursuant to the policy of the government to "regulate and centralize thru an appropriate institution
all games of chance authorized by existing franchise or permitted by law" (1st whereas clause, PD 1869). As was
subsequently proved, regulating and centralizing gambling operations in one corporate entity the PAGCOR, was
beneficial not just to the Government but to society in general. It is a reliable source of much needed revenue for the cash
strapped Government. It provided funds for social impact projects and subjected gambling to "close scrutiny, regulation,
supervision and control of the Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and the direct
intervention of the Government, the evil practices and corruptions that go with gambling will be minimized if not totally
eradicated. Public welfare, then, lies at the bottom of the enactment of PD 1896.

Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that
the exemption clause in P.D. 1869 is violative of the principle of local autonomy. They must be referring to Section 13 par.
(2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any "tax of any kind or form, income or
otherwise, as well as fees, charges or levies of whatever nature, whether National or Local."

(2) Income and other taxes. a) Franchise Holder: No tax of any kind or form, income or otherwise as well as fees,
charges or levies of whatever nature, whether National or Local, shall be assessed and collected under this
franchise from the Corporation; nor shall any form or tax or charge attach in any way to the earnings of the
Corporation, except a franchise tax of five (5%) percent of the gross revenues or earnings derived by the
Corporation from its operations under this franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or assessments of any kind, nature or description,
levied, established or collected by any municipal, provincial or national government authority (Section 13 [2]).

Their contention stated hereinabove is without merit for the following reasons:

(a) The City of Manila, being a mere Municipal corporation has no inherent right to impose taxes (Icard v. City of Baguio, 83
Phil. 870; City of Iloilo v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the Charter or
statute must plainly show an intent to confer that power or the municipality cannot assume it" (Medina v. City of Baguio, 12
SCRA 62). Its "power to tax" therefore must always yield to a legislative act which is superior having been passed upon by
the state itself which has the "inherent power to tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).

(b) The Charter of the City of Manila is subject to control by Congress. It should be stressed that "municipal corporations are
mere creatures of Congress" (Unson v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and abolish
municipal corporations" due to its "general legislative powers" (Asuncion v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5
SCRA 541). Congress, therefore, has the power of control over Local governments (Hebron v. Reyes, G.R. No. 9124, July 2,
1950). And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or
even take back the power.

(c) The City of Manila's power to impose license fees on gambling, has long been revoked. As early as 1975, the power of
local governments to regulate gambling thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771
and was vested exclusively on the National Government, thus:

Sec. 1. Any provision of law to the contrary notwithstanding, the authority of chartered cities and other local
governments to issue license, permit or other form of franchise to operate, maintain and establish horse and dog
race tracks, jai-alai and other forms of gambling is hereby revoked.

12
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish, horse and dog race tracks, jai-alai
and other forms of gambling shall be issued by the national government upon proper application and verification
of the qualification of the applicant . . .

Therefore, only the National Government has the power to issue "licenses or permits" for the operation of gambling.
Necessarily, the power to demand or collect license fees which is a consequence of the issuance of "licenses or permits" is
no longer vested in the City of Manila.

(d) Local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government
owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National
Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also exercises regulatory powers thus:

Sec. 9. Regulatory Power. The Corporation shall maintain a Registry of the affiliated entities, and shall exercise
all the powers, authority and the responsibilities vested in the Securities and Exchange Commission over such
affiliating entities mentioned under the preceding section, including, but not limited to amendments of Articles of
Incorporation and By-Laws, changes in corporate term, structure, capitalization and other matters concerning the
operation of the affiliated entities, the provisions of the Corporation Code of the Philippines to the contrary
notwithstanding, except only with respect to original incorporation.

PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter role is governmental, which places it in the
category of an agency or instrumentality of the Government. Being an instrumentality of the Government, PAGCOR should
be and actually is exempt from local taxes. Otherwise, its operation might be burdened, impeded or subjected to control by
a mere Local government.

The states have no power by taxation or otherwise, to retard, impede, burden or in any manner control the
operation of constitutional laws enacted by Congress to carry into execution the powers vested in the federal
government. (MC Culloch v. Marland, 4 Wheat 316, 4 L Ed. 579)

This doctrine emanates from the "supremacy" of the National Government over local governments.

Justice Holmes, speaking for the Supreme Court, made reference to the entire absence of power on the part of the
States to touch, in that way (taxation) at least, the instrumentalities of the United States (Johnson v. Maryland, 254
US 51) and it can be agreed that no state or political subdivision can regulate a federal instrumentality in such a
way as to prevent it from consummating its federal responsibilities, or even to seriously burden it in the
accomplishment of them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)

Otherwise, mere creatures of the State can defeat National policies thru extermination of what local authorities may
perceive to be undesirable activities or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez, 340 US
42).

The power to tax which was called by Justice Marshall as the "power to destroy" (Mc Culloch v. Maryland, supra) cannot be
allowed to defeat an instrumentality or creation of the very entity which has the inherent power to wield it.

(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will be violated by P.D. 1869. This is a
pointless argument. Article X of the 1987 Constitution (on Local Autonomy) provides:

Sec. 5. Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees,
and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic
policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. (emphasis
supplied)

The power of local government to "impose taxes and fees" is always subject to "limitations" which Congress may provide by
law. Since PD 1869 remains an "operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987 Constitution),
its "exemption clause" remains as an exception to the exercise of the power of local governments to impose taxes and fees.
It cannot therefore be violative but rather is consistent with the principle of local autonomy.

Besides, the principle of local autonomy under the 1987 Constitution simply means "decentralization" (III Records of the
1987 Constitutional Commission, pp. 435-436, as cited in Bernas, The Constitution of the Republic of the Philippines, Vol. II,
First Ed., 1988, p. 374). It does not make local governments sovereign within the state or an "imperium in imperio."

Local Government has been described as a political subdivision of a nation or state which is constituted by law and
has substantial control of local affairs. In a unitary system of government, such as the government under the
Philippine Constitution, local governments can only be an intra sovereign subdivision of one sovereign nation, it
cannot be an imperium in imperio. Local government in such a system can only mean a measure of
decentralization of the function of government. (emphasis supplied)

13
As to what state powers should be "decentralized" and what may be delegated to local government units remains a matter
of policy, which concerns wisdom. It is therefore a political question. (Citizens Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 539).

What is settled is that the matter of regulating, taxing or otherwise dealing with gambling is a State concern and hence, it is
the sole prerogative of the State to retain it or delegate it to local governments.

As gambling is usually an offense against the State, legislative grant or express charter power is generally necessary
to empower the local corporation to deal with the subject. . . . In the absence of express grant of power to
enact, ordinance provisions on this subject which are inconsistent with the state laws are void. (Ligan v. Gadsden,
Ala App. 107 So. 733 Ex-Parte Solomon, 9, Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22
Am St. Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis supplied)

Petitioners next contend that P.D. 1869 violates the equal protection clause of the Constitution, because "it legalized
PAGCOR conducted gambling, while most gambling are outlawed together with prostitution, drug trafficking and other
vices" (p. 82, Rollo).

We, likewise, find no valid ground to sustain this contention. The petitioners' posture ignores the well-accepted meaning of
the clause "equal protection of the laws." The clause does not preclude classification of individuals who may be accorded
different treatment under the law as long as the classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101
Phil. 1155). A law does not have to operate in equal force on all persons or things to be conformable to Article III, Section 1
of the Constitution (DECS v. San Diego, G.R. No. 89572, December 21, 1989).

The "equal protection clause" does not prohibit the Legislature from establishing classes of individuals or objects upon
which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The Constitution does not require situations which are
different in fact or opinion to be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA 827).

Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of the equal protection is not clearly explained
in the petition. The mere fact that some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as amended by
RA 983), sweepstakes, lotteries and races (RA 1169 as amended by B.P. 42) are legalized under certain conditions, while
others are prohibited, does not render the applicable laws, P.D. 1869 for one, unconstitutional.

If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other
instances to which it might have been applied. (Gomez v. Palomar, 25 SCRA 827)

The equal protection clause of the 14th Amendment does not mean that all occupations called by the same name
must be treated the same way; the state may do what it can to prevent which is deemed as evil and stop short of
those cases in which harm to the few concerned is not less than the harm to the public that would insure if the rule
laid down were made mathematically exact. (Dominican Hotel v. Arizona, 249 US 2651).

Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the Cory Government away from monopolies and
crony economy and toward free enterprise and privatization" suffice it to state that this is not a ground for this Court to
nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's policies then it is for the Executive Department to
recommend to Congress its repeal or amendment.

The judiciary does not settle policy issues. The Court can only declare what the law is and not what the law should
be.1wphi1 Under our system of government, policy issues are within the domain of the political branches of
government and of the people themselves as the repository of all state power. (Valmonte v. Belmonte, Jr., 170
SCRA 256).

On the issue of "monopoly," however, the Constitution provides that:

Sec. 19. The State shall regulate or prohibit monopolies when public interest so requires. No combinations in
restraint of trade or unfair competition shall be allowed. (Art. XII, National Economy and Patrimony)

It should be noted that, as the provision is worded, monopolies are not necessarily prohibited by the Constitution. The state
must still decide whether public interest demands that monopolies be regulated or prohibited. Again, this is a matter of
policy for the Legislature to decide.

On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity) 12 (Family) and 13 (Role of Youth) of
Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely statements of principles and, policies. As such, they are basically not self-
executing, meaning a law should be passed by Congress to clearly define and effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for enforcement
through the courts. They were rather directives addressed to the executive and the legislature. If the executive and
the legislature failed to heed the directives of the articles the available remedy was not judicial or political. The

14
electorate could express their displeasure with the failure of the executive and the legislature through the
language of the ballot. (Bernas, Vol. II, p. 2)

Every law has in its favor the presumption of constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48
SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be nullified, it must
be shown that there is a clear and unequivocal breach of the Constitution, not merely a doubtful and equivocal one. In
other words, the grounds for nullity must be clear and beyond reasonable doubt. (Peralta v. Comelec, supra) Those who
petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of P.D.
1869, the Court finds that petitioners have failed to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation considering the issues of "morality, monopoly, trend to
free enterprise, privatization as well as the state principles on social justice, role of youth and educational values" being
raised, is up for Congress to determine.

As this Court held in Citizens' Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA 521

Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in any case, in its favor the
presumption of validity and constitutionality which petitioners Valmonte and the KMU have not overturned.
Petitioners have not undertaken to identify the provisions in the Constitution which they claim to have been
violated by that statute. This Court, however, is not compelled to speculate and to imagine how the assailed
legislation may possibly offend some provision of the Constitution. The Court notes, further, in this respect that
petitioners have in the main put in question the wisdom, justice and expediency of the establishment of the OPSF,
issues which are not properly addressed to this Court and which this Court may not constitutionally pass upon.
Those issues should be addressed rather to the political departments of government: the President and the
Congress.

Parenthetically, We wish to state that gambling is generally immoral, and this is precisely so when the gambling resorted to
is excessive. This excessiveness necessarily depends not only on the financial resources of the gambler and his family but
also on his mental, social, and spiritual outlook on life. However, the mere fact that some persons may have lost their
material fortunes, mental control, physical health, or even their lives does not necessarily mean that the same are directly
attributable to gambling. Gambling may have been the antecedent, but certainly not necessarily the cause. For the same
consequences could have been preceded by an overdose of food, drink, exercise, work, and even sex.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

15
G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent
Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of Candidacy in its Resolution No.
6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco
and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion for
Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion for
Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the
aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-five (35)
others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or
are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for
petitioner. By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation
of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign
and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders.
The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of
waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to
wage an international campaign since he has practiced law in other countries, and he has a platform of government.
Petitioner likewise attacks the validity of the form for the Certificate of Candidacy prepared by the COMELEC. Petitioner
claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since
it does not ask for the candidates bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to opportunities for public
office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article
II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State
Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reason for
according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the
provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or
executive action.3 The disregard of the provision does not give rise to any cause of action before the courts. 4

An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The
original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and
prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment
that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to
"service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to
the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create
as many offices as are possible to accommodate as many people as are also possible. That is the meaning of
broadening opportunities to public service. So, in order that we should not mandate the State to make the
government the number one employer and to limit offices only to what may be necessary and expedient yet
offering equal opportunities to access to it, I change the word "broaden." 7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many
people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast
the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden.

16
Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is
difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not
properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-
ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the
people an operative but amorphous foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid
limitations specifically on the privilege to seek elective office are found in the provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution No. 6452 10 dated December 10, 2002 outlining the instances wherein the
COMELEC may motu proprio refuse to give due course to or cancel a Certificate of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not
violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one
who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the
limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and
COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due
weight.

Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not
evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical
considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for
logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These
practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our
democratic institutions. As the United States Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of
support before printing the name of a political organization and its candidates on the ballot the interest, if no
other, in avoiding confusion, deception and even frustration of the democratic [process]. 11

The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January
2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the
COMELECs Comment:

There is a need to limit the number of candidates especially in the case of candidates for national positions
because the election process becomes a mockery even if those who cannot clearly wage a national campaign are
allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet
and the Official Ballots. These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY
MILLION PESOS (450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign
enough to project the prospect of winning, no matter how slim. 12

The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the
elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election
rules and regulations the formulations of which are dependent on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization
of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious
intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant
minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It
would be a senseless sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and
need not indulge in, as the song goes, "their trips to the moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure
orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from

17
the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections 16 and endowed with
considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any
form of harassment and discrimination.18 The determination of bona fidecandidates is governed by the statutes, and the
concept, to our mind is, satisfactorily defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot
be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not
direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes
the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying
petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving
at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an
eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions
as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their
respective Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the government. It deserves not
a cursory treatment but a hearing which conforms to the requirements of due process.

As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a certificate of
candidacy should contain, with the required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the
reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance
candidate as contemplated in Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with
deliberate dispatch.

SO ORDERED.

18
G.R. No. 169777* April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his capacity as Senate President, JUAN M.
FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader,
AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S.
CAYETANO, JINGGOY EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON,
PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR
ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria Macapagal-Arroyo, and
anyone acting in his stead and in behalf of the President of the Philippines, Respondents.

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

G.R. No. 169659 April 20, 2006

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

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

G.R. No. 169660 April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,


vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,
and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, Respondents.

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

G.R. No. 169667 April 20, 2006

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


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

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

G.R. No. 169834 April 20, 2006

PDP- LABAN, Petitioner,


vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

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

G.R. No. 171246 April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the
INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state. Even in the early history of republican
thought, however, it has been recognized that the head of government may keep certain information confidential in pursuit
of the public interest. Explaining the reason for vesting executive power in only one magistrate, a distinguished delegate to
the U.S. Constitutional Convention said: "Decision, activity, secrecy, and dispatch will generally characterize the proceedings

19
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 letter3 dated September 27, 2005, requested for its postponement "due to a pressing operational situation
that demands [his utmost personal attention" while "some of the invited AFP officers are currently attending to other
urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from Executive Secretary Eduardo R. Ermita a
letter4 dated September 27, 2005 "respectfully request[ing] for the postponement of the hearing [regarding the NorthRail
project] to which various officials of the Executive Department have been invited" in order to "afford said officials ample
time and opportunity to study and prepare for the various issues so that they may better enlighten the Senate Committee
on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the Senators "are unable to accede to [his
request]" as it "was sent belatedly" and "[a]ll preparations and arrangements as well as notices to all resource persons were
completed [the previous] week."

Senate President Drilon likewise received on September 28, 2005 a 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

20
government, all heads of departments of the Executive Branch of the government shall secure the consent of the President
prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall
only be conducted in executive session.

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

(a) Nature and Scope. - The rule of confidentiality based on executive privilege is fundamental to the operation of
government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees
provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to
them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by
this executive order, including:

Conversations and correspondence between the President and the public official covered by this executive order (Almonte
vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should not be divulged
(Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No.
130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v.
Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

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

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

(b) Who are covered. The following are covered by this executive order:

Senior officials of executive departments who in the judgment of the department heads are covered by the executive
privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other officers who in the judgment of the Chief of
Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or higher and such other officers who in the
judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security Adviser are covered by the executive
privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. All public officials enumerated in Section 2 (b) hereof
shall secure prior consent of the President prior to appearing before either House of Congress to ensure the observance of
the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public
officials appearing in inquiries in aid of legislation. (Emphasis and underscoring supplied)

Also on September 28, 2005, Senate President Drilon received from Executive Secretary Ermita a copy of E.O. 464, and
another letter8 informing him "that officials of the Executive Department invited to appear at the meeting [regarding the
NorthRail project] will not be able to attend the same without the consent of the President, pursuant to [E.O. 464]" and
that "said officials have not secured the required consent from the President." On even date which was also the scheduled
date of the hearing on the alleged wiretapping, Gen. Senga sent a 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.

21
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.

In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his constitutional rights as a citizen, taxpayer and law
practitioner, are affected by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null and void for
being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging that as a coalition of 17 legal resource non-
governmental organizations engaged in developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the Philippines and a part of the general public, it has
legal standing to institute the petition to enforce its constitutional right to information on matters of public concern, a right
which was denied to the public by E.O. 464,13 prays, that said order be declared null and void for being unconstitutional and
that respondent Executive Secretary Ermita be ordered to cease from implementing it.

On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a vital interest in the resolution of the issue of
the validity of E.O. 464 for it stands to suffer imminent and material injury, as it has already sustained the same with its
continued enforcement since it directly interferes with and impedes the valid exercise of the 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 letter14 dated February 6, 2006, Senator Biazon reiterated his invitation to Gen. Senga for him and other
military officers to attend the hearing on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order No. 464, th[e] Headquarters requested for
a clearance from the President to allow [them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16

In another investigation conducted jointly by the Senate Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of the fertilizer fund under the Ginintuang Masaganang Ani program of
the Department of Agriculture (DA), several Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana, 17 and those from the
Department of Budget and Management 18 having invoked E.O. 464.

22
In the budget hearings set by the Senate on February 8 and 13, 2006, Press Secretary and Presidential Spokesperson Ignacio
R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and Department of Interior and Local Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to lack of appropriate clearance from the President pursuant to E.O.
464. During the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to attend by Executive Secretary
Ermita.

On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the Board of Governors of the Integrated Bar
of the Philippines, as taxpayers, and the Integrated Bar of the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on matters of public interest, filed their petition for certiorari
and prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.

All the petitions pray for the issuance of a Temporary Restraining Order enjoining respondents from implementing,
enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the following substantive issues were ventilated:
(1) whether respondents committed grave abuse of discretion in implementing E.O. 464 prior to its publication in the
Official Gazette or in a newspaper of general circulation; and (2) whether E.O. 464 violates the following provisions of the
Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art. XI, Sec. 1, and
Art. XIII, Sec. 16. The procedural issue of whether there is an actual case or controversy that calls for judicial review was not
taken up; instead, the parties were instructed to discuss it in their respective memoranda.

After the conclusion of the oral arguments, the parties were directed to submit their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming that it
is not, it is unconstitutional as applied in four instances, namely: (a) the so called Fertilizer scam; (b) the NorthRail
investigation (c) the Wiretapping activity of the ISAFP; and (d) the investigation on the Venable contract.22

Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda on March 7, 2006, while those in G.R. No.
16966725 and G.R. No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not file any
memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for extension to file memorandum 27 was granted,
subsequently filed a manifestation28 dated March 14, 2006 that it would no longer file its memorandum in the interest of
having the issues resolved soonest, prompting this Court to issue a Resolution reprimanding them.29

Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their consolidated memorandum 38 on March 13,
2006 for the dismissal of the petitions for lack of merit.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters of public concern; and

3. Whether respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its
publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464, ascertainment of whether the requisites for a
valid exercise of the Courts power of judicial review are present is in order.

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there
must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have
standing to challenge the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota
of the case.39

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

Standing

Respondents, through the Solicitor General, assert that the allegations in G.R. Nos. 169659, 169660 and 169667 make it
clear that they, adverting to the non-appearance of several officials of the executive department in the investigations called
by the different committees of the Senate, were brought to vindicate the constitutional duty of the Senate or its different
committees to conduct inquiry in aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O. 464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was aborted due to the implementation of E.O. 464.

As for Bayan 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
co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an organization of citizens, and the incumbent
members of the IBP Board of Governors and the IBP in behalf of its lawyer members, 50 invoke their constitutional right to
information on matters of public concern, asserting that the right to information, curtailed and violated by E.O. 464, is
essential to the effective exercise of other constitutional rights51 and to the maintenance of the balance of power among
the three branches of the government through the principle of checks and balances. 52

It is well-settled that when suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the assertion of a public right, the mere fact that he is
a citizen satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing in view of the transcendental issues raised
in its petition which this Court needs to resolve in order to avert a constitutional crisis. For it to be accorded standing on the
ground of transcendental importance, however, it must establish (1) the character of the funds (that it is public) or other
assets involved in the case, (2) the presence of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government, and (3) the lack of any party with a more direct and

24
specific interest in raising the questions being raised. 54 The first and last determinants not being present as no public funds
or assets are involved and petitioners in G.R. Nos. 169777 and 169659 have direct and specific interests in the resolution of
the controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized interest" which it shares with the rest of the
political parties. Concrete injury, whether actual or threatened, is that indispensable element of a dispute which serves in
part to cast it in a form traditionally capable of judicial resolution. 55 In fine, PDP-Labans alleged interest as a political party
does not suffice to clothe it with legal standing.

Actual Case or Controversy

Petitioners assert that an actual case exists, they citing the absence of the executive officials invited by the Senate to its
hearings after the issuance of E.O. 464, particularly those on the NorthRail project and the wiretapping controversy.

Respondents counter that there is no case or controversy, there being no showing that President Arroyo has actually
withheld her consent or prohibited the appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the President, not that the President prohibited
their attendance.57 Specifically with regard to the AFP officers who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend without the Presidents consent was based on its role as Commander-
in-Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded apprehension that the President will abuse its
power of preventing the appearance of officials before Congress, and that such apprehension is not sufficient for
challenging the validity of E.O. 464.

The Court finds respondents assertion that the President has not withheld her consent or prohibited the appearance of the
officials concerned immaterial in determining the existence of an actual case or controversy insofar as E.O. 464 is
concerned. For E.O. 464 does not require either a deliberate withholding of consent or an express prohibition issuing from
the President in order to bar officials from appearing before Congress.

As the implementation of the challenged order has already resulted in the absence of officials invited to the hearings of
petitioner Senate of the Philippines, it would make no sense to wait for any further event before considering the present
case ripe for adjudication. Indeed, it would be sheer abandonment of duty if this Court would now refrain from passing on
the constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before Congress, deprives Congress of the
information in the possession of these officials. To resolve the question of whether such withholding of information violates
the Constitution, consideration of the general power of Congress to obtain information, otherwise known as the power of
inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such
inquiries shall be respected. (Underscoring supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973 Constitution except that, in the latter, it vests the
power of inquiry in the unicameral legislature established therein the Batasang Pambansa and its committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in Arnault v. Nazareno, 58 a case decided in 1950
under that Constitution, the Court already recognized that the power of inquiry is inherent in the power to legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase of the Buenavista and Tambobong Estates by
the Rural Progress Administration. Arnault, who was considered a leading witness in the controversy, was called to testify
thereon by the Senate. On account of his refusal to answer the questions of the senators on an important point, he was, by
resolution of the Senate, detained for contempt. Upholding the Senates power to punish Arnault for contempt, this Court
held:

Although there is no provision in the Constitution expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied. In other words, the power of inquiry with process to
enforce it is an essential and appropriate auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and
where the legislative body does not itself possess the requisite information which is not infrequently true recourse must
be had to others who do possess it. Experience has shown that mere requests for such information are often unavailing,

25
and also that information which is volunteered is not always accurate or complete; so some means of compulsion is
essential to obtain what is needed.59 . . . (Emphasis and underscoring supplied)

That this power of inquiry is broad enough to cover officials of the executive branch may be deduced from the same case.
The power of inquiry, the Court therein ruled, is co-extensive with the power to legislate.60 The matters which may be a
proper subject of legislation and those which may be a proper subject of investigation are one. It follows that the operation
of government, being a legitimate subject for legislation, is a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government transaction involved in Arnault was a proper
exercise of the power of inquiry. Besides being related to the expenditure of public funds of which Congress is the guardian,
the transaction, the Court held, "also involved government agencies created by Congress and officers whose positions it is
within the power of Congress to regulate or even abolish."

Since Congress has authority to inquire into the operations of the executive branch, it would be incongruous to hold that
the power of inquiry does not extend to executive officials who are the most familiar with and informed on executive
operations.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded on the necessity of information in
the legislative process. If the information possessed by executive officials on the operation of their offices is necessary for
wise legislation on that subject, by parity of reasoning, Congress has the right to that information and the power to compel
the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era," however, the right of Congress to conduct
inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the Constitution.

For one, as noted in Bengzon v. Senate Blue Ribbon Committee, 61 the inquiry itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp judicial functions.
Parenthetically, one possible way for Congress to avoid such a result as occurred in Bengzon is to indicate in its invitations
to the public officials concerned, or to any person for that matter, the possible needed statute which prompted the need
for the inquiry. Given such statement in its invitations, along with the usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there would be less room for speculation on the part of the person invited
on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes crucial safeguards that proscribe the legislative power of inquiry. The provision
requires that the inquiry be done in accordance with the Senate or Houses duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry conducted without duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or affected by such inquiries be respected, an imposition that obligates
Congress to adhere to the guarantees in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons affected, even if they
belong to the executive branch. Nonetheless, there may be exceptional circumstances, none appearing to obtain at
present, wherein a clear pattern of abuse of the legislative power of inquiry might be established, resulting in palpable
violations of the rights guaranteed to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall these abuses may be accorded
judicial sanction.

Even where the inquiry is in aid of legislation, there are still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since this term figures prominently in the challenged order, it
being mentioned in its provisions, its preambular clauses, 62 and in its very title, a discussion of executive privilege is crucial
for determining the constitutionality of E.O. 464.

Executive privilege

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

Schwartz defines executive privilege as "the power of the Government to withhold information from the public, the courts,
and the Congress."64 Similarly, Rozell defines it as "the right of the President and high-level executive branch officers to
withhold information from Congress, the courts, and ultimately the public." 65

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has encompassed claims of varying kinds.67Tribe, in
fact, comments that while it is customary to employ the phrase "executive privilege," it may be more accurate to speak of
executive privileges "since presidential refusals to furnish information may be actuated by any of at least three distinct
kinds of considerations, and may be asserted, with differing degrees of success, in the context of either judicial or legislative
investigations."

