Republic of the Philippines EDUARDO R.

ERMITA, in his capacity as Executive Secretary, AVELINO

SUPREME COURT J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO S.
Manila SENGA, in his capacity as AFP Chief of Staff, Respondents.

EN BANC x-------------------------x

G.R. No. 169777* April 20, 2006 G.R. No. 169667 April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
DRILON, in his capacity as Senate President, JUAN M. FLAVIER, in his vs.
capacity as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in HON. EDUARDO R. ERMITA, in his capacity as Executive
his capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his Secretary, Respondent.
capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA, x-------------------------x
LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. G.R. No. 169834 April 20, 2006
A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR
ROXAS,Petitioners,
PDP- LABAN, Petitioner,
vs.
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead
and in behalf of the President of the Philippines,Respondents.
x-------------------------x
x-------------------------x
G.R. No. 171246 April 20, 2006
G.R. No. 169659 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL,
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.
FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C.
SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO,
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the
Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
INTEGRATED BAR FOR THE PHILIPPINES, Petitioners,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR
vs.
THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego DECISION
of President Gloria Macapagal-Arroyo, Respondent.
CARPIO MORALES, J.:
x-------------------------x
A transparent government is one of the hallmarks of a truly republican state.
G.R. No. 169660 April 20, 2006 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
FRANCISCO I. CHAVEZ, Petitioner,
one magistrate, a distinguished delegate to the U.S. Constitutional Convention
vs.
said: "Decision, activity, secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent degree than the proceedings of
any greater number; and in proportion as the number is increased, these qualities
will be diminished."1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that the
President has abused such power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray for its declaration as null and void for
being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest expression of the
sovereign will of the Filipino people, must prevail over any issuance of the
government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through its
various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees of
the executive department, bureaus, and offices including those employed in
Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear
on September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful provisions of
the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C. Esperon;
Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy Chief of
Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga; Chief of the
Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo; Assistant
Superintendent of the Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA, Col.
Alexander F. Balutan, for them to attend as resource persons in a public hearing
scheduled on September 28, 2005 on the following: (1) Privilege Speech of
Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has
Provided Smoking Gun or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege Speech
of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and Present
Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo
Madrigal – Resolution Directing the Committee on National Defense and
Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was the
AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated September
27, 2005, requested for its postponement "due to a pressing operational situation
that demands [his utmost personal attention" while "some of the invited AFP
officers are currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter6 from
the President of the North Luzon Railways Corporation Jose L. Cortes, Jr.
requesting that the hearing on the NorthRail project be postponed or cancelled
until a copy of the report of the UP Law Center on the contract agreements
relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance of
the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately. The
salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In
accordance with Article VI, Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers between co-equal branches
of the government, all heads of departments of the Executive Branch of the
government shall secure the consent of the President prior to appearing before
either House of Congress.
When the security of the State or the public interest so requires and the President
so states in writing, the appearance shall only be conducted in executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of government and rooted in the separation of
powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to the
public to prejudice the public interest.
Executive privilege covers all confidential or classified information between the
President and the public officers covered by this executive order, including:
Conversations and correspondence between the President and the public official
covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May
1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367,
23 May 1995; Chavez v. Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the department
heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive
privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All
public officials enumerated in Section 2 (b) hereof shall secure prior consent of
the President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter8 informing him "that
officials of the Executive Department invited to appear at the meeting [regarding
the NorthRail project] will not be able to attend the same without the consent of
the President, pursuant to [E.O. 464]" and that "said officials have not secured
the required consent from the President." On even date which was also the
scheduled date of the hearing on the alleged wiretapping, Gen. Senga sent a
letter9 to Senator Biazon, Chairperson of the Committee on National Defense
and Security, informing him "that per instruction of [President Arroyo], thru the
Secretary of National Defense, no officer of the [AFP] is authorized to appear
before any Senate or Congressional hearings without seeking a written approval
from the President" and "that no approval has been granted by the President to
any AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and Gen.
Senga, the investigation scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and Brig. Gen. Gudani among
all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005, Executive
Secretary Ermita, citing E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials: Light Railway Transit
Authority Administrator Melquiades Robles, Metro Rail Transit Authority
Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief State
Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas
Gutierrez, Department of Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri.10 NorthRail
President Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660, and
169667, for certiorari and prohibition, were filed before this Court challenging
the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza
Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace, all
claiming to have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of
President Arroyo, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective obligations. Thus, Bayan Muna
alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes on
their rights and duties as members of Congress to conduct investigation in aid of
legislation and conduct oversight functions in the implementation of laws;
Courage alleges that the tenure of its members in public office is predicated on,
and threatened by, their submission to the requirements of E.O. 464 should they
be summoned by Congress; and CODAL alleges that its members have a sworn
duty to uphold the rule of law, and their rights to information and to transparent
governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are affected by
the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared null
and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations engaged
in developmental lawyering and work with the poor and marginalized sectors in
different parts of the country, and as an organization of citizens of the
Philippines and a part of the general public, it has legal standing to institute the
petition to enforce its constitutional right to information on matters of public
concern, a right which was denied to the public by E.O. 464,13 prays, that said
order be declared null and void for being unconstitutional and that respondent
Executive Secretary Ermita be ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it stands
to suffer imminent and material injury, as it has already sustained the same with
its continued enforcement since it directly interferes with and impedes the valid
exercise of the Senate’s powers and functions and conceals information of great
public interest and concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464 be declared
unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members duly
elected into the Philippine Senate and House of Representatives, filed a similar
petition for certiorari and prohibition, docketed as G.R. No. 169834, alleging that
it is affected by the challenged E.O. 464 because it hampers its legislative
agenda to be implemented through its members in Congress, particularly in the
conduct of inquiries in aid of legislation and transcendental issues need to be
resolved to avert a constitutional crisis between the executive and legislative
branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the hearing
on the alleged wiretapping scheduled on February 10, 2005. Gen. Senga replied,
however, by letter15 dated February 8, 2006, that "[p]ursuant to Executive Order
No. 464, th[e] Headquarters requested for a clearance from the President to allow
[them] to appear before the public hearing" and that "they will attend once [their]
request is approved by the President." As none of those invited appeared, the
hearing on February 10, 2006 was cancelled.16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang Masaganang
Ani program of the Department of Agriculture (DA), several Cabinet officials
were invited to the hearings scheduled on October 5 and 26, November 24 and
December 12, 2005 but most of them failed to attend, DA Undersecretary
Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and
Pesticide Authority Executive Director Norlito R. Gicana,17 and those from the
Department of Budget and Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend due to
lack of appropriate clearance from the President pursuant to E.O. 464. During
the February 13, 2005 budget hearing, however, Secretary Bunye was allowed to
attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the
Board of Governors of the Integrated Bar of the Philippines, as taxpayers, and
the Integrated Bar of the Philippines as the official organization of all Philippine
lawyers, all invoking their constitutional right to be informed on matters of
public interest, filed their petition for certiorari and prohibition, docketed as G.R.
No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents committed
grave abuse of discretion in implementing E.O. 464 prior to its publication in the
Official Gazette or in a newspaper of general circulation; and (2) whether E.O.
464 violates the following provisions of the Constitution: Art. II, Sec. 28, Art.
III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art. VI, Sec. 22, Art.
XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of whether there is an
actual case or controversy that calls for judicial review was not taken up; instead,
the parties were instructed to discuss it in their respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit
their respective memoranda, paying particular attention to the following
propositions: (1) that E.O. 464 is, on its face, unconstitutional; and (2) assuming
that it is not, it is unconstitutional as applied in four instances, namely: (a) the so
called Fertilizer scam; (b) the NorthRail investigation (c) the Wiretapping
activity of the ISAFP; and (d) the investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda
on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed
theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not
file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest, prompting
this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the petitions
for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
3. Whether respondents have committed grave abuse of discretion when
they implemented E.O. 464 prior to its publication in a newspaper of
general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Court’s power
of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person challenging
the act must have standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its enforcement;
(3) the question of constitutionality must be raised at the earliest opportunity;
and (4) the issue of constitutionality must be the very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual case
or controversy where the disagreement between the parties lies, discussion of the
rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R.
Nos. 169659, 169660 and 169667 make it clear that they, adverting to the non-
appearance of several officials of the executive department in the investigations
called by the different committees of the Senate, were brought to vindicate the
constitutional duty of the Senate or its different committees to conduct inquiry in
aid of legislation or in the exercise of its oversight functions. They maintain that
Representatives Ocampo et al. have not shown any specific prerogative, power,
and privilege of the House of Representatives which had been effectively
impaired by E.O. 464, there being no mention of any investigation called by the
House of Representatives or any of its committees which was aborted due to the
implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner groups and
individuals who profess to have standing as advocates and defenders of the
Constitution, respondents contend that such interest falls short of that required to
confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim
an interest as a taxpayer for the implementation of E.O. 464 does not involve the
exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464, the
Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43 respondents
assert that to be considered a proper party, one must have a personal and
substantial interest in the case, such that he has sustained or will sustain direct
injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only for
intelligent public decision-making in a democratic system, but more especially
for sound legislation45 is not disputed. E.O. 464, however, allegedly stifles the
ability of the members of Congress to access information that is crucial to law-
making.46 Verily, the Senate, including its individual members, has a substantial
and direct interest over the outcome of the controversy and is the proper party to
assail the constitutionality of E.O. 464. Indeed, legislators have standing to
maintain inviolate the prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of any
official action which they claim infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran
(Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by the House of Representatives or any of its
committees was aborted due to the implementation of E.O. 464 notwithstanding,
it being sufficient that a claim is made that E.O. 464 infringes on their
constitutional rights and duties as members of Congress to conduct investigation
in aid of legislation and conduct oversight functions in the implementation of
laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized and underrepresented sectors, organizations
and parties who lack well-defined political constituencies to contribute to the
formulation and enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file their
petitions, passing on the standing of their co-petitioners Courage and Codal is
rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting that the
right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights51 and to the maintenance of the
balance of power among the three branches of the government through the
principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal standing
in view of the transcendental issues raised in its petition which this Court needs
to resolve in order to avert a constitutional crisis. For it to be accorded standing
on the ground of transcendental importance, however, it must establish (1) the
character of the funds (that it is public) or other assets involved in the case, (2)
the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the
government, and (3) the lack of any party with a more direct and specific interest
in raising the questions being raised.54 The first and last determinants not being
present as no public funds or assets are involved and petitioners in G.R. Nos.
169777 and 169659 have direct and specific interests in the resolution of the
controversy, petitioner PDP-Laban is bereft of standing to file its petition. Its
allegation that E.O. 464 hampers its legislative agenda is vague and uncertain,
and at best is only a "generalized interest" which it shares with the rest of the
political parties. Concrete injury, whether actual or threatened, is that
indispensable element of a dispute which serves in part to cast it in a form
traditionally capable of judicial resolution.55 In fine, PDP-Laban’s alleged
interest as a political party does not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of E.O.
464, particularly those on the NorthRail project and the wiretapping controversy.
Respondents counter that there is no case or controversy, there being no showing
that President Arroyo has actually withheld her consent or prohibited the
appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of the
President, not that the President prohibited their attendance.57 Specifically with
regard to the AFP officers who did not attend the hearing on September 28,
2005, respondents claim that the instruction not to attend without the President’s
consent was based on its role as Commander-in-Chief of the Armed Forces, not
on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not withheld her
consent or prohibited the appearance of the officials concerned immaterial in
determining the existence of an actual case or controversy insofar as E.O. 464 is
concerned. For E.O. 464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the President in order to bar
officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these
officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article
VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in accordance
with its duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein – the Batasang Pambansa – and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the Court
already recognized that the power of inquiry is inherent in the power to legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase of
the Buenavista and Tambobong Estates by the Rural Progress Administration.
Arnault, who was considered a leading witness in the controversy, was called to
testify thereon by the Senate. On account of his refusal to answer the questions
of the senators on an important point, he was, by resolution of the Senate,
detained for contempt. Upholding the Senate’s power to punish Arnault for
contempt, this Court held:
Although there is no provision in the Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to the
end that it may exercise its legislative functions advisedly and effectively, such
power is so far incidental to the legislative function as to be implied. In other
words, the power of inquiry – with process to enforce it – is an essential and
appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information – which is not
infrequently true – recourse must be had to others who do possess it. Experience
has shown that mere requests for such information are often unavailing, and also
that information which is volunteered is not always accurate or complete; so
some means of compulsion is essential to obtain what is needed.59 . . . (Emphasis
and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper subject
of investigation are one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is the
guardian, the transaction, the Court held, "also involved government agencies
created by Congress and officers whose positions it is within the power of
Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices is
necessary for wise legislation on that subject, by parity of reasoning, Congress
has the right to that information and the power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era,"
however, the right of Congress to conduct inquiries in aid of legislation is, in
theory, no less susceptible to abuse than executive or judicial power. It may thus
be subjected to judicial review pursuant to the Court’s certiorari powers under
Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry
itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a result
as occurred in Bengzon is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations, along
with the usual indication of the subject of inquiry and the questions relative to
and in furtherance thereof, there would be less room for speculation on the part
of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also mandates that the rights of
persons appearing in or affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit
filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to obtain
at present, wherein a clear pattern of abuse of the legislative power of inquiry
might be established, resulting in palpable violations of the rights guaranteed to
members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to
forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular clauses,62 and in its
very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the 1986 Constitution.63 Being of American
origin, it is best understood in light of how it has been defined and used in the
legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the Congress."64 Similarly,
Rozell defines it as "the right of the President and high-level executive branch
officers to withhold information from Congress, the courts, and ultimately the
public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67 Tribe, in fact, comments that while it is
customary to employ the phrase "executive privilege," it may be more accurate
to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege invoked
by U.S. Presidents, beginning with Washington, on the ground that the
information is of such nature that its disclosure would subvert crucial military or
diplomatic objectives. Another variety is the informer’s privilege, or the
privilege of the Government not to disclose the identity of persons who furnish
information of violations of law to officers charged with the enforcement of that
law. Finally, a generic privilege for internal deliberations has been said to attach
to intragovernmental documents reflecting advisory opinions, recommendations
and deliberations comprising part of a process by which governmental decisions
and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of information the confidentiality of which they
felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or state secrets. The
courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the ordinary
citizen or organization where such exemption is necessary to the discharge of
highly important executive responsibilities involved in maintaining
governmental operations, and extends not only to military and diplomatic secrets
but also to documents integral to an appropriate exercise of the executive’
domestic decisional and policy making functions, that is, those documents
reflecting the frank expression necessary in intra-governmental advisory and
deliberative communications.70 (Emphasis and underscoring supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For in
determining the validity of a claim of privilege, the question that must be asked
is not only whether the requested information falls within one of the traditional
privileges, but also whether that privilege should be honored in a given
procedural setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon, 72 decided in 1974. In issue in that case was the validity of President
Nixon’s claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the Watergate
investigations. The claim of privilege was based on the President’s general
interest in the confidentiality of his conversations and correspondence. The U.S.
Court held that while there is no explicit reference to a privilege of
confidentiality in the U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a President’s powers. The Court,
nonetheless, rejected the President’s claim of privilege, ruling that the privilege
must be balanced against the public interest in the fair administration of criminal
justice. Notably, the Court was careful to clarify that it was not there addressing
the issue of claims of privilege in a civil litigation or against congressional
demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion of the privilege to deny information to
Congress, beginning with President Washington’s refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court has
never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as Nixon,
recognized the President’s privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing approach adopted by the
U.S. Supreme Court in Nixon, the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest that would be served by
disclosure to the Committee. Ruling that the balance favored the President, the
Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez.77Almonte used the term in reference to the same
privilege subject of Nixon. It quoted the following portion of the Nixon decision
which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free to explore
alternatives in the process of shaping policies and making decisions and to do so
in a way many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of government
and inextricably rooted in the separation of powers under the Constitution x x x "
(Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against
the therein petitioners. It did not involve, as expressly stated in the decision, the
right of the people to information.78 Nonetheless, the Court recognized that there
are certain types of information which the government may withhold from the
public, thus acknowledging, in substance if not in name, that executive privilege
may be claimed against citizens’ demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and other
national security matters."80 The same case held that closed-door Cabinet
meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right
to information does not extend to matters recognized as "privileged information
under the separation of powers,"82 by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet
meetings. It also held that information on military and diplomatic secrets and
those affecting national security, and information on investigations of crimes by
law enforcement agencies before the prosecution of the accused were exempted
from the right to information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the public,
is recognized only in relation to certain types of information of a sensitive
character. While executive privilege is a constitutional concept, a claim thereof
may be valid or not depending on the ground invoked to justify it and the context
in which it is made. Noticeably absent is any recognition that executive officials
are exempt from the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of the exemptions
indicates that the presumption inclines heavily against executive secrecy and in
favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by them
to secure the consent of the President prior to appearing before Congress. There
are significant differences between the two provisions, however, which constrain
this Court to discuss the validity of these provisions separately.
Section 1 specifically applies to department heads. It does not, unlike Section 3,
require a prior determination by any official whether they are covered by E.O.
464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department
heads’ possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is no
reference to executive privilege at all. Rather, the required prior consent under
Section 1 is grounded on Article VI, Section 22 of the Constitution on what has
been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon the request of either House, as the rules of each
House shall provide, appear before and be heard by such House on any matter
pertaining to their departments. Written questions shall be submitted to the
President of the Senate or the Speaker of the House of Representatives at least
three days before their scheduled appearance. Interpellations shall not be limited
to written questions, but may cover matters related thereto. When the security of
the State or the public interest so requires and the President so states in writing,
the appearance shall be conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis-à-vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions involved distinct functions of
Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before the
Senate. I have a particular problem in this regard, Madam President, because in
our experience in the Regular Batasang Pambansa – as the Gentleman himself
has experienced in the interim Batasang Pambansa – one of the most competent
inputs that we can put in our committee deliberations, either in aid of legislation
or in congressional investigations, is the testimonies of Cabinet ministers. We
usually invite them, but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he said
that the fact that the Cabinet ministers may refuse to come to the House of
Representatives or the Senate [when requested under Section 22] does not mean
that they need not come when they are invited or subpoenaed by the committee
of either House when it comes to inquiries in aid of legislation or congressional
investigation. According to Commissioner Suarez, that is allowed and their
presence can be had under Section 21. Does the gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under which anybody for that
matter, may be summoned and if he refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the question
hour, it was compulsory in inquiries in aid of legislation. The reference to
Commissioner Suarez bears noting, he being one of the proponents of the
amendment to make the appearance of department heads discretionary in the
question hour.
So clearly was this distinction conveyed to the members of the Commission that
the Committee on Style, precisely in recognition of this distinction, later moved
the provision on question hour from its original position as Section 20 in the
original draft down to Section 31, far from the provision on inquiries in aid of
legislation. This gave rise to the following exchange during the deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on
Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I
request the chairperson of the Legislative Department, Commissioner Davide, to
give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should follow
Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
Officer.
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is Legislative Inquiry,
it is actually a power of Congress in terms of its own lawmaking; whereas, a
Question Hour is not actually a power in terms of its own lawmaking power
because in Legislative Inquiry, it is in aid of legislation. And so we put Question
Hour as Section 31. I hope Commissioner Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to or a supplement of the Legislative Inquiry.
The appearance of the members of Cabinet would be very, very essential not
only in the application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that and
so this Section 31 would now become Section 22. Would it be, Commissioner
Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners
Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davide’s only concern was that the two provisions on these
distinct powers be placed closely together, they being complementary to each
other. Neither Commissioner considered them as identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the above-
quoted exchange, Commissioner Maambong’s committee – the Committee on
Style – shared the view that the two provisions reflected distinct functions of
Congress. Commissioner Davide, on the other hand, was speaking in his capacity
as Chairman of the Committee on the Legislative Department. His views may
thus be presumed as representing that of his Committee.
In the context of a parliamentary system of government, the "question hour" has
a definite meaning. It is a period of confrontation initiated by Parliament to hold
the Prime Minister and the other ministers accountable for their acts and the
operation of the government,85 corresponding to what is known in Britain as the
question period. There was a specific provision for a question hour in the 1973
Constitution86 which made the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system established by that
Constitution, where the ministers are also members of the legislature and are
directly accountable to it.
An essential feature of the parliamentary system of government is the immediate
accountability of the Prime Minister and the Cabinet to the National Assembly.
They shall be responsible to the National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure of office of all elected officials cannot be
terminated before their term expired, the Prime Minister and the Cabinet remain
in office only as long as they enjoy the confidence of the National Assembly.
The moment this confidence is lost the Prime Minister and the Cabinet may be
changed.87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to conform
more fully to a system of separation of powers.88 To that extent, the question
hour, as it is presently understood in this jurisdiction, departs from the question
period of the parliamentary system. That department heads may not be required
to appear in a question hour does not, however, mean that the legislature is
rendered powerless to elicit information from them in all circumstances. In fact,
in light of the absence of a mandatory question period, the need to enforce
Congress’ right to executive information in the performance of its legislative
function becomes more imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress has the right to obtain information from any
source – even from officials of departments and agencies in the executive
branch. In the United States there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear separation between the
legislative and executive branches. It is this very separation that makes the
congressional right to obtain information from the executive so essential, if the
functions of the Congress as the elected representatives of the people are
adequately to be carried out. The absence of close rapport between the legislative
and executive branches in this country, comparable to those which exist under a
parliamentary system, and the nonexistence in the Congress of an institution
such as the British question period have perforce made reliance by the Congress
upon its right to obtain information from the executive essential, if it is
intelligently to perform its legislative tasks. Unless the Congress possesses the
right to obtain executive information, its power of oversight of administration in
a system such as ours becomes a power devoid of most of its practical content,
since it depends for its effectiveness solely upon information parceled out ex
gratia by the executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each
other, should not be considered as pertaining to the same power of Congress.
One specifically relates to the power to conduct inquiries in aid of legislation, the
aim of which is to elicit information that may be used for legislation, while the
other pertains to the power to conduct a question hour, the objective of which is
to obtain information in pursuit of Congress’ oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is not
as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of duty. In
such instances, Section 22, in keeping with the separation of powers, states that
Congress may only request their appearance. Nonetheless, when the inquiry in
which Congress requires their appearance is "in aid of legislation" under Section
21, the appearance is mandatory for the same reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the Constitutional
Commission.
Ultimately, the power of Congress to compel the appearance of executive
officials under Section 21 and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the executive branch is a co-equal
branch of the legislature, it cannot frustrate the power of Congress to legislate by
refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They are
not exempt by the mere fact that they are department heads. Only one executive
official may be exempted from this power — the President on whom executive
power is vested, hence, beyond the reach of Congress except through the power
of impeachment. It is based on her being the highest official of the executive
branch, and the due respect accorded to a co-equal branch of government which
is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the Presidency, judicial power is vested in a collegial
body; hence, each member thereof is exempt on the basis not only of separation
of powers but also on the fiscal autonomy and the constitutional independence of
the judiciary. This point is not in dispute, as even counsel for the Senate, Sen.
Joker Arroyo, admitted it during the oral argument upon interpellation of the
Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of Section 1
of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section 1, limited as it
is only to appearances in the question hour, is valid on its face. For under Section
22, Article VI of the Constitution, the appearance of department heads in the
question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in
inquiries in aid of legislation. Congress is not bound in such instances to respect