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One variety of the privilege, Tribe explains, is the state secrets privilege invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informers privilege, or the privilege of the Government not to disclose the
identity of persons who furnish information of violations of law to officers charged with the enforcement of that law.
Finally, a generic privilege for internal deliberations has been said to attach to intragovernmental documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and
policies are formulated. 68

Tribes comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of privileges to resist disclosure of information
the confidentiality of which they felt was crucial to fulfillment of the unique role and responsibilities of the executive
branch of our government. Courts ruled early that the executive had a right to withhold documents that might reveal
military or state secrets. The courts have also granted the executive a right to withhold the identity of government
informers in some circumstances and a qualified right to withhold information related to pending investigations. x x
x"69 (Emphasis and underscoring supplied)

The entry in Blacks Law Dictionary on "executive privilege" is similarly instructive regarding the scope of the doctrine.

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

That a type of information is recognized as privileged does not, however, necessarily mean that it would be considered
privileged in all instances. For in determining the validity of a claim of privilege, the question that must be asked is not only
whether the requested information falls within one of the traditional privileges, but also whether that privilege should be
honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72 decided in 1974. In issue in that case was the
validity of President Nixons claim of executive privilege against a subpoena issued by a district court requiring the
production of certain tapes and documents relating to the Watergate investigations. The claim of privilege was based on
the Presidents general interest in the confidentiality of his conversations and correspondence. The U.S. Court held that
while there is no explicit reference to a privilege of confidentiality in the U.S. Constitution, it is constitutionally based to the
extent that it relates to the effective discharge of a Presidents powers. The Court, nonetheless, rejected the Presidents
claim of privilege, ruling that the privilege must be balanced against the public interest in the fair administration of criminal
justice. Notably, the Court was careful to clarify that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress are rare. 73 Despite frequent assertion of the
privilege to deny information to Congress, beginning with President Washingtons refusal to turn over treaty negotiation
records to the House of Representatives, the U.S. Supreme Court has never adjudicated the issue. 74 However, the U.S. Court
of Appeals for the District of Columbia Circuit, in a case decided earlier in the same year as Nixon, recognized the
Presidents privilege over his conversations against a congressional subpoena. 75 Anticipating the balancing approach
adopted by the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest protected by the claim of
privilege against the interest that would be served by disclosure to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76

In this jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez.77Almonte used
the term in reference to the same privilege subject of Nixon. It quoted the following portion of the Nixon decision which
explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt
or harsh opinions in Presidential 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.

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In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the common law holding that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security
matters."80 The same case held that closed-door Cabinet meetings are also a recognized limitation on the right to
information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right to information does not extend to matters
recognized as "privileged information under the separation of powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings. It also held that information on military
and diplomatic secrets and those affecting national security, and information on investigations of crimes by law
enforcement agencies before the prosecution of the accused were exempted from the right to information.

From the above discussion on the meaning and scope of executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive privilege, whether asserted against Congress, the courts, or the public, is
recognized only in relation to certain types of information of a sensitive character. While executive privilege is a
constitutional concept, a claim thereof may be valid or not depending on the ground invoked to justify it and the context in
which it is made. Noticeably absent is any recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the extraordinary character of the exemptions indicates
that the presumption inclines heavily against executive secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by them to secure the consent of the President
prior to appearing before Congress. There are significant differences between the two provisions, however, which constrain
this Court to discuss the validity of these provisions separately.

Section 1 specifically applies to department heads. It does not, unlike Section 3, require a prior determination by any official
whether they are covered by E.O. 464. The President herself has, through the challenged order, made the determination
that they are. Further, unlike also Section 3, the coverage of department heads under Section 1 is not made to depend on
the department heads possession of any information which might be covered by executive privilege. In fact, in marked
contrast to Section 3 vis--vis Section 2, there is no reference to executive privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22 of the Constitution on what has been referred to as the question hour.

SECTION 22. The heads of departments may upon their own initiative, with the consent of the President, or upon the
request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the
House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to
written questions, but may cover matters related thereto. When the security of the State or the public interest so requires
and the President so states in writing, the appearance shall be conducted in executive session.

Determining the validity of Section 1 thus requires an examination of the meaning of Section 22 of Article VI. Section 22
which provides for the question hour must be interpreted vis--vis Section 21 which provides for the power of either House
of Congress to "conduct inquiries in aid of legislation." As the following excerpt of the deliberations of the Constitutional
Commission shows, the framers were aware that these two provisions involved distinct functions of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the Question Hour] yesterday, I noticed that
members of the Cabinet cannot be compelled anymore to appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam President, because in our experience in the Regular Batasang
Pambansa as the Gentleman himself has experienced in the interim Batasang Pambansa one of the most competent
inputs that we can put in our committee deliberations, either in aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them, but if they do not come and it is a congressional investigation, we
usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he said that the fact that the Cabinet ministers
may refuse to come to the House of Representatives or the Senate [when requested under Section 22] does not mean that
they need not come when they are invited or subpoenaed by the committee of either House when it comes to inquiries in
aid of legislation or congressional investigation. According to Commissioner Suarez, that is allowed and their presence can
be had under Section 21. Does the gentleman confirm this, Madam President?

MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only to what was originally the Question Hour,
whereas, Section 21 would refer specifically to inquiries in aid of legislation, under which anybody for that matter, may be
summoned and if he refuses, he can be held in contempt of the House. 83 (Emphasis and underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the question hour. While attendance was meant to
be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. The reference to Commissioner
Suarez bears noting, he being one of the proponents of the amendment to make the appearance of department heads
discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission that the Committee on Style, precisely in
recognition of this distinction, later moved the provision on question hour from its original position as Section 20 in the

28
original draft down to Section 31, far from the provision on inquiries in aid of legislation. This gave rise to the following
exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on Style] We now go, Mr. Presiding Officer, to the
Article on Legislative and may I request the chairperson of the Legislative Department, Commissioner Davide, to give his
reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the Question Hour. I propose that instead of
putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced this but we reasoned that in Section 21,
which is Legislative Inquiry, it is actually a power of Congress in terms of its own lawmaking; whereas, a Question Hour is
not actually a power in terms of its own lawmaking power because in Legislative Inquiry, it is in aid of legislation. And so we
put Question Hour as Section 31. I hope Commissioner Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power, and it is precisely as a complement to or a
supplement of the Legislative Inquiry. The appearance of the members of Cabinet would be very, very essential not only in
the application of check and balance but also, in effect, in aid of legislation.

MR. MAAMBONG. After conferring with the committee, we find merit in the suggestion of Commissioner Davide. In other
words, we are accepting that and so this Section 31 would now become Section 22. Would it be, Commissioner Davide?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners Davide and Maambong proceeded from the
same assumption that these provisions pertained to two different functions of the legislature. Both Commissioners
understood that the power to conduct inquiries in aid of legislation is different from the power to conduct inquiries during
the question hour. Commissioner Davides only concern was that the two provisions on these distinct powers be placed
closely together, they being complementary to each other. Neither Commissioner considered them as identical functions of
Congress.

The foregoing opinion was not the two Commissioners alone. From the above-quoted exchange, Commissioner
Maambongs committee the Committee on Style shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his capacity as Chairman of the Committee on the
Legislative Department. His views may thus be presumed as representing that of his Committee.

In the context of a parliamentary system of government, the "question hour" has a definite meaning. It is a period of
confrontation initiated by Parliament to hold the Prime Minister and the other ministers accountable for their acts and the
operation of the government,85 corresponding to what is known in Britain as the question period. There was a specific
provision for a question hour in the 1973 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 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

29
obtain information from the executive so essential, if the functions of the Congress as the elected representatives of the
people are adequately to be carried out. The absence of close rapport between the legislative and executive branches in
this country, comparable to those which exist under a parliamentary system, and the nonexistence in the Congress of an
institution such as the British question period have perforce made reliance by the Congress upon its right to obtain
information from the executive essential, if it is intelligently to perform its legislative tasks. Unless the Congress possesses
the right to obtain executive information, its power of oversight of administration in a system such as ours becomes a
power devoid of most of its practical content, since it depends for its effectiveness solely upon information parceled out ex
gratia by the executive.89 (Emphasis and underscoring supplied)

Sections 21 and 22, therefore, while closely related and complementary to each other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation, while the other pertains to the power to conduct a
question hour, the objective of which is to obtain information in pursuit of Congress oversight function.

When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued,
its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department
heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the
separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which
Congress requires their appearance is "in aid of legislation" under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed
in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional
Commission.

Ultimately, the power of Congress to compel the appearance of executive officials under Section 21 and the lack of it under
Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the
legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information.

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves therefrom is by a
valid claim of privilege. They are not exempt by the mere fact that they are department heads. Only one executive official
may be exempted from this power the President on whom executive power is vested, hence, beyond the reach of
Congress except through the power of impeachment. It is based on her being the highest official of the executive branch,
and the due respect accorded to a co-equal branch of government which is sanctioned by a long-standing custom.

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

Having established the proper interpretation of Section 22, Article VI of the Constitution, the Court now proceeds to pass
on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the Constitution and the absence of any reference to
inquiries in aid of legislation, must be construed as limited in its application to appearances of department heads in the
question hour contemplated in the provision of said Section 22 of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as possible, in a way that will render it constitutional.

The requirement then to secure presidential consent under Section 1, limited as it is only to appearances in the question
hour, is valid on its face. For under Section 22, Article VI of the Constitution, the appearance of department heads in the
question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in inquiries in aid of legislation. Congress is not
bound in such instances to respect the refusal of the department head to appear in such inquiry, unless a valid claim of
privilege is subsequently made, either by the President herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior
to appearing before either house of Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security officials who, in the judgment of the heads
of offices designated in the same section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and the
National Security Adviser), are "covered by the executive privilege."

The enumeration also includes such other officers as may be determined by the President. Given the title of Section 2
"Nature, Scope and Coverage of Executive Privilege" , it is evident that under the rule of ejusdem generis, the

30
determination by the President under this provision is intended to be based on a similar finding of coverage under
executive privilege.

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

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and coverage of executive privilege, the
reference to persons being "covered by the executive privilege" may be read as an abbreviated way of saying that the
person is in possession of information which is, in the judgment of the head of office concerned, privileged as defined in
Section 2(a). The Court shall thus proceed on the assumption that this is the intention of the challenged order.

Upon a determination by the designated head of office or by the President that an official is "covered by the executive
privilege," such official is subjected to the requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official concerned unless the same is permitted by
the President. The proviso allowing the President to give its consent means nothing more than that the President may
reverse a prohibition which already exists by virtue of E.O. 464.

Thus, underlying this requirement of prior consent is the determination by a head of office, authorized by the President
under E.O. 464, or by the President herself, that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the officials not showing up in the legislative investigation.

In view thereof, whenever an official invokes E.O. 464 to justify his failure to be present, such invocation must be construed
as a declaration to Congress that the President, or a head of office authorized by the President, has determined that the
requested information is privileged, and that the President has not reversed such determination. Such declaration,
however, even without mentioning the term "executive privilege," amounts to an implied claim that the information is
being withheld by the executive branch, by authority of the President, on the basis of executive privilege. Verily, there is an
implied claim of privilege.

The letter dated September 28, 2005 of respondent Executive Secretary Ermita to Senate President Drilon illustrates the
implied nature of the claim of privilege authorized by E.O. 464. It reads:

In connection with the inquiry to be conducted by the Committee of the Whole regarding the Northrail Project of the North
Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to attend the same without the consent of the President,
pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The Principle Of Separation Of Powers,
Adherence To The Rule On Executive Privilege And Respect For The Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution, And For Other Purposes". Said officials have not secured the required
consent from the President. (Underscoring supplied)

The letter does not explicitly invoke executive privilege or that the matter on which these officials are being requested to be
resource persons falls under the recognized grounds of the privilege to justify their absence. Nor does it expressly state that
in view of the lack of consent from the President under E.O. 464, they cannot attend the hearing.

Significant premises in this letter, however, are left unstated, deliberately or not. The letter assumes that the invited
officials are covered by E.O. 464. As explained earlier, however, to be covered by the order means that a determination has
been made, by the designated head of office or the President, that the invited official possesses information that is covered
by executive privilege. Thus, although it is not stated in the letter that such determination has been made, the same must
be deemed implied. Respecting the statement that the invited officials have not secured the consent of the President, it
only means that the President has not reversed the standing prohibition against their appearance before Congress.

Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary pronouncement from the President. In fine,
an implied claim of privilege has been made by the executive.

While there is no Philippine case that directly addresses the issue of whether executive privilege may be invoked against
Congress, it is gathered from Chavez v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of
powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door
Cabinet meetings which, like internal-deliberations of the Supreme Court and other collegiate courts, or executive sessions
of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal
branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial power. This is not the situation in the instant case. 91 (Emphasis and underscoring
supplied)

31
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the mere fact that it sanctions claims of
executive privilege. This Court must look further and assess the claim of privilege authorized by the Order to determine
whether it is valid.

While the validity of claims of privilege must be assessed on a case to case basis, examining the ground invoked therefor
and the particular circumstances surrounding it, there is, in an implied claim of privilege, a defect that renders it invalid per
se. By its very nature, and as demonstrated by the letter of respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.). While Section 2(a)
enumerates the types of information that are covered by the privilege under the challenged order, Congress is left to
speculate as to which among them is being referred to by the executive. The enumeration is not even intended to be
comprehensive, but a mere statement of what is included in the phrase "confidential or classified information between the
President and the public officers covered by this executive order."

Certainly, Congress has the right to know why the executive considers the requested information privileged. It does not
suffice to merely declare that the President, or an authorized head of office, has determined that it is so, and that the
President has not overturned that determination. Such declaration leaves Congress in the dark on how the requested
information could be classified as privileged. That the message is couched in terms that, on first impression, do not seem
like a claim of privilege only makes it more pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has requested.

A claim of privilege, being a claim of exemption from an obligation to disclose information, must, therefore, be clearly
asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party.
It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has
control over the matter, after actual personal consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the
privilege is designed to protect.92 (Underscoring supplied)

Absent then a statement of the specific basis of a claim of executive privilege, there is no way of determining whether it
falls under one of the traditional privileges, or whether, given the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in assessing the claim of privilege asserted against the Ombudsman
in Almonte v. Vasquez94 and, more in point, against a committee of the Senate in Senate Select Committee on Presidential
Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting from disclosure impossible, thereby
preventing the Court from balancing such harm against plaintiffs needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this balancing operation. In stating its objection
to claimants interrogatories, government asserts, and nothing more, that the disclosures sought by claimant would inhibit
the free expression of opinion that non-disclosure is designed to protect. The government has not shown nor even alleged
that those who evaluated claimants product were involved in internal policymaking, generally, or in this particular
instance. Privilege cannot be set up by an unsupported claim. The facts upon which the privilege is based must be
established. To find these interrogatories objectionable, this Court would have to assume that the evaluation and
classification of claimants products was a matter of internal policy formulation, an assumption in which this Court is
unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency must provide precise and certain reasons
for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation and description of the documents within its
scope as well as precise and certain reasons for preserving their confidentiality. Without this specificity, it is impossible for a
court to analyze the claim short of disclosure of the very thing sought to be protected. As the affidavit now stands, the
Court has little more than its sua sponte speculation with which to weigh the applicability of the claim. An improperly
asserted claim of privilege is no claim of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the claim in the instant case because it is legally insufficient to
allow the Court to make a just and reasonable determination as to its applicability. To recognize such a broad claim in which
the Defendant has given no precise or compelling reasons to shield these documents from outside scrutiny, would make a
farce of the whole procedure.101 (Emphasis and underscoring supplied)

32
Due respect for a co-equal branch of government, moreover, demands no less than a claim of privilege clearly stating the
grounds therefor. Apropos is the following ruling in McPhaul v. U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct. 724, is highly relevant to these questions. For
it is as true here as it was there, that if (petitioner) had legitimate reasons for failing to produce the records of the
association, a decent respect for the House of Representatives, by whose authority the subpoenas issued, would have
required that (he) state (his) reasons for noncompliance upon the return of the writ. Such a statement would have given
the Subcommittee an opportunity to avoid the blocking of its inquiry by taking other appropriate steps to obtain the
records. To deny the Committee the opportunity to consider the objection or remedy is in itself a contempt of its authority
and an obstruction of its processes. His failure to make any such statement was "a patent evasion of the duty of one
summoned to produce papers before a congressional committee[, and] cannot be condoned." (Emphasis and underscoring
supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the reasons for the claim with such particularity as
to compel disclosure of the information which the privilege is meant to protect. 103 A useful analogy in determining the
requisite degree of particularity would be the privilege against self-incrimination. Thus, Hoffman v. U.S. 104 declares:

The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself
his say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified, and
to require him to answer if it clearly appears to the court that he is mistaken. However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he
would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege,
it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could
result." x x x (Emphasis and underscoring supplied)

The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is thus invalid per se. It is not asserted. It is
merely implied. Instead of providing precise and certain reasons for the claim, it merely invokes E.O. 464, coupled with an
announcement that the President has not given her consent. It is woefully insufficient for Congress to determine whether
the withholding of information is justified under the circumstances of each case. It severely frustrates the power of inquiry
of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides guidelines, binding only on the heads of office
mentioned in Section 2(b), on what is covered by executive privilege. It does not purport to be conclusive on the other
branches of government. It may thus be construed as a mere expression of opinion by the President regarding the nature
and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged order the alleged unlawful delegation of
authority to the heads of offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of the
United States where, so it claims, only the President can assert executive privilege to withhold information from Congress.

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

Such presumptive authorization, however, is contrary to the exceptional nature of the privilege. Executive privilege, as
already discussed, is recognized with respect to information the confidential nature of which is crucial to the fulfillment of
the unique role and responsibilities of the executive branch, 105 or in those instances where exemption from disclosure is
necessary to the discharge of highly important executive responsibilities. 106 The doctrine of executive privilege is thus
premised on the fact that certain informations must, as a matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to
Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a
particular case.

In light of this highly exceptional nature of the privilege, the Court finds it essential to limit to the President the power to
invoke the privilege. She may of course authorize the Executive Secretary to invoke the privilege on her behalf, in which
case the Executive Secretary must state that the authority is "By order of the President," which means that he personally
consulted with her. The privilege being an extraordinary power, it must be wielded only by the highest official in the
executive hierarchy. In other words, the President may not authorize her subordinates to exercise such power. There is
even less reason to uphold such authorization in the instant case where the authorization is not explicit but by mere
silence. Section 3, in relation to Section 2(b), is further invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a matter which, in his own judgment, might
be covered by executive privilege, he must be afforded reasonable time to inform the President or the Executive Secretary
of the possible need for invoking the privilege. This is necessary in order to provide the President or the Executive Secretary
with fair opportunity to consider whether the matter indeed calls for a claim of executive privilege. If, after the lapse of that

33
reasonable time, neither the President nor the Executive Secretary invokes the privilege, Congress is no longer bound to
respect the failure of the official to appear before Congress and may then opt to avail of the necessary legal means to
compel his appearance.

The Court notes that one of the expressed purposes for requiring officials to secure the consent of the President under
Section 3 of E.O. 464 is to ensure "respect for the rights of public officials appearing in inquiries in aid of legislation." That
such rights must indeed be respected by Congress is an echo from Article VI Section 21 of the Constitution mandating that
"[t]he rights of persons appearing in or affected by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an authorization for implied claims of executive
privilege, for which reason it must be invalidated. That such authorization is partly motivated by the need to ensure respect
for such officials does not change the infirm nature of the authorization itself.

Right to Information

E.O 464 is concerned only with the demands of Congress for the appearance of executive officials in the hearings conducted
by it, and not with the demands of citizens for information pursuant to their right to information on matters of public
concern. Petitioners are not amiss in claiming, however, that what is involved in the present controversy is not merely the
legislative power of inquiry, but the right of the people to information.

There are, it bears noting, clear distinctions between the right of Congress to information which underlies the power of
inquiry and the right of the people to information on matters of public concern. For one, the demand of a citizen for the
production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces
tecum issued by Congress. Neither does the right to information grant a citizen the power to exact testimony from
government officials. These powers belong only to Congress and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified
sense, that in every exercise of its power of inquiry, the people are exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance
tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby
denied access to information which they can use in formulating their own opinions on the matter before Congress
opinions which they can then communicate to their representatives and other government officials through the various
legal means allowed by their freedom of expression. Thus holds Valmonte v. Belmonte:

It is in the interest of the State that the channels for free political discussion be maintained to the end that the government
may perceive and be responsive to the peoples will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware
of the issues and have access to information relating thereto can such bear fruit. 107(Emphasis and underscoring supplied)

The impairment of the right of the people to information as a consequence of E.O. 464 is, therefore, in the sense explained
above, just as direct as its violation of the legislatures power of inquiry.

Implementation of E.O. 464 prior to its publication

While E.O. 464 applies only to officials of the executive branch, it does not follow that the same is exempt from the need for
publication. On the need for publishing even those statutes that do not directly apply to people in general, Taada v. Tuvera
states:

The term "laws" should refer to all laws and not only to those of general application, for strictly speaking all laws relate to
the people in general albeit there are some that do not apply to them directly. An example is a law granting citizenship to a
particular individual, like a relative of President Marcos who was decreed instant naturalization. It surely cannot be said
that such a law does not affect the public although it unquestionably does not apply directly to all the people. The subject
of such law is a matter of public interest which any member of the body politic may question in the political forums or, if he
is a proper party, even in courts of justice.108 (Emphasis and underscoring supplied)

Although the above statement was made in reference to statutes, logic dictates that the challenged order must be covered
by the publication requirement. As explained above, E.O. 464 has a direct effect on the right of the people to information
on matters of public concern. It is, therefore, a matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have been apprised of this issuance before it was
implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the
executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason
therefor and why it must be respected.

34
The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information
without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking
said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplishwas to reverse the old presumption in favor of secrecy, based on the divine right
of kings and nobles, and replace it with a presumption in favor of publicity, based on the doctrine of popular sovereignty.
(Underscoring supplied)109

Resort to any means then by which officials of the executive branch could refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our legislature to inquire into the operations of
government, but we shall have given up something of much greater value our right as a people to take part in
government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of Executive Order No. 464 (series of 2005), "Ensuring
Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.

35
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.

RESOLUTION

LEONARDO-DE CASTRO, J.:

Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists to protect public
interest, not to benefit a particular public official. Its purpose, among others, is to assure that the nation will receive the
benefit of candid, objective and untrammeled communication and exchange of information between the President and
his/her advisers in the process of shaping or forming policies and arriving at decisions in the exercise of the functions of the
Presidency under the Constitution. The confidentiality of the Presidents conversations and correspondence is not unique. It
is akin to the confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens and
more, because it is dictated by public interest and the constitutionally ordained separation of governmental powers.

In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a hotly, even
acrimoniously, debated dispute between the Courts co-equal branches of government. In this task, this Court should
neither curb the legitimate powers of any of the co-equal and coordinate branches of government nor allow any of them to
overstep the boundaries set for it by our Constitution. The competing interests in the case at bar are the claim of executive
privilege by the President, on the one hand, and the respondent Senate Committees assertion of their power to conduct
legislative inquiries, on the other. The particular facts and circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal doctrines, plainly
lead to the conclusion that the claim of executive privilege must be upheld.

Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting the petition
for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on Accountability of Public
Officers and Investigations,1 Trade and Commerce,2 and National Defense and Security (collectively the "respondent
Committees").3

A brief review of the facts is imperative.

On September 26, 2007, petitioner appeared before respondent Committees and testified for about eleven (11) hours on
matters concerning the National Broadband Project (the "NBN Project"), a project awarded by the Department of
Transportation and Communications ("DOTC") to Zhong Xing Telecommunications Equipment ("ZTE"). Petitioner 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 Gloria Macapagal Arroyo ("President Arroyo")
of the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on President
Arroyo and petitioners discussions relating to the NBN Project, petitioner refused to answer, invoking "executive privilege."
To be specific, petitioner refused to answer questions on: (a) whether or not President Arroyo followed up the NBN
Project,4 (b) whether or not she directed him to prioritize it,5 and (c) whether or not she directed him to approve it. 6

Respondent Committees persisted in knowing petitioners answers to these three questions by requiring him to appear and
testify once more on November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R. Ermita wrote to
respondent Committees and requested them to dispense with petitioners testimony on the ground of executive
privilege.7 The letter of Executive Secretary Ermita pertinently stated:

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 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.

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.

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.

36
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented 11-hour 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 upon orders of the President invoking
executive privilege. On November 22, 2007, the respondent Committees issued the show-cause letter requiring him to
explain why he should not be cited in contempt. On November 29, 2007, in petitioners reply to respondent Committees, he
manifested 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. He also manifested his willingness to appear and testify should
there be new matters to be taken up. He just requested that he be furnished "in advance as to what else" he "needs to
clarify."

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; In Re: P.S. Res. Nos.
127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago (all on the ZTE-NBN Project), citing petitioner 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.

On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had not shown "any
contemptible conduct worthy of contempt and arrest." He emphasized his willingness to testify on new matters, but
respondent Committees did not respond to his request for advance notice of questions. He also mentioned the petition
for certiorari he previously filed with this Court on December 7, 2007. According to him, this should restrain respondent
Committees from enforcing the order dated January 30, 2008 which declared him in contempt and directed his arrest and
detention.

Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary Injunction) on
February 1, 2008. In the Courts Resolution dated February 4, 2008, the parties were required to observe the status quo
prevailing prior to the Order dated January 30, 2008.

On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications elicited by the
three (3) questions were covered by executive privilege; and second, respondent Committees committed grave abuse of
discretion in issuing the contempt order. Anent the first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a quintessential and non-delegable power of the
President, (b) they were received by a close advisor of the President, and (c) respondent Committees failed to adequately
show a compelling need that would justify the limitation of the privilege and the unavailability of the information elsewhere
by an appropriate investigating authority. As to the second ground, we found that respondent Committees committed
grave abuse of discretion in issuing the contempt order because (a) there was a valid claim of executive privilege, (b) their
invitations to petitioner did not contain the questions relevant to the inquiry, (c) there was a cloud of doubt as to the
regularity of the proceeding that led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the
Constitution because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they issued
the contempt order arbitrarily and precipitately.

On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the following grounds:

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO DOUBT THAT THE ASSAILED ORDERS WERE
ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT
MERELY THEIR OVERSIGHT FUNCTIONS.

II

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE CAN BE NO PRESUMPTION THAT THE
INFORMATION WITHHELD IN THE INSTANT CASE IS PRIVILEGED.

III

CONTRARY TO THIS HONORABLE COURTS DECISION, THERE IS NO FACTUAL OR LEGAL BASIS TO HOLD THAT THE
COMMUNICATIONS ELICITED BY THE SUBJECT THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE,
CONSIDERING THAT:

A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS CLAIMED CONSTITUTE
STATE SECRETS.

B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS APPLIED, THERE IS NO
SHOWING THAT THE ELEMENTS OF PRESIDENTIAL COMMUNICATIONS PRIVILEGE ARE PRESENT.

37
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO JUSTIFY THE DISCLOSURE OF
THE INFORMATION SOUGHT.

D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD SERIOUSLY IMPAIR THE
RESPONDENTS PERFORMANCE OF THEIR PRIMARY FUNCTION TO ENACT LAWS.

E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE CONSTITUTIONAL
POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.

IV

CONTRARY TO THIS HONORABLE COURTS DECISION, RESPONDENTS DID NOT COMMIT GRAVE ABUSE OF
DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER, CONSIDERING THAT:

A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.

B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN IN SENATE V. ERMITA.

C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR INTERNAL RULES.

D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION 21 OF THE CONSTITUTION
REQUIRING THAT ITS RULES OF PROCEDURE BE DULY PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE
COURT CONSIDERED THE OSGS INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE
OPPORTUNITY TO COMMENT.

E. RESPONDENTS ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR PRECIPITATE.

In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision of this Court. He
avers that there is nothing in it that prohibits respondent Committees from investigating the NBN Project or asking him
additional questions. According to petitioner, the Court merely applied the rule on executive privilege to the facts of the
case. He further submits the following contentions: first, the assailed Decision did not reverse the presumption against
executive secrecy laid down in Senate v. Ermita; second, respondent Committees failed to overcome the presumption of
executive privilege because it appears that they could legislate even without the communications elicited by the three (3)
questions, and they admitted that they could dispense with petitioners testimony if certain NEDA documents would be
given to them; third, the requirement of specificity applies only to the privilege for State, military and diplomatic secrets,
not to the necessarily broad and all-encompassing presidential communications privilege; fourth, there is no right to pry
into the Presidents thought processes or exploratory exchanges; fifth, petitioner is not covering up or hiding anything
illegal; sixth, the Court has the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body,
thus the failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of Legislation (Rules) has a
vitiating effect on them; eighth, the requirement for a witness to be furnished advance copy of questions comports with
due process and the constitutional mandate that the rights of witnesses be respected; and ninth, neither petitioner nor
respondent has the final say on the matter of executive privilege, only the Court.

For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement from the Court
that the assailed Orders were issued by respondent Committees pursuant to their oversight function; hence, there is no
reason for them "to make much" of the distinction between Sections 21 and 22, Article VI of the Constitution; (2)
presidential communications enjoy a presumptive privilege against disclosure as earlier held in Almonte v.
Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3) the communications elicited by the three (3) questions are
covered by executive privilege, because all the elements of the presidential communications privilege are present; (4) the
subpoena ad testificandum issued by respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.

Incidentally, respondent Committees objection to the Resolution dated March 18, 2008 (granting the Office of the Solicitor
Generals Motion for Leave to Intervene and to Admit Attached Memorandum) only after the promulgation of the Decision
in this case is foreclosed by its untimeliness.

The core issues that arise from the foregoing respective contentions of the opposing parties are as follows:

(1) whether or not there is a recognized presumptive presidential communications privilege in our legal system;

(2) whether or not there is factual or legal basis to hold that the communications elicited by the three (3) questions
are covered by executive privilege;

(3) whether or not respondent Committees have shown that the communications elicited by the three (3)
questions are critical to the exercise of their functions; and

(4) whether or not respondent Committees committed grave abuse of discretion in issuing the contempt order.

38
We shall discuss these issues seriatim.

There Is a Recognized Presumptive


Presidential Communications Privilege

Respondent Committees ardently argue that the Courts declaration that presidential communications are presumptively
privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily against executive secrecy and in
favor of disclosure." Respondent Committees then claim that the Court erred in relying on the doctrine in Nixon.

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,12 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,13 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),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain types of information which the
government may withhold from the public,16" that there is a "governmental privilege against public disclosure with respect
to state secrets regarding military, diplomatic and other national security matters";17 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 closed-door Cabinet meetings."18

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. 19

Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v. Ermita, 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.

Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:

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, 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 information 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

39
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.

The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the President to
executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.

In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive privilege on a specific
matter involving an executive agreement between the Philippines and China, which was the subject of the three (3)
questions propounded to petitioner Neri in the course of the Senate Committees investigation. Thus, the factual setting of
this case markedly differs from that passed upon in Senate v. Ermita.

Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the ruling in Senate v.
Ermita,21 to wit:

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. 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.

Schwart 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." x x x In this
jurisdiction, the doctrine of executive privilege was recognized by this Court in Almonte v. Vasquez. 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, he 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 italics supplied)

Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential communication," which was
recognized early on in Almonte v. Vasquez. To construe the passage in Senate v. Ermita adverted to in the Motion for
Reconsideration of respondent Committees, referring to the non-existence of a "presumptive authorization" of an
executive official, to mean that the "presumption" in favor of executive privilege "inclines heavily against executive secrecy
and in favor of disclosure" is to distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.

Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive Department and
the Legislative Department to explain why there should be no implied authorization or presumptive authorization to invoke
executive privilege by the Presidents subordinate officials, as follows:

When Congress exercises its power of inquiry, the only way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not exempt by the mere fact that they are department heads.
Only one executive official may be exempted from this power - the President on whom executive power is vested,
hence, beyond the reach of Congress except through the power of impeachment. It is based on he being the
highest official of the executive branch, and the due respect accorded to a co-equal branch of governments which
is sanctioned by a long-standing custom. (Underscoring supplied)

Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the President on a
matter clearly within the domain of the Executive, the said presumption dictates that the same be recognized and be given
preference or priority, in the absence of proof of a compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the presumption accorded by settled jurisprudence
in favor of executive privilege. In fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a
presumptive privilege for Presidential communications." 23

II

There Are Factual and Legal Bases to


Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege

40
Respondent Committees claim that the communications elicited by the three (3) questions are not covered by executive
privilege because the elements of the presidential communications privilegeare not present.

A. The power to enter into an executive agreement is a "quintessential and non-delegable presidential power."

First, respondent Committees contend that the power to secure a foreign loan does not relate to a "quintessential and non-
delegable presidential power," because the Constitution does not vest it in the President alone, but also in the Monetary
Board which is required to give its prior concurrence and to report to Congress.

This argument is unpersuasive.

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.24 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.25 The power to enter into an executive agreement is in essence an executive power.
This authority of the President to enter into executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence. 26 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.

The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of government by no
means prescribes absolute autonomy in the discharge by each branch of that part of the governmental power assigned to it
by the sovereign people. There is the corollary doctrine of checks and balances, which has been carefully calibrated by the
Constitution to temper the official acts of each of these three branches. Thus, by analogy, the fact that certain legislative
acts require action from the President for their validity does not render such acts less legislative in nature. A good example
is the power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by Congress shall,
before it becomes a law, be presented to the President who shall approve or veto the same. The fact that the approval or
vetoing of the bill is lodged with the President does not render the power to pass law executive in nature. This is because
the power to pass law is generally a quintessential and non-delegable power of the Legislature. In the same vein, the
executive power to enter or not to enter into a contract to secure foreign loans does not become less executive in nature
because of conditions laid down in the Constitution. The final decision in the exercise of the said executive power is still
lodged in the Office of the President.

B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the presidential communications
privilege but, in any case, it is not conclusive.

Second, respondent Committees also seek reconsideration of the application of the "doctrine of operational proximity" for
the reason that "it maybe misconstrued to expand the scope of the presidential communications privilege to
communications between those who are operationally proximate to the President but who may have "no direct
communications with her."

It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed Case27precisely 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,
thus:

We are aware that such an extension, unless carefully circumscribed to accomplish the purposes of the privilege,
could pose a significant risk of expanding to a large swath of the executive branch a privilege that is bottomed on a
recognition of the unique role of the President. In order to limit this risk, the presidential communications privilege
should be construed as narrowly as is consistent with ensuring that the confidentiality of the Presidents decision-
making process is adequately protected. Not every person who plays a role in the development of presidential
advice, no matter how remote and removed from the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege
should apply only to communications authored or solicited and received by those members of an immediate White
House advisors staff who have broad and significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the communications relate. Only communications at that
level are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to the President that matters in determining
whether "[t]he Presidents confidentiality interests" is implicated).(Emphasis supplied)

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.28 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

41
fear that the scope of the privilege would be unnecessarily expanded with the use of the operational proximity test is
unfounded.

C. The Presidents claim of executive privilege is not merely based on a generalized interest; and in balancing respondent
Committees and the Presidents clashing interests, the Court did not disregard the 1987 Constitutional provisions on
government transparency, accountability and disclosure of information.

Third, respondent Committees claim that the Court erred in upholding the Presidents invocation, through the Executive
Secretary, of executive privilege because (a) between respondent Committees specific and demonstrated need and the
Presidents generalized interest in confidentiality, there is a need to strike the balance in favor of the former; and (b) in the
balancing of interest, the Court disregarded the provisions of the 1987 Philippine Constitution on government transparency,
accountability and disclosure of information, specifically, Article III, Section 7; 29 Article II, Sections 2430 and 28;31 Article XI,
Section 1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37

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, 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.

It is easy to discern the danger that goes with the disclosure of the Presidents communication with her advisor. The NBN
Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between
officials of the Philippines and China. Whatever the President says about the agreement - particularly while official
negotiations are ongoing - are matters which China will surely view with particular interest. There is danger in such kind of
exposure. It could adversely affect our diplomatic as well as economic relations with the Peoples Republic of China. We
reiterate the importance of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright
Export Corp., 38 thus:

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.

US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to a negotiation with
a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas G. Aquino, et
al.39 upheld the privileged character of diplomatic negotiations. In Akbayan, the Court stated:

Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing valid
limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter-government
exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards
for the sake of national interest." Even earlier, the same privilege was upheld in Peoples Movement for Press
Freedom (PMPF) v. Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.

In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents representatives on
the state of the then on-going negotiations of the RP-US Military Bases Agreement. The Court denied the petition,
stressing that "secrecy of negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information." The Resolution went on to state,
thus:

The nature of diplomacy requires centralization of authority and expedition of decision which are
inherent in executive action. Another essential characteristic of diplomacy is its confidential
nature. Although much has been said about "open" and "secret" diplomacy, with disparagement of the

42
latter, Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the
words of Mr. Stimson:

"A complicated negotiation cannot be carried through without many, many private talks and
discussion, man to man; many tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at home and of their differences
with other countries and with other delegates; they tell you of what they would do under
certain circumstances and would not do under other circumstances If these reports should
become public who would ever trust American Delegations in another conference? (United
States Department of State, Press Releases, June 7, 1930, pp. 282-284)

xxxx

There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects
is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one
writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young,
Looking Behind the Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly
abandoned his thought.

No one who has studied the question believes that such a method of publicity is possible. In the moment
that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the
parties or a frank declaration of the concession which are exacted or offered on both sides would
quickly lead to a widespread propaganda to block the negotiations. After a treaty has been drafted and
its terms are fully published, there is ample opportunity for discussion before it is approved. (The New
American Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring
supplied)

Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp. that the President
is the sole organ of the nation in its negotiations with foreign countries,viz:

"x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a representative of the nation. He makes treaties with
the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great arguments of
March 7, 1800, in the House of Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations." Annals, 6th Cong., col. 613
(Emphasis supplied; underscoring in the original)

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 decision-making process, which inevitably
would involve her conversations with a member of her Cabinet.

With respect to respondent Committees invocation of constitutional prescriptions regarding the right of the people to
information and public accountability and transparency, the Court finds nothing in these arguments to support respondent
Committees case.

There is no debate as to the importance of the constitutional right of the people to information and the constitutional
policies on public 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.

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.

43
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. The
highlighted portions of the following provisions show the obvious limitations on the right to information, thus:

Article III, Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official 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.

Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest. (Emphasis supplied)

In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific laws prescribing the
exact limitations within which the right may be exercised or the correlative state duty may be obliged. Nonetheless, it
enumerated the recognized restrictions to such rights, among them: (1) national security matters, (2) trade secrets and
banking transactions, (3) criminal matters, and (4) other confidential information. National security matters include state
secrets regarding military and diplomatic matters, as well as information on inter-government exchanges prior to the
conclusion of treaties and executive agreements. It was further held that even where there is no need to protect such
state secrets, they must be "examined in strict confidence and given scrupulous protection."

Incidentally, 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, "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 Legislature's right to information in a legitimate legislative inquiry and the public's right to information.

For clarity, it must be emphasized that the assailed Decision did not enjoin respondent Committees from inquiring into
the NBN Project. All that is expected from them is to respect matters that are covered by executive privilege.

III.

Respondent Committees Failed to Show That


the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions

In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on the purported
legislative nature of their entire inquiry, as opposed to an oversight inquiry.

At the outset, 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.

In the Decision, the majority held that "there is no adequate showing of a compelling need that would justify the limitation
of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority." In the
Motion for Reconsideration, respondent Committees argue that the information elicited by the three (3) questions are
necessary in the discharge of their legislative functions, among them, (a) to consider the three (3) pending Senate Bills, and
(b) to curb graft and corruption.

We remain unpersuaded by respondents assertions.

In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests and it is necessary
to resolve the competing interests in a manner that would preserve the essential functions of each branch. There, the Court
weighed between presidential privilege and the legitimate claims of the judicial process. In giving more weight to the latter,
the Court ruled that the President's generalized assertion of privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial.

The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary constitutional duty
of the Judicial Branch to do justice in criminal prosecutions. The said Court further ratiocinated, through its ruling
extensively quoted in the Honorable Chief Justice Puno's dissenting opinion, as follows:

44
"... this presumptive privilege must be considered in light of our historic commitment to the rule of law. This is
nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal justice) is that guild shall
not escape or innocence suffer.' Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have elected to
employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The
need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of
criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of
the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure
of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to
the function of courts that compulsory process be available for the production of evidence needed either by the
prosecution or by the defense.

xxx xxx xxx

The right to the production of all evidence at a criminal trial similarly has constitutional dimensions. The Sixth
Amendment explicitly confers upon every defendant in a criminal trial the right 'to be confronted with the witness
against him' and 'to have compulsory process for obtaining witnesses in his favor.' Moreover, the Fifth
Amendment also guarantees that no person shall be deprived of liberty without due process of law. It is
the manifest duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all
relevant and admissible evidence be produced.

In this case we must weigh the importance of the general privilege of confidentiality of Presidential
communications in performance of the President's responsibilities against the inroads of such a privilege on the
fair administration of criminal justice. (emphasis supplied)

xxx xxx xxx

...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut
deeply into the guarantee of due process of law and gravely impair the basic function of the
courts. A President's acknowledged need for confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant evidence in a criminal proceeding is specific
and central to the fair adjudication of a particular criminal case in the administration of justice. Without access
to specific facts a criminal prosecution may be totally frustrated. The President's broad interest in confidentiality
of communication will not be vitiated by disclosure of a limited number of conversations preliminarily shown to
have some bearing on the pending criminal cases.

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal
trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands
of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending criminal trial. (emphasis supplied)

In the case at bar, we are not confronted with a courts need for facts in order to adjudge liability in a criminal case but
rather with the Senates need for information in relation to its legislative functions. This leads us to consider once again just
how critical is the subject information in the discharge of respondent Committees functions. The burden to show this is on
the respondent Committees, since they seek to intrude into the sphere of competence of the President in order to gather
information which, according to said respondents, would "aid" them in crafting legislation.

Senate Select Committee on Presidential Campaign Activities v. Nixon41 expounded on the nature of a legislative inquiry in
aid of legislation in this wise:

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)

Clearly, 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.

45
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. 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.

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. Interestingly, during the Oral Argument before this
Court, the counsel for respondent Committees impliedly admitted that the Senate could still come up with legislations even
without petitioner answering the three (3) questions. In other words, the information being elicited is not so critical after
all. Thus:

CHIEF JUSTICE PUNO


So can you tell the Court how critical are these questions to the lawmaking function of the Senate. For
instance, question Number 1 whether the President followed up the NBN project. According to the other
counsel this question has already been asked, is that correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like to indorse a Bill
to include Executive Agreements had been used as a device to the circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem in its factual
setting as counsel for petitioner has observed, there are intimations of a bribery scandal involving high
government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize this ZTE, is that critical to the lawmaking
function of the Senate? Will it result to the failure of the Senate to cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the Procurement Law, Your
Honor, because the petitioner had already testified that he was offered a P200 Million bribe, so if he was
offered a P200 Million bribe it is possible that other government officials who had something to do with
the approval of the contract would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO

How about the third question, whether the President said to go ahead and approve the project after
being told about the alleged bribe. How critical is that to the lawmaking function of the Senate? And the
question is may they craft a Bill a remedial law without forcing petitioner Neri to answer this question?

46
ATTY. AGABIN

Well, they can craft it, Your Honor, based on mere speculation. And sound legislation requires that a
proposed Bill should have some basis in fact. 42

The failure of the counsel for respondent Committees to pinpoint the specific need for the information sought or how the
withholding of the information sought will hinder the accomplishment of their legislative purpose is very evident in the
above oral exchanges. Due to the failure of the respondent Committees to successfully discharge this burden, the
presumption in favor of confidentiality of presidential communication stands. The implication of the said presumption, like
any other, is to dispense with the burden of proof as to whether the disclosure will significantly impair the Presidents
performance of her function. Needless to state this is assumed, by virtue of the presumption.

Anent respondent Committees bewailing that they would have to "speculate" regarding the questions covered by the
privilege, this does not evince a compelling need for the information sought. Indeed, Senate Select Committee on
Presidential Campaign Activities v. Nixon43 held that 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 a precise reconstruction of past events. It added that, normally, Congress legislates on the
basis of conflicting information provided in its hearings. We cannot subscribe to the respondent Committees self-defeating
proposition that without the answers to the three (3) questions objected to as privileged, the distinguished members of the
respondent Committees cannot intelligently craft legislation.

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. This
is because curbing graft and corruption is merely an oversight function of Congress. 44 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.

In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution.
Moreover, as held in a recent case, "the political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional boundaries has been given to this Court.
It cannot abdicate that obligation mandated by the 1987 Constitution, although said provision by no means does
away with the applicability of the principle in appropriate cases.46 (Emphasis supplied)

There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not really in aid of
legislation because it is not related to a purpose within the jurisdiction of Congress, since the aim of the investigation is
to find out whether or not the relatives of the President or Mr. Ricardo Lopa had violated Section 5 of R.A. No. 3019,
the Anti-Graft and Corrupt Practices Act, a matter that appears more within the province of the courts rather than of the
Legislature."47 (Emphasis and underscoring supplied)

The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of the
President.48 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.

Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for truth," which in
respondent Committees view appears to be equated with the search for persons responsible for "anomalies" in
government contracts.

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.49In this regard, the pronouncement in Barenblatt v. United
States50 is instructive, thus:

Broad as it is, the power is not, however, without limitations. Since Congress may only investigate into the areas
in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive
province of one of the other branches of the government. Lacking the judicial power given to the Judiciary, it
cannot inquire into matters that are exclusively the concern of the Judiciary. Neither can it supplant the Executive
in what exclusively belongs to the Executive. (Emphasis supplied.)

47
At this juncture, 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."51 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.

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.

Corollarily, respondent Committees justify their rejection of petitioners claim of executive privilege on the ground that
there is no privilege when the information sought might involve a crime or illegal activity, despite the absence of an
administrative or judicial determination to that effect. Significantly, however, in Nixon v. Sirica,52 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 performance of
which the material was sought, and the degree to which the material was necessary to its fulfillment.

Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v. Nixon does not apply to
the case at bar because, unlike in the said case, no impeachment proceeding has been initiated at present. The Court is not
persuaded. While it is true that no impeachment proceeding has been initiated, however, complaints relating to the NBN
Project have already been filed against President Arroyo and other personalities before the Office of the Ombudsman. As
the Court has said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by the
Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project are true and, if so,
who should be prosecuted and penalized for criminal conduct.

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.

IV

Respondent Committees Committed Grave


Abuse of Discretion in Issuing the Contempt Order

Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt order because (1)
there is no legitimate claim of executive privilege; (2) they did not violate the requirements laid down in Senate v. Ermita;
(3) they issued the contempt order in accordance with their internal Rules; (4) they did not violate the requirement under
Article VI, Section 21 of the Constitution requiring the publication of their Rules; and (5) their issuance of the contempt
order is not arbitrary or precipitate.

We reaffirm our earlier ruling.

The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we see no reason to
discuss it once again.

Respondent Committees second argument rests on the view that the ruling in Senate v. Ermita, 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.53 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.54 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

48
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. The logic of these requirements is well articulated in the study
conducted by William P. Marshall,55 to wit:

A second concern that might be addressed is that the current system allows committees to continually investigate
the Executive without constraint. One process solution addressing this concern is to require each investigation be
tied to a clearly stated purpose. At present, the charters of some congressional committees are so broad that
virtually any matter involving the Executive can be construed to fall within their province. Accordingly,
investigations can proceed without articulation of specific need or purpose. A requirement for a more precise
charge in order to begin an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the extent clear statements of
rules cause legislatures to pause and seriously consider the constitutional implications of proposed courses of
action in other areas, they would serve that goal in the context of congressional investigations as well.

The key to this reform is in its details. A system that allows a standing committee to simply articulate its reasons
to investigate pro forma does no more than imposes minimal drafting burdens. Rather, the system must be
designed in a manner that imposes actual burdens on the committee to articulate its need for investigation and
allows for meaningful debate about the merits of proceeding with the investigation.(Emphasis supplied)

Clearly, petitioners request to be furnished an advance copy of questions is a reasonable demand that should have been
granted by respondent Committees.

Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to any pending
Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the subpoena merely commanded him
to "testify on what he knows relative to the subject matter under inquiry."

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. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:

"Cases both here and abroad, in varying forms of expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in the absence of
showing that there was a violation of a constitutional provision or the rights of private individuals.

United States v. Ballin, Joseph & Co., the rule was stated thus: The Constitution empowers each House to
determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental
rights, and there should be a reasonable relation between the mode or method of proceeding established by the
rule and the result which is sought to be attained."

In the present case, the Courts exercise of its power of judicial review is warranted because there appears to be a clear
abuse of the power of contempt on the part of respondent Committees. Section 18 of the Rules provides that:

"The Committee, by a vote of majority of all its members, may punish for contempt any witness before it who
disobey 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." (Emphasis supplied)

In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order because during the
deliberation of the three (3) respondent Committees, only seven (7) Senators were present. This number could hardly fulfill
the majority requirement needed by respondent Committee on Accountability of Public Officers and Investigations which
has a membership of seventeen (17) Senators and respondent Committee on National Defense and Security which has a
membership of eighteen (18) Senators. With respect to respondent Committee on Trade and Commerce which has a
membership of nine (9) Senators, only three (3) members were present. 57These facts prompted us to quote in the Decision
the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue of lack
of the required majority to deliberate and vote on the contempt order.

When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis Pangilinan stated that
any defect in the committee voting had been cured because two-thirds of the Senators effectively signed for the Senate in
plenary session.58

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.

49
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.

Having touched the subject of the Rules, we now proceed to respondent Committees fourth argument. Respondent
Committees argue that the Senate does not have to publish its Rules because the same was published in 1995 and in 2006.
Further, they claim that the Senate is a continuing body; thus, it is not required to republish the Rules, unless the same is
repealed or amended.

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.

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.
(emphasis supplied)

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. (emphasis supplied)

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 eachsession in which the newly elected Senators
shall begin their term.

50
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."59 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.

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.

Respondent Committees last argument is that their issuance of the contempt order is not precipitate or arbitrary. Taking
into account the totality of circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of respondent Committees,
petitioner did not assume that they no longer had any other questions for him. He repeatedly manifested his willingness to
attend subsequent hearings and respond to new matters. His only request was that he be furnished a copy of the new
questions in advance to enable him to adequately prepare as a resource person. He did not attend the November 20, 2007
hearing because Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an executive official under the direct control and supervision of the
Chief Executive. Why punish petitioner for contempt when he was merely directed by his superior? Besides, save for the
three (3) questions, he was very cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling on Executive
Secretary Ermitas claim of executive privilege, they curtly dismissed it as unsatisfactory and ordered the arrest of
petitioner. They could have informed petitioner of their ruling and given him time to decide whether to accede or file a
motion for reconsideration. After all, he is not just an ordinary witness; he is a high- ranking official in a co-equal branch of
government. He is an alter ego of the President. The same haste and impatience marked the issuance of the contempt
order, despite the absence of the majority of the members of the respondent Committees, and their subsequent disregard
of petitioners motion for reconsideration alleging the pendency of his petition for certiorari before this Court.

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.

In the present case, it is respondent Committees contention that their determination on the validity of executive privilege
should be binding on the Executive and the Courts. It is their assertion that theirinternal procedures and deliberations
cannot be inquired into by this Court supposedly in accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to extend to the Executive (on the matter of
executive privilege) or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent
Committees paradigm of checks and balances, what are the checks to the Legislatures all-encompassing, awesome power
of investigation? It is a power, like any other, that is susceptible to grave abuse.

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.

WHEREFORE, respondent Committees Motion for Reconsideration dated April 8, 2008 is hereby DENIED. SO ORDERED.

51
EN BANC

PROF. RANDOLF S. DAVID, LORENZO TAADA III, RONALD G.R. No. 171396
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN,
ROGER R. RAYEL, GARY S. MALLARI, ROMEL Present:
REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG,
Petitioners, PANGANIBAN, C.J.,
*
PUNO,
- versus - QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT CARPIO,
AND COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY AUSTRIA-MARTINEZ,
EDUARDO ERMITA, HON. AVELINO CRUZ II, SECRETARY OF CORONA,
NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF CARPIO MORALES,
OF STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR CALLEJO, SR.,
GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL AZCUNA,
POLICE, TINGA,
Respondents. CHICO-NAZARIO,
x-------------------------------------------------x GARCIA, and
NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., VELASCO, JJ.
INC.,
Petitioners, Promulgated:

May 3, 2006
- versus -

G.R. No. 171409


HONORABLE SECRETARY EDUARDO ERMITA AND
HONORABLE DIRECTOR GENERAL ARTURO C. LOMIBAO,
Respondents.
x-------------------------------------------------x
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO,
TEODORO A. CASINO, AGAPITO A. AQUINO, MARIO J.
AGUJA, SATUR C. OCAMPO, MUJIV S. HATAMAN, JUAN
EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R.
MARCOS, RENATO B. MAGTUBO, JUSTIN MARC SB.
CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-CUSTODIO,
LORETTA ANN P. ROSALES, JOSEL G. VIRADOR, RAFAEL V.
MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA G.R. No. 171485
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG,
Petitioners,

- versus -

EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.