the refusal of the department head to appear in such inquiry, unless a valid claim
of privilege is subsequently made, either by the President herself or by the
Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
to secure the consent of the President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior officials of executive
departments, all officers of the AFP and the PNP, and all senior national security
officials who, in the judgment of the heads of offices designated in the same
section (i.e. department heads, Chief of Staff of the AFP, Chief of the PNP, and
the National Security Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section 2 — "Nature, Scope and Coverage of
Executive Privilege" —, it is evident that under the rule of ejusdem generis, the
determination by the President under this provision is intended to be based on a
similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege, the reference to persons being "covered by the
executive privilege" may be read as an abbreviated way of saying that the person
is in possession of information which is, in the judgment of the head of office
concerned, privileged as defined in Section 2(a). The Court shall thus proceed on
the assumption that this is the intention of the challenged order.
Upon a determination by the designated head of office or by the President that an
official is "covered by the executive privilege," such official is subjected to the
requirement that he first secure the consent of the President prior to appearing
before Congress. This requirement effectively bars the appearance of the official
concerned unless the same is permitted by the President. The proviso allowing
the President to give its consent means nothing more than that the President may
reverse a prohibition which already exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a head
of office, authorized by the President under E.O. 464, or by the President herself,
that such official is in possession of information that is covered by executive
privilege. This determination then becomes the basis for the official’s not
showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be construed as a declaration to Congress that the
President, or a head of office authorized by the President, has determined that the
requested information is privileged, and that the President has not reversed such
determination. Such declaration, however, even without mentioning the term
"executive privilege," amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the President, on the basis of
executive privilege. Verily, there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita to
Senate President Drilon illustrates the implied nature of the claim of privilege
authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the Whole
regarding the Northrail Project of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that officials of the Executive
Department invited to appear at the meeting will not be able to attend the same
without the consent of the President, pursuant to Executive Order No. 464 (s.
2005), entitled "Ensuring Observance Of The Principle Of Separation Of
Powers, Adherence To The Rule On Executive Privilege And Respect For The
Rights Of Public Officials Appearing In Legislative Inquiries In Aid Of
Legislation Under The Constitution, And For Other Purposes". Said officials
have not secured the required consent from the President. (Underscoring
supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under the
recognized grounds of the privilege to justify their absence. Nor does it expressly
state that in view of the lack of consent from the President under E.O. 464, they
cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or not.
The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the President,
that the invited official possesses information that is covered by executive
privilege. Thus, although it is not stated in the letter that such determination has
been made, the same must be deemed implied. Respecting the statement that the
invited officials have not secured the consent of the President, it only means that
the President has not reversed the standing prohibition against their appearance
before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the
executive branch, either through the President or the heads of offices authorized
under E.O. 464, has made a determination that the information required by the
Senate is privileged, and that, at the time of writing, there has been no contrary
pronouncement from the President. In fine, an implied claim of privilege has
been made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from Chavez
v. PEA that certain information in the possession of the executive may validly be
claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information does
not cover Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings which, like internal-deliberations of the Supreme
Court and other collegiate courts, or executive sessions of either house of
Congress, are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity and pressure by interested
parties, is essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. This is not the
situation in the instant case.91 (Emphasis and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the
mere fact that it sanctions claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case basis,
examining the ground invoked therefor and the particular circumstances
surrounding it, there is, in an implied claim of privilege, a defect that renders it
invalid per se. By its very nature, and as demonstrated by the letter of respondent
Executive Secretary quoted above, the implied claim authorized by Section 3 of
E.O. 464 is not accompanied by any specific allegation of the basis thereof (e.g.,
whether the information demanded involves military or diplomatic secrets,
closed-door Cabinet meetings, etc.). While Section 2(a) enumerates the types of
information that are covered by the privilege under the challenged order,
Congress is left to speculate as to which among them is being referred to by the
executive. The enumeration is not even intended to be comprehensive, but a
mere statement of what is included in the phrase "confidential or classified
information between the President and the public officers covered by this
executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and that
the President has not overturned that determination. Such declaration leaves
Congress in the dark on how the requested information could be classified as
privileged. That the message is couched in terms that, on first impression, do not
seem like a claim of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the executive branch is not
providing it with the information that it has requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly invoked.
There must be a formal claim of privilege, lodged by the head of the department
which has control over the matter, after actual personal consideration by that
officer. The court itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so without forcing a disclosure
of the very thing the privilege is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it should be
respected.93 These, in substance, were the same criteria in assessing the claim of
privilege asserted against the Ombudsman in Almonte v. Vasquez94 and, more in
point, against a committee of the Senate in Senate Select Committee on
Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs’ needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its objection to claimant’s interrogatories,
government asserts, and nothing more, that the disclosures sought by claimant
would inhibit the free expression of opinion that non-disclosure is designed to
protect. The government has not shown – nor even alleged – that those who
evaluated claimant’s product were involved in internal policymaking, generally,
or in this particular instance. Privilege cannot be set up by an unsupported claim.
The facts upon which the privilege is based must be established. To find these
interrogatories objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was a matter of internal
policy formulation, an assumption in which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an agency
must provide ‘precise and certain’ reasons for preserving the confidentiality of
requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific designation
and description of the documents within its scope as well as precise and certain
reasons for preserving their confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the affidavit now stands, the Court has little more than
its sua sponte speculation with which to weigh the applicability of the claim. An
improperly asserted claim of privilege is no claim of privilege. Therefore,
despite the fact that a claim was made by the proper executive as Reynolds
requires, the Court can not recognize the claim in the instant case because it is
legally insufficient to allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a broad claim in which
the Defendant has given no precise or compelling reasons to shield these
documents from outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less
than a claim of privilege clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these questions. For it is as true here as it was there,
that ‘if (petitioner) had legitimate reasons for failing to produce the records of
the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his) reasons
for noncompliance upon the return of the writ. Such a statement would have
given the Subcommittee an opportunity to avoid the blocking of its inquiry by
taking other appropriate steps to obtain the records. ‘To deny the Committee the
opportunity to consider the objection or remedy is in itself a contempt of its
authority and an obstruction of its processes. His failure to make any such
statement was "a patent evasion of the duty of one summoned to produce papers
before a congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect.103 A useful analogy in
determining the requisite degree of particularity would be the privilege against
self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares that in
so doing he would incriminate himself – his say-so does not of itself establish the
hazard of incrimination. It is for the court to say whether his silence is justified,
and to require him to answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually required to be
established in court, he would be compelled to surrender the very protection
which the privilege is designed to guarantee. To sustain the privilege, it need
only be evident from the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an explanation of why it
cannot be answered might be dangerous because injurious disclosure could
result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent. It is woefully
insufficient for Congress to determine whether the withholding of information is
justified under the circumstances of each case. It severely frustrates the power of
inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere expression
of opinion by the President regarding the nature and scope of executive
privilege.
Petitioners, however, assert as another ground for invalidating the challenged
order the alleged unlawful delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case of
the United States where, so it claims, only the President can assert executive
privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain information is privileged, such determination is
presumed to bear the President’s authority and has the effect of prohibiting the
official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional nature
of the privilege. Executive privilege, as already discussed, is recognized with
respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive branch,105 or
in those instances where exemption from disclosure is necessary to the discharge
of highly important executive responsibilities.106 The doctrine of executive
privilege is thus premised on the fact that certain informations must, as a matter
of necessity, be kept confidential in pursuit of the public interest. The privilege
being, by definition, an exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may of
course authorize the Executive Secretary to invoke the privilege on her behalf, in
which case the Executive Secretary must state that the authority is "By order of
the President," which means that he personally consulted with her. The privilege
being an extraordinary power, it must be wielded only by the highest official in
the executive hierarchy. In other words, the President may not authorize her
subordinates to exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not explicit but by
mere silence. Section 3, in relation to Section 2(b), is further invalid on this
score.
It follows, therefore, that when an official is being summoned by Congress on a
matter which, in his own judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair opportunity to
consider whether the matter indeed calls for a claim of executive privilege. If,
after the lapse of that reasonable time, neither the President nor the Executive
Secretary invokes the privilege, Congress is no longer bound to respect the
failure of the official to appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it must
be invalidated. That such authorization is partly motivated by the need to ensure
respect for such officials does not change the infirm nature of the authorization
itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings conducted by it, and not with the demands of
citizens for information pursuant to their right to information on matters of
public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is not merely the legislative power of
inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to
information on matters of public concern. For one, the demand of a citizen for
the production of documents pursuant to his right to information does not have
the same obligatory force as a subpoena duces tecum issued by Congress.
Neither does the right to information grant a citizen the power to exact testimony
from government officials. These powers belong only to Congress and not to an
individual citizen.
Thus, while Congress is composed of representatives elected by the people, it
does not follow, except in a highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted in
public, however, any executive issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives the people of information
which, being presumed to be in aid of legislation, is presumed to be a matter of
public concern. The citizens are thereby denied access to information which they
can use in formulating their own opinions on the matter before Congress —
opinions which they can then communicate to their representatives and other
government officials through the various legal means allowed by their freedom
of expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be responsive to the
people’s will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when
the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.107(Emphasis and underscoring
supplied)
The impairment of the right of the people to information as a consequence of
E.O. 464 is, therefore, in the sense explained above, just as direct as its violation
of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the need for publication. On the need for
publishing even those statutes that do not directly apply to people in general,
Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law granting
citizenship to a particular individual, like a relative of President Marcos who was
decreed instant naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly to all the
people. The subject of such law is a matter of public interest which any member
of the body politic may question in the political forums or, if he is a proper party,
even in courts of justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to statutes, logic dictates
that the challenged order must be covered by the publication requirement. As
explained above, E.O. 464 has a direct effect on the right of the people to
information on matters of public concern. It is, therefore, a matter of public
interest which members of the body politic may question before this Court. Due
process thus requires that the people should have been apprised of this issuance
before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so assert it and state the
reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for information without need of clearly asserting a right
to do so and/or proffering its reasons therefor. By the mere expedient of invoking
said provisions, the power of Congress to conduct inquiries in aid of legislation
is frustrated. That is impermissible. For [w]hat republican theory did
accomplish…was to reverse the old presumption in favor of secrecy, based on
the divine right of kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of popular sovereignty. (Underscoring
supplied)109
Resort to any means then by which officials of the executive branch could refuse
to divulge information cannot be presumed valid. Otherwise, we shall not have
merely nullified the power of our legislature to inquire into the operations of
government, but we shall have given up something of much greater value – our
right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
Executive Order No. 464 (series of 2005), "Ensuring Observance of the Principle
of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other Purposes,"
are declared VOID. Sections 1 and 2(a) are, however, VALID.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD
LLAMAS, H. HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER
R. RAYEL, GARY S. MALLARI, ROMEL REGALADO BAGARES,
CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO
ERMITA, HON. AVELINO CRUZ II, SECRETARY OF NATIONAL
DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF STAFF,
ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL
ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, Respondents.
x-------------------------------------x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO.,
INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE
DIRECTOR GENERAL ARTURO C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO
A. CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C.
OCAMPO, MUJIV S. HATAMAN, JUAN EDGARDO ANGARA,
TEOFISTO DL. GUINGONA III, EMMANUEL JOSEL J. VILLANUEVA,
LIZA L. MAZA, IMEE R. MARCOS, RENATO B. MAGTUBO, JUSTIN
MARC SB. CHIPECO, ROILO GOLEZ, DARLENE ANTONINO-
CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C.
NICOLAS, MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES,
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES
REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J.
CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY,
DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO
LOMIBAO, CHIEF PNP,Respondents.
x-------------------------------------x
G.R. No. 171483 May 3, 2006
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON
ELMER C. LABOG AND SECRETARY GENERAL JOEL
MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS –
KILUSANG MAYO UNO (NAFLU-KMU), REPRESENTED BY ITS
NATIONAL PRESIDENT, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN,Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO,
THE HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA,
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GENEROSO SENGA, AND THE PNP DIRECTOR GENERAL, ARTURO
LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN.
GENEROSO SENGA, AND DIRECTOR GENERAL ARTURO
LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL,
FELIMON C. ABELITA III, MANUEL P. LEGASPI, J.B. JOVY C.
BERNABE, BERNARD L. DAGCUTA, ROGELIO V. GARCIA AND
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF,
AND DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY
AS PNP CHIEF,Respondents.
x-------------------------------------x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS
PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN
HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE
NATIONAL POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY
AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS
EXECUTIVE SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula
are necessary.1 Superior strength – the use of force – cannot make wrongs into
rights. In this regard, the courts should be vigilant in safeguarding the
constitutional rights of the citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most
relevant. He said: "In cases involving liberty, the scales of justice should
weigh heavily against government and in favor of the poor, the oppressed,
the marginalized, the dispossessed and the weak." Laws and actions that
restrict fundamental rights come to the courts "with a heavy presumption against
their constitutional validity."2
These seven (7) consolidated petitions for certiorari and prohibition allege that
in issuing Presidential Proclamation No. 1017 (PP 1017) and General Order No.
5 (G.O. No. 5), President Gloria Macapagal-Arroyo committed grave abuse of
discretion. Petitioners contend that respondent officials of the Government, in
their professed efforts to defend and preserve democratic institutions, are
actually trampling upon the very freedom guaranteed and protected by the
Constitution. Hence, such issuances are void for being unconstitutional.
Once again, the Court is faced with an age-old but persistently modern
problem. How does the Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with the degree of law, without
which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic
of the Philippines and Commander-in-Chief of the Armed Forces of the
Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of
the Philippine Constitution which states that: "The President. . . whenever it
becomes necessary, . . . may call out (the) armed forces to prevent or suppress. .
.rebellion. . .," and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence
as well as any act of insurrection or rebellion and to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me
personally or upon my direction; and as provided in Section 17, Article 12 of
the Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left represented by the NDF-
CPP-NPA and the extreme Right, represented by military adventurists – the
historical enemies of the democratic Philippine State – who are now in a
tactical alliance and engaged in a concerted and systematic conspiracy, over a
broad front, to bring down the duly constituted Government elected in May
2004;
WHEREAS, these conspirators have repeatedly tried to bring down the
President;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State – by
obstructing governance including hindering the growth of the economy and
sabotaging the people’s confidence in government and their faith in the
future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down
the democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute aclear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have
conspired with authoritarians of the extreme Left, represented by the NDF-CPP-
NPA and the extreme Right, represented by military adventurists - the historical
enemies of the democratic Philippine State – and who are now in a tactical
alliance and engaged in a concerted and systematic conspiracy, over a broad
front, to bring down the duly-constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our
republican government;
WHEREAS, the claims of these elements have been recklessly magnified by
certain segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the
people’s confidence in the government and their faith in the future of this
country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications
and collateral effects constitute a clear and present danger to the safety and the
integrity of the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the Republic of
the Philippines, and Commander-in-Chief of the Republic of the Philippines, and
pursuant to Proclamation No. 1017 dated February 24, 2006, do hereby call upon
the Armed Forces of the Philippines (AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of terrorism and lawless violence in the
country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as
the officers and men of the AFP and PNP, to immediately carry out the
necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP
1017. She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of
the Constitution, Proclamation No. 1017 dated February 24, 2006, was issued
declaring a state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24,
2006, which were issued on the basis of Proclamation No. 1017, the Armed
Forces of the Philippines (AFP) and the Philippine National Police (PNP), were
directed to maintain law and order throughout the Philippines, prevent and
suppress all form of lawless violence as well as any act of rebellion and to
undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and
quelled the acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me by law,
hereby declare that the state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the
conspiracy among some military officers, leftist insurgents of the New People’s
Army (NPA), and some members of the political opposition in a plot to unseat or
assassinate President Arroyo.4 They considered the aim to oust or assassinate the
President and take-over the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified
the facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there
was no refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of
calling out the armed forces. He emphasized that none of the petitioners has
shown that PP 1017 was without factual bases. While he explained that it is not
respondents’ task to state the facts behind the questioned Proclamation, however,
they are presenting the same, narrated hereunder, for the elucidation of the
issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo
Group indicted in the Oakwood mutiny, escaped their detention cell in Fort
Bonifacio, Taguig City. In a public statement, they vowed to remain defiant and
to elude arrest at all costs. They called upon the people to "show and proclaim
our displeasure at the sham regime. Let us demonstrate our disgust, not only by
going to the streets in protest, but also by wearing red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan
Hackle I " which detailed plans for bombings and attacks during the Philippine
Military Academy Alumni Homecoming in Baguio City. The plot was to
assassinate selected targets including some cabinet members and President
Arroyo herself.6 Upon the advice of her security, President Arroyo decided not to
attend the Alumni Homecoming. The next day, at the height of the celebration, a
bomb was found and detonated at the PMA parade ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing
minutes of the meetings between members of the Magdalo Group and the
National People’s Army (NPA), a tape recorder, audio cassette cartridges,
diskettes, and copies of subversive documents.7 Prior to his arrest, Lt. San Juan
announced through DZRH that the "Magdalo’s D-Day would be on February 24,
2006, the 20th Anniversary of Edsa I."
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that
members of the PNP- Special Action Force were planning to defect. Thus, he
immediately ordered SAF Commanding General Marcelino Franco, Jr.
to "disavow" any defection. The latter promptly obeyed and issued a public
statement: "All SAF units are under the effective control of responsible and
trustworthy officers with proven integrity and unquestionable loyalty."
On the same day, at the house of former Congressman Peping Cojuangco,
President Cory Aquino’s brother, businessmen and mid-level government
officials plotted moves to bring down the Arroyo administration. Nelly Sindayen
of TIME Magazine reported that Pastor Saycon, longtime Arroyo critic, called a
U.S. government official about his group’s plans if President Arroyo is ousted.
Saycon also phoned a man code-named Delta. Saycon identified him as B/Gen.
Danilo Lim, Commander of the Army’s elite Scout Ranger. Lim said "it was all
systems go for the planned movement against Arroyo."8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to
Gen. Generoso Senga, Chief of Staff of the Armed Forces of the Philippines
(AFP), that a huge number of soldiers would join the rallies to provide a critical
mass and armed component to the Anti-Arroyo protests to be held on February
24, 2005. According to these two (2) officers, there was no way they could
possibly stop the soldiers because they too, were breaking the chain of command
to join the forces foist to unseat the President. However, Gen. Senga has
remained faithful to his Commander-in-Chief and to the chain of command. He
immediately took custody of B/Gen. Lim and directed Col. Querubin to return to
the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary
work within the military and the police establishments in order to forge alliances
with its members and key officials. NPA spokesman Gregorio "Ka Roger" Rosal
declared: "The Communist Party and revolutionary movement and the entire
people look forward to the possibility in the coming year of accomplishing its
immediate task of bringing down the Arroyo regime; of rendering it to weaken
and unable to rule that it will not take much longer to end it."9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front
(NDF) at North Central Mindanao, publicly announced: "Anti-Arroyo groups
within the military and police are growing rapidly, hastened by the economic
difficulties suffered by the families of AFP officers and enlisted personnel who
undertake counter-insurgency operations in the field." He claimed that with the
forces of the national democratic movement, the anti-Arroyo conservative
political parties, coalitions, plus the groups that have been reinforcing since June
2005, it is probable that the President’s ouster is nearing its concluding stage in
the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and
cell sites in Bulacan and Bataan was also considered as additional factual basis
for the issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in
Benguet resulting in the death of three (3) soldiers. And also the directive of the
Communist Party of the Philippines ordering its front organizations to join 5,000
Metro Manila radicals and 25,000 more from the provinces in mass protests.10
By midnight of February 23, 2006, the President convened her security advisers
and several cabinet members to assess the gravity of the fermenting peace and
order situation. She directed both the AFP and the PNP to account for all their
men and ensure that the chain of command remains solid and undivided. To
protect the young students from any possible trouble that might break loose on
the streets, the President suspended classes in all levels in the entire National
Capital Region.
For their part, petitioners cited the events that followed after the issuance of
PP 1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all
programs and activities related to the 20th anniversary celebration of Edsa
People Power I; and revoked the permits to hold rallies issued earlier by the
local governments. Justice Secretary Raul Gonzales stated that political rallies,
which to the President’s mind were organized for purposes of destabilization, are
cancelled.Presidential Chief of Staff Michael Defensor announced that
"warrantless arrests and take-over of facilities, including media, can already be
implemented."11
Undeterred by the announcements that rallies and public assemblies would not
be allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and
National Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the intention of converging at
the EDSA shrine. Those who were already near the EDSA site were violently
dispersed by huge clusters of anti-riot police. The well-trained policemen used
truncheons, big fiber glass shields, water cannons, and tear gas to stop and break
up the marching groups, and scatter the massed participants. The same police
action was used against the protesters marching forward to Cubao, Quezon City
and to the corner of Santolan Street and EDSA. That same evening, hundreds of
riot policemen broke up an EDSA celebration rally held along Ayala Avenue and
Paseo de Roxas Street in Makati City.12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the
ground for the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without
warrant) petitioner Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested was his companion, Ronald
Llamas, president of party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the
Criminal Investigation and Detection Group (CIDG) of the PNP, on the basis of
PP 1017 and G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding
team confiscated news stories by reporters, documents, pictures, and mock-ups
of the Saturday issue. Policemen from Camp Crame in Quezon City were
stationed inside the editorial and business offices of the newspaper; while
policemen from the Manila Police District were stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the
police surrounded the premises of another pro-opposition paper, Malaya, and its
sister publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to
show a ‘strong presence,’ to tell media outlets not to connive or do anything that
would help the rebels in bringing down this government." The PNP warned that
it would take over any media organization that would not follow "standards set
by the government during the state of national emergency." Director General
Lomibao stated that "if they do not follow the standards – and the standards are
- if they would contribute to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and Proc. No. 1017 – we will
recommend a ‘takeover.’" National Telecommunications’ Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government
for the duration of the state of national emergency. He asked for "balanced
reporting" from broadcasters when covering the events surrounding the coup
attempt foiled by the government. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage when the national security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU),
while leaving his farmhouse in Bulacan. The police showed a warrant for his
arrest dated 1985. Beltran’s lawyer explained that the warrant, which stemmed
from a case of inciting to rebellion filed during the Marcos regime, had long
been quashed. Beltran, however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they
were told they could not be admitted because of PP 1017 and G.O. No. 5. Two
members were arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went
after him during a public forum at the Sulo Hotel in Quezon City. But his two
drivers, identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine
Constabulary, was arrested while with his wife and golfmates at the Orchard
Golf and Country Club in Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,
Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño
and Gabriela Representative Liza Maza. Bayan Muna Representative Josel
Virador was arrested at the PAL Ticket Office in Davao City. Later, he was
turned over to the custody of the House of Representatives where the "Batasan
5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of
Representatives Beltran, Satur Ocampo,et al., are not being raised in these
petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of
national emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP
1017 and G.O. No. 5 were filed with this Court against the above-named
respondents. Three (3) of these petitions impleaded President Arroyo as
respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial
law; and (3) it violates the constitutional guarantees of freedom of the press, of
speech and of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing
Co., Inc. challenged the CIDG’s act of raiding the Daily Tribune offices as a
clear case of "censorship" or "prior restraint." They also claimed that the term
"emergency" refers only to tsunami, typhoon, hurricane and similar occurrences,
hence, there is "absolutely no emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G.
Escudero, and twenty one (21) other members of the House of Representatives,
including Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza
Maza, and Josel Virador. They asserted that PP 1017 and G.O. No. 5 constitute
"usurpation of legislative powers"; "violation of freedom of expression" and "a
declaration of martial law." They alleged that President Arroyo "gravely abused
her discretion in calling out the armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a showing that there is necessity
to do so."
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members
averred that PP 1017 and G.O. No. 5 are unconstitutional because (1) they
arrogate unto President Arroyo the power to enact laws and decrees; (2) their
issuance was without factual basis; and (3) they violate freedom of expression
and the right of the people to peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged
that PP 1017 and G.O. No. 5 are unconstitutional because they
violate (a) Section 415 of Article II, (b) Sections 1,16 2,17 and 418 of Article
III, (c)Section 2319 of Article VI, and (d) Section 1720 of Article XII of the
Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP
1017 is an "arbitrary and unlawful exercise by the President of her Martial Law
powers." And assuming that PP 1017 is not really a declaration of Martial Law,
petitioners argued that "it amounts to an exercise by the President of emergency
powers without congressional approval." In addition, petitioners asserted that PP
1017 "goes beyond the nature and function of a proclamation as defined under
the Revised Administrative Code."
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP
1017 and G.O. No. 5 are "unconstitutional for being violative of the freedom of
expression, including its cognate rights such as freedom of the press and the
right to access to information on matters of public concern, all guaranteed under
Article III, Section 4 of the 1987 Constitution." In this regard, she stated that
these issuances prevented her from fully prosecuting her election protest pending
before the Presidential Electoral Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered
that: first, the petitions should be dismissed for being moot; second,petitioners in
G.R. Nos. 171400 (ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485
(Escudero et al.) and 171489 (Cadiz et al.) have no legal standing; third, it is not
necessary for petitioners to implead President Arroyo as respondent; fourth, PP
1017 has constitutional and legal basis; and fifth, PP 1017 does not violate the
people’s right to free expression and redress of grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on