CRUZ, JR., SECRETARY, DND RONALDO V. PUNO,
SECRETARY, DILG, GENEROSO SENGA, AFP CHIEF OF STAFF,
ARTURO LOMIBAO, CHIEF PNP,
Respondents.
x-------------------------------------------------x
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY
ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO
C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P.
DAPULANG, MARTIN CUSTODIO, JR., AND ROQUE M. TAN,
Petitioners,

52
- versus -

HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-


ARROYO, THE HONORABLE EXECUTIVE SECRETARY,
EDUARDO ERMITA, THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, GENEROSO SENGA, AND THE PNP G.R. No. 171483
DIRECTOR GENERAL, ARTURO LOMIBAO,
Respondents.
x-------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC. (ALG),
Petitioner,
- versus -

EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.


GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO,
Respondents.
x-------------------------------------------------x
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO
R. RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-
VIDAL, FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B.
JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP),
Petitioners,

- versus -

HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL


GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF
STAFF, AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS
CAPACITY AS PNP CHIEF,
Respondents.
x-------------------------------------------------x
LOREN B. LEGARDA,
Petitioner, G.R. No. 171400

- versus -

GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS


PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO
LOMIBAO, IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE
PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN
HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES
OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE SECRETARY,
Respondents.

G.R. No. 171489

53
G.R. No. 171424

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

DECISION

SANDOVAL-GUTIERREZ, J.:

All powers need some restraint; practical adjustments rather than rigid formula are necessary.[1] Superior
strength the use of force cannot make wrongs into rights. In this regard, the courts should be vigilant in safeguarding
the constitutional rights of the citizens, specifically their liberty.

Chief Justice Artemio V. Panganibans philosophy of liberty is thus most relevant. He said: In cases involving
liberty, the scales of justice should weigh heavily against government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Laws and actions that restrict fundamental rights come to the courts
with a heavy presumption against their constitutional validity. [2]

These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing Presidential Proclamation No.
1017 (PP 1017) and General Order No. 5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in their professed efforts to defend and
preserve democratic institutions, are actually trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.

Once again, the Court is faced with an age-old but persistently modern problem. How does the Constitution of a free
people combine the degree of liberty, without which, law becomes tyranny, with the degree of law, without which, liberty
becomes license?[3]

On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People Power I, President Arroyo
issued PP 1017 declaring a state of national emergency, thus:

NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the Philippines and
Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by
Section 18, Article 7 of the Philippine Constitution which states that: The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. . .rebellion. . ., and in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my direction; and as provided in Section
17, Article 12 of the Constitution do hereby declare a State of National Emergency.

She cited the following facts as bases:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right,
represented by military adventurists the historical enemies of the democratic Philippine State who

54
are now in a tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to
bring down the duly constituted Government elected in May 2004;

WHEREAS, these conspirators have repeatedly tried to bring down the President;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, this series of actions is hurting the Philippine State by obstructing governance
including hindering the growth of the economy and sabotaging the peoples confidence in government
and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral


effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;

On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:

WHEREAS, over these past months, elements in the political opposition have conspired with
authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the extreme Right, represented
by military adventurists - the historical enemies of the democratic Philippine State and who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican government;

WHEREAS, the claims of these elements have been recklessly magnified by certain segments of
the national media;

WHEREAS, these series of actions is hurting the Philippine State by obstructing governance,
including hindering the growth of the economy and sabotaging the peoples confidence in the
government and their faith in the future of this country;

WHEREAS, these actions are adversely affecting the economy;

WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme Right
the opening to intensify their avowed aims to bring down the democratic Philippine State;

WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the
democratic institutions and the State the primary duty of Government;

WHEREAS, the activities above-described, their consequences, ramifications and collateral


effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of
the Filipino people;

WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State of
National Emergency;

NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers vested in me under


the Constitution as President of the Republic of the Philippines, and Commander-in-Chief of the Republic
of the Philippines, and pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP), to prevent and
suppress acts of terrorism and lawless violence in the country;

I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the officers and
men of the AFP and PNP, to immediately carry out the necessary and appropriate actions and measures
to suppress and prevent acts of terrorism and lawless violence.

On March 3, 2006, exactly one week after the declaration of a state of national emergency and after all these
petitions had been filed, the President lifted PP 1017. She issued Proclamation No. 1021 which reads:

55
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the Constitution,
Proclamation No. 1017 dated February 24, 2006, was issued declaring a state of national emergency;

WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which were issued
on the basis of Proclamation No. 1017, the Armed Forces of the Philippines (AFP) and the Philippine
National Police (PNP), were directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to undertake such action as may
be necessary;

WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the acts lawless
violence and rebellion;

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


Philippines, by virtue of the powers vested in me by law, hereby declare that the state of national
emergency has ceased to exist.

In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated that the proximate cause
behind the executive issuances was the conspiracy among some military officers, leftist insurgents of the New Peoples
Army (NPA), and some members of the political opposition in a plot to unseat or assassinate President Arroyo. [4] They
considered the aim to oust or assassinate the President and take-over the reigns of government as a clear and present
danger.

During the oral arguments held on March 7, 2006, the Solicitor General specified the facts leading to the issuance
of PP 1017 and G.O. No. 5. Significantly, there was no refutation from petitioners counsels.

The Solicitor General argued that the intent of the Constitution is to give full discretionary powers to the President
in determining the necessity of calling out the armed forces. He emphasized that none of the petitioners has shown that
PP 1017 was without factual bases. While he explained that it is not respondents task to state the facts behind the
questioned Proclamation, however, they are presenting the same, narrated hereunder, for the elucidation of the issues.

On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento, Lawrence San
Juan and Patricio Bumidang, members of the Magdalo Group indicted in the Oakwood mutiny, escaped their detention cell
in Fort Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and to elude arrest at all costs. They
called upon the people to show and proclaim our displeasure at the sham regime. Let us demonstrate our disgust, not only
by going to the streets in protest, but also by wearing red bands on our left arms. [5]

On February 17, 2006, the authorities got hold of a document entitled Oplan Hackle I which detailed plans for
bombings and attacks during the Philippine Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President Arroyo herself. [6] Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.

On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in Batangas province. Found in his
possession were two (2) flash disks containing minutes of the meetings between members of the Magdalo Group and the
National Peoples Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents.[7] Prior to his arrest, Lt. San Juan announced through DZRH that the Magdalos D-Day would be on February
24, 2006, the 20th Anniversary of Edsa I.

On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members of the PNP- Special Action
Force were planning to defect. Thus, he immediately ordered SAF Commanding General Marcelino Franco, Jr.
to disavow any defection. The latter promptly obeyed and issued a public statement: All SAF units are under the
effective control of responsible and trustworthy officers with proven integrity and unquestionable loyalty.

56
On the same day, at the house of former Congressman Peping Cojuangco, President Cory Aquinos brother,
businessmen and mid-level government officials plotted moves to bring down the Arroyo administration. Nelly Sindayen of
TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his groups
plans if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen. Danilo
Lim, Commander of the Armys elite Scout Ranger. Lim said it was all systems go for the planned movement against
Arroyo.[8]

B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen. Generoso Senga, Chief of Staff of
the Armed Forces of the Philippines (AFP), that a huge number of soldiers would join the rallies to provide a critical mass
and armed component to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2) officers,
there was no way they could possibly stop the soldiers because they too, were breaking the chain of command to join the
forces foist to unseat the President. However, Gen. Senga has remained faithful to his Commander-in-Chief and to the
chain of command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to return to the Philippine
Marines Headquarters in Fort Bonifacio.

Earlier, the CPP-NPA called for intensification of political and revolutionary work within the military and the police
establishments in order to forge alliances with its members and key officials. NPA spokesman Gregorio Ka Roger Rosal
declared: The Communist Party and revolutionary movement and the entire people look forward to the possibility in the
coming year of accomplishing its immediate task of bringing down the Arroyo regime; of rendering it to weaken and unable
to rule that it will not take much longer to end it.[9]

On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF) at North Central Mindanao,
publicly announced: Anti-Arroyo groups within the military and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and enlisted personnel who undertake counter-insurgency operations in
the field. He claimed that with the forces of the national democratic movement, the anti-Arroyo conservative political
parties, coalitions, plus the groups that have been reinforcing since June 2005, it is probable that the Presidents ouster is
nearing its concluding stage in the first half of 2006.

Respondents further claimed that the bombing of telecommunication towers and cell sites in Bulacan and Bataan
was also considered as additional factual basis for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost
in Benguet resulting in the death of three (3) soldiers. And also the directive of the Communist Party of the Philippines
ordering its front organizations to join 5,000 Metro Manila radicals and 25,000 more from the provinces in mass protests. [10]

By midnight of February 23, 2006, the President convened her security advisers and several cabinet members to
assess the gravity of the fermenting peace and order situation. She directed both the AFP and the PNP to account for all
their men and ensure that the chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in all levels in the entire National
Capital Region.

For their part, petitioners cited the events that followed after the issuance of PP 1017 and G.O. No. 5.

Immediately, the Office of the President announced the cancellation of all programs and activities related to the
th
20 anniversary celebration of Edsa People Power I; and revoked the permits to hold rallies issued earlier by the local
governments. Justice Secretary Raul Gonzales stated that political rallies, which to the Presidents mind were organized for
purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor announced that warrantless arrests
and take-over of facilities, including media, can already be implemented.[11]

57
Undeterred by the announcements that rallies and public assemblies would not be allowed, groups of protesters
(members of Kilusang Mayo Uno [KMU] and National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at the EDSA shrine. Those who were already
near the EDSA site were violently dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching forward to Cubao, Quezon City and
to the corner of Santolan Street and EDSA. That same evening, hundreds of riot policemen broke up an EDSA celebration
rally held along Ayala Avenue and Paseo de Roxas Street in Makati City. [12]

According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for the dispersal of their
assemblies.

During the dispersal of the rallyists along EDSA, police arrested (without warrant) petitioner Randolf S. David, a
professor at the University of the Philippines and newspaper columnist. Also arrested was his companion, Ronald Llamas,
president of party-list Akbayan.

At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal Investigation and Detection
Group (CIDG) of the PNP, on the basis of PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen from
Camp Crame in Quezon City were stationed inside the editorial and business offices of the newspaper; while policemen
from the Manila Police District were stationed outside the building. [13]

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

The raid, according to Presidential Chief of Staff Michael Defensor, is meant to show a strong presence, to tell
media outlets not to connive or do anything that would help the rebels in bringing down this government. The PNP
warned that it would take over any media organization that would not follow standards set by the government during the
state of national emergency. Director General Lomibao stated that if they do not follow the standards and the
standards are - if they would contribute to instability in the government, or if they do not subscribe to what is in General
Order No. 5 and Proc. No. 1017 we will recommend a takeover. National Telecommunications Commissioner
Ronald Solis urged television and radio networks to cooperate with the government for the duration of the state of
national emergency. He asked for balanced reporting from broadcasters when covering the events surrounding the
coup attempt foiled by the government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security is threatened. [14]

Also, on February 25, 2006, the police arrested Congressman Crispin Beltran, representing the Anakpawis Party
and Chairman of Kilusang Mayo Uno (KMU), while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltrans lawyer explained that the warrant, which stemmed from a case of inciting to rebellion filed
during the Marcos regime, had long been quashed. Beltran, however, is not a party in any of these petitions.

When members of petitioner KMU went to Camp Crame to visit Beltran, they were told they could not be admitted
because of PP 1017 and G.O. No. 5. Two members were arrested and detained, while the rest were dispersed by the
police.

Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him during a public forum at
the Sulo Hotel in Quezon City. But his two drivers, identified as Roel and Art, were taken into custody.

58
Retired Major General Ramon Montao, former head of the Philippine Constabulary, was arrested while with his
wife and golfmates at the Orchard Golf and Country Club in Dasmarias, Cavite.

Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative Rafael Mariano, Bayan
Muna Representative Teodoro Casio and Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador
was arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House of
Representatives where the Batasan 5 decided to stay indefinitely.

Let it be stressed at this point that the alleged violations of the rights of Representatives Beltran, Satur Ocampo, et
al., are not being raised in these petitions.

On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national emergency has ceased to
exist.

In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and G.O. No. 5 were filed with
this Court against the above-named respondents. Three (3) of these petitions impleaded President Arroyo as respondent.

In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds that (1) it encroaches on the
emergency powers of Congress; (2) it is a subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of speech and of assembly.

In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc. challenged the CIDGs act of
raiding the Daily Tribune offices as a clear case of censorship or prior restraint. They also claimed that the term
emergency refers only to tsunami, typhoon, hurricane and similar occurrences, hence, there is absolutely no
emergency that warrants the issuance of PP 1017.

In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero, and twenty one (21) other
members of the House of Representatives, including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casio, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute usurpation of legislative powers;
violation of freedom of expression and a declaration of martial law. They alleged that President Arroyo gravely
abused her discretion in calling out the armed forces without clear and verifiable factual basis of the possibility of lawless
violence and a showing that there is necessity to do so.

In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that PP 1017 and G.O. No. 5 are
unconstitutional because (1) they arrogate unto President Arroyo the power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate freedom of expression and the right of the people to peaceably assemble to
redress their grievances.

In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP 1017 and G.O. No. 5 are
unconstitutional because they violate (a) Section 4[15] of Article II, (b) Sections 1,[16] 2,[17] and 4[18] of Article III, (c) Section
23[19] of Article VI, and (d) Section 17[20] of Article XII of the Constitution.

In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an arbitrary and unlawful
exercise by the President of her Martial Law powers. And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that it amounts to an exercise by the President of emergency powers without congressional
approval. In addition, petitioners asserted that PP 1017 goes beyond the nature and function of a proclamation as
defined under the Revised Administrative Code.

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And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and G.O. No. 5 are
unconstitutional for being violative of the freedom of expression, including its cognate rights such as freedom of the press
and the right to access to information on matters of public concern, all guaranteed under Article III, Section 4 of the 1987
Constitution. In this regard, she stated that these issuances prevented her from fully prosecuting her election protest
pending before the Presidential Electoral Tribunal.

In respondents Consolidated Comment, the Solicitor General countered that: first, the petitions should be dismissed
for being moot; second, petitioners in G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the
peoples right to free expression and redress of grievances.

On March 7, 2006, the Court conducted oral arguments and heard the parties on the above interlocking issues which
may be summarized as follows:

A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL

First, we must resolve the procedural roadblocks.

I- Moot and Academic Principle

One of the greatest contributions of the American system to this country is the concept of judicial review enunciated
in Marbury v. Madison.[21] This concept rests on the extraordinary simple foundation --

The Constitution is the supreme law. It was ordained by the people, the ultimate source of all
political authority. It confers limited powers on the national government. x x x If the government
consciously or unconsciously oversteps these limitations there must be some authority competent to
hold it in control, to thwart its unconstitutional attempt, and thus to vindicate and preserve inviolate
the will of the people as expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.[22]

But the power of judicial review does not repose upon the courts a self-starting capacity.[23] Courts may exercise
such power only when the following requisites are present: first, there must be an actual case or
controversy; second, petitioners have to raise a question of constitutionality; third, the constitutional question must be
raised at the earliest opportunity; and fourth, the decision of the constitutional question must be necessary to the
determination of the case itself.[24]

Respondents maintain that the first and second requisites are absent, hence, we shall limit our discussion thereon.

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An actual case or controversy involves a conflict of legal right, an opposite legal claims susceptible of judicial
resolution. It is definite and concrete, touching the legal relations of parties having adverse legal interest; a real and
substantial controversy admitting of specific relief.[25] The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered moot and academic by President Arroyos issuance
of PP 1021.

Such contention lacks merit.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening
events,[26] so that a declaration thereon would be of no practical use or value. [27] Generally, courts decline jurisdiction over
such case[28] or dismiss it on ground of mootness.[29]

The Court holds that President Arroyos issuance of PP 1021 did not render the present petitions moot and
academic. During the eight (8) days that PP 1017 was operative, the police officers, according to petitioners, committed
illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal
acts? These are the vital issues that must be resolved in the present petitions. It must be stressed that an
unconstitutional act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.[30]

The moot and academic principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave violation of the
Constitution;[31] second, the exceptional character of the situation and the paramount public interest is
involved;[32] third, when constitutional issue raised requires formulation of controlling principles to guide the bench, the
bar, and the public;[33] and fourth, the case is capable of repetition yet evading review.[34]

All the foregoing exceptions are present here and justify this Courts assumption of jurisdiction over the instant
petitions. Petitioners alleged that the issuance of PP 1017 and G.O. No. 5 violates the Constitution. There is no question
that the issues being raised affect the publics interest, involving as they do the peoples basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate guiding and controlling
constitutional precepts, doctrines or rules. It has the symbolic function of educating the bench and the bar, and in the
present petitions, the military and the police, on the extent of the protection given by constitutional guarantees. [35] And
lastly, respondents contested actions are capable of repetition. Certainly, the petitions are subject to judicial review.

In their attempt to prove the alleged mootness of this case, respondents cited Chief Justice Artemio V.
Panganibans Separate Opinion in Sanlakas v. Executive Secretary.[36] However, they failed to take into account the Chief
Justices very statement that an otherwise moot case may still be decided provided the party raising it in a proper
case has been and/or continues to be prejudiced or damaged as a direct result of its issuance. The present case falls right
within this exception to the mootness rule pointed out by the Chief Justice.

II- Legal Standing

In view of the number of petitioners suing in various personalities, the Court deems it imperative to have a more
than passing discussion on legal standing or locus standi.

Locus standi is defined as a right of appearance in a court of justice on a given question. [37] In private suits,
standing is governed by the real-parties-in interest rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action must be prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party who stands to be benefited or injured by the judgment

61
in the suit or the party entitled to the avails of the suit.[38] Succinctly put, the plaintiffs standing is based on his own
right to the relief sought.

The difficulty of determining locus standi arises in public suits. Here, the plaintiff who asserts a public right in
assailing an allegedly illegal official action, does so as a representative of the general public. He may be a person who is
affected no differently from any other person. He could be suing as a stranger, or in the category of a citizen, or
taxpayer. In either case, he has to adequately show that he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the public order and the securing of relief as a citizen or
taxpayer.

Case law in most jurisdictions now allows both citizen and taxpayer standing in public actions. The distinction
was first laid down in Beauchamp v. Silk,[39] where it was held that the plaintiff in a taxpayers suit is in a different category
from the plaintiff in a citizens suit. In the former, the plaintiff is affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public concern. As held by the New York Supreme Court in People ex rel Case
v. Collins:[40] In matter of mere public right, howeverthe people are the real partiesIt is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly pursued and punished, and that a public
grievance be remedied. With respect to taxpayers suits, Terr v. Jordan[41] held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public funds to his injury cannot be denied.

However, to prevent just about any person from seeking judicial interference in any official policy or act with which he
disagreed with, and thus hinders the activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent direct injury test in Ex Parte Levitt,[42] later reaffirmed in Tileston v.
Ullman.[43] The same Court ruled that for a private individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.

This Court adopted the direct injury test in our jurisdiction. In People v. Vera,[44] it held that the person who
impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or
will sustain direct injury as a result. The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President of
the Senate,[45] Manila Race Horse Trainers Association v. De la Fuente,[46] Pascual v. Secretary of Public Works[47] and Anti-
Chinese League of the Philippines v. Felix.[48]

However, being a mere procedural technicality, the requirement of locus standi may be waived by the Court in the
exercise of its discretion. This was done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,[49] where the
transcendental importance of the cases prompted the Court to act liberally. Such liberality was neither a rarity nor
accidental. In Aquino v. Comelec,[50] this Court resolved to pass upon the issues raised due to the far-reaching
implications of the petition notwithstanding its categorical statement that petitioner therein had no personality to file the
suit. Indeed, there is a chain of cases where this liberal policy has been observed, allowing ordinary citizens, members of
Congress, and civic organizations to prosecute actions involving the constitutionality or validity of laws, regulations and
rulings.[51]

Thus, the Court has adopted a rule that even where the petitioners have failed to show direct injury, they have been
allowed to sue under the principle of transcendental importance. Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,[52] where the Court ruled that the enforcement of the
constitutional right to information and the equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus standi;

62
(2) Bagong Alyansang Makabayan v. Zamora, [53] wherein the Court held that given the
transcendental importance of the issues involved, the Court may relax the standing requirements and
allow the suit to prosper despite the lack of direct injury to the parties seeking judicial review of the
Visiting Forces Agreement;

(3) Lim v. Executive Secretary,[54] while the Court noted that the petitioners may not file suit in
their capacity as taxpayers absent a showing that Balikatan 02-01 involves the exercise of Congress
taxing or spending powers, it reiterated its ruling in Bagong Alyansang Makabayan v.
Zamora,[55] that in cases of transcendental importance, the cases must be settled promptly and
definitely and standing requirements may be relaxed.

By way of summary, the following rules may be culled from the cases decided by this Court. Taxpayers, voters,
concerned citizens, and legislators may be accorded standing to sue, provided that the following requirements are met:

(1) the cases involve constitutional issues;

(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is
unconstitutional;

(3) for voters, there must be a showing of obvious interest in the validity of the election law in question;

(4) for concerned citizens, there must be a showing that the issues raised are of transcendental
importance which must be settled early; and

(5) for legislators, there must be a claim that the official action complained of infringes upon their
prerogatives as legislators.

Significantly, recent decisions show a certain toughening in the Courts attitude toward legal standing.

In Kilosbayan, Inc. v. Morato,[56] the Court ruled that the status of Kilosbayan as a peoples organization does not give
it the requisite personality to question the validity of the on-line lottery contract, more so where it does not raise any issue
of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being misused. Nor
can it sue as a concerned citizen as it does not allege any specific injury it has suffered.

In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec,[57] the Court reiterated the direct
injury test with respect to concerned citizens cases involving constitutional issues. It held that there must be a
showing that the citizen personally suffered some actual or threatened injury arising from the alleged illegal official act.

In Lacson v. Perez,[58] the Court ruled that one of the petitioners, Laban ng Demokratikong Pilipino (LDP), is not a
real party-in-interest as it had not demonstrated any injury to itself or to its leaders, members or supporters.

In Sanlakas v. Executive Secretary,[59] the Court ruled that only the petitioners who are members of Congress have
standing to sue, as they claim that the Presidents declaration of a state of rebellion is a usurpation of the emergency
powers of Congress, thus impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and Social
Justice Society, the Court declared them to be devoid of standing, equating them with the LDP in Lacson.

Now, the application of the above principles to the present petitions.

The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is beyond doubt. The same
holds true with petitioners in G.R. No. 171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged direct injury

63
resulting from illegal arrest and unlawful search committed by police operatives pursuant to PP 1017. Rightly so, the
Solicitor General does not question their legal standing.

In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of legislative powers. They also raised
the issue of whether or not the concurrence of Congress is necessary whenever the alarming powers incident to Martial
Law are used. Moreover, it is in the interest of justice that those affected by PP 1017 can be represented by their
Congressmen in bringing to the attention of the Court the alleged violations of their basic rights.

In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v. Enriquez,[60] Kapatiran Ng Mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,[61] Association of Small Landowners in the Philippines, Inc. v. Secretary
of Agrarian Reform,[62] Basco v. Philippine Amusement and Gaming Corporation, [63] and Taada v. Tuvera,[64] that when the
issue concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws.

In G.R. No. 171483, KMUs assertion that PP 1017 and G.O. No. 5 violated its right to peaceful assembly may be
deemed sufficient to give it legal standing. Organizations may be granted standing to assert the rights of their
members.[65] We take judicial notice of the announcement by the Office of the President banning all rallies and canceling
all permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.

In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated Bar of the Philippines (IBP)
have no legal standing, having failed to allege any direct or potential injury which the IBP as an institution or its members
may suffer as a consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the Philippines v.
Zamora,[66] the Court held that the mere invocation by the IBP of its duty to preserve the rule of law and nothing more,
while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. However, in view of the transcendental importance of the issue, this Court
declares that petitioner have locus standi.

In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant petition as there are no
allegations of illegal disbursement of public funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O.
No. 5. Her claim that she is a media personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her submission that she has pending
electoral protest before the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that
PP 1017 will affect the proceedings or result of her case. But considering once more the transcendental importance of the
issue involved, this Court may relax the standing rules.

It must always be borne in mind that the question of locus standi is but corollary to the bigger question of proper
exercise of judicial power. This is the underlying legal tenet of the liberality doctrine on legal standing. It cannot be
doubted that the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits with bated breath the ruling of this
Court on this very critical matter. The petitions thus call for the application of the transcendental importance doctrine, a
relaxation of the standing requirements for the petitioners in the PP 1017 cases.

This Court holds that all the petitioners herein have locus standi.

Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the doctrine that the President,
during his tenure of office or actual incumbency, [67] may not be sued in any civil or criminal case, and there is no need to
provide for it in the Constitution or law. It will degrade the dignity of the high office of the President, the Head of State, if
he can be dragged into court litigations while serving as such. Furthermore, it is important that he be freed from any form

64
of harassment, hindrance or distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive branch and anything which impairs
his usefulness in the discharge of the many great and important duties imposed upon him by the Constitution necessarily
impairs the operation of the Government. However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people [68] but he may be removed from office only in the
mode provided by law and that is by impeachment.[69]

B. SUBSTANTIVE

I. Review of Factual Bases

Petitioners maintain that PP 1017 has no factual basis. Hence, it was not necessary for President Arroyo to
issue such Proclamation.

The issue of whether the Court may review the factual bases of the Presidents exercise of his Commander-in-
Chief power has reached its distilled point - from the indulgent days of Barcelon v. Baker[70] and Montenegro
v. Castaneda[71] to the volatile era of Lansang v. Garcia,[72] Aquino, Jr. v. Enrile,[73] and Garcia-Padilla v. Enrile.[74] The
tug-of-war always cuts across the line defining political questions, particularly those questions in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government. [75] Barcelon and
Montenegro were in unison in declaring that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took the opposite view. There, the members of
the Court were unanimous in the conviction that the Court has the authority to inquire into the existence of factual bases in
order to determine their constitutional sufficiency. From the principle of separation of powers, it shifted the focus to the
system of checks and balances, under which the President is supreme, x x x only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in
the Judicial Department, which in this respect, is, in turn, constitutionally supreme.[76] In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile.[77] There, the Court was almost evenly divided on
the issue of whether the validity of the imposition of Martial Law is a political or justiciable question.[78] Then
came Garcia-Padilla v. Enrile which greatly diluted Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that in times of war or national emergency, the President must be given absolute control for the very life
of the nation and the government is in great peril. The President, it intoned, is answerable only to his conscience, the
People, and God.[79]

The Integrated Bar of the Philippines v. Zamora[80] -- a recent case most pertinent to these cases at bar -- echoed a
principle similar to Lansang. While the Court considered the Presidents calling-out power as a discretionary power
solely vested in his wisdom, it stressed that this does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. This ruling is mainly a result of the Courts reliance on Section 1, Article VIII of 1987 Constitution which
fortifies the authority of the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. The latter part of the authority represents a broadening of judicial power to enable
the courts of justice to review what was before a forbidden territory, to wit, the discretion of the political departments of
the government.[81] It speaks of judicial prerogative not only in terms of power but also of duty.[82]

65
As to how the Court may inquire into the Presidents exercise of power, Lansang adopted the test that judicial

inquiry can go no further than to satisfy the Court not that the Presidents decision is correct, but that the President did

not act arbitrarily. Thus, the standard laid down is not correctness, but arbitrariness. [83] In Integrated Bar of the

Philippines, this Court further ruled that it is incumbent upon the petitioner to show that the Presidents decision is

totally bereft of factual basis and that if he fails, by way of proof, to support his assertion, then this Court cannot

undertake an independent investigation beyond the pleadings.