the above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and
academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et al.), 171489(Cadiz et al.),
and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the
concept of judicial review enunciated in Marbury v. Madison.21 This concept
rests on the extraordinary simple foundation --
The Constitution is the supreme law. It was ordained by the people, the ultimate
source of all political authority. It confers limited powers on the national
government. x x x If the government consciously or unconsciously oversteps
these limitations there must be some authority competent to hold it in
control, to thwart its unconstitutional attempt, and thus to vindicate and
preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the
theory of judicial review.22
But the power of judicial review does not repose upon the courts a "self-starting
capacity."23 Courts may exercise such power only when the following requisites
are present: first, there must be an actual case or controversy;second, petitioners
have to raise a question of constitutionality; third, the constitutional question
must be raised at the earliest opportunity; and fourth, the decision of the
constitutional question must be necessary to the determination of the case
itself.24
Respondents maintain that the first and second requisites are absent, hence, we
shall limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal
claims susceptible of judicial resolution. It is "definite and concrete, touching the
legal relations of parties having adverse legal interest;" a real and substantial
controversy admitting of specific relief.25 The Solicitor General refutes the
existence of such actual case or controversy, contending that the present petitions
were rendered "moot and academic" by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events,26 so that a declaration thereon would be of no
practical use or value.27 Generally, courts decline jurisdiction over such case28 or
dismiss it on ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the
present petitions moot and academic. During the eight (8) days that PP 1017 was
operative, the police officers, according to petitioners, committed illegal acts in
implementing it. Are PP 1017 and G.O. No. 5 constitutional or valid? Do they
justify these alleged illegal acts? These are the vital issues that must be
resolved in the present petitions. It must be stressed that "an unconstitutional
act is not a law, it confers no rights, it imposes no duties, it affords no
protection; it is in legal contemplation, inoperative."30
The "moot and academic" principle is not a magical formula that can
automatically dissuade the courts in resolving a case. Courts will decide cases,
otherwise moot and academic, if: first, there is a grave violation of the
Constitution;31 second, the exceptional character of the situation and the
paramount public interest is involved;32third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the
public;33 and fourth, the case is capable of repetition yet evading review.34
All the foregoing exceptions are present here and justify this Court’s assumption
of jurisdiction over the instant petitions. Petitioners alleged that the issuance of
PP 1017 and G.O. No. 5 violates the Constitution. There is no question that the
issues being raised affect the public’s interest, involving as they do the people’s
basic rights to freedom of expression, of assembly and of the press. Moreover,
the Court has the duty to formulate guiding and controlling constitutional
precepts, doctrines or rules. It has the symbolic function of educating the bench
and the bar, and in the present petitions, the military and the police, on the
extent of the protection given by constitutional guarantees.35 And lastly,
respondents’ contested actions are capable of repetition. Certainly, the petitions
are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited
Chief Justice Artemio V. Panganiban’s Separate Opinion in Sanlakas v.
Executive Secretary.36 However, they failed to take into account the Chief
Justice’s very statement that an otherwise "moot" case may still be decided
"provided the party raising it in a proper case has been and/or continues to be
prejudiced or damaged as a direct result of its issuance." The present case falls
right within this exception to the mootness rule pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court
deems it imperative to have a more than passing discussion on legal standing
or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question."37 In private suits, standing is governed by the "real-parties-in interest"
rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as
amended. It provides that "every action must be prosecuted or defended in the
name of the real party in interest." Accordingly, the "real-party-in interest" is
"the party who stands to be benefited or injured by the judgment in the suit
or the party entitled to the avails of the suit."38 Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a person who
is affected no differently from any other person. He could be suing as a
"stranger," or in the category of a "citizen," or ‘taxpayer." In either case, he has
to adequately show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public order and
the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing
in public actions. The distinction was first laid down in Beauchamp v.
Silk,39 where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins:40 "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." With
respect to taxpayer’s suits, Terr v. Jordan41 held that "the right of a citizen and
a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in
any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United State
Supreme Court laid down the more stringent "direct injury" test in Ex Parte
Levitt,42 later reaffirmed inTileston 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,46Pascual v. Secretary of Public
Works47 and Anti-Chinese League of the Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus
standi may be waived by the Court in the exercise of its discretion. This was
done in the 1949 Emergency Powers Cases, Araneta v. Dinglasan,49 where the
"transcendental importance" of the cases prompted the Court to act liberally.
Such liberality was neither a rarity nor accidental. In Aquino v. Comelec,50 this
Court resolved to pass upon the issues raised due to the "far-reaching
implications" of the petition notwithstanding its categorical statement that
petitioner therein had no personality to file the suit. Indeed, there is a chain of
cases where this liberal policy has been observed, allowing ordinary citizens,
members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.51
Thus, the Court has adopted a rule that even where the petitioners have failed to
show direct injury, they have been allowed to sue under the principle of
"transcendental importance." Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,52 where the Court ruled that the
enforcement of the constitutional right to information and the
equitable diffusion of natural resources are matters of
transcendental importance which clothe the petitioner with locus
standi;
(2) Bagong Alyansang Makabayan v. Zamora,53 wherein the Court held
that "given the transcendental importance of the issues involved, the
Court may relax the standing requirements and allow the suit to
prosper despite the lack of direct injury to the parties seeking
judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the
petitioners may not file suit in their capacity as taxpayers absent a
showing that "Balikatan 02-01" involves the exercise of Congress’
taxing or spending powers, it reiterated its ruling in Bagong Alyansang
Makabayan v. Zamora,55that in cases of transcendental importance,
the cases must be settled promptly and definitely and standing
requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided
by this Court. Taxpayers, voters, concerned citizens, and legislators may be
accorded standing to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of
public funds or that the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the
validity of the election law in question;
(4) for concerned citizens, there must be a showing that the issues
raised are of transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action
complained of infringes upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
people’s organization does not give it the requisite personality to question the
validity of the on-line lottery contract, more so where it does not raise any issue
of constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation
that public funds are being misused. Nor can it sue as a concerned citizen as it
does not allege any specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
Comelec,57 the Court reiterated the "direct injury" test with respect to concerned
citizens’ cases involving constitutional issues. It held that "there must be a
showing that the citizen personally suffered some actual or threatened injury
arising from the alleged illegal official act."
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not
demonstrated any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners
who are members of Congress have standing to sue, as they claim that the
President’s declaration of a state of rebellion is a usurpation of the emergency
powers of Congress, thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and Social Justice Society, the Court
declared them to be devoid of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and
Llamas, is beyond doubt. The same holds true with petitioners in G.R. No.
171409, Cacho-Olivares and Tribune Publishing Co. Inc. They alleged "direct
injury" resulting from "illegal arrest" and "unlawful search" committed by police
operatives pursuant to PP 1017. Rightly so, the Solicitor General does not
question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation
of legislative powers. They also raised the issue of whether or not the
concurrence of Congress is necessary whenever the alarming powers incident to
Martial Law are used. Moreover, it is in the interest of justice that those affected
by PP 1017 can be represented by their Congressmen in bringing to the attention
of the Court the alleged violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa
v. Enriquez,60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
v. Tan,61 Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,62 Basco v. Philippine Amusement and Gaming
Corporation,63 and Tañada v. Tuvera,64 that when the issue concerns a public
right, it is sufficient that the petitioner is a citizen and has an interest in the
execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its
right to peaceful assembly may be deemed sufficient to give it legal
standing. Organizations may be granted standing to assert the rights of their
members.65 We take judicial notice of the announcement by the Office of the
President banning all rallies and canceling all permits for public assemblies
following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the
Integrated Bar of the Philippines (IBP) have no legal standing, having failed to
allege any direct or potential injury which the IBP as an institution or its
members may suffer as a consequence of the issuance of PP No. 1017 and G.O.
No. 5. In Integrated Bar of the Philippines v. Zamora,66 the Court held that the
mere invocation by the IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the
whole citizenry. However, in view of the transcendental importance of the issue,
this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the
instant petition as there are no allegations of illegal disbursement of public
funds. The fact that she is a former Senator is of no consequence. She can no
longer sue as a legislator on the allegation that her prerogatives as a lawmaker
have been impaired by PP 1017 and G.O. No. 5. Her claim that she is a media
personality will not likewise aid her because there was no showing that the
enforcement of these issuances prevented her from pursuing her occupation. Her
submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown
that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may
relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary
to the bigger question of proper exercise of judicial power. This is the underlying
legal tenet of the "liberality doctrine" on legal standing. It cannot be doubted that
the validity of PP No. 1017 and G.O. No. 5 is a judicial question which is of
paramount importance to the Filipino people. To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated breath the ruling of this Court
on this very critical matter. The petitions thus call for the application of the
"transcendental importance" doctrine, a relaxation of the standing
requirements for the petitioners in the "PP 1017 cases."1avvphil.net
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled
is the doctrine that the President, during his tenure of office or actual
incumbency,67 may not be sued in any civil or criminal case, and there is no need
to provide for it in the Constitution or law. It will degrade the dignity of the high
office of the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that he be freed
from any form of harassment, hindrance or distraction to enable him to fully
attend to the performance of his official duties and functions. Unlike the
legislative and judicial branch, only one constitutes the executive branch and
anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is
not accountable to anyone. Like any other official, he remains accountable to the
people68 but he may be removed from office only in the mode provided by law
and that is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not
"necessary" for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s
exercise of his Commander-in-Chief power has reached its distilled point - from
the indulgent days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the
volatile era of Lansang v. Garcia,72 Aquino, Jr. v. Enrile,73 and Garcia-Padilla v.
Enrile.74 The tug-of-war always cuts across the line defining "political
questions," particularly those questions "in regard to which full discretionary
authority has been delegated to the legislative or executive branch of the
government."75Barcelon 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 ofLansang 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. Enrilewhich greatly diluted Lansang. It declared that
there is a need to re-examine the latter case, ratiocinating that "in times of war
or national emergency, the President must be given absolute control for the
very life of the nation and the government is in great peril. The President, it
intoned, is answerable only to his conscience, the People, and God."79
The Integrated Bar of the Philippines v. Zamora80 -- a recent case most pertinent
to these cases at bar -- echoed a principle similar to Lansang. While the Court
considered the President’s "calling-out" power as a discretionary power solely
vested in his wisdom, it stressed that "this does not prevent an examination of
whether such power was exercised within permissible constitutional limits
or whether it was exercised in a manner constituting grave abuse of
discretion."This ruling is mainly a result of the Court’s reliance on Section 1,
Article VIII of 1987 Constitution which fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are
authorized not only "to settle actual controversies involving rights which are
legally demandable and enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." The latter part of the authority represents a broadening of judicial
power to enable the courts of justice to review what was before a forbidden
territory, to wit, the discretion of the political departments of the
government.81 It speaks of judicial prerogative not only in terms of power but
also of duty.82
As to how the Court may inquire into the President’s exercise of
power, Lansang adopted the test that "judicial inquiry can go no further than to
satisfy the Court not that the President’s decision is correct," but that "the
President did not act arbitrarily." Thus, the standard laid down is not
correctness, but arbitrariness.83 In Integrated Bar of the Philippines, this Court
further ruled that "it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis" and that if he fails, by
way of proof, to support his assertion, then "this Court cannot undertake an
independent investigation beyond the pleadings."
Petitioners failed to show that President Arroyo’s exercise of the calling-out
power, by issuing PP 1017, is totally bereft of factual basis. A reading of the
Solicitor General’s Consolidated Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP 1017, with supporting
reports forming part of the records. Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day, the defections in the
military, particularly in the Philippine Marines, and the reproving statements
from the communist leaders. There was also the Minutes of the Intelligence
Report and Security Group of the Philippine Army showing the growing alliance
between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the
President was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not
expected to simply fold her arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or rebellion. However, the exercise of
such power or duty must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject -- the power of the President in
times of emergency. A glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the
English doctrine of prerogative to cope with the problem of emergency. In times
of danger to the nation, positive law enacted by the legislature might be
inadequate or even a fatal obstacle to the promptness of action necessary to avert
catastrophe. In these situations, the Crown retained a prerogative "power to act
according to discretion for the public good, without the proscription of the
law and sometimes even against it."84 But Locke recognized that this moral
restraint might not suffice to avoid abuse of prerogative powers. Who shall
judge the need for resorting to the prerogative and how may its abuse be
avoided? Here, Locke readily admitted defeat, suggesting that"the people have
no other remedy in this, as in all other cases where they have no judge on
earth, but to appeal to Heaven."85
Jean-Jacques Rousseau also assumed the need for temporary suspension of
democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them
bring about, at a time of crisis, the ruin of the State…
It is wrong therefore to wish to make political institutions as strong as to render
it impossible to suspend their operation. Even Sparta allowed its law to lapse...
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to
their preservation, the method is to nominate a supreme lawyer, who shall
silence all the laws and suspend for a moment the sovereign authority. In such a
case, there is no doubt about the general will, and it clear that the people’s first
intention is that the State shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme
magistracy" as he termed it. For him, it would more likely be cheapened by
"indiscreet use." He was unwilling to rely upon an "appeal to heaven." Instead,
he relied upon a tenure of office of prescribed duration to avoid perpetuation of
the dictatorship.87
John Stuart Mill concluded his ardent defense of representative government: "I
am far from condemning, in cases of extreme necessity, the assumption of
absolute power in the form of a temporary dictatorship."88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole
scheme of limited government, furnished an ironic contrast to the Lockean
theory of prerogative. He recognized and attempted to bridge this chasm in
democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra –
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects,
they will in a little while be disregarded under that pretext but for evil purposes.
Thus, no republic will ever be perfect if she has not by law provided for
everything, having a remedy for every emergency and fixed rules for applying
it.89
Machiavelli – in contrast to Locke, Rosseau and Mill – sought to incorporate into
the constitution a regularized system of standby emergency powers to be
invoked with suitable checks and controls in time of national danger. He
attempted forthrightly to meet the problem of combining a capacious reserve of
power and speed and vigor in its application in time of emergency, with effective
constitutional restraints.90
Contemporary political theorists, addressing themselves to the problem of
response to emergency by constitutional democracies, have employed the
doctrine of constitutional dictatorship.91 Frederick M. Watkins saw "no reason
why absolutism should not be used as a means for the defense of liberal
institutions," provided it "serves to protect established institutions from the
danger of permanent injury in a period of temporary emergency and is
followed by a prompt return to the previous forms of political life."92 He
recognized the two (2) key elements of the problem of emergency governance, as
well as all constitutional governance: increasing administrative powers of the
executive, while at the same time "imposing limitation upon that
power."93 Watkins placed his real faith in a scheme of constitutional
dictatorship. These are the conditions of success of such a dictatorship: "The
period of dictatorship must be relatively short…Dictatorship should always
be strictly legitimate in character…Final authority to determine the need
for dictatorship in any given case must never rest with the dictator
himself…"94 and the objective of such an emergency dictatorship should be
"strict political conservatism."
Carl J. Friedrich cast his analysis in terms similar to those of Watkins.95 "It is a
problem of concentrating power – in a government where power has consciously
been divided – to cope with… situations of unprecedented magnitude and
gravity. There must be a broad grant of powers, subject to equally strong
limitations as to who shall exercise such powers, when, for how long, and to
what end."96 Friedrich, too, offered criteria for judging the adequacy of any of
scheme of emergency powers, to wit: "The emergency executive must be
appointed by constitutional means – i.e., he must be legitimate; he should
not enjoy power to determine the existence of an emergency; emergency
powers should be exercised under a strict time limitation; and last, the
objective of emergency action must be the defense of the constitutional
order."97
Clinton L. Rossiter, after surveying the history of the employment of emergency
powers in Great Britain, France, Weimar, Germany and the United States,
reverted to a description of a scheme of "constitutional dictatorship" as solution
to the vexing problems presented by emergency.98 Like Watkins and Friedrich,
he stated a priori the conditions of success of the "constitutional dictatorship,"
thus:
 1) No general regime or particular institution of constitutional
dictatorship should be initiated unless it is necessary or even
indispensable to the preservation of the State and its constitutional
order…
2) …the decision to institute a constitutional dictatorship should never
be in the hands of the man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without
making specific provisions for its termination…
4) …all uses of emergency powers and all readjustments in the
organization of the government should be effected in pursuit of
constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no
regular procedure altered any more than is absolutely necessary for the
conquest of the particular crisis . . .
6) The measures adopted in the prosecution of the a constitutional
dictatorship should never be permanent in character or effect…
7) The dictatorship should be carried on by persons representative of
every part of the citizenry interested in the defense of the existing
constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken
under a constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the
decision to institute one should never be in the hands of the man or men
who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination
of the crisis for which it was instituted…
11) …the termination of the crisis must be followed by a complete
return as possible to the political and governmental conditions existing
prior to the initiation of the constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of
emergency powers than did Watkins. He would secure to Congress final
responsibility for declaring the existence or termination of an emergency, and he
places great faith in the effectiveness of congressional investigating
committees.100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies
surrender the control of government to an authoritarian ruler in time of
grave danger to the nation is not based upon sound constitutional theory."
To appraise emergency power in terms of constitutional dictatorship serves
merely to distort the problem and hinder realistic analysis. It matters not whether
the term "dictator" is used in its normal sense (as applied to authoritarian rulers)
or is employed to embrace all chief executives administering emergency powers.
However used, "constitutional dictatorship" cannot be divorced from the
implication of suspension of the processes of constitutionalism. Thus, they
favored instead the "concept of constitutionalism" articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the analysis of
problems of emergency powers, and which is consistent with the findings of this
study, is that formulated by Charles H. McIlwain. While it does not by any
means necessarily exclude some indeterminate limitations upon the substantive
powers of government, full emphasis is placed upon procedural limitations,
and political responsibility. McIlwain clearly recognized the need to repose
adequate power in government. And in discussing the meaning of
constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the
enfeebling of government by an exaggerated emphasis upon separation of
powers and substantive limitations on governmental power. He found that the
really effective checks on despotism have consisted not in the weakening of
government but, but rather in the limiting of it; between which there is a great
and very significant difference. In associating constitutionalism with
"limited" as distinguished from "weak" government, McIlwain meant
government limited to the orderly procedure of law as opposed to the
processes of force. The two fundamental correlative elements of
constitutionalism for which all lovers of liberty must yet fight are the legal
limits to arbitrary power and a complete political responsibility of
government to the governed.101
In the final analysis, the various approaches to emergency of the above political
theorists –- from Lock’s "theory of prerogative," to Watkins’ doctrine of
"constitutional dictatorship" and, eventually, to McIlwain’s "principle of
constitutionalism" --- ultimately aim to solve one real problem in emergency
governance, i.e., that of allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such powers will be exercised with a
sense of political responsibility and under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice
Jackson’s "balanced power structure."102 Executive, legislative, and judicial
powers are dispersed to the President, the Congress, and the Supreme Court,
respectively. Each is supreme within its own sphere. But none has the
monopoly of power in times of emergency. Each branch is given a role to
serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other
words, in times of emergency, our Constitution reasonably demands that we
repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth."
They claim that its enforcement encroached on both unprotected and protected
rights under Section 4, Article III of the Constitution and sent a "chilling effect"
to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for
testing "on their faces" statutes infree speech cases, also known under the
American Law as First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or
even speech-related conduct. It is actually a call upon the AFP to prevent or
suppress all forms of lawless violence. In United States v. Salerno,104the US
Supreme Court held that "we have not recognized an ‘overbreadth’ doctrine
outside the limited context of the First Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a
law that "reflects legitimate state interest in maintaining comprehensive control
over harmful, constitutionally unprotected conduct." Undoubtedly, lawless
violence, insurrection and rebellion are considered "harmful" and
"constitutionally unprotected conduct." InBroadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly
be held void on its face and when ‘such summary action’ is inappropriate. But
the plain import of our cases is, at the very least, that facial overbreadth
adjudication is an exception to our traditional rules of practice and that its
function, a limited one at the outset, attenuates as the otherwise unprotected
behavior that it forbids the State to sanction moves from ‘pure speech’
toward conduct and that conduct –even if expressive – falls within the scope
of otherwise valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes
which, by their terms, seek to regulate only "spoken words" and again, that
"overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected
conduct."106 Here, the incontrovertible fact remains that PP 1017 pertains to a
spectrum of conduct, not free speech, which is manifestly subject to state
regulation.
Second, facial invalidation of laws is considered as "manifestly strong
medicine," to be used "sparingly and only as a last resort," and is "generally
disfavored;"107 The reason for this is obvious. Embedded in the traditional rules
governing constitutional adjudication is the principle that a person to whom a
law may be applied will not be heard to challenge a law on the ground that it
may conceivably be applied unconstitutionally to others, i.e., in other situations
not before the Court.108 A writer and scholar in Constitutional Law explains
further:
The most distinctive feature of the overbreadth technique is that it marks an
exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him
or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of
third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of
third parties; and the court invalidates the entire statute "on its face," not merely
"as applied for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that motivates
courts to depart from the normal adjudicatory rules is the concern with the
"chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law’s
"very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is
designed to remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the
Court to examine PP 1017 and pinpoint its flaws and defects, not on the basis of
its actual operation to petitioners, but on the assumption or prediction that its
very existence may cause others not before the Court to refrain from
constitutionally protected speech or expression. In Younger v. Harris,109 it was
held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and
requiring correction of these deficiencies before the statute is put into effect, is
rarely if ever an appropriate task for the judiciary. The combination of
the relative remoteness of the controversy, the impact on the legislative
process of the relief sought, and above all the speculative and amorphous
nature of the required line-by-line analysis of detailed statutes,...ordinarily
results in a kind of case that is wholly unsatisfactory for deciding constitutional
questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult
challenge to mount successfully, since the challenger must establish that there
can be no instance when the assailed law may be valid. Here, petitioners did
not even attempt to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness.
This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which
holds that "a law is facially invalid if men of common intelligence must
necessarily guess at its meaning and differ as to its application."110 It is
subject to the same principles governing overbreadth doctrine. For one, it is also
an analytical tool for testing "on their faces" statutes in free speech cases. And
like overbreadth, it is said that a litigant may challenge a statute on its face only
if it is vague in all its possible applications. Again, petitioners did not even
attempt to show that PP 1017 is vague in all its application. They also failed
to establish that men of common intelligence cannot understand the meaning and
application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important
provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Artilce VII … do hereby
command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well any act of insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a
State of National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v.
Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that
Section 18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in
person or in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may review, in an appropriate proceeding filed by any
citizen, the sufficiency of the factual bases of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers.
From the most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law. Citing Integrated Bar of the Philippines v. Zamora,112 the Court
ruled that the only criterion for the exercise of the calling-out power is that
"whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." Are these
conditions present in the instant cases? As stated earlier, considering the
circumstances then prevailing, President Arroyo found it necessary to issue PP
1017. Owing to her Office’s vast intelligence network, she is in the best position
to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid
him in suppressing lawless violence, invasion and rebellion. This involves
ordinary police action. But every act that goes beyond the President’s calling-out
power is considered illegal or ultra vires. For this reason, a President must be
careful in the exercise of his powers. He cannot invoke a greater power when he
wishes to act under a lesser power. There lies the wisdom of our Constitution,
the greater the power, the greater are the limitations.
It is pertinent to state, however, that there is a distinction between the President’s
authority to declare a "state of rebellion" (in Sanlakas) and the authority to
proclaim a state of national emergency. While President Arroyo’s authority to
declare a "state of rebellion" emanates from her powers as Chief Executive, the
statutory authority cited in Sanlakas was Section 4, Chapter 2, Book II of the
Revised Administrative Code of 1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a
status or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated
in proclamations which shall have the force of an executive order.
President Arroyo’s declaration of a "state of rebellion" was merely an act
declaring a status or condition of public moment or interest, a declaration
allowed under Section 4 cited above. Such declaration, in the words ofSanlakas,
is harmless, without legal significance, and deemed not written. In these cases,
PP 1017 is more than that. In declaring a state of national emergency, President
Arroyo did not only rely on Section 18, Article VII of the Constitution, a
provision calling on the AFP to prevent or suppress lawless violence, invasion or
rebellion. She also relied on Section 17, Article XII, a provision on the State’s
extraordinary power to take over privately-owned public utility and business
affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a
declaration of Martial Law. It is no so. What defines the character of PP 1017 are
its wordings. It is plain therein that what the President invoked was her calling-
out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power
has been called upon by the executive to assist in the maintenance of law and
order, and that, while the emergency lasts, they must, upon pain of arrest and
punishment, not commit any acts which will in any way render more difficult the
restoration of order and the enforcement of law."113
In his "Statement before the Senate Committee on Justice" on March 13, 2006,
Mr. Justice Vicente V. Mendoza,114an authority in constitutional law, said that of
the three powers of the President as Commander-in-Chief, the power to declare
Martial Law poses the most severe threat to civil liberties. It is a strong medicine
which should not be resorted to lightly. It cannot be used to stifle or persecute
critics of the government. It is placed in the keeping of the President for the
purpose of enabling him to secure the people from harm and to restore order so
that they can enjoy their individual freedoms. In fact, Section 18, Art. VII,
provides:
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It
is no more than a call by the President to the armed forces to prevent or suppress
lawless violence. As such, it cannot be used to justify acts that only under a valid
declaration of Martial Law can be done. Its use for any other purpose is a
perversion of its nature and scope, and any act done contrary to its command
is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c) take-over of news media and
agencies and press censorship; and (d) issuance of Presidential Decrees, are
powers which can be exercised by the President as Commander-in-
Chief only where there is a valid declaration of Martial Law or suspension of the
writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of
Martial Law. It is merely an exercise of President Arroyo’s calling-out
power for the armed forces to assist her in preventing or suppressing lawless
violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the
laws be faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested,115 the primary function
of the President is to enforce the laws as well as to formulate policies to be
embodied in existing laws. He sees to it that all laws are enforced by the officials
and employees of his department. Before assuming office, he is required to take
an oath or affirmation to the effect that as President of the Philippines, he will,
among others, "execute its laws."116 In the exercise of such function, the
President, if needed, may employ the powers attached to his office as the
Commander-in-Chief of all the armed forces of the country,117 including the
Philippine National Police118 under the Department of Interior and Local
Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur
Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon President Arroyo the power
to enact laws and decrees in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in Congress. They assail the
clause "to enforce obedience to all the laws and to all decrees, orders and