Petitioners failed to show that President Arroyos exercise of the calling-out power, by issuing PP 1017, is totally
bereft of factual basis. A reading of the Solicitor Generals Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned
are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military,
particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the
Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the
NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the
Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do
nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.

II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists


on the Power of the President
in Times of Emergency

This case brings to fore a contentious subject -- the power of the President in times of emergency. A glimpse at

the various political theories relating to this subject provides an adequate backdrop for our ensuing discussion.

John Locke, describing the architecture of civil government, called upon the English doctrine of prerogative to cope

with the problem of emergency. In times of danger to the nation, positive law enacted by the legislature might be

inadequate or even a fatal obstacle to the promptness of action necessary to avert catastrophe. In these situations, the

Crown retained a prerogative power to act according to discretion for the public good, without the proscription of the

law and sometimes even against it.[84] But Locke recognized that this moral restraint might not suffice to avoid abuse of

prerogative powers. Who shall judge the need for resorting to the prerogative and how may its abuse be avoided? Here,

Locke readily admitted defeat, suggesting that the people have no other remedy in this, as in all other cases where they

have no judge on earth, but to appeal to Heaven.[85]

Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic processes of government

in time of emergency. According to him:

The inflexibility of the laws, which prevents them from adopting themselves to circumstances,
may, in certain cases, render them disastrous and make them bring about, at a time of crisis, the ruin of
the State

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It is wrong therefore to wish to make political institutions as strong as to render it impossible to
suspend their operation. Even Sparta allowed its law to lapse...

If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws and suspend for
a moment the sovereign authority. In such a case, there is no doubt about the general will, and it clear
that the peoples first intention is that the State shall not perish. [86]

Rosseau did not fear the abuse of the emergency dictatorship or supreme magistracy as he termed it. For him,
it would more likely be cheapened by indiscreet use. He was unwilling to rely upon an appeal to heaven. Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of the dictatorship. [87]

John Stuart Mill concluded his ardent defense of representative government: I am far from condemning, in cases
of extreme necessity, the assumption of absolute power in the form of a temporary dictatorship.[88]

Nicollo Machiavellis view of emergency powers, as one element in the whole scheme of limited government,
furnished an ironic contrast to the Lockean theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:

Now, in a well-ordered society, it should never be necessary to resort to extra constitutional


measures; for although they may for a time be beneficial, yet the precedent is pernicious, for if the
practice is once established for good objects, they will in a little while be disregarded under that pretext
but for evil purposes. Thus, no republic will ever be perfect if she has not by law provided for everything,
having a remedy for every emergency and fixed rules for applying it. [89]

Machiavelli in contrast to Locke, Rosseau and Mill sought to incorporate into the constitution a regularized system
of standby emergency powers to be invoked with suitable checks and controls in time of national danger. He attempted
forthrightly to meet the problem of combining a capacious reserve of power and speed and vigor in its application in time
of emergency, with effective constitutional restraints.[90]

Contemporary political theorists, addressing themselves to the problem of response to emergency by


constitutional democracies, have employed the doctrine of constitutional dictatorship. [91] Frederick M. Watkins saw no
reason why absolutism should not be used as a means for the defense of liberal institutions, provided it serves to
protect established institutions from the danger of permanent injury in a period of temporary emergency and is followed
by a prompt return to the previous forms of political life.[92] He recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional governance: increasing administrative powers of the executive, while
at the same time imposing limitation upon that power.[93] Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: The period of dictatorship must be relatively
shortDictatorship should always be strictly legitimate in characterFinal authority to determine the need for
dictatorship in any given case must never rest with the dictator himself[94] and the objective of such an emergency
dictatorship should be strict political conservatism.

Carl J. Friedrich cast his analysis in terms similar to those of Watkins. [95] It is a problem of concentrating power
in a government where power has consciously been divided to cope with situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to equally strong limitations as to who shall exercise such powers,
when, for how long, and to what end. [96] Friedrich, too, offered criteria for judging the adequacy of any of scheme of
emergency powers, to wit: The emergency executive must be appointed by constitutional means i.e., he must be

67
legitimate; he should not enjoy power to determine the existence of an emergency; emergency powers should be
exercised under a strict time limitation; and last, the objective of emergency action must be the defense of the
constitutional order.[97]

Clinton L. Rossiter, after surveying the history of the employment of emergency powers in Great Britain, France,
Weimar, Germany and the United States, reverted to a description of a scheme of constitutional dictatorship as solution
to the vexing problems presented by emergency. [98] Like Watkins and Friedrich, he stated a priori the conditions of success
of the constitutional dictatorship, thus:

1) No general regime or particular institution of constitutional dictatorship should be


initiated unless it is necessary or even indispensable to the preservation of the State and its
constitutional order

2) the decision to institute a constitutional dictatorship should never be in the hands


of the man or men who will constitute the dictator

3) No government should initiate a constitutional dictatorship without making specific


provisions for its termination

4) all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements

5) no dictatorial institution should be adopted, no right invaded, no regular


procedure altered any more than is absolutely necessary for the conquest of the particular crisis .
..

6) The measures adopted in the prosecution of the a constitutional dictatorship should


never be permanent in character or effect

7) The dictatorship should be carried on by persons representative of every part of the


citizenry interested in the defense of the existing constitutional order. . .

8) Ultimate responsibility should be maintained for every action taken under a


constitutional dictatorship. . .

9) The decision to terminate a constitutional dictatorship, like the decision to institute


one should never be in the hands of the man or men who constitute the dictator. . .

10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted

11) the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the constitutional
dictatorship[99]

Rossiter accorded to legislature a far greater role in the oversight exercise of emergency powers than did Watkins. He
would secure to Congress final responsibility for declaring the existence or termination of an emergency, and he places
great faith in the effectiveness of congressional investigating committees.[100]
Scott and Cotter, in analyzing the above contemporary theories in light of recent experience, were one in saying that,
the suggestion that democracies surrender the control of government to an authoritarian ruler in time of grave danger
to the nation is not based upon sound constitutional theory. To appraise emergency power in terms of constitutional
dictatorship serves merely to distort the problem and hinder realistic analysis. It matters not whether the term dictator
is used in its normal sense (as applied to authoritarian rulers) or is employed to embrace all chief executives administering
emergency powers. However used, constitutional dictatorship cannot be divorced from the implication of suspension of
the processes of constitutionalism. Thus, they favored instead the concept of constitutionalism articulated by Charles
H. McIlwain:

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A concept of constitutionalism which is less misleading in the analysis of problems of emergency
powers, and which is consistent with the findings of this study, is that formulated by Charles H. McIlwain.
While it does not by any means necessarily exclude some indeterminate limitations upon the substantive
powers of government, full emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of constitutionalism was the
existence of adequate processes for keeping government responsible. He refused to equate
constitutionalism with the enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in the limiting of it;
between which there is a great and very significant difference. In associating constitutionalism with
limited as distinguished from weak government, McIlwain meant government limited to the
orderly procedure of law as opposed to the processes of force. The two fundamental correlative
elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to
arbitrary power and a complete political responsibility of government to the governed.[101]

In the final analysis, the various approaches to emergency of the above political theorists - from Locks theory
of prerogative, to Watkins doctrine of constitutional dictatorship and, eventually, to McIlwains principle of
constitutionalism --- ultimately aim to solve one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that such powers will be exercised with a sense of
political responsibility and under effective limitations and checks.

Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive regime, the 1986
Constitutional Commission, in drafting the 1987 Constitution, endeavored to create a government in the concept of Justice
Jacksons balanced power structure.[102] Executive, legislative, and judicial powers are dispersed to the President, the
Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of
power in times of emergency. Each branch is given a role to serve as limitation or check upon the
other. This system does not weaken the President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at the same time, it obliges him to operate within carefully prescribed
procedural limitations.

a. Facial Challenge

Petitioners contend that PP 1017 is void on its face because of its overbreadth. They claim that its enforcement
encroached on both unprotected and protected rights under Section 4, Article III of the Constitution and sent a chilling
effect to the citizens.

A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.

First and foremost, the overbreadth doctrine is an analytical tool developed for testing on their faces statutes
in free speech cases, also known under the American Law as First Amendment cases.[103]

A plain reading of PP 1017 shows that it is not primarily directed to speech or even speech-related conduct. It is
actually a call upon the AFP to prevent or suppress all forms of lawless violence. In United States v. Salerno,[104] the US
Supreme Court held that we have not recognized an overbreadth doctrine outside the limited context of the First
Amendment (freedom of speech).

Moreover, the overbreadth doctrine is not intended for testing the validity of a law that reflects legitimate state
interest in maintaining comprehensive control over harmful, constitutionally unprotected conduct. Undoubtedly, lawless

69
violence, insurrection and rebellion are considered harmful and constitutionally unprotected conduct. In Broadrick v.
Oklahoma,[105] it was held:

It remains a matter of no little difficulty to determine when a law may properly be held void
on its face and when such summary action is inappropriate. But the plain import of our cases is, at
the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice
and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior
that it forbids the State to sanction moves from pure speech toward conduct and that conduct
even if expressive falls within the scope of otherwise valid criminal laws that reflect legitimate state
interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.

Thus, claims of facial overbreadth are entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words and again, that overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct.[106] Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is manifestly subject to state regulation.

Second, facial invalidation of laws is considered as manifestly strong medicine, to be used sparingly and only as a
last resort, and is generally disfavored;[107] The reason for this is obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a person to whom a law may be applied will not be heard to challenge a law
on the ground that it may conceivably be applied unconstitutionally to others, i.e., in other situations not before the
Court.[108] A writer and scholar in Constitutional Law explains further:

The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute
is unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can only
assert their own interests. In overbreadth analysis, those rules give way; challenges are permitted to
raise the rights of third parties; and the court invalidates the entire statute on its face, not merely as
applied for so that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the chilling; deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad laws very existence may cause
others not before the court to refrain from constitutionally protected speech or expression. An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.

In other words, a facial challenge using the overbreadth doctrine will require the Court to examine PP 1017 and
pinpoint its flaws and defects, not on the basis of its actual operation to petitioners, but on the assumption or prediction
that its very existence may cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,[109] it was held that:

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction
of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous nature of the required line-
by-line analysis of detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

And third, a facial challenge on the ground of overbreadth is the most difficult challenge to mount successfully,
since the challenger must establish that there can be no instance when the assailed law may be valid. Here, petitioners
did not even attempt to show whether this situation exists.

Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This, too, is unwarranted.

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Related to the overbreadth doctrine is the void for vagueness doctrine which holds that a law is facially
invalid if men of common intelligence must necessarily guess at its meaning and differ as to its application.[110] It is
subject to the same principles governing overbreadth doctrine. For one, it is also an analytical tool for testing on their
faces statutes in free speech cases. And like overbreadth, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. Again, petitioners did not even attempt to show that PP 1017 is vague in all its
application. They also failed to establish that men of common intelligence cannot understand the meaning and application
of PP 1017.

b. Constitutional Basis of PP 1017

Now on the constitutional foundation of PP 1017.

The operative portion of PP 1017 may be divided into three important provisions, thus:

First provision:

by virtue of the power vested upon me by Section 18, Artilce VII do hereby command the
Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection or rebellion

Second provision:

and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;

Third provision:

as provided in Section 17, Article XII of the Constitution do hereby declare a State of National
Emergency.

First Provision: Calling-out Power

The first provision pertains to the Presidents calling-out power. In


Sanlakas v. Executive Secretary,[111] this Court, through Mr. Justice Dante O. Tinga, held that Section 18, Article VII of the
Constitution reproduced as follows:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may,
for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting jointly, by a vote of at least a majority
of all its Members in regular or special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative of the President, the Congress may,
in the same manner, extend such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall within twenty-four hours following such proclamation or
suspension, convene in accordance with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of
the factual bases of the proclamation of martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

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The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be released.

grants the President, as Commander-in-Chief, a sequence of graduated powers. From the most to the least benign,
these are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law. Citing Integrated Bar of the Philippines v. Zamora,[112] the Court ruled that the only criterion for the exercise
of the calling-out power is that whenever it becomes necessary, the President may call the armed forces to prevent or
suppress lawless violence, invasion or rebellion. Are these conditions present in the instant cases? As stated earlier,
considering the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017. Owing to her
Offices vast intelligence network, she is in the best position to determine the actual condition of the country.

Under the calling-out power, the President may summon the armed forces to aid him in suppressing lawless violence,
invasion and rebellion. This involves ordinary police action. But every act that goes beyond the Presidents calling-out
power is considered illegal or ultra vires. For this reason, a President must be careful in the exercise of his powers. He
cannot invoke a greater power when he wishes to act under a lesser power. There lies the wisdom of our Constitution, the
greater the power, the greater are the limitations.

It is pertinent to state, however, that there is a distinction between the Presidents authority to declare a state of
rebellion (in Sanlakas) and the authority to proclaim a state of national emergency. While President Arroyos authority
to declare a state of rebellion emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987, which provides:

SEC. 4. Proclamations. Acts of the President fixing a date or declaring a status or


condition of public moment or interest, upon the existence of which the operation of a specific
law or regulation is made to depend, shall be promulgated in proclamations which shall have the
force of an executive order.

President Arroyos declaration of a state of rebellion was merely an act declaring a status or condition of public
moment or interest, a declaration allowed under Section 4 cited above. Such declaration, in the words of Sanlakas, is
harmless, without legal significance, and deemed not written. In these cases, PP 1017 is more than that. In declaring a
state of national emergency, President Arroyo did not only rely on Section 18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the States extraordinary power to take over privately-owned public utility and business affected with public
interest. Indeed, PP 1017 calls for the exercise of an awesome power. Obviously, such Proclamation cannot be deemed
harmless, without legal significance, or not written, as in the case of Sanlakas.

Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of Martial Law. It is no so. What
defines the character of PP 1017 are its wordings. It is plain therein that what the President invoked was her calling-out
power.

The declaration of Martial Law is a warn[ing] to citizens that the military power has been called upon by the
executive to assist in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest
and punishment, not commit any acts which will in any way render more difficult the restoration of order and the
enforcement of law.[113]

In his Statement before the Senate Committee on Justice on March 13, 2006, Mr. Justice Vicente V.
Mendoza,[114] an authority in constitutional law, said that of the three powers of the President as Commander-in-Chief, the

72
power to declare Martial Law poses the most severe threat to civil liberties. It is a strong medicine which should not be
resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is placed in the keeping of the
President for the purpose of enabling him to secure the people from harm and to restore order so that they can enjoy their
individual freedoms. In fact, Section 18, Art. VII, provides:

A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able to function, nor automatically
suspend the privilege of the writ.

Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no more than a call by the President
to the armed forces to prevent or suppress lawless violence. As such, it cannot be used to justify acts that only under a
valid declaration of Martial Law can be done. Its use for any other purpose is a perversion of its nature and scope, and any
act done contrary to its command is ultra vires.

Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial warrants; (b) ban on public
assemblies; (c) take-over of news media and agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-in-Chief only where there is a valid declaration of Martial
Law or suspension of the writ of habeas corpus.

Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial Law. It is merely an exercise
of President Arroyos calling-out power for the armed forces to assist her in preventing or suppressing lawless violence.

Second Provision: Take Care Power

The second provision pertains to the power of the President to ensure that the laws be faithfully executed. This is
based on Section 17, Article VII which reads:

SEC. 17. The President shall have control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully executed.

As the Executive in whom the executive power is vested, [115] the primary function of the President is to enforce
the laws as well as to formulate policies to be embodied in existing laws. He sees to it that all laws are enforced by the
officials and employees of his department. Before assuming office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among others, execute its laws. [116] In the exercise of such function,
the President, if needed, may employ the powers attached to his office as the Commander-in-Chief of all the armed forces
of the country,[117] including the Philippine National Police[118] under the Department of Interior and Local Government. [119]

Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo, Rafael Mariano, Teodoro Casio,
Liza Maza, and Josel Virador argue that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power to
enact laws and decrees in violation of Section 1, Article VI of the Constitution, which vests the power to enact laws in
Congress. They assail the clause to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction.

73
Petitioners contention is understandable. A reading of PP 1017 operative clause shows that it was lifted [120] from
Former President Marcos Proclamation No. 1081, which partly reads:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by virtue of the


powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the
entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.

We all know that it was PP 1081 which granted President Marcos legislative power. Its enabling clause states: to
enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my
direction. Upon the other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction.

Is it within the domain of President Arroyo to promulgate decrees?

PP 1017 states in part: to enforce obedience to all the laws and decrees x x x promulgated by me
personally or upon my direction.

The President is granted an Ordinance Power under Chapter 2, Book III of Executive Order No. 292 (Administrative
Code of 1987). She may issue any of the following:

Sec. 2. Executive Orders. Acts of the President providing for rules of a general or permanent
character in implementation or execution of constitutional or statutory powers shall be promulgated in
executive orders.
Sec. 3. Administrative Orders. Acts of the President which relate to particular aspect of
governmental operations in pursuance of his duties as administrative head shall be promulgated in
administrative orders.
Sec. 4. Proclamations. Acts of the President fixing a date or declaring a status or condition of
public moment or interest, upon the existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. Acts of the President on matters of administrative detail or of
subordinate or temporary interest which only concern a particular officer or office of the Government
shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the departments,
agencies, bureaus or offices of the Government, for information or compliance, shall be embodied in
memorandum circulars.
Sec. 7. General or Special Orders. Acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general or special orders.

President Arroyos ordinance power is limited to the foregoing issuances. She cannot issue decrees similar to
those issued by Former President Marcos under PP 1081. Presidential Decrees are laws which are of the same category
and binding force as statutes because they were issued by the President in the exercise of his legislative power during the
period of Martial Law under the 1973 Constitution.[121]

This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President Arroyo the authority
to promulgate decrees. Legislative power is peculiarly within the province of the Legislature. Section 1, Article VI

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categorically states that [t]he legislative power shall be vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives. To be sure, neither Martial Law nor a state of rebellion nor a state of emergency
can justify President Arroyos exercise of legislative power by issuing decrees.

Can President Arroyo enforce obedience to all decrees and laws through the military?

As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows that these decrees are void
and, therefore, cannot be enforced. With respect to laws, she cannot call the military to enforce or implement certain
laws, such as customs laws, laws governing family and property relations, laws on obligations and contracts and the
like. She can only order the military, under PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.

Third Provision: Power to Take Over

The pertinent provision of PP 1017 states:

x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as provided in
Section 17, Article XII of the Constitution do hereby declare a state of national
emergency.

The import of this provision is that President Arroyo, during the state of national emergency under PP 1017, can
call the military not only to enforce obedience to all the laws and to all decrees x x x but also to act pursuant to the
provision of Section 17, Article XII which reads:

Sec. 17. In times of national emergency, when the public interest so requires, the State may, during
the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation
of any privately-owned public utility or business affected with public interest.

What could be the reason of President Arroyo in invoking the above provision when she issued PP 1017?

The answer is simple. During the existence of the state of national emergency, PP 1017 purports to grant the
President, without any authority or delegation from Congress, to take over or direct the operation of any privately-owned
public utility or business affected with public interest.

This provision was first introduced in the 1973 Constitution, as a product of the martial law thinking of the 1971
Constitutional Convention.[122] In effect at the time of its approval was President Marcos Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over the management, control and operation of
the Manila Electric Company, the Philippine Long Distance Telephone Company, the National Waterworks and Sewerage
Authority, the Philippine National Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the present national emergency.

Petitioners, particularly the members of the House of Representatives, claim that President Arroyos inclusion of
Section 17, Article XII in PP 1017 is an encroachment on the legislatures emergency powers.

This is an area that needs delineation.

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A distinction must be drawn between the Presidents authority to declare a state of national emergency
and to exercise emergency powers. To the first, as elucidated by the Court, Section 18, Article VII grants the President
such power, hence, no legitimate constitutional objection can be raised. But to the second, manifold constitutional issues
arise.

Section 23, Article VI of the Constitution reads:

SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session assembled,
voting separately, shall have the sole power to declare the existence of a state of war.

(2) In times of war or other national emergency, the Congress may, by law, authorize the
President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers
necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of
the Congress, such powers shall cease upon the next adjournment thereof.

It may be pointed out that the second paragraph of the above provision refers not only to war but also to other
national emergency. If the intention of the Framers of our Constitution was to withhold from the President the authority
to declare a state of national emergency pursuant to Section 18, Article VII (calling-out power) and grant it to Congress
(like the declaration of the existence of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a state of national emergency. The
logical conclusion then is that President Arroyo could validly declare the existence of a state of national emergency even in
the absence of a Congressional enactment.

But the exercise of emergency powers, such as the taking over of privately owned public utility or business
affected with public interest, is a
different matter. This requires a delegation from Congress.

Courts have often said that constitutional provisions in pari materia are to be construed together. Otherwise
stated, different clauses, sections, and provisions of a constitution which relate to the same subject matter will be
construed together and considered in the light of each other. [123] Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.

Generally, Congress is the repository of emergency powers. This is evident in the tenor of Section 23 (2), Article
VI authorizing it to delegate such powers to the President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or practicable for Congress to meet and
exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared by
Congress.[124]

Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private
business affected with public interest is just another facet of the emergency powers generally reposed upon
Congress. Thus, when Section 17 states that the the State may, during the emergency and under reasonable terms

76
prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected
with public interest, it refers to Congress, not the President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms
thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,[125] held:

It is clear that if the President had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express constitutional language grants this power
to the President. The contention is that presidential power should be implied from the aggregate of his
powers under the Constitution. Particular reliance is placed on provisions in Article II which say that The
executive Power shall be vested in a President . . . .; that he shall take Care that the Laws be faithfully
executed; and that he shall be Commander-in-Chief of the Army and Navy of the United States.

The order cannot properly be sustained as an exercise of the Presidents military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a number of
cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though theater of war be an expanding concept, we
cannot with faithfulness to our constitutional system hold that the Commander-in-Chief of the Armed
Forces has the ultimate power as such to take possession of private property in order to keep labor
disputes from stopping production. This is a job for the nations lawmakers, not for its military
authorities.

Nor can the seizure order be sustained because of the several constitutional provisions that
grant executive power to the President. In the framework of our Constitution, the Presidents power
to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The
Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise
and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who
shall make laws which the President is to execute. The first section of the first article says that All
legislative Powers herein granted shall be vested in a Congress of the United States. . .[126]

Petitioner Cacho-Olivares, et al. contends that the term emergency under Section 17, Article XII refers to
tsunami, typhoon, hurricane and similar occurrences. This is a limited view of emergency.

Emergency, as a generic term, connotes the existence of conditions suddenly intensifying the degree of existing
danger to life or well-being beyond that which is accepted as normal. Implicit in this definitions are the elements of
intensity, variety, and perception.[127] Emergencies, as perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under three (3) principal heads: a) economic,[128] b) natural
disaster,[129] and c) national security.[130]

Emergency, as contemplated in our Constitution, is of the same breadth. It may include rebellion, economic
crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.[131] This is
evident in the Records of the Constitutional Commission, thus:

MR. GASCON. Yes. What is the Committees definition of national emergency which appears in
Section 13, page 5? It reads:

When the common good so requires, the State may temporarily take over or direct the operation of
any privately owned public utility or business affected with public interest.

MR. VILLEGAS. What I mean is threat from external aggression, for example, calamities or natural
disasters.

MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes and riots?

MR. VILLEGAS. Strikes, no; those would not be covered by the term national emergency.

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MR. BENGZON. Unless they are of such proportions such that they would paralyze government
service.[132]

x x x x x x

MR. TINGSON. May I ask the committee if national emergency refers to military national
emergency or could this be economic emergency?

MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.

MR. TINGSON. Thank you very much.[133]

It may be argued that when there is national emergency, Congress may not be able to convene and, therefore, unable
to delegate to the President the power to take over privately-owned public utility or business affected with public interest.

In Araneta v. Dinglasan,[134] this Court emphasized that legislative power, through which extraordinary measures are
exercised, remains in Congress even in times of crisis.

x x x

After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of government,
with all its defects and shortcomings, in preference to the commingling of powers in one man or
group of men. The Filipino people by adopting parliamentary government have given notice that
they share the faith of other democracy-loving peoples in this system, with all its faults, as the
ideal. The point is, under this framework of government, legislation is preserved for Congress all
the time, not excepting periods of crisis no matter how serious. Never in the history of the
United States, the basic features of whose Constitution have been copied in ours, have specific
functions of the legislative branch of enacting laws been surrendered to another department
unless we regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was engaged in a
life-and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances the
various branches, executive, legislative, and judicial, given the ability to act, are called upon
to perform the duties and discharge the responsibilities committed to them respectively.

Following our interpretation of Section 17, Article XII, invoked by President Arroyo in issuing PP 1017, this Court
rules that such Proclamation does not authorize her during the emergency to temporarily take over or direct the operation
of any privately owned public utility or business affected with public interest without authority from Congress.

Let it be emphasized that while the President alone can declare a state of national emergency, however, without
legislation, he has no power to take over privately-owned public utility or business affected with public interest. The
President cannot decide whether exceptional circumstances exist warranting the take over of privately-
owned public utility or business affected with public interest. Nor can he determine when such exceptional
circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses
affected with public interest that should be taken over. In short, the President has no absolute authority to exercise all the
powers of the State under Section 17, Article VII in the absence of an emergency powers act passed by Congress.

c. AS APPLIED CHALLENGE

One of the misfortunes of an emergency, particularly, that which pertains to security, is that military necessity and
the guaranteed rights of the individual are often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable search and seizure; the right against

78
warrantless arrest; and the freedom of speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.

Of the seven (7) petitions, three (3) indicate direct injury.