regulations promulgated by me personally or upon my direction."
\
Petitioners’ contention is understandable. A reading of PP 1017 operative clause
shows that it was lifted120 from Former President Marcos’ Proclamation No.
1081, which partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines by virtue of the powers vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do hereby place the entire Philippines as
defined in Article 1, Section 1 of the Constitution under martial law and, in my
capacity as their Commander-in-Chief, do hereby command the Armed Forces
of the Philippines, to maintain law and order throughout the Philippines,
prevent or suppress all forms of lawless violence as well as any act of
insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction.
We all know that it was PP 1081 which granted President Marcos legislative
power. Its enabling clause states: "to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my
direction." Upon the other hand, the enabling clause of PP 1017 issued by
President Arroyo is: to enforce obedience to all the laws and to all decrees,
orders and regulations promulgated by me personally or upon my
direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of
Executive Order No. 292 (Administrative Code of 1987). She may issue any of
the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a
general or permanent character in implementation or execution of constitutional
or statutory powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular
aspect of governmental operations in pursuance of his duties as administrative
head shall be promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the
operation of a specific law or regulation is made to depend, shall be promulgated
in proclamations which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of
administrative detail or of subordinate or temporary interest which only concern
a particular officer or office of the Government shall be embodied in
memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to
internal administration, which the President desires to bring to the attention of all
or some of the departments, agencies, bureaus or offices of the Government, for
information or compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be
issued as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She
cannot issue decrees similar to those issued by Former President Marcos under
PP 1081. Presidential Decrees are laws which are of the same category and
binding force as statutes because they were issued by the President in the
exercise of his legislative power during the period of Martial Law under the
1973 Constitution.121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it
grants President Arroyo the authority to promulgate "decrees." Legislative
power is peculiarly within the province of the Legislature. Section 1, Article VI
categorically states that "[t]he legislative power shall be vested in the
Congress of the Philippines which shall consist of a Senate and a House of
Representatives." To be sure, neither Martial Law nor a state of rebellion nor a
state of emergency can justify President Arroyo’s exercise of legislative power
by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the
military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With
respect to "laws," she cannot call the military to enforce or implement certain
laws, such as customs laws, laws governing family and property relations, laws
on obligations and contracts and the like. She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and
regulations promulgated by me personally or upon my direction; and as
provided in Section 17, Article XII of the Constitution do hereby declare a
state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to
all the laws and to all decrees x x x" but also to act pursuant to the provision of
Section 17, Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public
utility or business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision
when she issued PP 1017?
The answer is simple. During the existence of the state of national emergency,
PP 1017 purports to grant the President, without any authority or delegation from
Congress, to take over or direct the operation of any privately-owned public
utility or business affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the
"martial law" thinking of the 1971 Constitutional Convention.122 In effect at the
time of its approval was President Marcos’ Letter of Instruction No. 2 dated
September 22, 1972 instructing the Secretary of National Defense to take over
"the management, control and operation of the Manila Electric Company, the
Philippine Long Distance Telephone Company, the National Waterworks and
Sewerage Authority, the Philippine National Railways, the Philippine Air Lines,
Air Manila (and) Filipinas Orient Airways . . . for the successful prosecution by
the Government of its effort to contain, solve and end the present national
emergency."
Petitioners, particularly the members of the House of Representatives, claim that
President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an
encroachment on the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare "a state
of national emergency" and toexercise emergency powers. To the first, as
elucidated by the Court, Section 18, Article VII grants the President such power,
hence, no legitimate constitutional objection can be raised. But to the second,
manifold constitutional issues arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to declare the
existence of a state of war.
(2) In times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such restrictions as it
may prescribe, to exercise powers necessary and proper to carry out a declared
national policy. Unless sooner withdrawn by resolution of the Congress, such
powers shall cease upon the next adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not
only to war but also to "other national emergency." If the intention of the
Framers of our Constitution was to withhold from the President the authority to
declare a "state of national emergency" pursuant to Section 18, Article VII
(calling-out power) and grant it to Congress (like the declaration of the existence
of a state of war), then the Framers could have provided so. Clearly, they did not
intend that Congress should first authorize the President before he can declare a
"state of national emergency." The logical conclusion then is that President
Arroyo could validly declare the existence of a state of national emergency even
in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately
owned public utility or business affected with public interest, is a different
matter. This requires a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be
construed together. Otherwise stated, different clauses, sections, and provisions
of a constitution which relate to the same subject matter will be construed
together and considered in the light of each other.123 Considering that Section 17
of Article XII and Section 23 of Article VI, previously quoted, relate to national
emergencies, they must be read together to determine the limitation of the
exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in
the tenor of Section 23 (2), Article VI authorizing it to delegate such powers to
the President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the
Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national
policy declared by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency
powers clause. The taking over of private business affected with public interest
is just another facet of the emergency powers generally reposed upon Congress.
Thus, when Section 17 states that the "the State may, during the emergency
and under reasonable terms prescribed by it, temporarily take over or
direct the operation of any privately owned public utility or business
affected with public interest," it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether
Congress may delegate it to him pursuant to a law prescribing the reasonable
terms thereof. Youngstown Sheet & Tube Co. et al. v. Sawyer,125held:
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 other similar catastrophe of nationwide proportions or effect.131This is evident in
presidential power should be implied from the aggregate of his powers under the the Records of the Constitutional Commission, thus:
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 MR. GASCON. Yes. What is the Committee’s definition of "national
Care that the Laws be faithfully executed;" and that he "shall be Commander-in- emergency" which appears in Section 13, page 5? It reads:
Chief of the Army and Navy of the United States.
When the common good so requires, the State may temporarily take over or
The order cannot properly be sustained as an exercise of the President’s military direct the operation of any privately owned public utility or business affected
power as Commander-in-Chief of the Armed Forces. The Government attempts with public interest.
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 MR. VILLEGAS. What I mean is threat from external aggression, for
not concern us here.Even though "theater of war" be an expanding concept, example, calamities or natural disasters.
we cannot with faithfulness to our constitutional system hold that the
Commander-in-Chief of the Armed Forces has the ultimate power as such
MR. GASCON. There is a question by Commissioner de los Reyes. What about
to take possession of private property in order to keep labor disputes from
strikes and riots?
stopping production. This is a job for the nation’s lawmakers, not for its
military authorities.
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of
our Constitution, the President’s power to see that the laws are faithfully MR. BENGZON. Unless they are of such proportions such that they would
executed refutes the idea that he is to be a lawmaker. The Constitution paralyze government service.132
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 xxxxxx
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 MR. TINGSON. May I ask the committee if "national emergency" refers
Powers herein granted shall be vested in a Congress of the United States. . to military national emergency or could this be economic emergency?"
."126
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under
Section 17, Article XII refers to "tsunami," "typhoon," "hurricane"and"similar MR. TINGSON. Thank you very much.133
occurrences." This is a limited view of "emergency."
It may be argued that when there is national emergency, Congress may not be
Emergency, as a generic term, connotes the existence of conditions suddenly able to convene and, therefore, unable to delegate to the President the power to
intensifying the degree of existing danger to life or well-being beyond that which take over privately-owned public utility or business affected with public interest.
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 Araneta v. Dinglasan,134 this Court emphasized that legislative power,
in the United Sates since 1933, have been occasioned by a wide range of through which extraordinary measures are exercised, remains in Congress even
situations, classifiable under three (3) principal heads: a)economic,128 b) natural in times of crisis.
disaster,129 and c) national security.130
"x x x
"Emergency," as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or
After all the criticisms that have been made against the efficiency of the system
of the separation of powers, the fact remains that the Constitution has set up this
form of government, with all its defects and shortcomings, in preference to the
commingling of powers in one man or group of men. The Filipino people by
adopting parliamentary government have given notice that they share the faith of
other democracy-loving peoples in this system, with all its faults, as the ideal.
The point is, under this framework of government, legislation is preserved for
Congress all the time, not excepting periods of crisis no matter how serious.
Never in the history of the United States, the basic features of whose
Constitution have been copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another department – unless we
regard as legislating the carrying out of a legislative policy according to
prescribed standards; no, not even when that Republic was fighting a total war,
or when it was engaged in a life-and-death struggle to preserve the Union. The
truth is that under our concept of constitutional government, in times of extreme
perils more than in normal circumstances ‘the various branches, executive,
legislative, and judicial,’ given the ability to act, are called upon ‘to perform the
duties and discharge the responsibilities committed to them respectively."
Following our interpretation of Section 17, Article XII, invoked by President
Arroyo in issuing PP 1017, this Court rules that such Proclamation does not
authorize her during the emergency to temporarily take over or direct the
operation of any privately owned public utility or business affected with public
interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-
owned public utility or business affected with public interest. The President
cannot decide whether exceptional circumstances exist warranting the take over
of privately-owned public utility or business affected with public interest. Nor
can he determine when such exceptional circumstances have ceased.
Likewise, without legislation, the President has no power to point out the types
of businesses affected with public interest that should be taken over. In short, the
President has no absolute authority to exercise all the powers of the State under
Section 17, Article VII in the absence of an emergency powers act passed by
Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to
security, is that military necessity and the guaranteed rights of the individual are
often not compatible. Our history reveals that in the crucible of conflict, many
rights are curtailed and trampled upon. Here, the right against unreasonable
search and seizure; the right against warrantless arrest; and the freedom of
speech, of expression, of the press, and of assembly under the Bill of Rights
suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24,
2006, they were arrested without warrants on their way to EDSA to celebrate the
20th Anniversary of People Power I. The arresting officers cited PP 1017 as
basis of the arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co.,
Inc. claimed that on February 25, 2006, the CIDG operatives "raided and
ransacked without warrant" their office. Three policemen were assigned to guard
their office as a possible "source of destabilization." Again, the basis was PP
1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that
their members were "turned away and dispersed" when they went to EDSA and
later, to Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows
that they resulted from theimplementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis
of these illegal acts? In general,does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes
invalid although they may be abused and misabused135 and may afford an
opportunity for abuse in the manner of application.136 The validity of a
statute or ordinance is to be determined from its general purpose and its
efficiency to accomplish the end desired,not from its effects in a particular
case.137 PP 1017 is merely an invocation of the President’s calling-out power. Its
general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017
allowing the police, expressly or impliedly, to conduct illegal arrest, search or
violate the citizens’ constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground
that its implementor committed illegal acts? The answer is no. The criterion by
which the validity of the statute or ordinance is to be measured is the essential
basis for the exercise of power, and not a mere incidental result arising from
its exertion.138This is logical. Just imagine the absurdity of situations when laws
maybe declared unconstitutional just because the officers implementing them
have acted arbitrarily. If this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court, majority of the provisions of
the Revised Penal Code would have been declared unconstitutional a long time
ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP
1017. General orders are "acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines." They are internal
rules issued by the executive officer to his subordinates precisely for
the proper and efficientadministration of law. Such rules and regulations
create no relation except between the official who issues them and the official
who receives them.139 They are based on and are the product of, a relationship in
which power is their source, and obedience, their object.140 For these reasons,
one requirement for these rules to be valid is that they must be reasonable, not
arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the
"necessary and appropriate actions and measures to suppress and prevent
acts of terrorism and lawless violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and
the Constitution, and which is invariably associated with "invasion, insurrection
or rebellion," the phrase "acts of terrorism" is still an amorphous and vague
concept. Congress has yet to enact a law defining and punishing acts of
terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as
well. The following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against
terrorism" has become one of the basic slogans when it comes to the justification
of the use of force against certain states and against groups operating
internationally. Lists of states "sponsoring terrorism" and of terrorist
organizations are set up and constantly being updated according to criteria that
are not always known to the public, but are clearly determined by strategic
interests.
The basic problem underlying all these military actions – or threats of the use of
force as the most recent by the United States against Iraq – consists in the
absence of an agreed definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of
violence either by states, by armed groups such as liberation movements, or by
individuals.
The dilemma can by summarized in the saying "One country’s terrorist is
another country’s freedom fighter." The apparent contradiction or lack of
consistency in the use of the term "terrorism" may further be demonstrated by
the historical fact that leaders of national liberation movements such as Nelson
Mandela in South Africa, Habib Bourgouiba in Tunisia, or Ahmed Ben Bella in
Algeria, to mention only a few, were originally labeled as terrorists by those who
controlled the territory at the time, but later became internationally respected
statesmen.
What, then, is the defining criterion for terrorist acts – the differentia
specifica distinguishing those acts from eventually legitimate acts of national
resistance or self-defense?
Since the times of the Cold War the United Nations Organization has been trying
in vain to reach a consensus on the basic issue of definition. The organization
has intensified its efforts recently, but has been unable to bridge the gap between
those who associate "terrorism" with any violent act by non-state groups against
civilians, state functionaries or infrastructure or military installations, and those
who believe in the concept of the legitimate use of force when resistance against
foreign occupation or against systematic oppression of ethnic and/or religious
groups within a state is concerned.
The dilemma facing the international community can best be illustrated by
reference to the contradicting categorization of organizations and movements
such as Palestine Liberation Organization (PLO) – which is a terrorist group for
Israel and a liberation movement for Arabs and Muslims – the Kashmiri
resistance groups – who are terrorists in the perception of India, liberation
fighters in that of Pakistan – the earlier Contras in Nicaragua – freedom fighters
for the United States, terrorists for the Socialist camp – or, most drastically, the
Afghani Mujahedeen (later to become the Taliban movement): during the Cold
War period they were a group of freedom fighters for the West, nurtured by the
United States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be reconciled
in any way – because of opposing political interests that are at the roots of those
perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our
analysis, the basic reason for these striking inconsistencies lies in the divergent
interest of states. Depending on whether a state is in the position of an occupying
power or in that of a rival, or adversary, of an occupying power in a given
territory, the definition of terrorism will "fluctuate" accordingly. A state may
eventually see itself as protector of the rights of a certain ethnic group outside its
territory and will therefore speak of a "liberation struggle," not of "terrorism"
when acts of violence by this group are concerned, and vice-versa.
The United Nations Organization has been unable to reach a decision on the
definition of terrorism exactly because of these conflicting interests of sovereign
states that determine in each and every instance how a particular armed
movement (i.e. a non-state actor) is labeled in regard to the terrorists-freedom
fighter dichotomy. A "policy of double standards" on this vital issue of
international affairs has been the unavoidable consequence.
This "definitional predicament" of an organization consisting of sovereign states
– and not of peoples, in spite of the emphasis in the Preamble to the United
Nations Charter! – has become even more serious in the present global power
constellation: one superpower exercises the decisive role in the Security Council,
former great powers of the Cold War era as well as medium powers are
increasingly being marginalized; and the problem has become even more acute
since the terrorist attacks of 11 September 2001 I the United States.141
The absence of a law defining "acts of terrorism" may result in abuse and
oppression on the part of the police or military. An illustration is when a group
of persons are merely engaged in a drinking spree. Yet the military or the police
may consider the act as an act of terrorism and immediately arrest them pursuant
to G.O. No. 5. Obviously, this is abuse and oppression on their part. It must be
remembered that an act can only be considered a crime if there is a law defining
the same as such and imposing the corresponding penalty thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D.
No. 1835 dated January 16, 1981 enacted by President Marcos during the Martial
Law regime. This decree is entitled "Codifying The Various Laws on Anti-
Subversion and Increasing The Penalties for Membership in Subversive
Organizations." The word "terrorism" is mentioned in the following provision:
"That one who conspires with any other person for the purpose of overthrowing
the Government of the Philippines x x x by force, violence, terrorism, x x x
shall be punished byreclusion 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 arenecessary and appropriate to suppress and
prevent lawless violence, the limitation of their authority in pursuing the Order.
Otherwise, such acts are considered illegal.
We first examine G.R. No. 171396 (David et al.)
The Constitution provides that "the right of the people to be secured in their
persons, houses, papers and effects against unreasonable search and seizure of
whatever nature and for any purpose shall be inviolable, and no search warrant
or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized."142 The plain import
of the language of the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a validly issued search warrant
or warrant of arrest. Thus, the fundamental protection given by this provision is
that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or
warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are
established: first, he was arrested without warrant; second, the PNP operatives
arrested him on the basis of PP 1017; third, he was brought at Camp Karingal,
Quezon City where he was fingerprinted, photographed and booked like a
criminal suspect; fourth,he was treated brusquely by policemen who "held his
head and tried to push him" inside an unmarked car; fifth, he was charged with
Violation of Batas Pambansa Bilang No. 880145 and Inciting to
Sedition; sixth, he was detained for seven (7) hours; and seventh,he was
eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances that
the person to be arrested has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s
warrantless arrest. During the inquest for the charges of inciting to
sedition and violation of BP 880, all that the arresting officers could invoke was
their observation that some rallyists were wearing t-shirts with the
invective "Oust Gloria Now" and their erroneous assumption that petitioner
David was the leader of the rally.146 Consequently, the Inquest Prosecutor
ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he was
wearing it, such fact is insufficient to charge him with inciting to sedition.
Further, he also stated that there is insufficient evidence for the charge
of violation of BP 880 as it was not even known whether petitioner David was
the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was
their right against warrantless arrest violated, but also their right to peaceably
assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the
government for redress of grievances.
"Assembly" means a right on the part of the citizens to meet peaceably for
consultation in respect to public affairs. It is a necessary consequence of our
republican institution and complements the right of speech. As in the case of
freedom of expression, this right is not to be limited, much less denied, except on
a showing of a clear and present danger of a substantive evil that Congress has
a right to prevent. In other words, like other rights embraced in the freedom of
expression, the right to assemble is not subject to previous restraint or
censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly
is intended to be held in a public place, a permit for the use of such place, and
not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they
were exercising their right to peaceful assembly. They were not committing any
crime, neither was there a showing of a clear and present danger that warranted
the limitation of that right. As can be gleaned from circumstances, the charges
of inciting to 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.
On the basis of the above principles, the Court likewise considers the dispersal
and arrest of the members of KMUet al. (G.R. No. 171483) unwarranted.
Apparently, their dispersal was done merely on the basis of Malacañang’s
directive canceling all permits previously issued by local government units. This
is arbitrary. The wholesale cancellation of all permits to rally is a blatant
disregard of the principle that "freedom of assembly is not to be limited, much
less denied, except on a showing of a clear and present danger of a
substantive evil that the State has a right to prevent."149 Tolerance is the rule
and limitation is the exception. Only upon a showing that an assembly presents a
clear and present danger that the State may deny the citizens’ right to exercise it.
Indeed, respondents failed to show or convince the Court that the rallyists
committed acts amounting to lawless violence, invasion or rebellion. With the
blanket revocation of permits, the distinction between protected and unprotected
assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is
lodged with the local government units. They have the power to issue permits
and to revoke such permits after due notice and hearing on the determination
of the presence of clear and present danger. Here, petitioners were not even
notified and heard on the revocation of their permits.150 The first time they
learned of it was at the time of the dispersal. Such absence of notice is a fatal
defect. When a person’s right is restricted by government action, it behooves a
democratic government to see to it that the restriction is fair, reasonable, and
according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of
speech i.e., the freedom of the press. Petitioners’ narration of facts, which the
Solicitor General failed to refute, established the following: first, theDaily
Tribune’s offices were searched without warrant;second, the police operatives
seized several materials for publication; third, the search was conducted at about
1:00 o’ clock in the morning of February 25, 2006; fourth,the search was
conducted in the absence of any official of the Daily Tribune except the security
guard of the building; and fifth, policemen stationed themselves at the vicinity of
the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential
Chief of Staff Michael Defensor was quoted as saying that such raid
was "meant to show a ‘strong presence,’ to tell media outlets not to connive
or do anything that would help the rebels in bringing down this
government." Director General Lomibao further stated that "if they do not
follow the standards –and the standards are if they would contribute to
instability in the government, or if they do not subscribe to what is in
General Order No. 5 and Proc. No. 1017 – we will recommend a ‘takeover.’"
National Telecommunications Commissioner Ronald Solis urged television and
radio networks to "cooperate" with the government for the duration of the state
of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays
down the steps in the conduct of search and seizure. Section 4 requires that
a search warrant be issued upon probable cause in connection with one specific
offence to be determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce. Section
8 mandates that the search of a house, room, or any other premise be made in the
presence of the lawful occupant thereof or any member of his family or in the
absence of the latter, in the presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. And Section 9 states that the warrant
must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted
that it be served at any time of the day or night. All these rules were violated by
the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best
gauge of a free and democratic society rests in the degree of freedom enjoyed by
its media. In the Burgos v. Chief of Staff152 this Court held that --
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent
to the freedom of the press guaranteed under the fundamental law, and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the
"Metropolitan Mail" and "We Forum" newspapers in the above case, yet it
cannot be denied that the CIDG operatives exceeded their enforcement duties.
The search and seizure of materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and the arrogant warning of
government officials to media, are plain censorship. It is that officious
functionary of the repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what he is permitted to
say on pain of punishment should he be so rash as to disobey.153 Undoubtedly,
the The Daily Tribune was subjected to these arbitrary intrusions because of its
anti-government sentiments. This Court cannot tolerate the blatant disregard of a
constitutional right even if it involves the most defiant of our citizens. Freedom
to comment on public affairs is essential to the vitality of a representative
democracy. It is the duty of the courts to be watchful for the constitutional rights
of the citizen, and against any stealthy encroachments thereon. The motto should
always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the
search of the Tribune’s offices and the seizure of its materials for publication and
other papers are illegal; and that the same are inadmissible "for any purpose,"
thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen,
when inspected the Tribune for the purpose of gathering evidence and you
admitted that the policemen were able to get the clippings. Is that not in
admission of the admissibility of these clippings that were taken from the
Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose.155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have
to do is to get those past issues. So why do you have to go there at 1 o’clock in
the morning and without any search warrant? Did they become suddenly part of
the evidence of rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from
Daily Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is
premature to say this, we do not condone this. If the people who have been
injured by this would want to sue them, they can sue and there are remedies
for this.156
Likewise, the warrantless arrests and seizures executed by the police were,
according to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don’t know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You
cannot blame the President for, as you said, a misapplication of the law. These
are acts of the police officers, that is their responsibility.157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in
every aspect and "should result in no constitutional or statutory breaches if
applied according to their letter."
The Court has passed upon the constitutionality of these issuances. Its
ratiocination has been exhaustively presented. At this point, suffice it to reiterate
that PP 1017 is limited to the calling out by the President of the military to
prevent or suppress lawless violence, invasion or rebellion. When in
implementing its provisions, pursuant to G.O. No. 5, the military and the police
committed acts which violate the citizens’ rights under the Constitution, this
Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion,
attached hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 – a supervening
event – would have normally rendered this case moot and academic. However,
while PP 1017 was still operative, illegal acts were committed allegedly in
pursuance thereof. Besides, there is no guarantee that PP 1017, or one similar to
it, may not again be issued. Already, there have been media reports on April 30,
2006 that allegedly PP 1017 would be reimposed "if the May 1 rallies" become
"unruly and violent." Consequently, the transcendental issues raised by the
parties should not be "evaded;" they must now be resolved to prevent future
constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress lawless
violence. The proclamation is sustained by Section 18, Article VII of the
Constitution and the relevant jurisprudence discussed earlier. However, PP
1017’s extraneous provisions giving the President express or implied power (1)
to issue decrees; (2) to direct the AFP to enforce obedience to all lawseven those
not related to lawless violence as well as decrees promulgated by the President;
and (3) to impose standards on media or any form of prior restraint on the press,
are ultra vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation,
cannot take over privately-owned public utility and private business affected
with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the
President – acting as Commander-in-Chief – addressed to subalterns in the AFP
to carry out the provisions of PP 1017. Significantly, it also provides a valid
standard – that the military and the police should take only the "necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence."But the words "acts of terrorism" found in G.O. No. 5 have not been
legally defined and made punishable by Congress and should thus be deemed
deleted from the said G.O. While "terrorism" has been denounced generally in
media, no law has been enacted to guide the military, and eventually the courts,
to determine the limits of the AFP’s authority in carrying out this portion of G.O.
No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also
pristine clear that (1) the warrantless arrest of petitioners Randolf S. David and
Ronald Llamas; (2) the dispersal of the rallies and warrantless arrest of the KMU
and NAFLU-KMU members; (3) the imposition of standards on media or any
prior restraint on the press; and (4) the warrantless search of the Tribune offices
and the whimsical seizures of some articles for publication and other materials,
are not authorized by the Constitution, the law and jurisprudence. Not even by
the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil,
criminal or administrative sanctions on the individual police officers concerned.
They have not been individually identified and given their day in court. The civil
complaints or causes of action and/or relevant criminal Informations have not
been presented before this Court. Elementary due process bars this Court from
making any specific pronouncement of civil, criminal or administrative
liabilities.
It is well to remember that military power is a means to an end and
substantive civil rights are ends in themselves. How to give the military the
power it needs to protect the Republic without unnecessarily trampling
individual rights is one of the eternal balancing tasks of a democratic
state.During emergency, governmental action may vary in breadth and intensity
from normal times, yet they should not be arbitrary as to unduly restrain our
people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the
various competing political philosophies is that, it is possible to grant
government the authority to cope with crises without surrendering the two vital
principles of constitutionalism: the maintenance of legal limits to arbitrary
power, and political responsibility of the government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria
Macapagal-Arroyo on the AFP to prevent or suppress lawless violence.
However, the provisions of PP 1017 commanding the AFP to enforce laws not
related to lawless violence, as well as decrees promulgated by the President, are
declared UNCONSTITUTIONAL. In addition, the provision in PP 1017
declaring national emergency under Section 17, Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does not authorize the President
to take over privately-owned public utility or business affected with public
interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the
AFP and the PNP should implement PP 1017, i.e. whatever is "necessary and
appropriate actions and measures to suppress and prevent acts of lawless
violence." Considering that "acts of terrorism" have not yet been defined and
made punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies,
in the absence of proof that these petitioners were committing acts constituting
lawless violence, invasion or rebellion and violating BP 880; the imposition of
standards on media or any form of prior restraint on the press, as well as the
warrantless search of the Tribune offices and whimsical seizure of its articles for
publication and other materials, are declared UNCONSTITUTIONAL.