In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006, they were arrested without
warrants on their way to EDSA to celebrate the 20 thAnniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed that on February 25, 2006,
the CIDG operatives raided and ransacked without warrant their office. Three policemen were assigned to guard their
office as a possible source of destabilization. Again, the basis was PP 1017.

And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their members were turned away
and dispersed when they went to EDSA and later, to Ayala Avenue, to celebrate the 20 th Anniversary of People Power I.

A perusal of the direct injuries allegedly suffered by the said petitioners shows that they resulted from
the implementation, pursuant to G.O. No. 5, of PP 1017.

Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these illegal acts? In general, does
the illegal implementation of a law render it unconstitutional?

Settled is the rule that courts are not at liberty to declare statutes invalid although they may be abused and
misabused[135] and may afford an opportunity for abuse in the manner of application.[136] The validity of a statute or
ordinance is to be determined from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.[137] PP 1017 is merely an invocation of the Presidents calling-out power. Its general purpose is
to command the AFP to suppress all forms of lawless violence, invasion or rebellion. It had accomplished the end desired
which prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate the citizens constitutional rights.

Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its implementor committed
illegal acts? The answer is no. The criterion by which the validity of the statute or ordinance is to be measured is the
essential basis for the exercise of power, and not a mere incidental result arising from its exertion.[138] This is logical. Just
imagine the absurdity of situations when laws maybe declared unconstitutional just because the officers implementing
them have acted arbitrarily. If this were so, judging from the blunders committed by policemen in the cases passed upon
by the Court, majority of the provisions of the Revised Penal Code would have been declared unconstitutional a long time
ago.

President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017. General orders are acts and
commands of the President in his capacity as Commander-in-Chief of the Armed Forces of the Philippines. They are
internal rules issued by the executive officer to his subordinates precisely for the proper and efficientadministration of
law. Such rules and regulations create no relation except between the official who issues them and the official who
receives them.[139] They are based on and are the product of, a relationship in which power is their source, and obedience,
their object.[140] For these reasons, one requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.

G.O. No. 5 mandates the AFP and the PNP to immediately carry out the necessary and appropriate actions and
measures to suppress and prevent acts of terrorism and lawless violence.

79
Unlike the term lawless violence which is unarguably extant in our statutes and the Constitution, and which is
invariably associated with invasion, insurrection or rebellion, the phrase acts of terrorism is still an amorphous and
vague concept. Congress has yet to enact a law defining and punishing acts of terrorism.

In fact, this definitional predicament or the absence of an agreed definition of terrorism confronts not only
our country, but the international
community as well. The following observations are quite apropos:

In the actual unipolar context of international relations, the fight against terrorism has
become one of the basic slogans when it comes to the justification of the use of force against certain
states and against groups operating internationally. Lists of states sponsoring terrorism and of
terrorist organizations are set up and constantly being updated according to criteria that are not always
known to the public, but are clearly determined by strategic interests.

The basic problem underlying all these military actions or threats of the use of force as the
most recent by the United States against Iraq consists in the absence of an agreed definition of
terrorism.

Remarkable confusion persists in regard to the legal categorization of acts of violence either by
states, by armed groups such as liberation movements, or by individuals.

The dilemma can by summarized in the saying One countrys terrorist is another countrys
freedom fighter. The apparent contradiction or lack of consistency in the use of the term terrorism
may further be demonstrated by the historical fact that leaders of national liberation movements such as
Nelson Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention
only a few, were originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.

What, then, is the defining criterion for terrorist acts the differentia specifica distinguishing
those acts from eventually legitimate acts of national resistance or self-defense?

Since the times of the Cold War the United Nations Organization has been trying in vain to reach
a consensus on the basic issue of definition. The organization has intensified its efforts recently, but has
been unable to bridge the gap between those who associate terrorism with any violent act by non-
state groups against civilians, state functionaries or infrastructure or military installations, and those who
believe in the concept of the legitimate use of force when resistance against foreign occupation or against
systematic oppression of ethnic and/or religious groups within a state is concerned.

The dilemma facing the international community can best be illustrated by reference to the
contradicting categorization of organizations and movements such as Palestine Liberation Organization
(PLO) which is a terrorist group for Israel and a liberation movement for Arabs and Muslims the
Kashmiri resistance groups who are terrorists in the perception of India, liberation fighters in that of
Pakistan the earlier Contras in Nicaragua freedom fighters for the United States, terrorists for the
Socialist camp or, most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West, nurtured by the United
States, and a terrorist gang for the Soviet Union. One could go on and on in enumerating examples of
conflicting categorizations that cannot be reconciled in any way because of opposing political interests
that are at the roots of those perceptions.

How, then, can those contradicting definitions and conflicting perceptions and evaluations of one
and the same group and its actions be explained? In our analysis, the basic reason for these striking
inconsistencies lies in the divergent interest of states. Depending on whether a state is in the position of
an occupying power or in that of a rival, or adversary, of an occupying power in a given territory, the
definition of terrorism will fluctuate accordingly. A state may eventually see itself as protector of the
rights of a certain ethnic group outside its territory and will therefore speak of a liberation struggle,
not of terrorism when acts of violence by this group are concerned, and vice-versa.

The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine in each and
every instance how a particular armed movement (i.e. a non-state actor) is labeled in regard to the
terrorists-freedom fighter dichotomy. A policy of double standards on this vital issue of international
affairs has been the unavoidable consequence.

This definitional predicament of an organization consisting of sovereign states and not of


peoples, in spite of the emphasis in the Preamble to the United Nations Charter! has become even

80
more serious in the present global power constellation: one superpower exercises the decisive role in the
Security Council, former great powers of the Cold War era as well as medium powers are increasingly
being marginalized; and the problem has become even more acute since the terrorist attacks of 11
September 2001 I the United States.[141]

The absence of a law defining acts of terrorism may result in abuse and oppression on the part of the police or
military. An illustration is when a group of persons are merely engaged in a drinking spree. Yet the military or the police
may consider the act as an act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.

So far, the word terrorism appears only once in our criminal laws, i.e., in P.D. No. 1835 dated January 16, 1981
enacted by President Marcos during the Martial Law regime. This decree is entitled Codifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive Organizations. The word terrorism is
mentioned in the following provision: That one who conspires with any other person for the purpose of overthrowing the
Government of the Philippines x x x by force, violence, terrorism, x x x shall be punished by reclusion temporal x x x.

P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the Philippines) enacted by
President Corazon Aquino on May 5, 1985. These two (2) laws, however, do not define acts of terrorism. Since there is
no law defining acts of terrorism, it is President Arroyo alone, under G.O. No. 5, who has the discretion to determine
what acts constitute terrorism. Her judgment on this aspect is absolute, without restrictions. Consequently, there can be
indiscriminate arrest without warrants, breaking into offices and residences, taking over the media enterprises, prohibition
and dispersal of all assemblies and gatherings unfriendly to the administration. All these can be effected in the name of
G.O. No. 5. These acts go far beyond the calling-out power of the President. Certainly, they violate the due process clause
of the Constitution. Thus, this Court declares that the acts of terrorism portion of G.O. No. 5 is unconstitutional.

Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit acts beyond what
are necessary and appropriate to suppress and prevent lawless violence, the limitation of their authority in pursuing the
Order. Otherwise, such acts are considered illegal.

We first examine G.R. No. 171396 (David et al.)

The Constitution provides that the right of the people to be secured in their persons, houses, papers and effects
against unreasonable search and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.[142] The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants or warrants of arrest. [143]

In the Brief Account[144] submitted by petitioner David, certain facts are established: first, he was arrested without
warrant; second, the PNP operatives arrested him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon
City where he was fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated brusquely by
policemen who held his head and tried to push him inside an unmarked car; fifth, he was charged with Violation
of Batas Pambansa Bilang No. 880[145]and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh, he was eventually released for insufficiency of evidence.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:

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Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may,
without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.

(b) When an offense has just been committed and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has committed it;
and

x x x.

Neither of the two (2) exceptions mentioned above justifies petitioner Davids warrantless arrest. During the
inquest for the charges of inciting to sedition andviolation of BP 880, all that the arresting officers could invoke
was their observation that some rallyists were wearing t-shirts with the invective Oust Gloria
Nowand their erroneous assumption that petitioner David was the leader of the rally. [146] Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He noted that petitioner David was
not wearing the subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with inciting to
sedition. Further, he also stated that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally. [147]

But what made it doubly worse for petitioners David et al. is that not only was their right against warrantless arrest
violated, but also their right to peaceably assemble.

Section 4 of Article III guarantees:

No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

Assembly means a right on the part of the citizens to meet peaceably for consultation in respect to public
affairs. It is a necessary consequence of our republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like other rights embraced in the freedom
of expression, the right to assemble is not subject to previous restraint or censorship. It may not be conditioned upon the
prior issuance of a permit or authorization from the government authorities except, of course, if the assembly is intended
to be held in a public place, a permit for the use of such place, and not for the assembly itself, may be validly required.

The ringing truth here is that petitioner David, et al. were arrested while they were exercising their right to
peaceful assembly. They were not committing any crime, neither was there a showing of a clear and present danger that
warranted the limitation of that right. As can be gleaned from circumstances, the charges of inciting to
seditionand violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral argument, failed to
justify the arresting officers conduct. In De Jonge v. Oregon,[148] it was held that peaceable assembly cannot be made a
crime, thus:

Peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for
peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot
be branded as criminals on that score. The question, if the rights of free speech and peaceful assembly are
not to be preserved, is not as to the auspices under which the meeting was held but as to its purpose; not
as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects. If the persons assembling have committed crimes elsewhere, if
they have formed or are engaged in a conspiracy against the public peace and order, they may be
prosecuted for their conspiracy or other violations of valid laws. But it is a different matter when the
State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as the basis for a criminal charge.

82
On the basis of the above principles, the Court likewise considers the dispersal and arrest of the members of
KMU et al. (G.R. No. 171483) unwarranted. Apparently, their dispersal was done merely on the basis of Malacaangs
directive canceling all permits previously issued by local government units. This is arbitrary. The wholesale cancellation of
all permits to rally is a blatant disregard of the principle that freedom of assembly is not to be limited, much less denied,
except on a showing of a clear and present danger of a substantive evil that the State has a right to
prevent.[149] Tolerance is the rule and limitation is the exception. Only upon a showing that an assembly presents a clear
and present danger that the State may deny the citizens right to exercise it. Indeed, respondents failed to show or
convince the Court that the rallyists committed acts amounting to lawless violence, invasion or rebellion. With the blanket
revocation of permits, the distinction between protected and unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with the local government
units. They have the power to issue permits and to revoke such permits after due notice and hearing on the determination
of the presence of clear and present danger. Here, petitioners were not even notified and heard on the revocation of their
permits.[150] The first time they learned of it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a persons right is restricted by government action, it behooves a democratic government to see to it that
the restriction is fair, reasonable, and according to procedure.

G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech i.e., the freedom of the
press. Petitioners narration of facts, which the Solicitor General failed to refute, established the following: first, the Daily
Tribunes offices were searched without warrant; second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o clock in the morning of February 25, 2006; fourth, the search
was conducted in the absence of any official of the Daily Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the vicinity of the Daily Tribune offices.

Thereafter, a wave of warning came from government officials. Presidential Chief of Staff Michael Defensor was
quoted as saying that such raid was meant to show a strong presence, to tell media outlets not to connive or do
anything that would help the rebels in bringing down this government. Director General Lomibao further stated
that if they do not follow the standards and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 we will recommend
a takeover. National Telecommunications Commissioner Ronald Solis urged television and radio networks
to cooperate with the government for the duration of the state of national emergency. He warned that his agency will
not hesitate to recommend the closure of any broadcast outfit that violates rules set out for media coverage during
times when the national security is threatened.[151]

The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down the steps in the conduct of
search and seizure. Section 4 requires that a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce. Section 8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupantthereof or any member of his family or in the absence of the latter, in the presence of two
(2) witnesses of sufficient age and discretion residing in the same locality. And Section 9 states that the warrant must
direct that it be served in the daytime, unless the property is on the person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any time of the day or night. All these rules were violated by the CIDG
operatives.

Not only that, the search violated petitioners freedom of the press. The best gauge of a free and democratic
society rests in the degree of freedom enjoyed by its media. In the Burgos v. Chief of Staff[152] this Court held that --

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As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these
premises were padlocked and sealed, with the further result that the printing and publication of said
newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of
the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is patently anathematic to a democratic
framework where a free, alert and even militant press is essential for the political enlightenment and
growth of the citizenry.

While admittedly, the Daily Tribune was not padlocked and sealed like the Metropolitan Mail and We Forum
newspapers in the above case, yet it cannot be denied that the CIDG operatives exceeded their enforcement duties. The
search and seizure of materials for publication, the stationing of policemen in the vicinity of the The Daily Tribune offices,
and the arrogant warning of government officials to media, are plain censorship. It is that officious functionary of the
repressive government who tells the citizen that he may speak only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so rash as to disobey. [153] Undoubtedly, the The Daily
Tribune was subjected to these arbitrary intrusions because of its anti-government sentiments. This Court cannot tolerate
the blatant disregard of a constitutional right even if it involves the most defiant of our citizens. Freedom to comment on
public affairs is essential to the vitality of a representative democracy. It is the duty of the courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon. The motto should always be obsta
principiis.[154]

ncidentally, during the oral arguments, the Solicitor General admitted that the search of the Tribunes offices and
the seizure of its materials for publication and other papers are illegal; and that the same are inadmissible for any
purpose, thus:

JUSTICE CALLEJO:

You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted
that the policemen were able to get the clippings. Is that not in admission of
the admissibility of these clippings that were taken from the Tribune?

SOLICITOR GENERAL BENIPAYO:

Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose. [155]

xxx xxx xxx

SR. ASSO. JUSTICE PUNO:

These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 oclock in
the morning and without any search warrant? Did they become suddenly part
of the evidence of rebellion or inciting to sedition or what?

SOLGEN BENIPAYO:

Well, it was the police that did that, Your Honor. Not upon my instructions.

SR. ASSO. JUSTICE PUNO:

Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.

SOLGEN BENIPAYO:

It is not based on Proclamation 1017, Your Honor, because there is nothing in


1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.

SR. ASSO. JUSTICE PUNO:

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Is it based on any law?

SOLGEN BENIPAYO:

As far as I know, no, Your Honor, from the facts, no.

SR. ASSO. JUSTICE PUNO:

So, it has no basis, no legal basis whatsoever?

SOLGEN BENIPAYO:

Maybe so, Your Honor. Maybe so, that is why I said, I dont know if it is
premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are remedies
for this.[156]

Likewise, the warrantless arrests and seizures executed by the police were, according to the Solicitor General,
illegal and cannot be condoned, thus:

CHIEF JUSTICE PANGANIBAN:

There seems to be some confusions if not contradiction in your theory.

SOLICITOR GENERAL BENIPAYO:

I dont know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility.[157]

The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every aspect and should result in
no constitutional or statutory breaches if applied according to their letter.

The Court has passed upon the constitutionality of these issuances. Its ratiocination has been exhaustively
presented. At this point, suffice it to reiterate that PP 1017 is limited to the calling out by the President of the military to
prevent or suppress lawless violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5,
the military and the police committed acts which violate the citizens rights under the Constitution, this Court has to
declare such acts unconstitutional and illegal.

In this connection, Chief Justice Artemio V. Panganibans concurring opinion, attached hereto, is considered an
integral part of this ponencia.

SUMMATION

In sum, the lifting of PP 1017 through the issuance of PP 1021 a supervening event would have normally
rendered this case moot and academic. However, while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already,
there have been media reports on April 30, 2006 that allegedly PP 1017 would be reimposed if the May 1 rallies become
unruly and violent. Consequently, the transcendental issues raised by the parties should not be evaded; they must
now be resolved to prevent future constitutional aberration.

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The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call by the President for the
AFP to prevent or suppress lawless violence. The proclamation is sustained by Section 18, Article VII of the Constitution
and the relevant jurisprudence discussed earlier. However, PP 1017s extraneous provisions giving the President express
or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all laws even those not related to
lawless violence as well as decrees promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules that under Section 17, Article XII of
the Constitution, the President, in the absence of a legislation, cannot take over privately-owned public utility and private
business affected with public interest.

In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President acting as Commander-in-
Chief addressed to subalterns in the AFP to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard that the military and the police should take only the necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence. But the words acts of terrorism found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed deleted from the said G.O. While
terrorism has been denounced generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFPs authority in carrying out this portion of G.O. No. 5.

On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear that (1) the warrantless
arrest of petitioners Randolf S. David and Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O.
No. 5.

Other than this declaration of invalidity, this Court cannot impose any civil, criminal or administrative sanctions on
the individual police officers concerned. They have not been individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal Informations have not been presented before this
Court. Elementary due process bars this Court from making any specific pronouncement of civil, criminal or administrative
liabilities.

It is well to remember that military power is a means to an end and substantive civil rights are ends in
themselves. How to give the military the power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic state. During emergency, governmental action may
vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our peoples
liberty.

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

WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is CONSTITUTIONAL insofar as it
constitutes a call by President Gloria Macapagal-Arroyo on the AFP to prevent or suppress lawless violence. However, the
provisions of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as decrees promulgated
by the President, are declared UNCONSTITUTIONAL. In addition, the provision in PP 1017 declaring national emergency

86
under Section 17, Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public interest without prior legislation.

G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and the PNP should implement PP
1017, i.e. whatever is necessary and appropriate actions and measures to suppress and prevent acts of lawless
violence. Considering that acts of terrorism have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.

The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and warrantless arrest of the KMU and
NAFLU-KMU members during their rallies, in the absence of proof that these petitioners were committing acts constituting
lawless violence, invasion or rebellion and violating BP 880; the imposition of standards on media or any form of prior
restraint on the press, as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for
publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

87
G.R. No. L-23825 December 24, 1965

EMMANUEL PELAEZ, petitioner,


vs.
THE AUDITOR GENERAL, respondent.

Zulueta, Gonzales, Paculdo and Associates for petitioner.


Office of the Solicitor General for respondent.

CONCEPCION, J.:

During the period from September 4 to October 29, 1964 the President of the Philippines, purporting to act pursuant to
Section 68 of the Revised Administrative Code, issued Executive Orders Nos. 93 to 121, 124 and 126 to 129; creating thirty-
three (33) municipalities enumerated in the margin. 1 Soon after the date last mentioned, or on November 10, 1964
petitioner Emmanuel Pelaez, as Vice President of the Philippines and as taxpayer, instituted the present special civil action,
for a writ of prohibition with preliminary injunction, against the Auditor General, to restrain him, as well as his
representatives and agents, from passing in audit any expenditure of public funds in implementation of said executive
orders and/or any disbursement by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said Section 68 has been impliedly
repealed by Republic Act No. 2370 and constitutes an undue delegation of legislative power. Respondent maintains the
contrary view and avers that the present action is premature and that not all proper parties referring to the officials of
the new political subdivisions in question have been impleaded. Subsequently, the mayors of several municipalities
adversely affected by the aforementioned executive orders because the latter have taken away from the former the
barrios composing the new political subdivisions intervened in the case. Moreover, Attorneys Enrique M. Fernando and
Emma Quisumbing-Fernando were allowed to and did appear as amici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except under the provisions of
this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or the name of an
existing one may be changed by the provincial board of the province, upon recommendation of the council of the
municipality or municipalities in which the proposed barrio is stipulated. The recommendation of the municipal
council shall be embodied in a resolution approved by at least two-thirds of the entire membership of the said
council: Provided, however, That no new barrio may be created if its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not be created or their
boundaries altered nor their names changed" except by Act of Congress or of the corresponding provincial board "upon
petition of a majority of the voters in the areas affected" and the "recommendation of the council of the municipality or
municipalities in which the proposed barrio is situated." Petitioner argues, accordingly: "If the President, under this new
law, cannot even create a barrio, can he create a municipality which is composed of several barrios, since barrios are units
of municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be created without creating new
barrios, such as, by placing old barrios under the jurisdiction of the new municipality. This theory overlooks, however, the
main import of the petitioner's argument, which is that the statutory denial of the presidential authority to create a new
barrio implies a negation of the bigger power to create municipalities, each of which consists of several barrios. The
cogency and force of this argument is too obvious to be denied or even questioned. Founded upon logic and experience, it
cannot be offset except by a clear manifestation of the intent of Congress to the contrary, and no such manifestation,
subsequent to the passage of Republic Act No. 2379, has been brought to our attention.

Moreover, section 68 of the Revised Administrative Code, upon which the disputed executive orders are based, provides:

The (Governor-General) President of the Philippines may by executive order define the boundary, or boundaries,
of any province, subprovince, municipality, [township] municipal district, or other political subdivision, and
increase or diminish the territory comprised therein, may divide any province into one or more subprovinces,
separate any political division other than a province, into such portions as may be required, merge any of such
subdivisions or portions with another, name any new subdivision so created, and may change the seat of
government within any subdivision to such place therein as the public welfare may require: Provided, That the
authorization of the (Philippine Legislature) Congress of the Philippines shall first be obtained whenever the
boundary of any province or subprovince is to be defined or any province is to be divided into one or more
subprovinces. When action by the (Governor-General) President of the Philippines in accordance herewith makes

88
necessary a change of the territory under the jurisdiction of any administrative officer or any judicial officer, the
(Governor-General) President of the Philippines, with the recommendation and advice of the head of the
Department having executive control of such officer, shall redistrict the territory of the several officers affected
and assign such officers to the new districts so formed.

Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions thereby affected shall be made in such manner as may be
recommended by the (Insular Auditor) Auditor General and approved by the (Governor-General) President of the
Philippines.

Respondent alleges that the power of the President to create municipalities under this section does not amount to an
undue delegation of legislative power, relying upon Municipality of Cardona vs. Municipality of Binagonan (36 Phil. 547),
which, he claims, has settled it. Such claim is untenable, for said case involved, not the creation of a new municipality, but a
mere transfer of territory from an already existing municipality (Cardona) to another municipality (Binagonan), likewise,
existing at the time of and prior to said transfer (See Gov't of the P.I. ex rel. Municipality of Cardona vs. Municipality, of
Binagonan [34 Phil. 518, 519-5201) in consequence of the fixing and definition, pursuant to Act No. 1748, of the
common boundaries of two municipalities.

It is obvious, however, that, whereas the power to fix such common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of an administrative nature involving, as it does, the adoption
of means and ways to carry into effect the law creating said municipalities the authority to create municipal corporations
is essentially legislative in nature. In the language of other courts, it is "strictly a legislative function" (State ex rel. Higgins
vs. Aicklen, 119 S. 425, January 2, 1959) or "solely and exclusively the exercise of legislative power" (Udall vs. Severn, May
29, 1938, 79 P. 2d 347-349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart, February 13,
1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of statutes."

Although1a Congress may delegate to another branch of the Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a violation of the principle of separation of powers, that
said law: (a) be complete in itself it must set forth therein the policy to be executed, carried out or implemented by the
delegate2 and (b) fix a standard the limits of which are sufficiently determinate or determinable to which the
delegate must conform in the performance of his functions.2a Indeed, without a statutory declaration of policy, the delegate
would in effect, make or formulate such policy, which is the essence of every law; and, without the aforementioned
standard, there would be no means to determine, with reasonable certainty, whether the delegate has acted within or
beyond the scope of his authority.2b Hence, he could thereby arrogate upon himself the power, not only to make the law,
but, also and this is worse to unmake it, by adopting measures inconsistent with the end sought to be attained by the
Act of Congress, thus nullifying the principle of separation of powers and the system of checks and balances, and,
consequently, undermining the very foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements for a valid delegation of the
power to fix the details in the enforcement of a law. It does not enunciate any policy to be carried out or implemented by
the President. Neither does it give a standard sufficiently precise to avoid the evil effects above referred to. In this
connection, we do not overlook the fact that, under the last clause of the first sentence of Section 68, the President:

... may change the seat of the government within any subdivision to such place therein as the public welfare may
require.

It is apparent, however, from the language of this clause, that the phrase "as the public welfare may require"
qualified, not the clauses preceding the one just quoted, but only the place to which the seat of the government may be
transferred. This fact becomes more apparent when we consider that said Section 68 was originally Section 1 of Act No.
1748,3 which provided that, "whenever in the judgment of the Governor-General the public welfare requires, he may, by
executive order," effect the changes enumerated therein (as in said section 68), including the change of the seat of the
government "to such place ... as the public interest requires." The opening statement of said Section 1 of Act No. 1748
which was not included in Section 68 of the Revised Administrative Code governed the time at which, or the conditions
under which, the powers therein conferred could be exercised; whereas the last part of the first sentence of said section
referred exclusively to the place to which the seat of the government was to be transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if we assumed that the phrase
"as the public welfare may require," in said Section 68, qualifies all other clauses thereof. It is true that in Calalang vs.
Williams (70 Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare" and "public interest,"
respectively, as sufficient standards for a valid delegation of the authority to execute the law. But, the doctrine laid down in
these cases as all judicial pronouncements must be construed in relation to the specific facts and issues involved
therein, outside of which they do not constitute precedents and have no binding effect. 4 The law construed in the Calalang
case conferred upon the Director of Public Works, with the approval of the Secretary of Public Works and Communications,
the power to issue rules and regulations to promote safe transitupon national roads and streets. Upon the other hand, the
Rosenthal case referred to the authority of the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or
permits for the sale of speculative securities. Both cases involved grants to administrative officers of powers related to the
exercise of their administrative functions, calling for the determination of questions of fact.

89
Such is not the nature of the powers dealt with in section 68. As above indicated, the creation of municipalities, is not
an administrative function, but one which is essentially and eminently legislative in character. The question of whether or
not "public interest" demands the exercise of such power is not one of fact. it is "purely a legislativequestion "(Carolina-
Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or a political question (Udall vs.
Severn, 79 P. 2d. 347-349). As the Supreme Court of Wisconsin has aptly characterized it, "the question as to whether
incorporation is for the best interest of the community in any case is emphatically a question of public policy and statecraft"
(In re Village of North Milwaukee, 67 N.W. 1033, 1035-1037).