No costs.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T.
REYES, petitioners,
vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as
Secretary of Education, Culture and Sports; FULGENCIO FACTORAN,
JR., as Secretary of Environment and Natural Resources; VICENTE V.
JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of
Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment;
LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as
Secretary of National Defense; TEODORO F. BENIGNO, as Press
Secretary; JUANITO FERRER, as Secretary of Public Works and
Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of
Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for
petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9,
1988 1 and are being resolved jointly as both seek a declaration of the
unconstitutionality of Executive Order No. 284 issued by President Corazon C.
Aquino on July 25, 1987. The pertinent provisions of the assailed Executive
Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of
his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not
more than two positions in the government and government
corporations and receive the corresponding compensation
therefor; Provided, that this limitation shall not apply to ad hoc
bodies or committees, or to boards, councils or bodies of which
the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant
secretary or other appointive official of the Executive
Department holds more positions than what is allowed in
Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in
no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government in
government-owned or controlled corporations, at least one-third
(1/3) of the members of the boards of such corporation should
either be a secretary, or undersecretary, or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members
of the Cabinet, their undersecretaries and assistant secretaries to hold other
government offices or positions in addition to their primary positions, albeit
subject to the limitation therein imposed, runs counter to Section 13, Article VII
of the 1987 Constitution, 2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted
by the Government or any subdivision, agency, or
 instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance of the extraordinary
writs of prohibition andmandamus, as well as a temporary restraining order
directing public respondents therein to cease and desist from holding, in addition
to their primary positions, dual or multiple positions other than those authorized
by the 1987 Constitution and from receiving any salaries, allowances, per diems
and other forms of privileges and the like appurtenant to their questioned
positions, and compelling public respondents to return, reimburse or refund any
and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision of the
1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section
13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered on July
23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet members, their
deputies (undersecretaries) and assistant secretaries may hold other public office,
including membership in the boards of government corporations: (a) when
directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section
8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if allowed by the
primary functions of their respective positions; and that on the basis of this
Opinion, the President of the Philippines, on July 25, 1987 or two (2) days
before Congress convened on July 27, 1987: promulgated Executive Order No.
284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No.
73 and Executive Order No. 284 as they allegedly "lumped together" Section 13,
Article VII and the general provision in another article, Section 7, par. (2),
Article I-XB. This "strained linkage" between the two provisions, each addressed
to a distinct and separate group of public officers –– one, the President and her
official family, and the other, public servants in general –– allegedly "abolished
the clearly separate, higher, exclusive, and mandatory constitutional rank
assigned to the prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies and subalterns, who
are the leaders of government expected to lead by example." 7 Article IX-B,
Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73,
series of 1987, as further elucidated and clarified by DOJ Opinion No. 129,
series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10being the first
official construction and interpretation by the Secretary of Justice of Section 13,
Article VII and par. (2) of Section 7, Article I-XB of the Constitution, involving
the same subject of appointments or designations of an appointive executive
official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant
to DOJ Opinion No. 73, series of 1987 is consequently constitutional. It is worth
noting that DOJ Opinion No. 129, series of 1987 and DOJ Opinion No. 155,
series of 1988 construed the limitation imposed by E.O. No. 284 as not applying
to ex-officio positions or to positions which, although not so designated as ex-
officio are allowed by the primary functions of the public official, but only to the
holding of multiple positions which are not related to or necessarily included in
the position of the public official concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by
petitioners on the principal submission that it adds exceptions to Section 13,
Article VII other than those provided in the Constitution. According to
petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely: (1)
The Vice-President may be appointed as a Member of the Cabinet under Section
3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-
officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article
VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par.
(2), Article I-XB on the Civil Service Commission applies to officers and
employees of the Civil Service in general and that said exceptions do not apply
and cannot be extended to Section 13, Article VII which applies specifically to
the President, Vice-President, Members of the Cabinet and their deputies or
assistants.
There is no dispute that the prohibition against the President, Vice-President, the
members of the Cabinet and their deputies or assistants from holding dual or
multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article
VII, the exception must be expressly provided in the Constitution, as in the case
of the Vice-President being allowed to become a Member of the Cabinet under
the second paragraph of Section 3, Article VII or the Secretary of Justice being
designated an ex-officio member of the Judicial and Bar Council under Article
VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase
"unless otherwise provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article
VII of the 1987 Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation
or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was
framed. The object is to ascertain the reason which induced the framers of the
Constitution to enact the particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants
as members of the governing bodies or boards of various government agencies
and instrumentalities, including government-owned and controlled corporations,
became prevalent during the time legislative powers in this country were
exercised by former President Ferdinand E. Marcos pursuant to his martial law
authority. There was a proliferation of newly-created agencies, instrumentalities
and government-owned and controlled corporations created by presidential
decrees and other modes of presidential issuances where Cabinet members, their
deputies or assistants were designated to head or sit as members of the board
with the corresponding salaries, emoluments, per diems, allowances and other
perquisites of office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the government soon led
to abuses by unscrupulous public officials who took advantage of this scheme for
purposes of self-enrichment. In fact, the holding of multiple offices in
government was strongly denounced on the floor of the Batasang
Pambansa. 12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of
December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality
in government service were the data contained therein that Roberto V. Ongpin
was a member of the governing boards of twenty-nine (29) governmental
agencies, instrumentalities and corporations; Imelda R. Marcos of twenty-three
(23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of fifteen (15);
Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C.
Zalamea of thirteen (13); Ruben B. Ancheta and Jose A. Roño of twelve (12)
each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven
(11) each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices and
employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during
the deliberations in these cases, one of the strongest selling points of the 1987
Constitution during the campaign for its ratification was the assurance given by
its proponents that the scandalous practice of Cabinet members holding multiple
positions in the government and collecting unconscionably excessive
compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided in
the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the Constitution
was to impose a stricter prohibition on the President and his official family in so
far as holding other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII
with other provisions of the Constitution on the disqualifications of certain
public officials or employees from holding other offices or employment. Under
Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the Government . .
.". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian
position in the Government,including government-owned or controlled
corporations or any of their subsidiaries." Even Section 7 (2), Article IX-B,
relied upon by respondents provides "(U)nless otherwise allowed by law or by
the primary functions of his position, no appointive official shall hold any other
office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other
office or employment, the prohibition pertains to an office or employment in the
government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which
states that "(T)he President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the
latter provision, the disqualification is absolute, not being qualified by the phrase
"in the Government." The prohibition imposed on the President and his official
family is therefore all-embracing and covers both public and private office or
employment.
Going further into Section 13, Article VII, the second sentence provides: "They
shall not, during said tenure, directly or indirectly, practice any other profession,
participate in any business, or be financially interested in any contract with, or in
any franchise, or special privilege granted by the Government or any
subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries." These sweeping, all-embracing
prohibitions imposed on the President and his official family, which prohibitions
are not similarly imposed on other public officials or employees such as the
Members of Congress, members of the civil service in general and members of
the armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon said class
stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry between
the Civil Service prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz Commented,
"We actually have to be stricter with the President and the members of the
Cabinet because they exercise more powers and, therefore, more cheeks and
restraints on them are called for because there is more possibility of abuse in
their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such is
allowed by law or by the primary functions of their positions, members of the
Cabinet, their deputies and assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7, Article I-XB is meant to lay
down the general rule applicable to all elective and appointive public officials
and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet,
their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would render
nugatory and meaningless the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding
other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would obliterate the distinction so carefully
set by the framers of the Constitution as to when the high-ranking officials of the
Executive Branch from the President to Assistant Secretary, on the one hand, and
the generality of civil servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any other office or position in the
government during their tenure.
Moreover, respondents' reading of the provisions in question would render
certain parts of the Constitution inoperative. This observation applies particularly
to the Vice-President who, under Section 13 of Article VII is allowed to hold
other office or employment when so authorized by the Constitution, but who as
an elective public official under Sec. 7, par. (1) of Article I-XB is absolutely
ineligible "for appointment or designation in any capacity to any public office or
position during his tenure." Surely, to say that the phrase "unless otherwise
provided in this Constitution" found in Section 13, Article VII has reference to
Section 7, par. (1) of Article I-XB would render meaningless the specific
provisions of the Constitution authorizing the Vice-President to become a
member of the Cabinet, 15 and to act as President without relinquishing the Vice-
Presidency where the President shall not nave been chosen or fails to
qualify. 16 Such absurd consequence can be avoided only by interpreting the two
provisions under consideration as one, i.e., Section 7, par. (1) of Article I-XB
providing the general rule and the other, i.e., Section 13, Article VII as
constituting the exception thereto. In the same manner must Section 7, par. (2) of
Article I-XB be construed vis-a-vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered alone,
but that all the provisions bearing upon a particular subject are to be brought into
view and to be so interpreted as to effectuate the great purposes of the
instrument. 17Sections bearing on a particular subject should be considered and
interpreted together as to effectuate the whole purpose of the Constitution 18 and
one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean in
favor of a construction which will render every word operative, rather than one
which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to impose a
stricter prohibition on the President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding multiple offices or
employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of Section
13, Article VII is prohibitory so that it must be understood as intended to be a
positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive and
unequivocal negation. 21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars. (2)
and (3), Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and
as required 22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and
functions on said officials. 23 To characterize these posts otherwise would lead to
absurd consequences, among which are: The President of the Philippines cannot
chair the National Security Council reorganized under Executive Order No. 115
(December 24, 1986). Neither can the Vice-President, the Executive Secretary,
and the Secretaries of National Defense, Justice, Labor and Employment and
Local Government sit in this Council, which would then have no reason to exist
for lack of a chairperson and members. The respective undersecretaries and
assistant secretaries, would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of
the National Manpower and Youth Council (NMYC) or the Philippine Overseas
Employment Administration (POEA), both of which are attached to his
department for policy coordination and guidance. Neither can his
Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary
Board. 24 Neither can their respective undersecretaries and assistant secretaries.
The Central Bank Governor would then be assisted by lower ranking employees
in providing policy direction in the areas of money, banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should be
avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted
as covering positions held without additional compensation in ex-
officio capacities as provided by law and as required by the primary functions of
the concerned official's office. The term ex-officio means "from office; by virtue
of office." It refers to an "authority derived from official character merely, not
expressly conferred upon the individual character, but rather annexed to the
official position." Ex-officio likewise denotes an "act done in an official
character, or as a consequence of office, and without any other appointment or
authority than that conferred by the office." 27 An ex-officio member of a board is
one who is a member by virtue of his title to a certain office, and without further
warrant or appointment.28 To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-officioChairman of
the Board of the Philippine Ports Authority, 29 and the Light Rail Transit
Authority. 30
The Court had occasion to explain the meaning of an ex-officio position
in Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus:
"An examination of section 2 of the questioned statute (R.A. 3137) reveals that
for the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in the
law. Thus, for instance, one who does not hold a previous appointment in the
Bureau of Customs, cannot, under the act, be designated a representative from
that office. The same is true with respect to the representatives from the other
offices. No new appointments are necessary. This is as it should be, because the
representatives so designated merely perform duties in the Board in addition to
those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of importance
and thus means chief or principal function. The term is not restricted to the
singular but may refer to the plural. 33 The additional duties must not only be
closely related to, but must be required by the official's primary functions.
Examples of designations to positions by virtue of one's primary functions are
the Secretaries of Finance and Budget sitting as members of the Monetary
Board, and the Secretary of Transportation and Communications acting as
Chairman of the Maritime Industry Authority 34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related,
inconsistent, incompatible, or otherwise alien to the primary function of a
cabinet official, such additional functions would fall under the purview of "any
other office" prohibited by the Constitution. An example would be the Press
Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer
on the cabinet official management functions and/or monetary compensation,
such as but not limited to chairmanships or directorships in government-owned
or controlled corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent with
those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a
practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious tasks
of executing and implementing laws affecting national interest and general
welfare and delivering basic services to the people. It is consistent with the
power vested on the President and his alter egos, the Cabinet members, to have
control of all the executive departments, bureaus and offices and to ensure that
the laws are faithfully executed. 35 Without these additional duties and functions
being assigned to the President and his official family to sit in the governing
bodies or boards of governmental agencies or instrumentalities in an ex-
officio capacity as provided by law and as required by their primary functions,
they would be supervision, thereby deprived of the means for control and
resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions
may not transgress the prohibition embodied in Section 13, Article VII of the
1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an ex-
officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is that
these services are already paid for and covered by the compensation attached to
his principal office. It should be obvious that if, say, the Secretary of Finance
attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his
principal office in defining policy in monetary and banking matters, which come
under the jurisdiction of his department. For such attendance, therefore, he is not
entitled to collect any extra compensation, whether it be in the form of a per
them or an honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is prohibited by
the Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B,
originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position," 36 express reference to certain high-
ranking appointive public officials like members of the Cabinet were
made. 37 Responding to a query of Commissioner Blas Ople, Commissioner
Monsod pointed out that there are instances when although not required by
current law, membership of certain high-ranking executive officials in other
offices and corporations is necessary by reason of said officials' primary
functions. The example given by Commissioner Monsod was the Minister of
Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be used as
authority for saying that additional functions and duties flowing from the
primary functions of the official may be imposed upon him without offending
the constitutional prohibition under consideration, it cannot, however, be taken
as authority for saying that this exception is by virtue of Section 7, par. (2) of
Article I-XB. This colloquy between the two Commissioners took place in the
plenary session of September 27, 1986. Under consideration then was Section 3
of Committee Resolution No. 531 which was the proposed article on General
Provisions. 39 At that time, the article on the Civil Service Commission had been
approved on third reading on July 22, 1986, 40 while the article on the Executive
Department, containing the more specific prohibition in Section 13, had also
been earlier approved on third reading on August 26, 1986. 41 It was only after
the draft Constitution had undergone reformatting and "styling" by the
Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise allowed by
law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would
serve as constitutional guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all appointive
public officials. Had the Constitutional Commission intended to dilute the
specific prohibition in said Section 13 of Article VII, it could have re-worded
said Section 13 to conform to the wider exceptions provided in then Section 3 of
the proposed general Provisions, later placed as Section 7, par. (2) of Article IX-
B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his
official family is by reason of the legal principles governing additional functions
and duties of public officials rather than by virtue of Section 7, par. 2, Article
IX-B At any rate, we have made it clear that only the additional functions and
duties "required," as opposed to "allowed," by the primary functions may be
considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings
of the constitutional convention in order to arrive at the reason and purpose of
the resulting Constitution, resort thereto may be had only when other guides
fail 42 as said proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention "are of value
as showing the views of the individual members, and as indicating the reasons
for their votes, but they give us no light as to the views of the large majority who
did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe
the constitution from what appears upon its face." 43 The proper interpretation
therefore depends more on how it was understood by the people adopting it than
in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in the
Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet members
(then called Ministers) as examples during the debate and deliberation on the
general rule laid down for all appointive officials should be considered as mere
personal opinions which cannot override the constitution's manifest intent and
the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No.
284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of
positions that Cabinet members, undersecretaries or assistant secretaries may
hold in addition to their primary position to not more than two (2) positions in
the government and government corporations, Executive Order No. 284 actually
allows them to hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987
Constitution itself.
The Court is alerted by respondents to the impractical consequences that will
result from a strict application of the prohibition mandated under Section 13,
Article VII on the operations of the Government, considering that Cabinet
members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified in
this decision, ex-officio posts held by the executive official concerned without WHEREFORE, subject to the qualification above-stated, the petitions are
additional compensation as provided by law and as required by the primary GRANTED. Executive Order No. 284 is hereby declared null and void and is
functions of his office do not fall under the definition of "any other office" accordingly set aside.
within the contemplation of the constitutional prohibition. With respect to other
offices or employment held by virtue of legislation, including chairmanships or SO ORDERED.
directorships in government-owned or controlled corporations and their
subsidiaries, suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean job. It is
more than a full-time job, requiring full attention, specialized knowledge, skills
and expertise. If maximum benefits are to be derived from a department head's
ability and expertise, he should be allowed to attend to his duties and
responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in
haphazardness and inefficiency. Surely the advantages to be derived from this
concentration of attention, knowledge and expertise, particularly at this stage of
our national and economic development, far outweigh the benefits, if any, that
may be gained from a department head spreading himself too thin and taking in
more than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources Fulgencio
Factoran, Jr., Secretary of Local Government 45 Luis Santos, Secretary of
National Defense Fidel V. Ramos, Secretary of Health Alfredo R.A. Bengzon
and Secretary of the Budget Guillermo Carague to immediately relinquish their
other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With
respect to the other named respondents, the petitions have become moot and
academic as they are no longer occupying the positions complained of.