For this reason, courts of justice have annulled, as constituting undue delegation of legislative powers, state laws granting
the judicial department, the power to determine whether certain territories should be annexed to a particular municipality
(Udall vs. Severn, supra, 258-359); or vesting in a Commission the right to determine the plan and frame of government of
proposed villages and what functions shall be exercised by the same, although the powers and functions of the village are
specifically limited by statute (In re Municipal Charters, 86 Atl. 307-308); or conferring upon courts the authority to declare
a given town or village incorporated, and designate its metes and bounds, upon petition of a majority of the taxable
inhabitants thereof, setting forth the area desired to be included in such village (Territory ex rel Kelly vs. Stewart, 23 Pac.
405-409); or authorizing the territory of a town, containing a given area and population, to be incorporated as a town, on
certain steps being taken by the inhabitants thereof and on certain determination by a court and subsequent vote of the
inhabitants in favor thereof, insofar as the court is allowed to determine whether the lands embraced in the petition "ought
justly" to be included in the village, and whether the interest of the inhabitants will be promoted by such incorporation, and
to enlarge and diminish the boundaries of the proposed village "as justice may require" (In re Villages of North Milwaukee,
67 N.W. 1035-1037); or creating a Municipal Board of Control which shall determine whether or not the laying out,
construction or operation of a toll road is in the "public interest" and whether the requirements of the law had been
complied with, in which case the board shall enter an order creating a municipal corporation and fixing the name of the
same (Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).

Insofar as the validity of a delegation of power by Congress to the President is concerned, the case of Schechter Poultry
Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar. The Schechter case involved the constitutionality of
Section 3 of the National Industrial Recovery Act authorizing the President of the United States to approve "codes of fair
competition" submitted to him by one or more trade or industrial associations or corporations which "impose no
inequitable restrictions on admission to membership therein and are truly representative," provided that such codes are
not designed "to promote monopolies or to eliminate or oppress small enterprises and will not operate to discriminate
against them, and will tend to effectuate the policy" of said Act. The Federal Supreme Court held:

To summarize and conclude upon this point: Sec. 3 of the Recovery Act is without precedent. It supplies no
standards for any trade, industry or activity. It does not undertake to prescribe rules of conduct to be applied to
particular states of fact determined by appropriate administrative procedure. Instead of prescribing rules of
conduct, it authorizes the making of codes to prescribe them. For that legislative undertaking, Sec. 3 sets up no
standards, aside from the statement of the general aims of rehabilitation, correction and expansion described in
Sec. 1. In view of the scope of that broad declaration, and of the nature of the few restrictions that are imposed,
the discretion of the President in approving or prescribing codes, and thus enacting laws for the government of
trade and industry throughout the country, is virtually unfettered. We think that the code making authority thus
conferred is an unconstitutional delegation of legislative power.

If the term "unfair competition" is so broad as to vest in the President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power, it is obvious that "public welfare," which has even a broader
connotation, leads to the same result. In fact, if the validity of the delegation of powers made in Section 68 were upheld,
there would no longer be any legal impediment to a statutory grant of authority to the President to do anything which, in
his opinion, may be required by public welfare or public interest. Such grant of authority would be a virtual abdication of
the powers of Congress in favor of the Executive, and would bring about a total collapse of the democratic system
established by our Constitution, which it is the special duty and privilege of this Court to uphold.

It may not be amiss to note that the executive orders in question were issued after the legislative bills for the creation of the
municipalities involved in this case had failed to pass Congress. A better proof of the fact that the issuance of said executive
orders entails the exercise of purely legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices, exercise general supervision
over all local governments as may be provided by law, and take care that the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the exercise of such discretion as
may be vested by law in the officers of the executive departments, bureaus, or offices of the national government, as well
as to act in lieu of such officers. This power is denied by the Constitution to the Executive, insofar as local governments are
concerned. With respect to the latter, the fundamental law permits him to wield no more authority than that of checking
whether said local governments or the officers thereof perform their duties as provided by statutory enactments. Hence,
the President cannot interfere with local governments, so long as the same or its officers act Within the scope of their
authority. He may not enact an ordinance which the municipal council has failed or refused to pass, even if it had thereby
violated a duty imposed thereto by law, although he may see to it that the corresponding provincial officials take
appropriate disciplinary action therefor. Neither may he vote, set aside or annul an ordinance passed by said council within

90
the scope of its jurisdiction, no matter how patently unwise it may be. He may not even suspend an elective official of a
regular municipality or take any disciplinary action against him, except on appeal from a decision of the corresponding
provincial board.5

Upon the other hand if the President could create a municipality, he could, in effect, remove any of its officials, by creating
a new municipality and including therein the barrio in which the official concerned resides, for his office would thereby
become vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had it), without actually creating
it, he could compel local officials to submit to his dictation, thereby, in effect, exercising over them the power of control
denied to him by the Constitution.

Then, also, the power of control of the President over executive departments, bureaus or offices implies no more than the
authority to assume directly the functions thereof or to interfere in the exercise of discretion by its officials.
Manifestly, such control does not include the authority either to abolish an executive department or bureau, or to create a
new one. As a consequence, the alleged power of the President to create municipal corporations would necessarily connote
the exercise by him of an authority even greater than that of control which he has over the executive departments, bureaus
or offices. In other words, Section 68 of the Revised Administrative Code does not merely fail to comply with the
constitutional mandate above quoted. Instead of giving the President less power over local governments than that vested
in him over the executive departments, bureaus or offices, it reverses the process and does the exact opposite, by
conferring upon him more power over municipal corporations than that which he has over said executive departments,
bureaus or offices.

In short, even if it did entail an undue delegation of legislative powers, as it certainly does, said Section 68, as part of the
Revised Administrative Code, approved on March 10, 1917, must be deemed repealed by the subsequent adoption of the
Constitution, in 1935, which is utterly incompatible and inconsistent with said statutory enactment.7

There are only two (2) other points left for consideration, namely, respondent's claim (a) that "not all the proper parties"
referring to the officers of the newly created municipalities "have been impleaded in this case," and (b) that "the present
petition is premature."

As regards the first point, suffice it to say that the records do not show, and the parties do not claim, that the officers of any
of said municipalities have been appointed or elected and assumed office. At any rate, the Solicitor General, who has
appeared on behalf of respondent Auditor General, is the officer authorized by law "to act and represent the Government
of the Philippines, its offices and agents, in any official investigation, proceeding or matter requiring the services of a
lawyer" (Section 1661, Revised Administrative Code), and, in connection with the creation of the aforementioned
municipalities, which involves a political, not proprietary, function, said local officials, if any, are mere agents or
representatives of the national government. Their interest in the case at bar has, accordingly, been, in effect, duly
represented.8

With respect to the second point, respondent alleges that he has not as yet acted on any of the executive order & in
question and has not intimated how he would act in connection therewith. It is, however, a matter of common, public
knowledge, subject to judicial cognizance, that the President has, for many years, issued executive orders creating
municipal corporations and that the same have been organized and in actual operation, thus indicating, without
peradventure of doubt, that the expenditures incidental thereto have been sanctioned, approved or passed in audit by the
General Auditing Office and its officials. There is no reason to believe, therefore, that respondent would adopt a different
policy as regards the new municipalities involved in this case, in the absence of an allegation to such effect, and none has
been made by him.

WHEREFORE, the Executive Orders in question are hereby declared null and void ab initio and the respondent permanently
restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any
disbursement by the municipalities above referred to. It is so ordered.

91
G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO,
ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as
Commissioner of the Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau
of Customs, respondents.

DECISION

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA)
93352 (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their
revenue targets by providing a system of rewards and sanctions through the creation of a Rewards and Incentives Fund
(Fund) and a Revenue Performance Evaluation Board (Board). 3 It covers all officials and employees of the BIR and the BOC
with at least six months of service, regardless of employment status.4

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as
determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the
fund and allocated to the BIR and the BOC in proportion to their contribution in the excess collection of the targeted
amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the
Director General of the National Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives from the rank-and-file
employees and a representative from the officials nominated by their recognized organization. 6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2)
set criteria and procedures for removing from the service officials and employees whose revenue collection falls short of
the target; (3) terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a system for
performance evaluation; (5) perform other functions, including the issuance of rules and regulations and (6) submit an
annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for
such purpose.9

Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335, a tax reform
legislation. They contend that, by establishing a system of rewards and incentives, the law "transform[s] the officials and
employees of the BIR and the BOC into mercenaries and bounty hunters" as they will do their best only in consideration of
such rewards. Thus, the system of rewards and incentives invites corruption and undermines the constitutionally mandated
duty of these officials and employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and employees of the
BIR and the BOC violates the constitutional guarantee of equal protection. There is no valid basis for classification or
distinction as to why such a system should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the President as it lacks a
sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides that BIR and BOC officials may be
dismissed from the service if their revenue collections fall short of the target by at least 7.5%, the law does not, however,
fix the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated to the President without
sufficient standards. It will therefore be easy for the President to fix an unrealistic and unattainable target in order to
dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground that it violates the doctrine of
separation of powers. While the legislative function is deemed accomplished and completed upon the enactment and
approval of the law, the creation of the congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the petition for being premature as
there is no actual case or controversy yet. Petitioners have not asserted any right or claim that will necessitate the exercise
of this Courts jurisdiction. Nevertheless, respondents acknowledge that public policy requires the resolution of the

92
constitutional issues involved in this case. They assert that the allegation that the reward system will breed mercenaries is
mere speculation and does not suffice to invalidate the law. Seen in conjunction with the declared objective of RA 9335, the
law validly classifies the BIR and the BOC because the functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the executive
in the implementation of its provisions. Lastly, the creation of the congressional oversight committee under the law
enhances, rather than violates, separation of powers. It ensures the fulfillment of the legislative policy and serves as a check
to any over-accumulation of power on the part of the executive and the implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners have failed to
overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter be discussed.

Actual Case And Ripeness

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims susceptible of judicial
adjudication.10 A closely related requirement is ripeness, that is, the question must be ripe for adjudication. And a
constitutional question is ripe for adjudication when the governmental act being challenged has a direct adverse effect on
the individual challenging it.11Thus, to be ripe for judicial adjudication, the petitioner must show a personal stake in the
outcome of the case or an injury to himself that can be redressed by a favorable decision of the Court. 12

In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the mere enactment of
the law even without any further overt act,13 petitioners fail either to assert any specific and concrete legal claim or to
demonstrate any direct adverse effect of the law on them. They are unable to show a personal stake in the outcome of this
case or an injury to themselves. On this account, their petition is procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues raised by petitioners. The grave
nature of their allegations tends to cast a cloud on the presumption of constitutionality in favor of the law. And where an
action of the legislative branch is alleged to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute.14

Accountability of
Public Officers

Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism, and justice, and lead
modest lives.

Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the benefit of the
public for whom he holds it in trust. By demanding accountability and service with responsibility, integrity, loyalty,
efficiency, patriotism and justice, all government officials and employees have the duty to be responsive to the needs of the
people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains
in favor of BIR and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a
system of rewards and sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC to
exceed their revenue targets and optimize their revenue-generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture
or denied in advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to
advance a declared public policy.

Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters
and mercenaries" is not only without any factual and legal basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a
clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To invalidate RA 9335 based on
petitioners baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the
executive which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional
performance. A system of incentives for exceeding the set expectations of a public office is not anathema to the concept of
public accountability. In fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as
other parties an amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against
smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court said:

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The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in
detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their
zeal in the enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes
safeguards to ensure that the reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary
activity" or the product of the irregular performance of official duties. One of these precautionary measures is embodied in
Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The officials, examiners, and
employees of the [BIR] and the [BOC] who violate this Act or who are guilty of negligence, abuses or acts of
malfeasance or misfeasance or fail to exercise extraordinary diligence in the performance of their duties shall be
held liable for any loss or injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly
situated; it is equality among equals, not similarity of treatment of persons who are classified based on substantial
differences in relation to the object to be accomplished. 19When things or persons are different in fact or circumstance, they
may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all
citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the constitutional prohibition against
inequality, that every man, woman and child should be affected alike by a statute. Equality of operation of statutes
does not mean indiscriminate operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in the
object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the
other departments of knowledge or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable,
which means that the classification should be based on substantial distinctions which make for real differences,
that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and
that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its
jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not necessary that the classification
be based on scientific or marked differences of things or in their relation. Neither is it necessary that the
classification be made with mathematical nicety. Hence, legislative classification may in many cases properly rest
on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recognizing
degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or
rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-
generation capability and collection of the BIR and the BOC.23 Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or sanctions provided in the law should logically pertain
to the said agencies. Moreover, the law concerns only the BIR and the BOC because they have the common distinct primary
function of generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be headed by and subject
to the supervision and control of the Commissioner of Internal Revenue, who shall be appointed by the President
upon the recommendation of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:

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Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject to the management
and control of the Commissioner of Customs, who shall be appointed by the President upon the recommendation
of the Secretary[of the DOF] and hereinafter referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of
entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.25
xxx xxx xxx (emphasis supplied)
Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the
instrumentalities through which the State exercises one of its great inherent functions taxation. Indubitably, such
substantial distinction is germane and intimately related to the purpose of the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal protection.

Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard
test. A law is complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate. 26 It
lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of
the delegates authority and prevent the delegation from running riot. 27 To be sufficient, the standard must specify the
limits of the delegates authority, announce the legislative policy and identify the conditions under which it is to be
implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing
agencies in carrying out the provisions of the law. Section 2 spells out the policy of the law:

SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-generation capability and
collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of
rewards and sanctions through the creation of a Rewards and Incentives Fund and a Revenue Performance
Evaluation Board in the above agencies for the purpose of encouraging their officials and employees to exceed
their revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue
targets:

SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter referred to as the Fund, is
hereby created, to be sourced from the collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and Coordinating Committee (DBCC), in the
following percentages:

Excess of Collection of the Excess Percent (%) of the Excess Collection to Accrue to
the Revenue Targets the Fund
30% or below 15%
More than 30% 15% of the first 30% plus 20% of the remaining
excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue
collection target was exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a
given fiscal year as stated in the Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the distribution of the agencies revenue
targets as allocated among its revenue districts in the case of the BIR, and the collection districts in the case of the
BOC.

xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a
given fiscal year as approved by the DBCC and stated in the BESF submitted by the President to Congress. 30 Thus, the
determination of revenue targets does not rest solely on the President as it also undergoes the scrutiny of the DBCC.

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On the other hand, Section 7 specifies the limits of the Boards authority and identifies the conditions under which officials
and employees whose revenue collection falls short of the target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the following powers and
functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue
collection falls short of the target by at least seven and a half percent (7.5%), with due consideration of all
relevant factors affecting the level of collection as provided in the rules and regulations promulgated under this
Act, subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process: Provided, That the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as
has no historical record of collection performance that can be used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of the period
under consideration unless the transfer was due to nonperformance of revenue targets or potential
nonperformance of revenue targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from economic difficulties brought
about by natural calamities or force majeure or economic causes as may be determined by the Board,
termination shall be considered only after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That
such decision shall be immediately executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be without prejudice to the application of
other relevant laws on accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee
of security of tenure only means that an employee cannot be dismissed from the service for causes other than those
provided by law and only after due process is accorded the employee. 31 In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target by at least 7.5%) with due consideration of all
relevant factors affecting the level of collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil service laws.32 The action for removal is also
subject to civil service laws, rules and regulations and compliance with substantive and procedural due process.

At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public
convenience and welfare" and "simplicity, economy and welfare." 33 In this case, the declared policy of optimization of the
revenue-generation capability and collection of the BIR and the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint Congressional Oversight
Committee composed of seven Members from the Senate and seven Members from the House of Representatives.
The Members from the Senate shall be appointed by the Senate President, with at least two senators representing
the minority. The Members from the House of Representatives shall be appointed by the Speaker with at least two
members representing the minority. After the Oversight Committee will have approved the implementing rules
and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules
and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR.
From then on, it became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive
function of implementing and enforcing the law may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the
Joint Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v.
Commission on Elections34 is illuminating:

Concept and bases of congressional oversight

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Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its
understanding of and influence over the implementation of legislation it has enacted. Clearly, oversight
concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with
program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive
waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive
conformity with the congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the
checks and balances inherent in a democratic system of government. x x x x x x x x x

Over the years, Congress has invoked its oversight power with increased frequency to check the perceived
"exponential accumulation of power" by the executive branch. By the beginning of the 20 th century, Congress has
delegated an enormous amount of legislative authority to the executive branch and the administrative agencies.
Congress, thus, uses its oversight power to make sure that the administrative agencies perform their functions
within the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be divided into three categories,
namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to administrative operations.
Its primary purpose is to determine economy and efficiency of the operation of government activities. In
the exercise of legislative scrutiny, Congress may request information and report from the other branches
of government. It can give recommendations or pass resolutions for consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are readily
available, congressional investigation involves a more intense digging of facts. The power of Congress to
conduct investigation is recognized by the 1987 Constitution under section 21, Article VI,
xxx xxx xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is thru legislative
supervision. "Supervision" connotes a continuing and informed awareness on the part of a congressional
committee regarding executive operations in a given administrative area. While both congressional scrutiny and
investigation involve inquiry into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of that delegated authority.

Congress exercises supervision over the executive agencies through its veto power. It typically utilizes veto
provisions when granting the President or an executive agency the power to promulgate regulations with the force
of law. These provisions require the President or an agency to present the proposed regulations to Congress, which
retains a "right" to approve or disapprove any regulation before it takes effect. Such legislative veto provisions
usually provide that a proposed regulation will become a law after the expiration of a certain period of time, only if
Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently, the statute
provides that a proposed regulation will become law if Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power between the legislative
and the executive branches of government as it offers lawmakers a way to delegate vast power to the executive
branch or to independent agencies while retaining the option to cancel particular exercise of such power without
having to pass new legislation or to repeal existing law. They contend that this arrangement promotes democratic
accountability as it provides legislative check on the activities of unelected administrative agencies. One proponent
thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded in our law
and practice. It suffices to say that the complexities of modern government have often led Congress-
whether by actual or perceived necessity- to legislate by declaring broad policy goals and general
statutory standards, leaving the choice of policy options to the discretion of an executive officer. Congress
articulates legislative aims, but leaves their implementation to the judgment of parties who may or may
not have participated in or agreed with the development of those aims. Consequently, absent safeguards,
in many instances the reverse of our constitutional scheme could be effected: Congress proposes, the

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Executive disposes. One safeguard, of course, is the legislative power to enact new legislation or to
change existing law. But without some means of overseeing post enactment activities of the executive
branch, Congress would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the executive prerogatives.
They urge that any post-enactment measures undertaken by the legislative branch should be limited to scrutiny
and investigation; any measure beyond that would undermine the separation of powers guaranteed by the
Constitution. They contend that legislative veto constitutes an impermissible evasion of the Presidents veto
authority and intrusion into the powers vested in the executive or judicial branches of government. Proponents
counter that legislative veto enhances separation of powers as it prevents the executive branch and independent
agencies from accumulating too much power. They submit that reporting requirements and congressional
committee investigations allow Congress to scrutinize only the exercise of delegated law-making authority. They
do not allow Congress to review executive proposals before they take effect and they do not afford the
opportunity for ongoing and binding expressions of congressional intent. In contrast, legislative veto permits
Congress to participate prospectively in the approval or disapproval of "subordinate law" or those enacted by the
executive branch pursuant to a delegation of authority by Congress. They further argue that legislative veto "is a
necessary response by Congress to the accretion of policy control by forces outside its chambers." In an era of
delegated authority, they point out that legislative veto "is the most efficient means Congress has yet devised to
retain control over the evolution and implementation of its policy as declared by statute."

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the validity of legislative
veto provisions. The case arose from the order of the immigration judge suspending the deportation of Chadha
pursuant to 244(c)(1) of the Immigration and Nationality Act. The United States House of Representatives passed
a resolution vetoing the suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings to implement the House order and the alien
was ordered deported. The Board of Immigration Appeals dismissed the aliens appeal, holding that it had no
power to declare unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit held
that the House was without constitutional authority to order the aliens deportation and that 244(c)(2) violated
the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court shied away from the issue
of separation of powers and instead held that the provision violates the presentment clause and bicameralism. It
held that the one-house veto was essentially legislative in purpose and effect. As such, it is subject to the
procedures set out in Article I of the Constitution requiring the passage by a majority of both Houses and
presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower court decisions
invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978 and the Federal Trade Commission
Improvement Act of 1980. Following this precedence, lower courts invalidated statutes containing legislative veto
provisions although some of these provisions required the approval of both Houses of Congress and thus met the
bicameralism requirement of Article I. Indeed, some of these veto provisions were not even exercised. 35(emphasis
supplied)

In Macalintal, given the concept and configuration of the power of congressional oversight and considering the nature and
powers of a constitutional body like the Commission on Elections, the Court struck down the provision in RA 9189 (The
Overseas Absentee Voting Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only to
monitor and evaluate the implementation of the said law but also to review, revise, amend and approve the IRR
promulgated by the Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36

With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it neither necessarily
constitutes an encroachment on the executive power to implement laws nor undermines the constitutional separation of
powers. Rather, it is integral to the checks and balances inherent in a democratic system of government. It may in fact even
enhance the separation of powers as it prevents the over-accumulation of power in the executive branch.

However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the Constitution imposes
two basic and related constraints on Congress.37 It may not vest itself, any of its committees or its members with either
executive or judicial power.38 And, when it exercises its legislative power, it must follow the "single, finely wrought and
exhaustively considered, procedures" specified under the Constitution, 39 including the procedure for enactment of laws and
presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny and investigation. In particular,
congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection
with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter
pertaining to their departments and its power of confirmation 40 and

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(2) investigation and monitoring41 of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.42

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. Legislative vetoes
fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency to present the proposed
implementing rules and regulations of a law to Congress which, by itself or through a committee formed by it, retains a
"right" or "power" to approve or disapprove such regulations before they take effect. As such, a legislative veto in the form
of a congressional oversight committee is in the form of an inward-turning delegation designed to attach a congressional
leash (other than through scrutiny and investigation) to an agency to which Congress has by law initially delegated broad
powers.43 It radically changes the design or structure of the Constitutions diagram of power as it entrusts to Congress a
direct role in enforcing, applying or implementing its own laws. 44

Congress has two options when enacting legislation to define national policy within the broad horizons of its legislative
competence.45 It can itself formulate the details or it can assign to the executive branch the responsibility for making
necessary managerial decisions in conformity with those standards.46 In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature.47 Thus, what is left for the executive branch or
the concerned administrative agency when it formulates rules and regulations implementing the law is to fill up details
(supplementary rule-making) or ascertain facts necessary to bring the law into actual operation (contingent rule-making).48

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted
to enforce have the force of law and are entitled to respect. 49 Such rules and regulations partake of the nature of a
statute50 and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of
law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case
by a competent court.51 Congress, in the guise of assuming the role of an overseer, may not pass upon their legality by
subjecting them to its stamp of approval without disturbing the calculated balance of powers established by the
Constitution. In exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power exclusively vested in this
Court by the Constitution.

Considered Opinion of
Mr. Justice Dante O. Tinga

Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as a condition for
their effectivity violates the cardinal constitutional principles of bicameralism and the rule on presentment.52

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum. (emphasis supplied)

Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which consists of two
chambers, the Senate and the House of Representatives. A valid exercise of legislative power requires the act of both
chambers. Corrollarily, it can be exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative veto and a congressional
committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If
he approves the same, he shall sign it, otherwise, he shall veto it and return the same with his objections to the
House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by
two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall
be determined by yeas or nays, and the names of the members voting for or against shall be entered in its Journal.
The President shall communicate his veto of any bill to the House where it originated within thirty days after the
date of receipt thereof; otherwise, it shall become a law as if he had signed it. (emphasis supplied)

Every bill passed by Congress must be presented to the President for approval or veto. In the absence of presentment to
the President, no bill passed by Congress can become a law. In this sense, law-making under the Constitution is a joint act of
the Legislature and of the Executive. Assuming that legislative veto is a valid legislative act with the force of law, it cannot
take effect without such presentment even if approved by both chambers of Congress.

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In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President. 55 As summarized by Justice Isagani Cruz56 and
Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for some measures that
must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its referral by the Senate
President or the Speaker to the proper committee for study.

The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments,
sometimes after public hearings are first held thereon. If there are other bills of the same nature or purpose, they
may all be consolidated into one bill under common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its
entirety, scrutinized, debated upon and amended when desired. The second reading is the most important stage in
the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three
days before the third reading. On the third reading, the members merely register their votes and explain them if
they are allowed by the rules. No further debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If
there are differences between the versions approved by the two chambers, a conference
committee58 representing both Houses will draft a compromise measure that if ratified by the Senate and the
House of Representatives will then be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures
of the Senate President, the Speaker, and the Secretaries of their respective chambers 59

The Presidents role in law-making.

The final step is submission to the President for approval. Once approved, it takes effect as law after the required
publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards
established in the said law, the law must be complete in all its essential terms and conditions when it leaves the hands of
the legislature. And it may be deemed to have left the hands of the legislature when it becomes effective because it is only
upon effectivity of the statute that legal rights and obligations become available to those entitled by the language of the
statute. Subject to the indispensable requisite of publication under the due process clause,61 the determination as to when
a law takes effect is wholly the prerogative of Congress. 62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before that point, the role of the
executive branch, particularly of the President, is limited to approving or vetoing the law. 63

From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play
any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus
unconstitutional. Under this principle, a provision that requires Congress or its members to approve the implementing rules
of a law after it has already taken effect shall be unconstitutional, as is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar
provisions of other laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them
wholesale but will do so at the proper time when an appropriate case assailing those provisions is brought before us. 64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other
provisions of the law? Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent court, the remainder of
this Act or any provision not affected by such declaration of invalidity shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid,
the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separability clause in
a statute creates the presumption that the legislature intended separability, rather than complete nullity of the
statute. To justify this result, the valid portion must be so far independent of the invalid portion that it is fair to

100
presume that the legislature would have enacted it by itself if it had supposed that it could not constitutionally
enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the
legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as
conditions, considerations, inducements, or compensations for each other, as to warrant a belief that the
legislature intended them as a whole, the nullity of one part will vitiate the rest. In making the parts of the statute
dependent, conditional, or connected with one another, the legislature intended the statute to be carried out as a
whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, all the
other provisions thus dependent, conditional, or connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any invalid provision from
the other provisions so that the latter may continue in force and effect. The valid portions can stand independently of the
invalid section. Without Section 12, the remaining provisions still constitute a complete, intelligible and valid law which
carries out the legislative intent to optimize the revenue-generation capability and collection of the BIR and the BOC by
providing for a system of rewards and sanctions through the Rewards and Incentives Fund and a Revenue Performance
Evaluation Board.

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

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint Congressional Oversight
Committee to approve the implementing rules and regulations of the law is declared UNCONSTITUTIONAL and
therefore NULL and VOID. The constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13
of RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.

101
SULTAN OSOP B. CAMID, petitioner, vs. THE OFFICE OF THE PRESIDENT, DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, AUTONOMOUS REGION IN MUSLIM MINDANAO, DEPARTMENT of FINANCE, DEPARTMENT of
BUDGET AND MANAGEMENT, COMMISSION ON AUDIT, and the CONGRESS OF THE PHILIPPINES (HOUSE of
REPRESENTATIVES AND SENATE), respondents.