During their tenure in the questioned positions, respondents may be

considered de facto officers and as such entitled to emoluments for actual
services rendered. 46 It has been held that "in cases where there is no de
jure,officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary,
fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the public
should benefit by the services of an officer de facto and then be freed from all
liability to pay any one for such services. 47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in
the questioned positions may therefore be retained by them.
 Republic of the Philippines The right of the people, including those employed in the public and
SUPREME COURT private sectors, to form unions, associations, or societies for purposes
Manila not contrary to law shall not be abridged.

EN BANC For this reason, the petition was referred to the Court en banc.

The Issues in this Case

G.R. No. 122226 March 25, 1998 Two questions are presented by the petition: (1) whether the route managers at
Pepsi-Cola Products Philippines, Inc. are managerial employees and (2) whether
UNITED PEPSI-COLA SUPERVISORY UNION (UPSU), petitioner, Art. 245, insofar as it prohibits managerial employees from forming, joining or
vs. assisting labor unions, violates Art. III, §8 of the Constitution.
HON. BIENVENIDO E. LAGUESMA and PEPSI-COLA PRODUCTS,
PHILIPPINES, INC. respondents. In resolving these issues it would be useful to begin by defining who are
"managerial employees" and considering the types of "managerial employees."

Types of Managerial Employees

MENDOZA, J.:
The term "manager" generally refers to "anyone who is responsible for
Petitioner is a union of supervisory employees. It appears that on March 20, subordinates and other organizational resources." 1 As a class, managers
1995 the union filed a petition for certification election on behalf of the route constitute three levels of a pyramid:
managers at Pepsi-Cola Products Philippines, Inc. However, its petition was
denied by the med-arbiter and, on appeal, by the Secretary of Labor and Top management
Employment, on the ground that the route managers are managerial employees
and, therefore, ineligible for union membership under the first sentence of Art. ————————
245 of the Labor Code, which provides:
Middle
Ineligibility of managerial employees to join any labor
organization; right of supervisory employees. — Managerial employees Management
are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a labor
——————————
organization of the rank-and-file employees but may join, assist or form
separate labor organizations of their own.
First-Line
Petitioner brought this suit challenging the validity of the order dated August 31,
1995, as reiterated in the order dated September 22, 1995, of the Secretary of Management
Labor and Employment. Its petition was dismissed by the Third Division for lack
of showing that respondent committed grave abuse of discretion. But petitioner (also called
filed a motion for reconsideration, pressing for resolution its contention that the
first sentence of Art. 245 of the Labor Code, so far as it declares managerial Supervisor)
employees to be ineligible to form, assist or join unions, contravenes Art. III, §8
of the Constitution which provides: ====================
 Operatives
or
Operating
Employees
FIRST-LINE MANAGERS — The lowest level in an organization at
which individuals are responsible for the work of others is called first-
line or first-level management. First-line managers direct operating
employees only; they do not supervise other managers. Examples of
first-line managers are the "foreman" or production supervisor in a
manufacturing plant, the technical supervisor in a research department,
and the clerical supervisor in a large office. First-level managers are
often called supervisors.
MIDDLE MANAGERS — The term middle management can refer to
more than one level in an organization. Middle managers direct the
activities of other managers and sometimes also those of operating
employees. Middle managers' principal responsibilities are to direct the
activities that implement their organizations' policies and to balance the
demands of their superiors with the capacities of their subordinates. A
plant manager in an electronics firm is an example of a middle
manager.
TOP MANAGERS — Composed of a comparatively small group of
executives, top management is responsible for the overall management
of the organization. It establishes operating policies and guides the
organization's interactions with its environment. Typical titles of top
managers are "chief executive officer," "president," and "senior vice-
president." Actual titles vary from one organization to another and are
not always a reliable guide to membership in the highest management
classification. 2
As can be seen from this description, a distinction exists between those who have
the authority to devise, implement and control strategic and operational policies
(top and middle managers) and those whose task is simply to ensure that such
policies are carried out by the rank-and-file employees of an organization (first-
level managers/supervisors). What distinguishes them from the rank-and-file
employees is that they act in the interest of the employer in supervising such
rank-and-file employees.
"Managerial employees" may therefore be said to fall into two distinct
categories: the "managers" per se, who compose the former group described
above, and the "supervisors" who form the latter group. Whether they belong to
the first or the second category, managers, vis-a-vis employers, are, likewise,
employees. 3
The first question is whether route managers are managerial employees or
supervisors.
Previous Administrative Determinations of
the Question Whether Route Managers
are Managerial Employees
It appears that this question was the subject of two previous determinations by
the Secretary of Labor and Employment, in accordance with which this case was
decided by the med-arbiter.
In Case No. OS-MA-10-318-91, entitled Worker's Alliance Trade Union
(WATU) v. Pepsi-Cola Products Philippines, Inc., decided on November 13,
1991, the Secretary of Labor found:
We examined carefully the pertinent job descriptions of the subject
employees and other documentary evidence on record vis-a-
vis paragraph (m), Article 212 of the Labor Code, as amended, and we
find that only those employees occupying the position of route manager
and accounting manager are managerial employees. The rest i.e. quality
control manager, yard/transport manager and warehouse operations
manager are supervisory employees.
To qualify as managerial employee, there must be a clear showing of the
exercise of managerial attributes under paragraph (m), Article 212 of the
Labor Code as amended. Designations or titles of positions are not
controlling. In the instant case, nothing on record will support the claim
that the quality control manager, yard/transport manager and warehouse
operations manager are vested with said attributes. The warehouse
operations manager, for example, merely assists the plant finance
manager in planning, organizing, directing and controlling all activities
relative to development and implementation of an effective management
control information system at the sale offices. The exercise of authority
of the quality control manager, on the other hand, needs the concurrence
of the manufacturing manager.
 As to the route managers and accounting manager, we are convinced
that they are managerial employees. Their job descriptions clearly reveal
so.
On July 6, 1992, this finding was reiterated in Case No. OS-A-3-71-92.
entitled In Re: Petition for Direct Certification and/or Certification Election-
Route Managers/Supervisory Employees of Pepsi-Cola Products Phils.Inc., as
follows:
The issue brought before us is not of first impression. At one time, we
had the occasion to rule upon the status of route manager in the same
company vis a vis the issue as to whether or not it is supervisory
employee or a managerial employee. In the case of Workers Alliance
Trade Unions (WATU) vs. Pepsi Cola Products, Phils., Inc. (OS-MA-A-
10-318-91 ), 15 November 1991, we ruled that a route manager is a
managerial employee within the context of the definition of the law, and
hence, ineligible to join, form or assist a union. We have once more
passed upon the logic of our Decision aforecited in the light of the issues
raised in the instant appeal, as well as the available documentary
evidence on hand, and have come to the view that there is no cogent
reason to depart from our earlier holding. Route Managers are, by the
very nature of their functions and the authority they wield over their
subordinates, managerial employees. The prescription found in Art. 245
of the Labor Code, as amended therefore, clearly applies to them. 4
Citing our ruling in Nasipit Lumber Co. v. National Labor Relations
Commission, 5 however, petitioner argues that these previous administrative
determinations do not have the effect of res judicata in this case, because "labor
relations proceedings" are "non-litigious and summary in nature without regard
to legal technicalities." 6 Nasipit Lumber Co. involved a clearance to dismiss an
employee issued by the Department of Labor. The question was whether in a
subsequent proceeding for illegal dismissal, the clearance was res judicata. In
holding it was not, this Court made it clear that it was referring to labor relations
proceedings of a non-adversary character, thus:
The requirement of a clearance to terminate employment was a creation
of the Department of labor to carry out the Labor Code provisions on
security of tenure and termination of employment. The proceeding
subsequent to the filing of an application for clearance to terminate
employment was outlined in Book V, Rule XIV of the Rules and
Regulations Implementing the Labor Code. The fact that said rule
allowed a procedure for the approval of the clearance with or without
the opposition of the employee concerned (Secs. 7 & 8), demonstrates
the non-litigious and summary nature of the proceeding. The clearance
requirement was therefore necessary only as an expeditious shield
against arbitrary dismissal without the knowledge and supervision of the
Department of Labor. Hence, a duly approved clearance implied that the
dismissal was legal or for cause (Sec. 2). 7
But the doctrine of res judicata certainly applies to adversary administrative
proceedings. As early as 1956, inBrillantes v. Castro, 8 we sustained the
dismissal of an action by a trial court on the basis of a prior administrative
determination of the same case by the Wage Administration Service, applying
the principle of res judicata. Recently, in Abad v. NLRC 9 we applied the related
doctrine of stare decisis in holding that the prior determination that certain jobs
at the Atlantic Gulf and Pacific Co., were project employments was binding in
another case involving another group of employees of the same company.
Indeed, in Nasipit Lumber Co., this Court clarified toward the end of its opinion
that "the doctrine of res judicata applies . . . to judicial or quasi
judicial proceedings and not to the exercise of administrative powers." 10 Now
proceedings for certification election, such as those involved in Case No. OS-M-
A-10-318-91 and Case No. OS-A-3-71-92, are quasi judicial in nature and,
therefore, decisions rendered in such proceedings can attain finality. 11
Thus, we have in this case an expert's view that the employees concerned are
managerial employees within the purview of Art. 212 which provides:
(m) "managerial employee" is one who is vested with powers or
prerogatives to lay down and execute management policies and/or to
hire, transfer, suspend, lay off, recall, discharge, assign or discipline
employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the
exercise of such authority is not merely routinary or clerical in nature
but requires the use of independent judgment. All employees not falling
within any of the above definitions are considered rank-and-file
employees for purposes of this Book.
At the very least, the principle of finality of administrative determination
compels respect for the finding of the Secretary of Labor that route managers are
managerial employees as defined by law in the absence of anything to show that
such determination is without substantial evidence to support it. Nonetheless, the
Court, concerned that employees who are otherwise supervisors may wittingly or
unwittingly be classified as managerial personnel and thus denied the right of
self-organization, has decided to review the record of this case.
DOLE's Finding that Route Managers are
Managerial Employees Supported by
Substantial Evidence in the Record
The Court now finds that the job evaluation made by the Secretary of Labor is
indeed supported by substantial evidence. The nature of the job of route
managers is given in a four-page pamphlet, prepared by the company, called
"Route Manager Position Description," the pertinent parts of which read:
A. BASIC PURPOSE
A Manager achieves objectives through others.
As a Route Manager, your purpose is to meet the sales
plan; and you achieve this objective through the skillful
MANAGEMENT OF YOUR JOB AND THE
MANAGEMENT OF YOUR PEOPLE.
These then are your functions as Pepsi-Cola Route
Manager. Within these functions — managing your job
and managing your people — you are accountable to
your District Manager for the execution and
completion of various tasks and activities which will
make it possible for you to achieve your sales
objectives.
B. PRINCIPAL ACCOUNTABILITIES
1.0 MANAGING YOUR JOB
The Route Manager is accountable for the
following:
1.1 SALES DEVELOPMENT
1.1.1 Achieve the sales plan.
1.1.2 Achieve all distribution and new account
objectives.
1.1.3 Develop new business opportunities thru
personal contacts with dealers.
1.1.4 Inspect and ensure that all
merchandizing [sic] objectives are achieved in
all outlets.
1.1.5 maintain and improve productivity of all
cooling equipment and kiosks.
1.1.6 Execute and control all authorized
promotions.
1.1.7 Develop and maintain dealer goodwill.
1.1.8 Ensure all accounts comply with
company suggested retail pricing.
1.1.9 Study from time to time individual route
coverage and productivity for possible
adjustments to maximize utilization of
resources.
1.2 Administration
1.2.1 Ensure the proper loading of route trucks
before check-out and the proper sorting of
bottles before check-in.
1.2.2 Ensure the upkeep of all route sales
reports and all other related reports and forms
required on an accurate and timely basis.
1.2.3 Ensure proper implementation of the
various company policies and procedures incl.
but not limited to shakedown; route shortage;
progressive discipline; sorting; spoilages;
credit/collection; accident; attendance.
1.2.4 Ensure collection of receivables and
delinquent accounts.
2.0 MANAGING YOUR PEOPLE
 The Route Manager is accountable for the
following:
2.1 Route Sales Team Development
2.1.2 Conduct route rides to train, evaluate and
develop all assigned route salesmen and
helpers at least 3 days a week, to be supported
by required route ride documents/reports &
back check/spot check at least 2 days a week
to be supported by required
documents/reports.
2.1.2 Conduct sales meetings and morning
huddles. Training should focus on the
enhancement of effective sales and
merchandizing [sic] techniques of the
salesmen and helpers. Conduct group training
at least 1 hour each week on a designated day
and of specific topic.
2.2 Code of Conduct
2.2.1 Maintain the company's reputation
through strict adherence to PCPPI's code of
conduct and the universal standards of
unquestioned business
ethics. 12
Earlier in this opinion, reference was made to the distinction between
managers per se (top managers and middle managers) and supervisors (first-line
managers). That distinction is evident in the work of the route managers which
sets them apart from supervisors in general. Unlike supervisors who basically
merely direct operating employees in line with set tasks assigned to them, route
managers are responsible for the success of the company's main line of business
through management of their respective sales teams. Such management
necessarily involves the planning, direction, operation and evaluation of their
individual teams and areas which the work of supervisors does not entail.
The route managers cannot thus possibly be classified as mere supervisors
because their work does not only involve, but goes far beyond, the simple
direction or supervision of operating employees to accomplish objectives set by
those above them. They are not mere functionaries with simple oversight
functions but business administrators in their own right. An idea of the role of
route managers as managers per se can be gotten from a memo sent by the
director of metro sales operations of respondent company to one of the route
managers. It reads: 13
03 April 1995
To : CESAR T . REOLADA
From : REGGIE M. SANTOS
Subj : SALARY INCREASE
Effective 01 April 1995, your basic monthly salary of P11,710 will be
increased to P12,881 or an increase of 10%. This represents the added
managerial responsibilities you will assume due to the recent
restructuring and streamlining of Metro Sales Operations brought about
by the continuous losses for the last nine (9) months.
Let me remind you that for our operations to be profitable, we have to
sustain the intensity and momentum that your group and yourself have
shown last March. You just have to deliver the desired volume targets,
better negotiated concessions, rationalized sustaining deals, eliminate
or reduced overdues, improved collections, more cash accounts,
controlled operating expenses, etc. Also, based on the agreed set targets,
your monthly performance will be closely monitored.
You have proven in the past that your capable of achieving your targets
thru better planning, managing your group as a fighting team, and thru
aggressive selling. I am looking forward to your success and I expect
that you just have to exert your doubly best in turning around our
operations from a losing to a profitable one!
Happy Selling!! (Sgd.) R.M. SANTOS
The plasticized card given to route managers, quoted in the separate opinion of
Justice Vitug, although entitled "RM's Job Description," is only a summary of
performance standards. It does not show whether route managers are
managers per se or supervisors. Obviously, these performance standards have to
be related to the specific tasks given to route managers in the four-page "Route
Manager Position Description," and, when this is done, the managerial nature of
their jobs is fully revealed. Indeed, if any, the card indicates the great latitude
and discretion given to route managers — from servicing and enhancing
company goodwill to supervising and auditing accounts, from trade (new
business) development to the discipline, training and monitoring of performance
of their respective sales teams, and so forth, — if they are to fulfill the company's
expectations in the "key result areas."
Article 212(m) says that "supervisory employees are those who, in the interest of
the employer, effectivelyrecommend such managerial actions if the exercise of
such authority is not merely routinary or clerical in nature but requires the use
of independent judgment." Thus, their only power is to recommend. Certainly,
the route managers in this case more than merely recommend effective
management action. They perform operational, human resource, financial and
marketing functions for the company, all of which involve the laying down of
operating policies for themselves and their teams. For example, with respect to
marketing, route managers, in accordance with B.1.1.1 to B.1.1.9 of the Route
Managers Job Description, are charged, among other things, with expanding the
dealership base of their respective sales areas, maintaining the goodwill of
current dealers, and distributing the company's various promotional items as
they see fit. It is difficult to see how supervisors can be given such responsibility
when this involves not just the routine supervision of operating employees but
the protection and expansion of the company's business vis-a-vis its competitors.
While route managers do not appear to have the power to hire and fire people
(the evidence shows that they only "recommended" or "endorsed" the taking of
disciplinary action against certain employees), this is because this
is a function of the Human Resources or Personnel Department of the
company. 14 And neither should it be presumed that just because they are given
set benchmarks to observe, they are ipso facto supervisors. Adequate control
methods (as embodied in such concepts as "Management by Objectives [MBO]"
and "performance appraisals") which require a delineation of the functions and
responsibilities of managers by means of ready reference cards as here, have
long been recognized in management as effective tools for keeping businesses
competitive.
This brings us to the second question, whether the first sentence of Art. 245 of
the Labor Code, prohibiting managerial employees from forming, assisting or
joining any labor organization, is constitutional in light of Art. III, §8 of the
Constitution which provides:
The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes
not contrary to law shall not be abridged.
As already stated, whether they belong to the first category (managers per se) or
the second category (supervisors), managers are employees. Nonetheless, in the
United States, as Justice Puno's separate opinion notes, supervisors have no
right to form unions. They are excluded from the definition of the term
"employee" in §2(3) of the Labor-Management Relations Act of 1947. 15 In the
Philippines, the question whether managerial employees have a right of self-
organization has arisen with respect to first-level managers or supervisors, as
shown by a review of the course of labor legislation in this country.
Right of Self-Organization of Managerial
Employees under Pre-Labor Code Laws
Before the promulgation of the Labor Code in 1974, the field of labor relations
was governed by the Industrial Peace Act (R.A. No. 875).
In accordance with the general definition above, this law defined "supervisor" as
follows:
Sec. 2. . . .
(k) "Supervisor" means any person having authority in the interest of an
employer, to hire, transfer, suspend, lay-off, recall, discharge, assign,
recommend, or discipline other employees, or responsibly to direct
them, and to adjust their grievances, or effectively to recommend such
acts, if, in connection with the foregoing, the exercise of such authority
is not of a merely routinary or clerical nature but requires the use of
independent judgment. 16
The right of supervisors to form their own organizations was affirmed:
Sec. 3. Employees' Right to Self-Organization. — Employees shall have
the right to self-organization and to form, join or assist labor
organizations of their own choosing for the purpose of collective
bargaining through representatives of their own choosing and to engage
in concerted activities for the purpose of collective bargaining and other
mutual aid and protection. Individuals employed as supervisors shall
not be eligible for membership in a labor organization of employees
under their supervision but may form separate organizations of their
own. 17
For its part, the Supreme Court upheld in several of its decisions the right of
supervisors to organize for purposes of labor relations. 18
Although it had a definition of the term "supervisor," the Industrial Peace Act Actually, the case involved front-line managers or supervisors only, as the
did not define the term "manager." But, using the commonly-understood concept plantilla of employees, quoted in the main opinion, 21 clearly indicates:
of "manager," as above stated, it is apparent that the law used the term
"supervisors" to refer to the sub-group of "managerial employees" known as CAFIMSA members holding the following Supervisory Payroll Position
front-line managers. The other sub-group of "managerial employees," known as Title are Recognized by the Company
managers per se, was not covered.
Payroll Position Title
However, in Caltex Filipino Managers and Supervisors Association v. Court of
Industrial Relations, 19 the right of all managerial employees to self-organization Assistant to Mgr. — National Acct. Sales
was upheld as a general proposition, thus:
Jr. Sales Engineer
It would be going too far to dismiss summarily the point raised by
respondent Company — that of the alleged identity of interest between
Retail Development Asst.
the managerial staff and the employing firm. That should ordinarily be
the case, especially so where the dispute is between management and
the rank and file. It does not necessarily follow though that what binds Staff Asst. — 0 Marketing
the managerial staff to the corporation forecloses the possibility of
conflict between them. There could be a real difference between what Sales Supervisor
the welfare of such group requires and the concessions the firm is
willing to grant. Their needs might not be attended to then in the Supervisory Assistant
absence of any organization of their own. Nor is this to indulge in empty
theorizing. The record of respondent Company, even the very case cited Jr. Supervisory Assistant
by it, is proof enough of their uneasy and troubled relationship.
Certainly the impression is difficult to erase that an alien firm failed to Credit Assistant
manifest sympathy for the claims of its Filipino executives. To predicate
under such circumstances that agreement inevitably marks their Lab. Supvr. — Pandacan
relationship, ignoring that discord would not be unusual, is to fly in the
face of reality.
Jr. Sales Engineer B
. . . The basic question is whether the managerial personnel can
organize. What respondent Company failed to take into account is that Operations Assistant B
the right to self-organization is not merely a statutory creation. It is
fortified by our Constitution. All are free to exercise such right unless Field Engineer
their purpose is contrary to law. Certainly it would be to attach
unorthodoxy to, not to say an emasculation of, the concept of law if Sr. Opers. Supvr. — MIA A/S
managers as such were precluded from organizing. Having done so and
having been duly registered, as did occur in this case, their union is Purchasing Assistant
entitled to all the rights under Republic Act No. 875. Considering what
is denominated as unfair labor practice under Section 4 of such Act and Jr. Construction Engineer
the facts set forth in our decision, there can be only one answer to the
objection raised that no unfair labor practice could be committed by Sr. Sales Supervisor
respondent Company insofar as managerial personnel is concerned. It
is, as is quite obvious, in the negative. 20
Deport Supervisor A
Terminal Accountant B
Merchandiser
Dist. Sales Prom. Supvr.
Instr. — Merchandising
Asst. Dist. Accountant B
Sr. Opers. Supervisor
Jr. Sales Engineer A
Asst. Bulk Ter. Supt.
Sr. Opers. Supvr.
Credit Supervisor A
Asst. Stores Supvr. A
Ref. Supervisory Draftsman
Refinery Shift Supvr. B
Asst. Supvr. A — Operations (Refinery)
Refinery Shift Supvr. B
Asst. Lab. Supvr. A (Refinery)
St. Process Engineer B (Refinery)
Asst. Supvr. A — Maintenance (Refinery)
Asst. Supvr. B — Maintenance (Refinery)
Supervisory Accountant (Refinery)
Communications Supervisor (Refinery)
Finally, also deemed included are all other employees excluded from the
rank and file unions but not classified as managerial or otherwise
excludable by law or applicable judicial precedents.
Right of Self-Organization of Managerial
Employees under the Labor Code
Thus, the dictum in the Caltex case which allowed at least for the theoretical
unionization of top and middle managers by assimilating them with the
supervisory group under the broad phrase "managerial personnel," provided the
lynchpin for later laws denying the right of self-organization not only to top and
middle management employees but to front line managers or supervisors as well.
Following the Caltex case, the Labor Code, promulgated in 1974 under martial
law, dropped the distinction between the first and second sub-groups of
managerial employees. Instead of treating the terms "supervisor" and "manager"
separately, the law lumped them together and called them "managerial
employees," as follows:
Art. 212. Definitions . . . .
(k) "Managerial Employee" is one who is vested with powers or
prerogatives to lay down and execute management policies and/or to
hire, transfer, suspend, lay off, recall, discharge, assign or discipline
employees, or to effectively recommend such managerial actions. All
employees not falling within this definition are considered rank and file
employees for purposes of this Book. 22
The definition shows that it is actually a combination of the commonly
understood definitions of both groups of managerial employees, grammatically
joined by the phrase "and/or."
This general definition was perhaps legally necessary at that time for two
reasons. First, the 1974 Code denied supervisors their right to self-organize as
theretofore guaranteed to them by the Industrial Peace Act. Second, it stood the
dictum in the Caltex case on its head by prohibiting all types of managers from
forming unions. The explicit general prohibition was contained in the then Art.
246 of the Labor Code.
The practical effect of this synthesis of legal concepts was made apparent in the
Omnibus Rules Implementing the Labor Code which the Department of Labor
promulgated on January 19, 1975. Book V, Rule II, §11 of the Rules provided:
 Supervisory unions and unions of security guards to cease operation. —
All existing supervisory unions and unions of security guards shall,
upon the effectivity of the Code, cease to operate as such and their
registration certificates shall be deemed automatically canceled.
However, existing collective agreements with such unions, the life of
which extends beyond the date of effectivity of the Code, shall be
respected until their expiry date insofar as the economic benefits
granted therein are concerned.
Members of supervisory unions who do not fall within the definition of
managerial employees shall become eligible to join or assist the rank
and file labor organization, and if none exists, to form or assist in the
forming of such rank and file organization. The determination of who
are managerial employees and who are not shall be the subject of
negotiation between representatives of the supervisory union and the
employer. If no agreement is reached between the parties, either or both
of them may bring the issue to the nearest Regional Office for
determination.
The Department of Labor continued to use the term "supervisory unions" despite
the demise of the legal definition of "supervisor" apparently because these were
the unions of front line managers which were then allowed as a result of the
statutory grant of the right of self-organization under the Industrial Peace Act.
Had the Department of Labor seen fit to similarly ban unions of top and middle
managers which may have been formed following the dictum in Caltex, it
obviously would have done so. Yet it did not, apparently because no such unions
of top and middle managers really then existed.
Real Intent of the 1986 Constitutional Commission
This was the law as it stood at the time the Constitutional Commission
considered the draft of Art. III, §8. Commissioner Lerum sought to amend the
draft of what was later to become Art. III, §8 of the present Constitution:
MR. LERUM. My amendment is on Section 7, page 2, line 19, which is
to insert between the words "people" and "to" the following: WHETHER
EMPLOYED BY THE STATE OR PRIVATE ESTABLISHMENTS. In
other words, the section will now read as follows: "The right of the
people WHETHER EMPLOYED BY THE STATE OR PRIVATE
ESTABLISHMENTS to form associations, unions, or societies for
purposes not contrary to law shall not be abridged." 23
Explaining his proposed amendment, he stated:
MR. LERUM. Under the 1935 Bill of Rights, the right to form
associations is granted to all persons whether or not they are employed
in the government. Under that provision, we allow unions in the
government, in government-owned and controlled corporations and in
other industries in the private sector, such as the Philippine Government
Employees' Association, unions in the GSIS, the SSS, the DBP and other
government-owned and controlled corporations. Also, we have unions
of supervisory employees and of security guards. But what is tragic
about this is that after the 1973 Constitution was approved and in spite
of an express recognition of the right to organize in P.D. No. 442,
known as the Labor Code, the right of government workers, supervisory
employees and security guards to form unions was abolished.
And we have been fighting against this abolition. In every tripartite
conference attended by the government, management and workers, we
have always been insisting on the return of these rights. However, both
the government and employers opposed our proposal, so nothing came
out of this until this week when we approved a provision which states:
Notwithstanding any provision of this article, the right
to self-organization shall not be denied to government
employees.
We are afraid that without any corresponding provision covering the
private sector, the security guards, the supervisory employees or
majority employees [sic] will still be excluded, and that is the purpose of
this amendment.
I will be very glad to accept any kind of wording as long as it will
amount to absolute recognition of private sector employees, without
exception, to organize.
THE PRESIDENT. What does the Committee say?
FR. BERNAS. Certainly, the sense is very acceptable, but the point
raised by Commissioner Rodrigo is well-taken. Perhaps, we can
lengthen this a little bit more to read: "The right of the people
WHETHER UNEMPLOYED OR EMPLOYED BY STATE OR PRIVATE
ESTABLISHMENTS.
I want to avoid also the possibility of having this interpreted as
applicable only to the employed.
 MR. DE LOS REYES. Will the proponent accept an amendment to the
amendment, Madam President?
MR. LERUM. Yes, as long as it will carry the idea that the right of the
employees in the private sector is recognized.24
Lerum thus anchored his proposal on the fact that (1) government employees,
supervisory employees, and security guards, who had the right to organize under
the Industrial Peace Act, had been denied this right by the Labor Code, and (2)
there was a need to reinstate the right of these employees. In consonance with
his objective to reinstate the right of government, security, and supervisory
employees to organize, Lerum then made his proposal:
MR. LERUM. Mr. Presiding Officer, after a consultation with several
Members of this Commission, my amendment will now read as follows:
"The right of the people INCLUDING THOSE EMPLOYED IN THE
PUBLIC AND PRIVATE SECTORS to form associations, unions, or
societies for purposes not contrary to law shall not be abridged. In
proposing that amendment I ask to make of record that I want the
following provisions of the Labor Code to be automatically abolished,
which read:
Art. 245. Security guards and other personnel
employed for the protection and security of the person,
properties and premises of the employers shall not be
eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to
join, assist, and form any labor organization.
THE PRESIDING OFFICER (Mr. Bengzon). What does the Committee
say?
FR. BERNAS. The Committee accepts.
THE PRESIDING OFFICER. (Mr. Bengzon) The Committee has
accepted the amendment, as amended.
Is there any objection? (Silence) The Chair hears none; the amendment,
as amended, is approved. 25
The question is what Commissioner Lerum meant in seeking to "automatically
abolish" the then Art. 246 of the Labor Code. Did he simply want "any kind of
wording as long as it will amount to absolute recognition of private sector
employees, without exception, to organize"? 26 Or, did he instead intend to have
his words taken in the context of the cause which moved him to propose the
amendment in the first place, namely, the denial of the right of supervisory
employees to organize, because he said, "We are afraid that without any
corresponding provision covering the private sector, security guards,
supervisory employees or majority [of] employees will still be excluded, and that
is the purpose of this amendment"? 27
It would seem that Commissioner Lerum simply meant to restore the right of
supervisory employees to organize. For even though he spoke of the need to
"abolish" Art. 246 of the Labor Code which, as already stated, prohibited
"managerial employees" in general from forming unions, the fact was that in
explaining his proposal, he repeatedly referred to "supervisory employees"
whose right under the Industrial Peace Act to organize had been taken away by
Art. 246. It is noteworthy that Commissioner Lerum never referred to the then
definition of "managerial employees" in Art. 212(m) of the Labor Code which
put together, under the broad phrase "managerial employees," top and middle
managers and supervisors. Instead, his repeated use of the term "supervisory
employees," when such term then was no longer in the statute books, suggests a
frame of mind that remained grounded in the language of the Industrial Peace
Act.
Nor did Lerum ever refer to the dictum in Caltex recognizing the right of all
managerial employees to organize, despite the fact that the Industrial Peace Act
did not expressly provide for the right of top and middle managers to organize. If
Lerum was aware of the Caltex dictum, then his insistence on the use of the term
"supervisory employees" could only mean that he was excluding other
managerial employees from his proposal. If, on the other hand, he was not
aware of the Caltex statement sustaining the right to organize to top and middle
managers, then the more should his repeated use of the term "supervisory
employees" be taken at face value, as it had been defined in the then Industrial
Peace Act.
At all events, that the rest of the Commissioners understood his proposal to refer
solely to supervisors and not to other managerial employees is clear from the
following account of Commissioner Joaquin G. Bernas, who writes:
In presenting the modification on the 1935 and 1973 texts,
Commissioner Eulogio R. Lerum explained that the modification
included three categories of workers: (1) government employees, (2)
supervisory employees, and (3) security guards. Lerum made of record
the explicit intent to repeal provisions of P.D. 442, the Labor Code. The
provisions referred to were:
 Art. 245. Security guards and other personnel
employed for the protection and security of the person,
properties and premises of the employers shall not be
eligible for membership in a labor organization.
Art. 246. Managerial employees are not eligible to
join, assist, and form any labor organization. 28
Implications of the Lerum Proposal
In sum, Lerum's proposal to amend Art. III, §8 of the draft Constitution by
including labor unions in the guarantee of organizational right should be taken
in the context of statements that his aim was the removal of the statutory ban
against security guards and supervisory employees joining labor organizations.
The approval by the Constitutional Commission of his proposal can only mean,
therefore, that the Commission intended the absolute right to organize of
government workers, supervisory employees, and security guards to be
constitutionally guaranteed. By implication, no similar absolute constitutional
right to organize for labor purposes should be deemed to have been granted to
top-level and middle managers. As to them the right of self-organization may be
regulated and even abridged conformably to Art. III, §8.
Constitutionality of Art. 245
Finally, the question is whether the present ban against managerial employees,
as embodied in Art. 245 (which superseded Art. 246) of the Labor Code, is valid.
This provision reads:
Art. 245. Ineligibility of managerial employees to join any labor
organization; right of supervisory employees. — Managerial employees
are not eligible to join, assist or form any labor organization.
Supervisory employees shall not be eligible for membership in a labor
organization of the rank-and-file employees but may join, assist or form
separate labor organizations of their own. 29
This provision is the result of the amendment of the Labor Code in 1989 by R.A.
No. 6715, otherwise known as the Herrera-Veloso Law. Unlike the Industrial
Peace Act or the provisions of the Labor Code which it superseded, R.A. No.
6715 provides separate definitions of the terms "managerial" and "supervisory
employees," as follows:
Art. 212. Definitions. . . .
(m) "managerial employee" is one who is vested with powers or
prerogatives to lay down and execute management policies and/or to
hire transfer, suspend, lay off, recall, discharge, assign or discipline
employees. Supervisory employees are those who, in the interest of the
employer, effectively recommend such managerial actions if the exercise
of such authority is not merely routinary or clerical in nature but
requires the use of independent judgment. All employees not falling
within any of the above definitions are considered rank-and-file
employees for purposes of this Book.
Although the definition of "supervisory employees" seems to have been unduly
restricted to the last phrase of the definition in the Industrial Peace Act, the legal
significance given to the phrase "effectively recommends" remains the same. In
fact, the distinction between top and middle managers, who set management
policy, and front-line supervisors, who are merely responsible for ensuring that
such policies are carried out by the rank and file, is articulated in the present
definition. 30 When read in relation to this definition in Art. 212(m), it will be
seen that Art. 245 faithfully carries out the intent of the Constitutional
Commission in framing Art. III, §8 of the fundamental law.
Nor is the guarantee of organizational right in Art. III, §8 infringed by a ban
against managerial employees forming a union. The right guaranteed in Art. III,
§8 is subject to the condition that its exercise should be for purposes "not
contrary to law." In the case of Art. 245, there is a rational basis for prohibiting
managerial employees from forming or joining labor organizations. As Justice
Davide, Jr., himself a constitutional commissioner, said in his ponencia inPhilips
Industrial Development, Inc. v. NLRC: 31
In the first place, all these employees, with the exception of the service
engineers and the sales force personnel, are confidential employees.
Their classification as such is not seriously disputed by PEO-FFW; the
five (5) previous CBAs between PIDI and PEO-FFW explicitly
considered them as confidential employees. By the very nature of their
functions, they assist and act in a confidential capacity to, or have
access to confidential matters of, persons who exercise managerial
functions in the field of labor relations. As such, the rationale behind the
ineligibility of managerial employees to form, assist or joint a labor
union equally applies to them.
In Bulletin Publishing Co., Inc. v. Hon. Augusto Sanchez, this Court
elaborated on this rationale, thus:
 . . . The rationale for this inhibition has been stated to
be, because if these managerial employees would
belong to or be affiliated with a Union, the latter might
not be assured of their loyalty to the Union in view of
evident conflict of interests. The Union can also
become company-dominated with the presence of
managerial employees in Union membership. 32

To be sure, the Court in Philips Industrial was dealing with the right of
confidential employees to organize. But the same reason for denying them the
right to organize justifies even more the ban on managerial employees from
forming unions. After all, those who qualify as top or middle managers are
executives who receive from their employers information that not only is
confidential but also is not generally available to the public, or to their
competitors, or to other employees. It is hardly necessary to point out that to say
that the first sentence of Art. 245 is unconstitutional would be to contradict the
decision in that case.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Martinez and Purisima, JJ.,

concur.
 Republic of the Philippines as Executive Secretary; and HON. ROBERTO B. DE OCAMPO, in his
SUPREME COURT capacity as Secretary of Finance, respondents.
Manila
G.R. No. 115754 October 30, 1995
EN BANC
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC.,
(CREBA), petitioner,
vs.
G.R. No. 115455 October 30, 1995 THE COMMISSIONER OF INTERNAL REVENUE, respondent.

ARTURO M. TOLENTINO, petitioner, G.R. No. 115781 October 30, 1995

vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME
INTERNAL REVENUE, respondents. CAMBA, EMILIO C. CAPULONG, JR., JOSE T. APOLO, EPHRAIM
TENDERO, FERNANDO SANTIAGO, JOSE ABCEDE, CHRISTINE
G.R. No. 115525 October 30, 1995 TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT
JUAN T. DAVID, petitioner, OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND
vs. NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and
OCAMPO, as Secretary of Finance; LIWAYWAY VINZONS-CHATO, as WIGBERTO TAÑADA,petitioners,
Commissioner of Internal Revenue; and their AUTHORIZED AGENTS vs.
OR REPRESENTATIVES, respondents. THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE,
THE COMMISSIONER OF INTERNAL REVENUE and THE
COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115543 October 30, 1995
G.R. No. 115852 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE
PHILIPPINES, petitioners,
vs. PHILIPPINE AIRLINES, INC., petitioner,
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE vs.
COMMISSIONERS OF THE BUREAU OF INTERNAL REVENUE AND THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL
BUREAU OF CUSTOMS, respondents. REVENUE, respondents.