DECISION
TINGA, J.:

This Petition for Certiorari presents this Court with the prospect of our own Brigadoon[1]the municipality of Andong,
Lanao del Surwhich like its counterpart in filmdom, is a town that is not supposed to exist yet is anyway insisted by some
as actually alive and thriving. Yet unlike in the movies, there is nothing mystical, ghostly or anything even remotely
charming about the purported existence of Andong. The creation of the putative municipality was declared void ab initio by
this Court four decades ago, but the present petition insists that in spite of this insurmountable obstacle Andong thrives on,
and hence, its legal personality should be given judicial affirmation. We disagree.
The factual antecedents derive from the promulgation of our ruling in Pelaez v. Auditor General[2] in 1965. As
discussed therein, then President Diosdado Macapagal issued several Executive Orders[3] creating thirty-three (33)
municipalities in Mindanao. Among them was Andong in Lanao del Sur which was created by virtue of Executive Order No.
107.[4]
These executive orders were issued after legislative bills for the creation of municipalities involved in that case had
failed to pass Congress.[5] President Diosdado Macapagal justified the creation of these municipalities citing his powers
under Section 68 of the Revised Administrative Code. Then Vice-President Emmanuel Pelaez filed a special civil action for a
writ of prohibition, alleging in main that the Executive Orders were null and void, Section 68 having been repealed by
Republic Act No. 2370,[6] and said orders constituting an undue delegation of legislative power. [7]
After due deliberation, the Court unanimously held that the challenged Executive Orders were null and void. A
majority of five justices, led by the ponente, Justice (later Chief Justice) Roberto Concepcion, ruled that Section 68 of the
Revised Administrative Code did not meet the well-settled requirements for a valid delegation of legislative power to the
executive branch,[8] while three justices opined that the nullity of the issuances was the consequence of the enactment of
the 1935 Constitution, which reduced the power of the Chief Executive over local governments. [9] Pelaez was disposed in
this wise:

WHEREFORE, the Executive Orders in question are declared null and void ab initio and the respondent permanently
restrained from passing in audit any expenditure of public funds in implementation of said Executive Orders or any
disbursement by the municipalities above referred to. It is so ordered.[10]

Among the Executive Orders annulled was Executive Order No. 107 which created the Municipality of Andong.
Nevertheless, the core issue presented in the present petition is the continued efficacy of the judicial annulment of the
Municipality of Andong.
Petitioner Sultan Osop B. Camid (Camid) represents himself as a current resident of Andong, [11] suing as a private
citizen and taxpayer whose locus standi is of public and paramount interest especially to the people of the Municipality of
Andong, Province of Lanao del Sur.[12] He alleges that Andong has metamorphosed into a full-blown municipality with a
complete set of officials appointed to handle essential services for the municipality and its constituents, [13] even though he
concedes that since 1968, no person has been appointed, elected or qualified to serve any of the elective local government
positions of Andong.[14] Nonetheless, the municipality of Andong has its own high school, Bureau of Posts, a Department of
Education, Culture and Sports office, and at least seventeen (17) barangay units with their own respective
chairmen.[15] From 1964 until 1972, according to Camid, the public officials of Andong have been serving their constituents
through the minimal means and resources with least (sic) honorarium and recognition from the Office of the then former
President Diosdado Macapagal. Since the time of Martial Law in 1972, Andong has allegedly been getting by despite the
absence of public funds, with the Interim Officials serving their constituents in their own little ways and means. [16]
In support of his claim that Andong remains in existence, Camid presents to this Court a Certification issued by the
Office of the Community Environment and Natural Resources (CENRO) of the Department of Environment and Natural
Resources (DENR) certifying the total land area of the Municipality of Andong, created under Executive Order No. 107
issued [last] October 1, 1964.[17] He also submits a Certification issued by the Provincial Statistics Office of Marawi City
concerning the population of Andong, which is pegged at fourteen thousand fifty nine (14,059) strong. Camid also
enumerates a list of governmental agencies and private groups that allegedly recognize Andong, and notes that other
municipalities have recommended to the Speaker of the Regional Legislative Assembly for the immediate implementation
of the revival or re-establishment of Andong.[18]
The petition assails a Certification dated 21 November 2003, issued by the Bureau of Local Government Supervision of
the Department of Interior and Local Government (DILG).[19] The Certification enumerates eighteen (18) municipalities
certified as existing, per DILG records. Notably, these eighteen (18) municipalities are among the thirty-three (33), along
with Andong, whose creations were voided by this Court in Pelaez. These municipalities are Midaslip, Pitogo, Naga, and
Bayog in Zamboanga del Sur; Siayan and Pres. Manuel A. Roxas in Zamboanga del Norte; Magsaysay, Sta. Maria and New
Corella in Davao; Badiangan and Mina in Iloilo; Maguing in Lanao del Sur; Gloria in Oriental Mindoro; Maasim in Sarangani;
Kalilangan and Lantapan in Bukidnon; and Maco in Compostela Valley. [20]
Camid imputes grave abuse of discretion on the part of the DILG in not classifying [Andong] as a regular existing
municipality and in not including said municipality in its records and official database as [an] existing regular

102
municipality.[21] He characterizes such non-classification as unequal treatment to the detriment of Andong, especially in
light of the current recognition given to the eighteen (18) municipalities similarly annulled by reason of Pelaez. As
appropriate relief, Camid prays that the Court annul the DILG Certification dated 21 November 2003; direct the DILG to
classify Andong as a regular existing municipality; all public respondents, to extend full recognition and support to Andong;
the Department of Finance and the Department of Budget and Management, to immediately release the internal revenue
allotments of Andong; and the public respondents, particularly the DILG, to recognize the Interim Local Officials of
Andong.[22]
Moreover, Camid insists on the continuing validity of Executive Order No. 107. He argues that Pelaez has already been
modified by supervening events consisting of subsequent laws and jurisprudence. Particularly cited is our Decision in
Municipality of San Narciso v. Hon. Mendez,[23] wherein the Court affirmed the unique status of the municipality of San
Andres in Quezon as a de facto municipal corporation.[24] Similar to Andong, the municipality of San Andres was created by
way of executive order, precisely the manner which the Court in Pelaez had declared as unconstitutional.
Moreover, San Narciso cited, as Camid does, Section 442(d) of the Local Government Code of 1991 as basis for the current
recognition of the impugned municipality. The provision reads:

Section 442. Requisites for Creation. - xxx

(d) Municipalities existing as of the date of the effectivity of this Code shall continue to exist and operate as such. Existing
municipal districts organized pursuant to presidential issuances or executive orders and which have their respective sets of
elective municipal officials holding office at the time of the effectivity of (the) Code shall henceforth be considered as
regular municipalities.[25]

There are several reasons why the petition must be dismissed. These can be better discerned upon examination of the
proper scope and application of Section 442(d), which does not sanction the recognition of just any municipality. This point
shall be further explained further on.
Notably, as pointed out by the public respondents, through the Office of the Solicitor General (OSG), the case is not a
fit subject for the special civil actions of certiorari and mandamus, as it pertains to the de novo appreciation of factual
questions. There is indeed no way to confirm several of Camids astonishing factual allegations pertaining to the purported
continuing operation of Andong in the decades since it was annulled by this Court. No trial court has had the opportunity to
ascertain the validity of these factual claims, the appreciation of which is beyond the function of this Court since it is not a
trier of facts.
The importance of proper factual ascertainment cannot be gainsaid, especially in light of the legal principles governing
the recognition of de facto municipal corporations. It has been opined that municipal corporations may exist by prescription
where it is shown that the community has claimed and exercised corporate functions, with the knowledge and
acquiescence of the legislature, and without interruption or objection for period long enough to afford title by
prescription.[26] These municipal corporations have exercised their powers for a long period without objection on the part of
the government that although no charter is in existence, it is presumed that they were duly incorporated in the first place
and that their charters had been lost.[27] They are especially common in England, which, as well-worth noting, has existed as
a state for over a thousand years. The reason for the development of that rule in England is understandable, since that
country was settled long before the Roman conquest by nomadic Celtic tribes, which could have hardly been expected to
obtain a municipal charter in the absence of a national legal authority.
In the United States, municipal corporations by prescription are less common, but it has been held that when no
charter or act of incorporation of a town can be found, it may be shown to have claimed and exercised the powers of a
town with the knowledge and assent of the legislature, and without objection or interruption for so long a period as to
furnish evidence of a prescriptive right.[28]
What is clearly essential is a factual demonstration of the continuous exercise by the municipal corporation of its
corporate powers, as well as the acquiescence thereto by the other instrumentalities of the state. Camid does not have the
opportunity to make an initial factual demonstration of those circumstances before this Court. Indeed, the factual
deficiencies aside, Camids plaint should have undergone the usual administrative gauntlet and, once that was done, should
have been filed first with the Court of Appeals, which at least would have had the power to make the necessary factual
determinations. Camids seeming ignorance of the principles of exhaustion of administrative remedies and hierarchy of
courts, as well as the concomitant prematurity of the present petition, cannot be countenanced.
It is also difficult to capture the sense and viability of Camids present action. The assailed issuance is
the Certification issued by the DILG. But such Certification does not pretend to bear the authority to create or revalidate a
municipality. Certainly, the annulment of the Certification will really do nothing to serve Camids ultimate cause- the
recognition of Andong. Neither does the Certification even expressly refute the claim that Andong still exists, as there is
nothing in the document that comments on the present status of Andong. Perhaps the Certificationis assailed before this
Court if only to present an actual issuance, rather than a long-standing habit or pattern of action that can be annulled
through the special civil action of certiorari. Still, the relation of the Certification to Camids central argument is forlornly
strained.
These disquisitions aside, the central issue remains whether a municipality whose creation by executive fiat was
previously voided by this Court may attain recognition in the absence of any curative or reimplementing statute.
Apparently, the question has never been decided before, San Narciso and its kindred cases pertaining as they did to
municipalities whose bases of creation were dubious yet were never judicially nullified. The effect of Section 442(d) of the
Local Government Code on municipalities such as Andong warrants explanation. Besides, the residents of Andong who

103
belabor under the impression that their town still exists, much less those who may comport themselves as the municipalitys
Interim Government, would be well served by a rude awakening.
The Court can employ a simplistic approach in resolving the substantive aspect of the petition, merely by pointing out
that the Municipality of Andong never existed. [29] Executive Order No. 107, which established Andong, was declared null
and void ab initio in 1965 by this Court in Pelaez, along with thirty-three (33) other executive orders. The phrase ab
initio means from the beginning,[30] at first,[31] from the inception.[32] Pelaez was never reversed by this Court but rather it
was expressly affirmed in the cases of Municipality of San Joaquin v. Siva,[33]Municipality of Malabang v. Benito,[34] and
Municipality of Kapalong v. Moya.[35] No subsequent ruling by this Court declared Pelaez as overturned or inoperative. No
subsequent legislation has been passed since 1965 creating a Municipality of Andong. Given these facts, there is hardly any
reason to elaborate why Andong does not exist as a duly constituted municipality.
This ratiocination does not admit to patent legal errors and has the additional virtue of blessed austerity. Still, its
sweeping adoption may not be advisedly appropriate in light of Section 442(d) of the Local Government Code and our ruling
in Municipality of San Narciso, both of which admit to the possibility of de facto municipal corporations.
To understand the applicability of Municipality of San Narciso and Section 442(b) of the Local Government Code to the
situation of Andong, it is necessary again to consider the ramifications of our decision in Pelaez.
The eminent legal doctrine enunciated in Pelaez was that the President was then, and still is, not empowered to
create municipalities through executive issuances. The Court therein recognized that the President has, for many years,
issued executive orders creating municipal corporations, and that the same have been organized and in actual operation . . .
.[36]However, the Court ultimately nullified only those thirty-three (33) municipalities, including Andong, created during the
period from 4 September to 29 October 1964 whose existence petitioner Vice-President Pelaez had specifically assailed
before this Court. No pronouncement was made as to the other municipalities which had been previously created by the
President in the exercise of power the Court deemed unlawful.
Two years after Pelaez was decided, the issue again came to fore in Municipality of San Joaquin v. Siva.[37] The
Municipality of Lawigan was created by virtue of Executive Order No. 436 in 1961. Lawigan was not one of the
municipalities ordered annulled in Pelaez. A petition for prohibition was filed contesting the legality of the executive order,
again on the ground that Section 68 of the Revised Administrative Code was unconstitutional. The trial court dismissed the
petition, but the Supreme Court reversed the ruling and entered a new decision declaring Executive Order No. 436
void ab initio. The Court reasoned without elaboration that the issue had already been squarely taken up and settled
in Pelaez which agreed with the argument posed by the challengers to Lawigans validity. [38]
In the 1969 case of Municipality of Malabang v. Benito,[39] what was challenged is the validity of the constitution of the
Municipality of Balabagan in Lanao del Sur, also created by an executive order,[40] and which, similar to Lawigan, was not
one of the municipalities annulled in Pelaez. This time, the officials of Balabagan invoked de facto status as a municipal
corporation in order to dissuade the Court from nullifying action. They alleged that its status as a de facto corporation
cannot be collaterally attacked but should be inquired into directly in an action for quo warranto at the instance of the
State, and not by a private individual as it was in that case. In response, the Court conceded that an inquiry into the legal
existence of a municipality is reserved to the State in a proceeding for quo warranto, but only if the municipal corporation is
a de facto corporation.[41]
Ultimately, the Court refused to acknowledge Balabagan as a de facto corporation, even though it had been organized
prior to the Courts decision in Pelaez. The Court declared void the executive order creating Balabagan and restrained its
municipal officials from performing their official duties and functions. [42] It cited conflicting American authorities on
whether a de facto corporation can exist where the statute or charter creating it is unconstitutional. [43] But the Courts final
conclusion was unequivocal that Balabagan was not a de facto corporation.

In the cases where a de facto municipal corporation was recognized as such despite the fact that the statute creating it was
later invalidated, the decisions could fairly be made to rest on the consideration that there was some other valid law giving
corporate vitality to the organization. Hence, in the case at bar, the mere fact that Balabagan was organized at a time when
the statute had not been invalidated cannot conceivably make it a de facto corporation, as, independently of the
Administrative Code provision in question, there is no other valid statute to give color of authority to its creation. [44]

The Court did clarify in Malabang that the previous acts done by the municipality in the exercise of its corporate
powers were not necessarily a nullity.[45] Camid devotes several pages of his petition in citing this point, [46] yet the relevance
of the citation is unclear considering that Camid does not assert the validity of any corporate act of Andong prior to its
judicial dissolution. Notwithstanding, the Court in Malabang retained an emphatic attitude as to the unconstitutionality of
the power of the President to create municipal corporations by way of presidential promulgations, as authorized under
Section 68 of the Revised Administrative Code.
This principle was most recently affirmed in 1988, in Municipality of Kapalong v. Moya.[47] The municipality of Santo
Tomas, created by President Carlos P. Garcia, filed a complaint against another municipality, who challenged Santo Tomass
legal personality to institute suit. Again, Santo Tomas had not been expressly nullified by prior judicial action, yet the Court
refused to recognize its legal existence. The blunt but simple ruling: Now then, as ruled in the Pelaez case supra, the
President has no power to create a municipality. Since [Santo Tomas] has no legal personality, it can not be a party to any
civil action.[48]
Nevertheless, when the Court decided Municipality of San Narciso[49] in 1995, it indicated a shift in the jurisprudential
treatment of municipalities created through presidential issuances. The questioned municipality of San Andres, Quezon was
created on 20 August 1959 by Executive Order No. 353 issued by President Carlos P. Garcia. Executive Order No. 353 was
not one of the thirty-three issuances annulled by Pelaez in 1965. The legal status of the Municipality of San Andres was first

104
challenged only in 1989, through a petition for quo warranto filed with the Regional Trial Court of Gumaca, Quezon, which
did cite Pelaez as authority.[50] The RTC dismissed the petition for lack of cause of action, and the petitioners therein
elevated the matter to this Court.
In dismissing the petition, the Court delved in the merits of the petition, if only to resolve further doubt on the legal
status of San Andres. It noted a circumstance which is not present in the case at barthat San Andres was in existence for
nearly thirty (30) years before its legality was challenged. The Court did not declare the executive order creating San Andres
null and void. Still, acting on the premise that the said executive order was a complete nullity, the Court noted peculiar
circumstances that led to the conclusion that San Andres had attained the unique status of a de facto municipal
corporation.[51] It noted that Pelaez limited its nullificatory effect only to those executive orders specifically challenged
therein, despite the fact that the Court then could have very well extended the decision to invalidate San Andres as
well.[52] This statement squarely contradicts Camids reading of San Narciso that the creation of San Andres, just like Andong,
had been declared a complete nullity on the same ground of unconstitutional delegation of legislative power found
in Pelaez.[53]
The Court also considered the applicability of Section 442(d) [54] of the Local Government Code of 1991. It clarified the
implication of the provision as follows:

Equally significant is Section 442(d) of the Local Government Code to the effect that municipal districts "organized pursuant
to presidential issuances or executive orders and which have their respective sets of elective municipal officials holding
office at the time of the effectivity of (the) Code shall henceforth be considered as regular municipalities." No pretension of
unconstitutionality per se of Section 442(d) of the Local Government Code is preferred. It is doubtful whether such a
pretext, even if made, would succeed. The power to create political subdivisions is a function of the legislature. Congress
did just that when it has incorporated Section 442(d) in the Code. Curative laws, which in essence are retrospective, and
aimed at giving "validity to acts done that would have been invalid under existing laws, as if existing laws have been
complied with," are validly accepted in this jurisdiction, subject to the usual qualification against impairment of vested
rights. (Emphasis supplied)[55]

The holding in San Narciso was subsequently affirmed in Municipality of Candijay v. Court of Appeals[56] and
Municipality of Jimenez v. Baz[57] In Candijay, the juridical personality of the Municipality of Alicia, created in a 1949
executive order, was attacked only beginning in 1984. Pelaez was again invoked in support of the challenge, but the Court
refused to invalidate the municipality, citing San Narciso at length. The Court noted that the situation of the Municipality of
Alicia was strikingly similar to that in San Narciso; hence, the town should likewise benefit from the effects of Section 442(d)
of the Local Government Code, and should [be] considered as a regular, de jure municipality. [58]
The valid existence of Municipality of Sinacaban, created in a 1949 executive order, was among the issues raised
in Jimenez. The Court, through Justice Mendoza, provided an expert summation of the evolution of the rule.

The principal basis for the view that Sinacaban was not validly created as a municipal corporation is the ruling in Pelaez v.
Auditor General that the creation of municipal corporations is essentially a legislative matter and therefore the President
was without power to create by executive order the Municipality of Sinacaban. The ruling in this case has been reiterated in
a number of cases later decided. However, we have since held that where a municipality created as such by executive order
is later impliedly recognized and its acts are accorded legal validity, its creation can no longer be questioned. In Municipality
of San Narciso, Quezon v. Mendez, Sr., this Court considered the following factors as having validated the creation of a
municipal corporation, which, like the Municipality of Sinacaban, was created by executive order of the President before
the ruling in Pelaez v. Auditor General: (1) the fact that for nearly 30 years the validity of the creation of the municipality
had never been challenged; (2) the fact that following the ruling in Pelaez no quo warranto suit was filed to question the
validity of the executive order creating such municipality; and (3) the fact that the municipality was later classified as a fifth
class municipality, organized as part of a municipal circuit court and considered part of a legislative district in the
Constitution apportioning the seats in the House of Representatives. Above all, it was held that whatever doubt there might
be as to the de jure character of the municipality must be deemed to have been put to rest by the Local Government Code
of 1991 (R. A. No. 7160), 442(d) of which provides that "municipal districts organized pursuant to presidential issuances or
executive orders and which have their respective sets of elective officials holding office at the time of the effectivity of this
Code shall henceforth be considered as regular municipalities."

Here, the same factors are present so as to confer on Sinacaban the status of at least a de facto municipal corporation in
the sense that its legal existence has been recognized and acquiesced publicly and officially. Sinacaban had been in
existence for sixteen years when Pelaez v. Auditor General was decided on December 24, 1965. Yet the validity of E.O. No.
258 creating it had never been questioned. Created in 1949, it was only 40 years later that its existence was questioned and
only because it had laid claim to an area that apparently is desired for its revenue. This fact must be underscored because
under Rule 66, 16 of the Rules of Court, a quo warranto suit against a corporation for forfeiture of its charter must be
commenced within five (5) years from the time the act complained of was done or committed. On the contrary, the State
and even the Municipality of Jimenez itself have recognized Sinacaban's corporate existence. Under Administrative Order
No. 33 dated June 13, 1978 of this Court, as reiterated by 31 of the Judiciary Reorganization Act of 1980 (B. P. Blg. 129),
Sinacaban is constituted part of a municipal circuit for purposes of the establishment of Municipal Circuit Trial Courts in the
country. For its part, Jimenez had earlier recognized Sinacaban in 1950 by entering into an agreement with it regarding their
common boundary. The agreement was embodied in Resolution No. 77 of the Provincial Board of Misamis Occidental.

Indeed Sinacaban has attained de jure status by virtue of the Ordinance appended to the 1987 Constitution, apportioning
legislative districts throughout the country, which considered Sinacaban part of the Second District of Misamis Occidental.

105
Moreover, following the ruling in Municipality of San Narciso, Quezon v. Mendez, Sr., 442(d) of the Local Government Code
of 1991 must be deemed to have cured any defect in the creation of Sinacaban.[59]

From this survey of relevant jurisprudence, we can gather the applicable rules. Pelaez and its offspring cases ruled that
the President has no power to create municipalities, yet limited its nullificatory effects to the particular municipalities
challenged in actual cases before this Court. However, with the promulgation of the Local Government Code in 1991, the
legal cloud was lifted over the municipalities similarly created by executive order but not judicially annulled. The de
facto status of such municipalities as San Andres, Alicia and Sinacaban was recognized by this Court, and Section 442(b) of
the Local Government Code deemed curative whatever legal defects to title these municipalities had labored under.
Is Andong similarly entitled to recognition as a de facto municipal corporation? It is not. There are eminent differences
between Andong and municipalities such as San Andres, Alicia and Sinacaban. Most prominent is the fact that the executive
order creating Andong was expressly annulled by order of this Court in 1965. If we were to affirm Andongs de facto status
by reason of its alleged continued existence despite its nullification, we would in effect be condoning defiance of a valid
order of this Court. Court decisions cannot obviously lose their efficacy due to the sheer defiance by the parties aggrieved.
It bears noting that based on Camids own admissions, Andong does not meet the requisites set forth by Section 442(d)
of the Local Government Code. Section 442(d) requires that in order that the municipality created by executive order may
receive recognition, they must have their respective set of elective municipal officials holding office at the time of the
effectivity of [the Local Government] Code. Camid admits that Andong has never elected its municipal officers at all. [60] This
incapacity ties in with the fact that Andong was judicially annulled in 1965. Out of obeisance to our ruling in Pelaez, the
national government ceased to recognize the existence of Andong, depriving it of its share of the public funds, and refusing
to conduct municipal elections for the void municipality.
The failure to appropriate funds for Andong and the absence of elections in the municipality in the last four decades
are eloquent indicia of the non-recognition by the State of the existence of the town. The certifications relied upon by
Camid, issued by the DENR-CENRO and the National Statistics Office, can hardly serve the purpose of attesting to Andongs
legal efficacy. In fact, both these certifications qualify that they were issued upon the request of Camid, to support the
restoration or re-operation of the Municipality of Andong, Lanao del Sur, [61]thus obviously conceding that the municipality is
at present inoperative.
We may likewise pay attention to the Ordinance appended to the 1987 Constitution, which had also been relied upon
in Jimenez and San Narciso. This Ordinance, which apportioned the seats of the House of Representatives to the different
legislative districts in the Philippines, enumerates the various municipalities that are encompassed by the various legislative
districts. Andong is not listed therein as among the municipalities of Lanao del Sur, or of any other province for that
matter.[62] On the other hand, the municipalities of San Andres, Alicia and Sinacaban are mentioned in the Ordinance as part
of Quezon,[63] Bohol,[64] and Misamis Occidental[65] respectively.
How about the eighteen (18) municipalities similarly nullified in Pelaez but certified as existing in the
DILG Certification presented by Camid? The petition fails to mention that subsequent to the ruling in Pelaez, legislation was
enacted to reconstitute these municipalities.[66] It is thus not surprising that the DILG certified the existence of these
eighteen (18) municipalities, or that these towns are among the municipalities enumerated in the Ordinance appended to
the Constitution. Andong has not been similarly reestablished through statute. Clearly then, the fact that there are valid
organic statutes passed by legislation recreating these eighteen (18) municipalities is sufficient legal basis to accord a
different legal treatment to Andong as against these eighteen (18) other municipalities.
We thus assert the proper purview to Section 442(d) of the Local Government Codethat it does not serve to affirm or
reconstitute the judicially dissolved municipalities such as Andong, which had been previously created by presidential
issuances or executive orders. The provision affirms the legal personalities only of those municipalities such as San Narciso,
Alicia, and Sinacaban, which may have been created using the same infirm legal basis, yet were fortunate enough not to
have been judicially annulled. On the other hand, the municipalities judicially dissolved in cases such as Pelaez, San
Joaquin, and Malabang, remain inexistent, unless recreated through specific legislative enactments, as done with the
eighteen (18) municipalities certified by the DILG. Those municipalities derive their legal personality not from the
presidential issuances or executive orders which originally created them or from Section 442(d), but from the respective
legislative statutes which were enacted to revive them.
And what now of Andong and its residents? Certainly, neither Pelaez or this decision has obliterated Andong into a
hole on the ground. The legal effect of the nullification of Andong in Pelaez was to revert the constituent barrios of the
voided town back into their original municipalities, namely the municipalities of Lumbatan, Butig and Tubaran. [67] These
three municipalities subsist to this day as part of Lanao del Sur, [68] and presumably continue to exercise corporate powers
over the barrios which once belonged to Andong.
If there is truly a strong impulse calling for the reconstitution of Andong, the solution is through the legislature and not
judicial confirmation of void title. If indeed the residents of Andong have, all these years, been governed not by their proper
municipal governments but by a ragtag Interim Government, then an expedient political and legislative solution is perhaps
necessary. Yet we can hardly sanction the retention of Andongs legal personality solely on the basis of collective amnesia
that may have allowed Andong to somehow pretend itself into existence despite its judicial dissolution. Maybe those who
insist Andong still exists prefer to remain unperturbed in their blissful ignorance, like the inhabitants of the cave in Platos
famed allegory. But the time has come for the light to seep in, and for the petitioner and like-minded persons to awaken to
legal reality.
WHEREFORE, the Petition is DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.

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