G.R. No. 115544 October 30, 1995 G.R. No. 115873 October 30, 1995

PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.;
KAMAHALAN PUBLISHING CORPORATION; PHILIPPINE
JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of
Internal Revenue; HON. TEOFISTO T. GUINGONA, JR., in his capacity
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of
Internal Revenue, HON. TEOFISTO T. GUINGONA, JR., in his capacity as
Executive Secretary, and HON. ROBERTO B. DE OCAMPO, in his
capacity as Secretary of Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and
ASSOCIATION OF PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON.
LIWAYWAY V. CHATO, as the Commissioner of Internal Revenue; and
HON. GUILLERMO PARAYNO, JR., in his capacity as the Commissioner
of Customs, respondents.
RESOLUTION
MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the
petitions filed in these cases for the declaration of unconstitutionality of R.A. No.
7716, otherwise known as the Expanded Value-Added Tax Law. The motions, of
which there are 10 in all, have been filed by the several petitioners in these
cases, with the exception of the Philippine Educational Publishers Association,
Inc. and the Association of Philippine Booksellers, petitioners in G.R. No.
115931.
The Solicitor General, representing the respondents, filed a consolidated
comment, to which the Philippine Airlines, Inc., petitioner in G.R. No. 115852,
and the Philippine Press Institute, Inc., petitioner in G.R. No. 115544, and Juan
T. David, petitioner in G.R. No. 115525, each filed a reply. In turn the Solicitor
General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the
petitioners (Tolentino, Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and
Chamber of Real Estate and Builders Association (CREBA)) reiterate previous
claims made by them that R.A. No. 7716 did not "originate exclusively" in the
House of Representatives as required by Art. VI, §24 of the Constitution.
Although they admit that H. No. 11197 was filed in the House of
Representatives where it passed three readings and that afterward it was sent to
the Senate where after first reading it was referred to the Senate Ways and
Means Committee, they complain that the Senate did not pass it on second and
third readings. Instead what the Senate did was to pass its own version (S. No.
1630) which it approved on May 24, 1994. Petitioner Tolentino adds that what
the Senate committee should have done was to amend H. No. 11197 by striking
out the text of the bill and substituting it with the text of S. No. 1630. That way,
it is said, "the bill remains a House bill and the Senate version just becomes the
text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate
proposed an amendment to a House revenue bill by enacting its own version of a
revenue bill. On at least two occasions during the Eighth Congress, the Senate
passed its own version of revenue bills, which, in consolidation with House bills
earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS
CODE OF 1987 BY EXTENDING FROM FIVE (5) YEARS TO TEN YEARS
THE PERIOD FOR TAX AND DUTY EXEMPTION AND TAX CREDIT ON
CAPITAL EQUIPMENT) which was approved by the President on April 10,
1992. This Act is actually a consolidation of H. No. 34254, which was approved
by the House on January 29, 1992, and S. No. 1920, which was approved by the
Senate on February 3, 1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER
SHALL GIVE REWARD TO ANY FILIPINO ATHLETE WINNING A
MEDAL IN OLYMPIC GAMES) which was approved by the President on May
22, 1992. This Act is a consolidation of H. No. 22232, which was approved by
the House of Representatives on August 2, 1989, and S. No. 807, which was
approved by the Senate on October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also the
result of the consolidation of House and Senate bills. These are the following,
with indications of the dates on which the laws were approved by the President
and dates the separate bills of the two chambers of Congress were respectively
passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX
EVASION, AMENDING FOR THIS PURPOSE THE
PERTINENT SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF
INTERNAL REVENUE TO REQUIRE THE PAYMENT OF
THE VALUE-ADDED TAX EVERY MONTH AND TO
ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN
VAT REVENUE, AMENDING FOR THIS PURPOSE
CERTAIN SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992
Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF
INTERNAL REVENUE TO PRESCRIBE THE PLACE FOR
PAYMENT OF INTERNAL REVENUE TAXES BY LARGE
TAXPAYERS, AMENDING FOR THIS PURPOSE
CERTAIN PROVISIONS OF THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED (February 24, 1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF
ITS POLITICAL SUBDIVISIONS, INSTRUMENTALITIES
OR AGENCIES INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS (GOCCS) TO DEDUCT
AND WITHHOLD THE VALUE-ADDED TAX DUE AT
THE RATE OF THREE PERCENT (3%) ON GROSS
PAYMENT FOR THE PURCHASE OF GOODS AND SIX
PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS TO DECLARE
DIVIDENDS UNDER CERTAIN CONDITIONS TO THE
NATIONAL GOVERNMENT, AND FOR OTHER
PURPOSES (November 9, 1993)
House Bill No. 11024, November 3, 1993
Senate Bill No. 1168, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE
AND ADMINISTRATION OF THE DOCUMENTARY
STAMP TAX, AMENDING FOR THE PURPOSE CERTAIN
PROVISIONS OF THE NATIONAL INTERNAL REVENUE
CODE, AS AMENDED, ALLOCATING FUNDS FOR
SPECIFIC PROGRAMS, AND FOR OTHER PURPOSES
(December 23, 1993)
House Bill No. 7789, May 31, 1993
Senate Bill No. 1330, November 18, 1993
7. R.A. NO. 7717
AN ACT IMPOSING A TAX ON THE SALE, BARTER OR
EXCHANGE OF SHARES OF STOCK LISTED AND
TRADED THROUGH THE LOCAL STOCK EXCHANGE
OR THROUGH INITIAL PUBLIC OFFERING, AMENDING
FOR THE PURPOSE THE NATIONAL INTERNAL
REVENUE CODE, AS AMENDED, BY INSERTING A NEW
SECTION AND REPEALING CERTAIN SUBSECTIONS
THEREOF (May 5, 1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate,
in the exercise of its power to propose amendments to bills required to originate
in the House, passed its own version of a House revenue measure. It is
noteworthy that, in the particular case of S. No. 1630, petitioners Tolentino and
Roco, as members of the Senate, voted to approve it on second and third
readings.
On the other hand, amendment by substitution, in the manner urged by petitioner
Tolentino, concerns a mere matter of form. Petitioner has not shown what
substantial difference it would make if, as the Senate actually did in this case, a
separate bill like S. No. 1630 is instead enacted as a substitute measure, "taking
into Consideration . . . H.B. 11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
§68. Not more than one amendment to the original amendment
shall be considered.
No amendment by substitution shall be entertained unless the
text thereof is submitted in writing.
Any of said amendments may be withdrawn before a vote is
taken thereon.
§69. No amendment which seeks the inclusion of a legislative
provision foreign to the subject matter of a bill (rider) shall be
entertained.
xxx xxx xxx
§70-A. A bill or resolution shall not be amended by substituting
it with another which covers a subject distinct from that
proposed in the original bill or resolution. (emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills, the
Philippine Senate possesses less power than the U.S. Senate because of textual
differences between constitutional provisions giving them the power to propose
or concur with amendments.
Art. I, §7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
amendments as on other Bills.
Art. VI, §24 of our Constitution reads:
All appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private
bills shall originate exclusively in the House of Representatives,
but the Senate may propose or concur with amendments.
The addition of the word "exclusively" in the Philippine Constitution and the
decision to drop the phrase "as on other Bills" in the American version,
according to petitioners, shows the intention of the framers of our Constitution to
restrict the Senate's power to propose amendments to revenue bills. Petitioner
Tolentino contends that the word "exclusively" was inserted to modify
"originate" and "the words 'as in any other bills' (sic) were eliminated so as to
show that these bills were not to be like other bills but must be treated as a
special kind."
The history of this provision does not support this contention. The
supposed indicia of constitutional intent are nothing but the relics of an
unsuccessful attempt to limit the power of the Senate. It will be recalled that the
1935 Constitution originally provided for a unicameral National Assembly.
When it was decided in 1939 to change to a bicameral legislature, it became
necessary to provide for the procedure for lawmaking by the Senate and the
House of Representatives. The work of proposing amendments to the
Constitution was done by the National Assembly, acting as a constituent
assembly, some of whose members, jealous of preserving the Assembly's
lawmaking powers, sought to curtail the powers of the proposed Senate.
Accordingly they proposed the following provision:
All bills appropriating public funds, revenue or tariff bills, bills
of local application, and private bills shall originate exclusively
in the Assembly, but the Senate may propose or concur with
amendments. In case of disapproval by the Senate of any such
bills, the Assembly may repass the same by a two-thirds vote of
all its members, and thereupon, the bill so repassed shall be
deemed enacted and may be submitted to the President for
corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty
 days from the opening of the next regular session of the same
legislative term, reapprove the same with a vote of two-thirds of
all the members of the Assembly. And upon such reapproval,
the bill shall be deemed enacted and may be submitted to the
President for corresponding action.
The special committee on the revision of laws of the Second National Assembly
vetoed the proposal. It deleted everything after the first sentence. As rewritten,
the proposal was approved by the National Assembly and embodied in
Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO, KNOW
YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was
submitted to the people and ratified by them in the elections held on June 18,
1940.
This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art.
VI, §24 of the present Constitution was derived. It explains why the word
"exclusively" was added to the American text from which the framers of the
Philippine Constitution borrowed and why the phrase "as on other Bills" was not
copied. Considering the defeat of the proposal, the power of the Senate to
propose amendments must be understood to be full, plenary and complete "as on
other Bills." Thus, because revenue bills are required to originate exclusively in
the House of Representatives, the Senate cannot enact revenue measures of its
own without such bills. After a revenue bill is passed and sent over to it by the
House, however, the Senate certainly can pass its own version on the same
subject matter. This follows from the coequality of the two chambers of
Congress.
That this is also the understanding of book authors of the scope of the Senate's
power to concur is clear from the following commentaries:
The power of the Senate to propose or concur with amendments
is apparently without restriction. It would seem that by virtue of
this power, the Senate can practically re-write a bill required to
come from the House and leave only a trace of the original bill.
For example, a general revenue bill passed by the lower house
of the United States Congress contained provisions for the
imposition of an inheritance tax . This was changed by the
Senate into a corporation tax. The amending authority of the
Senate was declared by the United States Supreme Court to be
sufficiently broad to enable it to make the alteration. [Flint v.
Stone Tracy Company, 220 U.S. 107, 55 L. ed. 389].
(L. TAÑADA AND F. CARREON, POLITICAL LAW OF
THE PHILIPPINES 247 (1961))
The above-mentioned bills are supposed to be initiated by the
House of Representatives because it is more numerous in
membership and therefore also more representative of the
people. Moreover, its members are presumed to be more
familiar with the needs of the country in regard to the
enactment of the legislation involved.
The Senate is, however, allowed much leeway in the exercise of
its power to propose or concur with amendments to the bills
initiated by the House of Representatives. Thus, in one case, a
bill introduced in the U.S. House of Representatives was
changed by the Senate to make a proposed inheritance tax a
corporation tax. It is also accepted practice for the Senate to
introduce what is known as an amendment by substitution,
which may entirely replace the bill initiated in the House of
Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application, and private
bills must "originate exclusively in the House of Representatives," it also adds,
"but the Senate may propose or concur with amendments." In the exercise of this
power, the Senate may propose an entirely new bill as a substitute measure. As
petitioner Tolentino states in a high school text, a committee to which a bill is
referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in
the bill omitting or adding sections or altering its language; (3)
to make and endorse an entirely new bill as a substitute, in
which case it will be known as a committee bill; or (4) to make
no report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE
PHILIPPINES 258 (1950))
To except from this procedure the amendment of bills which are required to
originate in the House by prescribing that the number of the House bill and its
other parts up to the enacting clause must be preserved although the text of the
Senate amendment may be incorporated in place of the original body of the bill
is to insist on a mere technicality. At any rate there is no rule prescribing this
form. S. No. 1630, as a substitute measure, is therefore as much an amendment
of H. No. 11197 as any which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that
they assume that S. No. 1630 is an independent and distinct bill. Hence their
repeated references to its certification that it was passed by the Senate
"in substitution of S.B. No. 1129, taking into consideration P.S. Res. No. 734
and H.B. No. 11197," implying that there is something substantially different
between the reference to S. No. 1129 and the reference to H. No. 11197. From
this premise, they conclude that R.A. No. 7716 originated both in the House and
in the Senate and that it is the product of two "half-baked bills because neither H.
No. 11197 nor S. No. 1630 was passed by both houses of Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear
to be mere amendments of the corresponding provisions of H. No. 11197. The
very tabular comparison of the provisions of H. No. 11197 and S. No. 1630
attached as Supplement A to the basic petition of petitioner Tolentino, while
showing differences between the two bills, at the same time indicates that the
provisions of the Senate bill were precisely intended to be amendments to the
House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because
the Senate bill was a mere amendment of the House bill, H. No. 11197 in its
original form did not have to pass the Senate on second and three readings. It
was enough that after it was passed on first reading it was referred to the Senate
Committee on Ways and Means. Neither was it required that S. No. 1630 be
passed by the House of Representatives before the two bills could be referred to
the Conference Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and
S. No. 1630. When the House bill and Senate bill, which became R.A. No. 1405
(Act prohibiting the disclosure of bank deposits), were referred to a conference
committee, the question was raised whether the two bills could be the subject of
such conference, considering that the bill from one house had not been passed by
the other and vice versa. As Congressman Duran put the question:
MR. DURAN. Therefore, I raise this question of order as to
procedure: If a House bill is passed by the House but not passed
by the Senate, and a Senate bill of a similar nature is passed in
the Senate but never passed in the House, can the two bills be
the subject of a conference, and can a law be enacted from
these two bills? I understand that the Senate bill in this
particular instance does not refer to investments in government
securities, whereas the bill in the House, which was introduced
by the Speaker, covers two subject matters: not only
investigation of deposits in banks but also investigation of
investments in government securities. Now, since the two bills
differ in their subject matter, I believe that no law can be
enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in
order. It is precisely in cases like this where a conference
should be had. If the House bill had been approved by the
Senate, there would have been no need of a conference; but
precisely because the Senate passed another bill on the same
subject matter, the conference committee had to be created, and
we are now considering the report of that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis
added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and
S. No. 1630 are distinct and unrelated measures also accounts for the petitioners'
(Kilosbayan's and PAL's) contention that because the President separately
certified to the need for the immediate enactment of these measures, his
certification was ineffectual and void. The certification had to be made of the
version of the same revenue bill which at the momentwas being considered.
Otherwise, to follow petitioners' theory, it would be necessary for the President
to certify as many bills as are presented in a house of Congress even though the
bills are merely versions of the bill he has already certified. It is enough that he
certifies the bill which, at the time he makes the certification, is under
consideration. Since on March 22, 1994 the Senate was considering S. No. 1630,
it was that bill which had to be certified. For that matter on June 1, 1993 the
President had earlier certified H. No. 9210 for immediate enactment because it
was the one which at that time was being considered by the House. This bill was
later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained
in the main decision that the phrase "except when the President certifies to the
necessity of its immediate enactment, etc." in Art. VI, §26 (2) qualifies not only
the requirement that "printed copies [of a bill] in its final form [must be]
distributed to the members three days before its passage" but also the
requirement that before a bill can become a law it must have passed "three
readings on separate days." There is not only textual support for such
construction but historical basis as well.
Art. VI, §21 (2) of the 1935 Constitution originally provided:
(2) No bill shall be passed by either House unless it shall have
been printed and copies thereof in its final form furnished its
Members at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its
immediate enactment. Upon the last reading of a bill, no
amendment thereof shall be allowed and the question upon its
passage shall be taken immediately thereafter, and
the yeas and nays entered on the Journal.
When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):
(2) No bill shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final
form have been distributed to the Members three days before its
passage, except when the Prime Minister certifies to the
necessity of its immediate enactment to meet a public calamity
or emergency. Upon the last reading of a bill, no amendment
thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the
Journal.
This provision of the 1973 document, with slight modification, was adopted in
Art. VI, §26 (2) of the present Constitution, thus:
(2) No bill passed by either House shall become a law unless it
has passed three readings on separate days, and printed copies
thereof in its final form have been distributed to its Members
three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last reading of a bill,
no amendment thereto shall be allowed, and the vote thereon
shall be taken immediately thereafter, and
the yeasand nays entered in the Journal.
The exception is based on the prudential consideration that if in all cases three
readings on separate days are required and a bill has to be printed in final form
before it can be passed, the need for a law may be rendered academic by the
occurrence of the very emergency or public calamity which it is meant to
address.
Petitioners further contend that a "growing budget deficit" is not an emergency,
especially in a country like the Philippines where budget deficit is a chronic
condition. Even if this were the case, an enormous budget deficit does not make
the need for R.A. No. 7716 any less urgent or the situation calling for its
enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in
these cases) believed that there was an urgent need for consideration of S. No.
1630, because they responded to the call of the President by voting on the bill on
second and third readings on the same day. While the judicial department is not
bound by the Senate's acceptance of the President's certification, the respect due
coequal departments of the government in matters committed to them by the
Constitution and the absence of a clear showing of grave abuse of discretion
caution a stay of the judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in
the Senate where it was discussed for six days. Only its distribution in advance
in its final printed form was actually dispensed with by holding the voting on
second and third readings on the same day (March 24, 1994). Otherwise,
sufficient time between the submission of the bill on February 8, 1994 on second
reading and its approval on March 24, 1994 elapsed before it was finally voted
on by the Senate on third reading.
The purpose for which three readings on separate days is required is said to be
two-fold: (1) to inform the members of Congress of what they must vote on and
(2) to give them notice that a measure is progressing through the enacting
process, thus enabling them and others interested in the measure to prepare their
positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes were
substantially achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan,
Inc. and the Movement of Attorneys for Brotherhood, Integrity and Nationalism,
Inc. (MABINI)) that in violation of the constitutional policy of full public
disclosure and the people's right to know (Art. II, §28 and Art. III, §7) the
Conference Committee met for two days in executive session with only the
conferees present.
As pointed out in our main decision, even in the United States it was customary
to hold such sessions with only the conferees and their staffs in attendance and it
was only in 1975 when a new rule was adopted requiring open sessions. Unlike
its American counterpart, the Philippine Congress has not adopted a rule
prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the
rule in 1975, at least staff members were present. These were staff members of
the Senators and Congressmen, however, who may be presumed to be their
confidential men, not stenographers as in this case who on the last two days of
the conference were excluded. There is no showing that the conferees themselves
did not take notes of their proceedings so as to give petitioner Kilosbayan basis
for claiming that even in secret diplomatic negotiations involving state interests,
conferees keep notes of their meetings. Above all, the public's right to know was
fully served because the Conference Committee in this case submitted a report
showing the changes made on the differing versions of the House and the Senate.
Petitioners cite the rules of both houses which provide that conference
committee reports must contain "a detailed, sufficiently explicit statement of the
changes in or other amendments." These changes are shown in the bill attached
to the Conference Committee Report. The members of both houses could thus
ascertain what changes had been made in the original bills without the need of a
statement detailing the changes.
The same question now presented was raised when the bill which became R.A.
No. 1400 (Land Reform Act of 1955) was reported by the Conference
Committee. Congressman Bengzon raised a point of order. He said:
MR. BENGZON. My point of order is that it is out of order to
consider the report of the conference committee
regarding House Bill No. 2557 by reason of the provision of
Section 11, Article XII, of the Rules of this House which
provides specifically that the conference report must be
accompanied by a detailed statement of the effects of the
amendment on the bill of the House. This conference committee
report is not accompanied by that detailed statement, Mr.
Speaker. Therefore it is out of order to consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
MR. TOLENTINO. Mr. Speaker, I should just like to say a few
words in connection with the point of order raised by the
gentleman from Pangasinan.
There is no question about the provision of the Rule cited by
the gentleman from Pangasinan, but this provision applies to
those cases where only portions of the bill have been
amended. In this case before us an entire bill is
presented; therefore, it can be easily seen from the reading of
the bill what the provisions are. Besides, this procedure has
been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to
look into the reason for the provisions of the Rules, and the
reason for the requirement in the provision cited by the
gentleman from Pangasinan is when there are only certain
words or phrases inserted in or deleted from the provisions of
the bill included in the conference report, and we cannot
understand what those words and phrases mean and their
relation to the bill. In that case, it is necessary to make a
detailed statement on how those words and phrases will affect
the bill as a whole; but when the entire bill itself is copied
verbatim in the conference report, that is not necessary. So
when the reason for the Rule does not exist, the Rule does not
exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that when
the ruling was appealed, it was upheld by viva voce and when a division of the
House was called, it was sustained by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new
provisions as long as these are germane to the subject of the conference. As this
Court held in Philippine Judges Association v. Prado, 227 SCRA 703 (1993), in
an opinion written by then Justice Cruz, the jurisdiction of the conference
committee is not limited to resolving differences between the Senate and the
House. It may propose an entirely new provision. What is important is that its
report is subsequently approved by the respective houses of Congress. This
Court ruled that it would not entertain allegations that, because new provisions
had been added by the conference committee, there was thereby a violation of
the constitutional injunction that "upon the last reading of a bill, no amendment
thereto shall be allowed."
 Applying these principles, we shall decline to look into the
petitioners' charges that an amendment was made upon the last
reading of the bill that eventually became R.A. No. 7354 and
that copiesthereof in its final form were not distributed among
the members of each House. Both the enrolled bill and the
legislative journals certify that the measure was duly
enacted i.e., in accordance with Article VI, Sec. 26 (2) of the
Constitution. We are bound by such official assurances from a
coordinate department of the government, to which we owe, at
the very least, a becoming courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the
Philippines in a 1979 study:
Conference committees may be of two types: free or instructed.
These committees may be given instructions by their parent
bodies or they may be left without instructions. Normally the
conference committees are without instructions, and this is why
they are often critically referred to as "the little legislatures."
Once bills have been sent to them, the conferees have almost
unlimited authority to change the clauses of the bills and in fact
sometimes introduce new measures that were not in the original
legislation. No minutes are kept, and members' activities on
conference committees are difficult to determine. One
congressman known for his idealism put it this way: "I killed a
bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere
else." The conference committee submits a report to both
houses, and usually it is accepted. If the report is not accepted,
then the committee is discharged and new members are
appointed.
(R. Jackson, Committees in the Philippine Congress, in
COMMITTEES AND LEGISLATURES: A COMPARATIVE
ANALYSIS 163 (J. D. LEES AND M. SHAW, eds.)).
In citing this study, we pass no judgment on the methods of conference
committees. We cite it only to say that conference committees here are no
different from their counterparts in the United States whose vast powers we
noted in Philippine Judges Association v. Prado, supra. At all events, under Art.
VI, §16(3) each house has the power "to determine the rules of its proceedings,"
including those of its committees. Any meaningful change in the method and
procedures of Congress or its committees must therefore be sought in that body
itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No.
7716 violates Art. VI, §26 (1) of the Constitution which provides that "Every bill
passed by Congress shall embrace only one subject which shall be expressed in
the title thereof." PAL contends that the amendment of its franchise by the
withdrawal of its exemption from the VAT is not expressed in the title of the
law.
Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross
revenue "in lieu of all other taxes, duties, royalties, registration, license and other
fees and charges of any kind, nature, or description, imposed, levied, established,
assessed or collected by any municipal, city, provincial or national authority or
government agency, now or in the future."
PAL was exempted from the payment of the VAT along with other entities by
§103 of the National Internal Revenue Code, which provides as follows:
§103. Exempt transactions. — The following shall be exempt
from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or
international agreements to which the Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to
PAL, by amending §103, as follows:
§103. Exempt transactions. — The following shall be exempt
from the value-added tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except
those granted under Presidential Decree Nos. 66, 529, 972,
1491, 1590. . . .
The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:
 AN ACT RESTRUCTURING THE VALUE-ADDED TAX
(VAT) SYSTEM, WIDENING ITS TAX BASE AND
ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE
RELEVANT PROVISIONS OF THE NATIONAL
INTERNAL REVENUE CODE, AS AMENDED, AND FOR
OTHER PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-
ADDED TAX (VAT) SYSTEM [BY] WIDENING ITS TAX BASE AND
ENHANCING ITS ADMINISTRATION, AND FOR THESE PURPOSES
AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR
OTHER PURPOSES," Congress thereby clearly expresses its intention to amend
any provision of the NIRC which stands in the way of accomplishing the
purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of
the law by specific reference to P.D. No. 1590. It is unnecessary to do this in
order to comply with the constitutional requirement, since it is already stated in
the title that the law seeks to amend the pertinent provisions of the NIRC, among
which is §103(q), in order to widen the base of the VAT. Actually, it is the bill
which becomes a law that is required to express in its title the subject of
legislation. The titles of H. No. 11197 and S. No. 1630 in fact specifically
referred to §103 of the NIRC as among the provisions sought to be amended. We
are satisfied that sufficient notice had been given of the pendency of these bills
in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now
made by PAL was rejected. R.A. No. 7354 is entitled AN ACT CREATING
THE PHILIPPINE POSTAL CORPORATION, DEFINING ITS POWERS,
FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR REGULATION
OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED
THEREWITH. It contained a provision repealing all franking privileges. It was
contended that the withdrawal of franking privileges was not expressed in the
title of the law. In holding that there was sufficient description of the subject of
the law in its title, including the repeal of franking privileges, this Court held:
To require every end and means necessary for the
accomplishment of the general objectives of the statute to be
expressed in its title would not only be unreasonable but would
actually render legislation impossible. [Cooley, Constitutional
Limitations, 8th Ed., p. 297] As has been correctly explained:
The details of a legislative act need not be
specifically stated in its title, but matter
germane to the subject as expressed in the title,
and adopted to the accomplishment of the
object in view, may properly be included in
the act. Thus, it is proper to create in the same
act the machinery by which the act is to be
enforced, to prescribe the penalties for its
infraction, and to remove obstacles in the way
of its execution. If such matters are properly
connected with the subject as expressed in the
title, it is unnecessary that they should also
have special mention in the title. (Southern
Pac. Co. v. Bartine, 170 Fed. 725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a
general proposition, the press is not exempt from the taxing power of the State
and that what the constitutional guarantee of free press prohibits are laws which
single out the press or target a group belonging to the press for special treatment
or which in any way discriminate against the press on the basis of the content of
the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from
the VAT while maintaining those granted to others, the law discriminates against
the press. At any rate, it is averred, "even nondiscriminatory taxation of
constitutionally guaranteed freedom is unconstitutional."
With respect to the first contention, it would suffice to say that since the law
granted the press a privilege, the law could take back the privilege anytime
without offense to the Constitution. The reason is simple: by granting
exemptions, the State does not forever waive the exercise of its sovereign
prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the
same tax burden to which other businesses have long ago been subject. It is thus
different from the tax involved in the cases invoked by the PPI. The license tax
in Grosjean v. American Press Co., 297 U.S. 233, 80 L. Ed. 660 (1936) was
found to be discriminatory because it was laid on the gross advertising receipts
only of newspapers whose weekly circulation was over 20,000, with the result
that the tax applied only to 13 out of 124 publishers in Louisiana. These large
papers were critical of Senator Huey Long who controlled the state legislature
which enacted the license tax. The censorial motivation for the law was thus
evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 75 L. Ed. 2d 295 (1983), the tax was found to be
discriminatory because although it could have been made liable for the sales tax
or, in lieu thereof, for the use tax on the privilege of using, storing or consuming
tangible goods, the press was not. Instead, the press was exempted from both
taxes. It was, however, later made to pay a special use tax on the cost of paper
and ink which made these items "the only items subject to the use tax that were
component of goods to be sold at retail." The U.S. Supreme Court held that the
differential treatment of the press "suggests that the goal of regulation is not
related to suppression of expression, and such goal is presumptively
unconstitutional." It would therefore appear that even a law that favors the press
is constitutionally suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are
withdrawn "absolutely and unqualifiedly" by R.A. No. 7716. Other exemptions
from the VAT, such as those previously granted to PAL, petroleum
concessionaires, enterprises registered with the Export Processing Zone
Authority, and many more are likewise totally withdrawn, in addition to
exemptions which are partially withdrawn, in an effort to broaden the base of the
tax.
The PPI says that the discriminatory treatment of the press is highlighted by the
fact that transactions, which are profit oriented, continue to enjoy exemption
under R.A. No. 7716. An enumeration of some of these transactions will suffice
to show that by and large this is not so and that the exemptions are granted for a
purpose. As the Solicitor General says, such exemptions are granted, in some
cases, to encourage agricultural production and, in other cases, for the personal
benefit of the end-user rather than for profit. The exempt transactions are:
(a) Goods for consumption or use which are in their original
state (agricultural, marine and forest products, cotton seeds in
their original state, fertilizers, seeds, seedlings, fingerlings, fish,
prawn livestock and poultry feeds) and goods or services to
enhance agriculture (milling of palay, corn, sugar cane and raw
sugar, livestock, poultry feeds, fertilizer, ingredients used for
the manufacture of feeds).
(b) Goods used for personal consumption or use (household and
personal effects of citizens returning to the Philippines) or for
professional use, like professional instruments and implements,
by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to
be used for manufacture of petroleum products subject to excise
tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and
veterinary services, and services rendered under employer-
employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international
agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not
exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for
Reconsideration, pp. 58-60)
The PPI asserts that it does not really matter that the law does not discriminate
against the press because "even nondiscriminatory taxation on constitutionally
guaranteed freedom is unconstitutional." PPI cites in support of this assertion the
following statement in Murdock v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292
(1943):
The fact that the ordinance is "nondiscriminatory" is
immaterial. The protection afforded by the First Amendment is
not so restricted. A license tax certainly does not acquire
constitutional validity because it classifies the privileges
protected by the First Amendment along with the wares and
merchandise of hucksters and peddlers and treats them all alike.
Such equality in treatment does not save the ordinance.
Freedom of press, freedom of speech, freedom of religion are in
preferred position.
The Court was speaking in that case of a license tax, which, unlike an ordinary
tax, is mainly for regulation. Its imposition on the press is unconstitutional
because it lays a prior restraint on the exercise of its right. Hence, although its
application to others, such those selling goods, is valid, its application to the
press or to religious groups, such as the Jehovah's Witnesses, in connection with
the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S.
Supreme Court put it, "it is one thing to impose a tax on income or property of a
preacher. It is quite another thing to exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of
Manila, 101 Phil. 386 (1957) which invalidated a city ordinance requiring a
business license fee on those engaged in the sale of general merchandise. It was
held that the tax could not be imposed on the sale of bibles by the American
Bible Society without restraining the free exercise of its right to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the
exercise of a privilege, much less a constitutional right. It is imposed on the sale,
barter, lease or exchange of goods or properties or the sale or exchange of
services and the lease of properties purely for revenue purposes. To subject the
press to its payment is not to burden the exercise of its right any more than to
make the press pay income tax or subject it to general regulation is not to violate
its freedom under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells
bibles, the proceeds derived from the sales are used to subsidize the cost of
printing copies which are given free to those who cannot afford to pay so that to
tax the sales would be to increase the price, while reducing the volume of sale.
Granting that to be the case, the resulting burden on the exercise of religious
freedom is so incidental as to make it difficult to differentiate it from any other
economic imposition that might make the right to disseminate religious doctrines
costly. Otherwise, to follow the petitioner's argument, to increase the tax on the
sale of vestments would be to lay an impermissible burden on the right of the
preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by §107 of the
NIRC, as amended by §7 of R.A. No. 7716, although fixed in amount, is really
just to pay for the expenses of registration and enforcement of provisions such as
those relating to accounting in §108 of the NIRC. That the PBS distributes free
bibles and therefore is not liable to pay the VAT does not excuse it from the
payment of this fee because it also sells some copies. At any rate whether the
PBS is liable for the VAT must be decided in concrete cases, in the event it is
assessed this tax by the Commissioner of Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses
and the rule on taxation. CREBA asserts that R.A. No. 7716 (1) impairs the
obligations of contracts, (2) classifies transactions as covered or exempt without
reasonable basis and (3) violates the rule that taxes should be uniform and
equitable and that Congress shall "evolve a progressive system of taxation."
With respect to the first contention, it is claimed that the application of the tax to
existing contracts of the sale of real property by installment or on deferred
payment basis would result in substantial increases in the monthly amortizations
to be paid because of the 10% VAT. The additional amount, it is pointed out, is
something that the buyer did not anticipate at the time he entered into the
contract.
The short answer to this is the one given by this Court in an early case:
"Authorities from numerous sources are cited by the plaintiffs, but none of them
show that a lawful tax on a new subject, or an increased tax on an old one,
interferes with a contract or impairs its obligation, within the meaning of the
Constitution. Even though such taxation may affect particular contracts, as it
may increase the debt of one person and lessen the security of another, or may
impose additional burdens upon one class and release the burdens of another,
still the tax must be paid unless prohibited by the Constitution, nor can it be said
that it impairs the obligation of any existing contract in its true legal sense." (La
Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)).
Indeed not only existing laws but also "the reservation of the essential attributes
of sovereignty, is . . . read into contracts as a postulate of the legal order."
(Philippine-American Life Ins. Co. v. Auditor General, 22 SCRA 135, 147
(1968)) Contracts must be understood as having been made in reference to the
possible exercise of the rightful authority of the government and no obligation of
contract can extend to the defeat of that authority. (Norman v. Baltimore and
Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions
as the sale of agricultural products, food items, petroleum, and medical and
veterinary services, it grants no exemption on the sale of real property which is
equally essential. The sale of real property for socialized and low-cost housing is
exempted from the tax, but CREBA claims that real estate transactions of "the
less poor," i.e., the middle class, who are equally homeless, should likewise be
exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which
are essential goods and services was already exempt under §103, pars. (b) (d) (1)
of the NIRC before the enactment of R.A. No. 7716. Petitioner is in error in
claiming that R.A. No. 7716 granted exemption to these transactions, while
subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the
example given by petitioner, because the second group or middle class can
afford to rent houses in the meantime that they cannot yet buy their own homes.
The two social classes are thus differently situated in life. "It is inherent in the
power to tax that the State be free to select the subjects of taxation, and it has
been repeatedly held that 'inequalities which result from a singling out of one
particular class for taxation, or exemption infringe no constitutional limitation.'"
(Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord, City of Baguio v. De Leon,
134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163
SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also
violates Art. VI, §28(1) which provides that "The rule of taxation shall be
uniform and equitable. The Congress shall evolve a progressive system of
taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of
property of the same class be taxed at the same rate. The taxing power has the
authority to make reasonable and natural classifications for purposes of taxation.
To satisfy this requirement it is enough that the statute or ordinance applies
equally to all persons, forms and corporations placed in similar situation. (City of
Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No.
7716 was enacted. R.A. No. 7716 merely expands the base of the tax. The
validity of the original VAT Law was questioned in Kapatiran ng Naglilingkod
sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on grounds
similar to those made in these cases, namely, that the law was "oppressive,
discriminatory, unjust and regressive in violation of Art. VI, §28(1) of the
Constitution." (At 382) Rejecting the challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a
valid tax. It is uniform. . . .
The sales tax adopted in EO 273 is applied similarly on all
goods and services sold to the public, which are not exempt, at
the constant rate of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on
sales of goods or services by persons engaged in business with
an aggregate gross annual sales exceeding P200,000.00. Small
corner sari-sari stores are consequently exempt from its
application. Likewise exempt from the tax are sales of farm and
marine products, so that the costs of basic food and other
necessities, spared as they are from the incidence of the VAT,
are expected to be relatively lower and within the reach of the
general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the
Cooperative Union of the Philippines, Inc. (CUP), while petitioner Juan T. David
argues that the law contravenes the mandate of Congress to provide for a
progressive system of taxation because the law imposes a flat rate of 10% and
thus places the tax burden on all taxpayers without regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which,
like the VAT, are regressive. What it simply provides is that Congress shall
"evolve a progressive system of taxation." The constitutional provision has been
interpreted to mean simply that "direct taxes are . . . to be preferred [and] as
much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the
mandate to Congress is not to prescribe, but to evolve, a progressive tax system.
Otherwise, sales taxes, which perhaps are the oldest form of indirect taxes,
would have been prohibited with the proclamation of Art. VIII, §17(1) of the
1973 Constitution from which the present Art. VI, §28(1) was taken. Sales taxes
are also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it
is difficult, if not impossible, to avoid them by imposing such taxes according to
the taxpayers' ability to pay. In the case of the VAT, the law minimizes the
regressive effects of this imposition by providing for zero rating of certain
transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of
the NIRC).
Thus, the following transactions involving basic and essential goods and services
are exempted from the VAT:
(a) Goods for consumption or use which are in their original
state (agricultural, marine and forest products, cotton seeds in
their original state, fertilizers, seeds, seedlings, fingerlings, fish,
prawn livestock and poultry feeds) and goods or services to
enhance agriculture (milling of palay, corn sugar cane and raw
sugar, livestock, poultry feeds, fertilizer, ingredients used for
the manufacture of feeds).
 (b) Goods used for personal consumption or use (household and
personal effects of citizens returning to the Philippines) and or
professional use, like professional instruments and implements,
by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to
be used for manufacture of petroleum products subject to excise
tax and services subject to percentage tax.
(d) Educational services, medical, dental, hospital and
veterinary services, and services rendered under employer-
employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international
agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not
exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for
Reconsideration, pp. 58-60)
On the other hand, the transactions which are subject to the VAT are those which
involve goods and services which are used or availed of mainly by higher
income groups. These include real properties held primarily for sale to customers
or for lease in the ordinary course of trade or business, the right or privilege to
use patent, copyright, and other similar property or right, the right or privilege to
use industrial, commercial or scientific equipment, motion picture films, tapes
and discs, radio, television, satellite transmission and cable television time,
hotels, restaurants and similar places, securities, lending investments, taxicabs,
utility cars for rent, tourist buses, and other common carriers, services of
franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of
constitutional violations by tendering issues not at retail but at wholesale and in
the abstract. There is no fully developed record which can impart to adjudication
the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its
effect on property rights. For the fact is that petitioner's members have not even
been assessed the VAT. Petitioner's case is not made concrete by a series of
hypothetical questions asked which are no different from those dealt with in
advisory opinions.
The difficulty confronting petitioner is thus apparent. He
alleges arbitrariness. A mere allegation, as here, does not
suffice. There must be a factual foundation of such
unconstitutional taint. Considering that petitioner here would
condemn such a provision as void on its face, he has not made
out a case. This is merely to adhere to the authoritative doctrine
that where the due process and equal protection clauses are
invoked, considering that they are not fixed rules but rather
broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a
showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)
Adjudication of these broad claims must await the development of a concrete
case. It may be that postponement of adjudication would result in a multiplicity
of suits. This need not be the case, however. Enforcement of the law may give
rise to such a case. A test case, provided it is an actual case and not an abstract or
hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating
abstract issues. Otherwise, adjudication would be no different from the giving of
advisory opinion that does not really settle legal issues.
We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim
is made that "there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the
government." This duty can only arise if an actual case or controversy is before
us. Under Art . VIII, §5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction we
have the judicial power to determine questions of grave abuse of discretion by
any branch or instrumentality of the government.
Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power,"
which is "the power of a court to hear and decide cases pending between parties
who have the right to sue and be sued in the courts of law and equity" (Lamb v.
Phipps, 22 Phil. 456, 559 (1912)), as distinguished from legislative and
executive power. This power cannot be directly appropriated until it is
apportioned among several courts either by the Constitution, as in the case of
Art. VIII, §5, or by statute, as in the case of the Judiciary Act of 1948 (R.A. No.
296) and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). The power
thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the
exclusion of all others." (United States v. Arceo, 6 Phil. 29 (1906)) Without an
actual case coming within its jurisdiction, this Court cannot inquire into any
allegation of grave abuse of discretion by the other departments of the
government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the
Cooperative Union of the Philippines (CUP), after briefly surveying the course
of legislation, argues that it was to adopt a definite policy of granting tax
exemption to cooperatives that the present Constitution embodies provisions on
cooperatives. To subject cooperatives to the VAT would therefore be to infringe
a constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was
promulgated exempting cooperatives from the payment of income taxes and
sales taxes but in 1984, because of the crisis which menaced the national
economy, this exemption was withdrawn by P.D. No. 1955; that in 1986, P.D.
No. 2008 again granted cooperatives exemption from income and sales taxes
until December 31, 1991, but, in the same year, E.O. No. 93 revoked the
exemption; and that finally in 1987 the framers of the Constitution "repudiated
the previous actions of the government adverse to the interests of the
cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the cooperatives by
way of the grant of tax exemptions," by providing the following in Art. XII:
§1. The goals of the national economy are a more equitable
distribution of opportunities, income, and wealth; a sustained
increase in the amount of goods and services produced by the
nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all,
especially the underprivileged.
The State shall promote industrialization and full employment
based on sound agricultural development and agrarian reform,
through industries that make full and efficient use of human and
natural resources, and which are competitive in both domestic
and foreign markets. However, the State shall protect Filipino
enterprises against unfair foreign competition and trade
practices.
In the pursuit of these goals, all sectors of the economy and all
regions of the country shall be given optimum opportunity to
develop. Private enterprises, including corporations,
cooperatives, and similar collective organizations, shall be
encouraged to broaden the base of their ownership.
§15. The Congress shall create an agency to promote the
viability and growth of cooperatives as instruments for social
justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No.
1955 singled out cooperatives by withdrawing their exemption from income and
sales taxes under P.D. No. 175, §5. What P.D. No. 1955, §1 did was to
withdraw the exemptions and preferential treatments theretofore granted to
private business enterprises in general, in view of the economic crisis which
then beset the nation. It is true that after P.D. No. 2008, §2 had restored the tax
exemptions of cooperatives in 1986, the exemption was again repealed by E.O.
No. 93, §1, but then again cooperatives were not the only ones whose
exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the Constitution
does not really require that cooperatives be granted tax exemptions in order to
promote their growth and viability. Hence, there is no basis for petitioner's
assertion that the government's policy toward cooperatives had been one of
vacillation, as far as the grant of tax privileges was concerned, and that it was to
put an end to this indecision that the constitutional provisions cited were
adopted. Perhaps as a matter of policy cooperatives should be granted tax
exemptions, but that is left to the discretion of Congress. If Congress does not
grant exemption and there is no discrimination to cooperatives, no violation of
any constitutional policy can be charged.
Indeed, petitioner's theory amounts to saying that under the Constitution
cooperatives are exempt from taxation. Such theory is contrary to the
Constitution under which only the following are exempt from taxation:
charitable institutions, churches and parsonages, by reason of Art. VI, §28 (3),
and non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it
denies cooperatives the equal protection of the law because electric cooperatives
are exempted from the VAT. The classification between electric and other
cooperatives (farmers cooperatives, producers cooperatives, marketing
cooperatives, etc.) apparently rests on a congressional determination that there is
greater need to provide cheaper electric power to as many people as possible,
especially those living in the rural areas, than there is to provide them with other
necessities in life. We cannot say that such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional
validity of R.A. No. 7716. We have in fact taken the extraordinary step of
enjoining its enforcement pending resolution of these cases. We have now come
to the conclusion that the law suffers from none of the infirmities attributed to it
by petitioners and that its enactment by the other branches of the government
does not constitute a grave abuse of discretion. Any question as to its necessity,
desirability or expediency must be addressed to Congress as the body which is
electorally responsible, remembering that, as Justice Holmes has said,
"legislators are the ultimate guardians of the liberties and welfare of the people
in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co.
v. May, 194 U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as
petitioner in G.R. No. 115543 does in arguing that we should enforce the public
accountability of legislators, that those who took part in passing the law in
question by voting for it in Congress should later thrust to the courts the burden
of reviewing measures in the flush of enactment. This Court does not sit as a
third branch of the legislature, much less exercise a veto power over legislation.

WHEREFORE, the motions for reconsideration are denied with finality and the
temporary restraining order previously issued is hereby lifted.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-37201-02 March 3, 1975
CLEMENTE MAGTOTO, petitioner,
vs.
HON. MIGUEL M. MANGUERA, Judge of the Court of First Instance
(Branch II) of Occidental Mindoro, The PEOPLE OF THE PHILIPPINES,
IGNACIO CALARA, JR., and LOURDES CALARA, respondents.
G.R. No. L-37424 March 3, 1975
MAXIMO SIMEON, LOUIS MEDNATT, INOCENTES DE LUNA,
RUBEN MIRANDA, ALFONSO BALLESTEROS, RUDOLFO SUAREZ,
MANUEL MANALO, ALBERTO GABION, and RAFAEL BRILL,
petitioners,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Criminal
Circuit Court of Pasig, Rizal, and PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. L-38929 March 3, 1975
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ASAALI S. ISNANI, District Judge of the Court of First
Instance of Zamboanga del Sur, Branch II, VICENTE LONGAKIT, and
JAIME DALION, respondents.
Felipe S. Abeleda for petitioner Clemente Magtoto.
Joaquin L. Misa for petitioners Maximo Simeon, et al.
Alan L. Roxas for respondents Ignacio Calara, Jr., et al.
Organo Law Office for respondent Vicente Longakit, et al.
Office of the Solicitor General Estelito P. Mendoza and Assistant Solicitor
General Vicente V. Mendoza for respondent and petitioner People of the
Philippines.
FERNANDEZ, J.:ñé+.£ªwph!1
The present cases involve an interpretation of Section 20, Article IV of the New
Constitution, which reads:têñ.£îhqwâ£
No person shall be compelled to be a witness against himself.
Any person under investigation for the commission of an
offense shall have the right to remain silent and to counsel, and
to be informed of such right. No force, violence, threat,
intimidation, or any other means which vitiates the free will
shall be used against him. Any confession obtained in violation
of this section shall be inadmissible in evidence,
and specifically, the portion thereof which declares inadmissible a confession
obtained from a person under investigation for the commission of an offense
who has not been informed of his right (to remain silent and) to counsel. 1
We hold that this specific portion of this constitutional mandate has and should
be given a prospective and not a retrospective effect. Consequently, a confession
obtained from a person under investigation for the commission of an offense,
who has not been informed of his right (to silence and) to counsel, is
inadmissible in evidence if the same had been obtained after the effectivity of the
New Constitution on January 17, 1973. Conversely, such confession
is admissible in evidence against the accused, if the same had been
obtained before the effectivity of the New Constitution, even if presented after
January 17, 1973, and even if he had not been informed of his right to counsel,
since no law gave the accused the right to be so informed before that date.
Accordingly, We hereby sustain the orders of the respondent Judges in G.R. No.
L-37201-02 2 and G.R. No. L-37424 3 declaring admissible the confessions of the
accused in said cases, and We hereby set aside the order of the respondent Judge
challenged in G.R. No. L-38929 4 which declared inadmissible the confessions of
the accused in said case, although they have not been informed of their right to
remain silent and to counsel before they gave the confessions, because they were
given before the effectivity of the New Constitution.
The reasons for these rulings are as follows:
Section 20, Article IV of the New Constitution granted, for the first time, to a
person under investigation for the commission of an offense, the right to counsel
and to be informed of such right. And the last sentence thereof which, in effect,
means that any confession obtained in violation of this right shall be
inadmissible in evidence, can and should be given effect only when the right
already existed and had been violated. Consequently, because the confessions of
the accused in G.R. Nos. L-37201-02, 37424 and 38929 were taken before the
effectivity of the New Constitution in accordance with the rules then in force, no
right had been violated as to render them inadmissible in evidence although they
were not informed of "their right to remain silent and to counsel," "and to be
informed of such right," because, We repeat, no such right existed at the time.
The argument that the second paragraph of Article 125 of the Revised Penal
Code, which was added by Republic Act No. 1083 enacted in l954, which reads
as follows:têñ.£îhqwâ£
In every case, the person detained shall be informed of the
cause of his detention and shall be allowed, upon his request, to
communicate and confer at any time with his attorney or
counsel.
impliedly granted to a detained person the right to counsel and to be informed of
such right, is untenable. The only right granted by said paragraph to a detained
person was to be informed of the cause of his detention. But he must make a
request for him to be able to claim the right to communicate and confer with
counsel at any time.
The remark of Senator Cuenco, when Republic Act No. 1083 was being
discussed in the Senate, that the bill which became Republic Act No. 1083
provides that the detained person should be informed of his right to counsel, was
only the personal opinion of Senator Cuenco. We grant that he was, as We
personally knew him to be, a learned lawyer and senator. But his statement could
reflect only his personal opinion because if Congress had wanted Republic Act
No. 1083 to grant a detained person a right to counsel and to be informed of such
right, it should have been so worded. Congress did not do so.
As originally worded, Senate Bill No. 50, which became Republic Act No. 1083,
provided: "In every case the person detained shall be allowed, upon his request,
to have the services of an attorney or counsel. In the period of amendment, the
phrase "have the services of" was changed to the present wording "communicate
and confer anytime with his." As the Solicitor General points out in his able
memorandum, apparently the purpose was to bring the provision in harmony
with the provision of a complementary measure, Republic Act No. 857 (effective
July 16, 1953), which provides:têñ.£îhqwâ£
SECTION 1. Any public officer who shall obstruct, prohibit, or
otherwise prevent an attorney entitled to practice in the courts
of the Philippines from visiting and conferring privately with a
person arrested, at any hour of the day or, in urgent cases, of the
night, said visit and conference being requested by the person
arrested or by another acting in his behalf, shall be punished by
arresto mayor.
None of these statutes requires that police investigators inform the detained
person of his "right" to counsel. They only allow him to request to be given
counsel. It is not for this Court to add a requirement and carry on where both
Congress and the President stopped.
The history behind the new right granted to a detained person by Section 20,
Article IV of the New constitution to counsel and to be informed of said right
under pain of a confession taken in violation thereof being rendered inadmissible
in evidence, clearly shows the intention to give this constitutional guaranty not a
retroactive, but a prospective, effect so as to cover only confessions taken after
the effectivity of the New Constitution.
To begin with, Section 29, Rule 130 of the Rules of Court, provides:têñ.£îhqwâ£
Confession.—The declaration of an accused expressly
acknowledging his guilt of the offense charged, may be given in
evidence against him.
And according to Section 3, Rule 133 of the Rules of Court:
Extrajudicial confession, not sufficient ground for conviction.—An extrajudicial
confession made by an accused, shall not be sufficient ground for conviction,
unless corroborated by evidence of corpus delicti.
Extrajudicial confessions of the accused in a criminal case are universally
recognized as admissible in evidence against him, based on the presumption that
no one would declare anything against himself unless such declarations were
true. Accordingly, it has been held that a confession constitutes an evidence of a
high order since it is supported by the strong presumption that no person of
normal mind would deliberately and knowingly confess to a crime unless
prompted by truth and conscience. (U.S. vs. Delos Santos, 24 Phil. 329, 358).
The fundamental rule is that a confession, to be admissible, must be voluntary.
And the first rule in this connection was that before the confession could be
admitted in evidence, the prosecution must first show to the satisfaction of the
Court that the same was freely and voluntarily made, as provided for in Section 4
of Act 619 of the Philippine Commission (U.S. vs. Pascual, August 29, 1903, 2
Phil. 458). But with the repeal of said provision of law by the Administrative
Code in 1916, the burden of proof was changed. Now, a confession is admissible
in evidence without previous proof of its voluntariness on the theory that it is
presumed to be voluntary until the contrary is proved (5 Moran, Comments on
the Rules of Court, p. 264; People vs. Dorado, 30 SCRA 53, 57, citing U.S. vs.
Zara, 42 Phil. 308; People vs. Cabrera, 43 Phil. 64; People v. Singh, 45 Phil.
676; People v. Pereto, 21 SCRA 1469).
And once the accused succeeds in proving that his extrajudicial confession was
made involuntarily, it stands discredited in the eyes of the law and is as a thing
which never existed. It is incompetent as evidence and must be rejected. The
defense need not prove that its contents are false (U.S. vs. Delos Santos, 24 Phil.
329, 358; U.S. vs. Zara, 42 Phil. 325, November, 1921). The same rule was
followed inPeople vs. Nishishima. "Involuntary confessions are uniformly held
inadmissible as evidence — by some courts on the ground that a confession so
obtained is unreliable, and by some on the ground of humanitarian principles
which abhor all forms of torture or unfairness towards the accused in criminal
proceedings. ... ." (57 Phil. 26, 48, 51; 1932). 4* In the concurring opinion of
Justice Butte, he said: "Apart, from the fact that involuntary confessions will be
declared incompetent and are therefore utterly futile, it is high time to put a stop
to these (third degree) practices which are a blot on our Philippine civilization."
This rule was, however, changed by this court in 1953 in the case of People vs.
Delos Santos, et al., G.R. No. L-4880, citing the rule in Moncado vs. People's
Court, et al., 80 Phil 1, and followed in the case ofPeople vs. Villanueva, et
al. (G.R. No. L-7472, January 31, 1956), to the effect that "a confession to be
repudiated, must not only be proved to have been obtained by force or violence
or intimidation, but also that it is false or untrue, for the law rejects the
confession when by force or violence, the accused is compelled against this will
to tell a falsehood, not when by such force and violence is compelled to tell the
truth." This ruling was followed in a number of cases. 5
But the ruling in Moncado vs. People's Court et al., 80 Phil 1, which was the
basis of the leading case ofPeople vs. Delos Santos, supra, was overruled in the
case of Stonehill vs. Diokno (20 SCRA 383, June 19, 1963), holding that
evidence illegally obtained is not admissible in evidence. So, We reverted to the
original rule. As stated by this Court, speaking thru Justice Teehankee in People
vs. Urro (44 SCRA 473, April 27, 1972), "involuntary or coerced confessions
obtained by force or intimidation are null and voidand are abhorred by law
which proscribes the use of such cruel and inhuman methods to secure a
confession." "A coerced confession stands discredited in the eyes of the law and
is as a thing that never existed." The defense need not prove that its contents are
false. Thus, We turned full circle and returned to the rule originally established
in the case of U.S. vs. Delos Santos, 24 Phil. 323 and People vs. Nishishima, 42
Phil. 26. (See also People vs. Imperio, 44 SCRA 75).
It must be noted that all these Philippine cases refer to coerced confessions,
whether the coercion was physical, mental and/or emotional.
In the meantime, the United States Supreme Court decided the following
cases: Massiah vs. United States (377 U.S. 201, 1964), Escobedo vs. Illinois (378
U.S. 478, 1964); and Miranda vs. Arizona (384 U.S. 436, 1966). In Miranda vs.
Arizona, it was held:têñ.£îhqwâ£
To summarize, we hold that when an individual is taken into
custody or otherwise deprived of his freedom by the authorities
in any significant way and is subjected to questioning, the
privilege against self-incrimination is jeopardized. Procedural
safeguards must be employed to protect the privilege *[384
U.S. 479]* and unless other fully effective means are adopted
to notify the person of his right of silence and to assure that the
exercise of the right will be scrupulously honored, the
following measures are required. He must be warned prior to
any questioning that he has the right to remain silent, that
anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to
any questioning if he so desires. Opportunity to exercise these
rights must be afforded to him throughout the interrogation.
After such warning have been given, and such opportunity
afforded him, the individual may knowingly and intelligently
waive these rights and agree to answer questions or make
statement. But unless and until such warning and waiver are
demonstrated by the prosecution at trial, no evidence obtained
as a result of interrogation can be used against him. (Miranda
vs. Arizona, supra, p. 478)[Emphasis Ours]
When invoked in this jurisdiction, however, the Miranda rule was rejected by
this Court. In the cases of People vs. Jose (37 SCRA 450, February 6, 1971)
and People vs. Paras 56 SCRA 248, March 29, 1974), We rejected the rule that
an extrajudicial confession given without the assistance of counsel is
inadmissible in evidence. This Court in the Jose case(as in the Paras case),
held:têñ.£îhqwâ£
 The inadmissibility of his extrajudicial statements is likewise
being questioned by Jose on the other ground that he was not
assisted by counsel during the custodial interrogations. He cites
the decisions of the Supreme Court of the United States
in Massiah vs. U.S. (377 U.S. 201), Escobedo vs. Illinois (37
U.S. 478) and Miranda vs .Arizona (384 U.S. 436).
The provision of the Constitution of the Philippines in point is
Article III (Bill of Rights), Section 1, par. 17 of which provides:
"In all criminal prosecutions the accused shall ... enjoy the right
to be heard by himself and counsel ... ." While the said
provision is identical to that in the Constitution of the United
States, in this jurisdiction the term criminal prosecutions was
interpreted by this Court in U.S. vs. Beechman, 23 Phil 258
(1912), in connection with a similar provision in the Philippine
Bill of Rights (Section 5 of Act of Congress of July 1, 1902), to
mean proceedings before the trial court from arraignment to
rendition of the judgment. Implementing the said Constitutional
provision, We have provided in Section 1, Rule 115 of the
Rules of Court that "In all criminal prosecutions the defendant
shall be entitled ... (b) to be present and defend in person and by
attorney at every state of the proceedings, that is, from the
arraignment to the promulgation of the judgment." The only
instances where an accused is entitled to counsel before
arraignment, if he so requests, are during the second stage of
preliminary investigation (Rule 112, Section 11) and after the
arrest(Rule 113, Section 18). The rule in the United States need
not be unquestioningly adhered to in this jurisdiction, not only
because it has no binding effect here, but also because in
interpreting a provision of the Constitution the meaning
attached hereto at the time of the adoption thereof should be
considered. And even there the said rule is not yet quite settled,
as can be deduced from the absence of unanimity in the voting
by the members of the United States Supreme Court in all the
three above-cited cases. (People vs. Jose, supra, at page 472).
The Constitutional Convention at the time it deliberated on Section 20, Article
IV of the New Constitution was aware of the Escobedo and Miranda rule which
had been rejected in the case of Jose. That is the reason why the Miranda-
Escobedo rule was expressly included as a new right granted to a detained
person in the present provision of Section 20, Article IV of the New
Constitution.
When Delegate de Guzman (A) submitted the draft of this Section 20, Article IV
to the October 26, 1972 meeting of the 17-man committee of the Steering
Council, Delegate Leviste (O) expressly made of record that "we are adopting
here the rulings of US Supreme Court in the Miranda-Escobedo cases." And We
cannot agree with the insinuation in the dissenting opinion of Justice Castro that
the Delegates did not know of the existence of the second paragraph of Art. 125
of the Revised Penal Code.
Hence, We repeat, this historical background of Section 20, Article IV of the
New Constitution, in Our considered opinion, clearly shows that the new right
granted therein to a detained person to counsel and to be informed of such right
under pain of his confession being declared inadmissible in evidence, has and
should be given a prospective and not a retroactive effect. It did not exist before
its incorporation in our New Constitution, as We held in the Jose and Paras
cases, supra.
The authors of the dissenting opinions ignore the historical fact that the
constitutional and legal guarantees as well as the legal precedents that insure that
the confession be voluntary, underwent a slow and tedious development. The
constitutional guarantee in question might indeed have come late in the progress
of the law on the matter. But it is only now that it had come under Section 20 of
Article IV of the 1973 Constitution. That is all that our duty and power ordain Us
to proclaim; We cannot properly do more.
Furthermore, to give a retroactive effect to this constitutional guarantee to
counsel would have a great unsettling effect on the administration of justice in
this country. It may lead to the acquittal of guilty individuals and thus cause
injustice to the People and the offended parties in many criminal cases where
confessions were obtained before the effectivity of the New Constitution and in
accordance with the rules then in force although without assistance of counsel.
The Constitutional Convention could not have intended such a a disastrous
consequence in the administration of justice. For if the cause of justice suffers
when an innocent person is convicted, it equally suffers when a guilty one is
acquitted.
Even in the United States, the trend is now towards prospectivity. As noted in the
memorandum of the Solicitor General:têñ.£îhqwâ£
... That survey indicates that in the early decisions rejecting
retroactivity, the United States Supreme Court did not require
"pure prospectivity;" the new constitutional requirements there
were applied to all cases still pending on direct review at the
time they were announced. (See Linkletter vs. Walker, 381 U.S.
 618 (1965) (on admissibility of illegally-seized felony, who is not a habitual criminal, as this term is defined in
evidence); Tehan vs. Shott, 382 U.S. 406 (1966) (on the self- Rule 5 of Article 62 of this Code, although at the time of the
incrimination rule of Griffin vs. California, 380 U.S. 609 publication of such laws a final sentence has been pronounced
(1965). But the Court began a new course with Johnson vs. and the convict is serving the same,
New Jersey, 384 U.S. 719 (1966). It departed
from Linkletter and Tehan and came closer to "pure is not applicable to the present cases: First, because of the inclusion We have
prospectivity" by refusing to permit cases still pending on direct arrived at that the constitutional provision in question has a prospective and not a
review to benefit from the new in-custody interrogation retrospective effect, based on the reasons We have given; second, because the
requirements of Miranda vs. Arizona. As Chief Justice Warren "penal laws" mentioned in Article 22 of the Revised Penal Code refer
observed in Jenkins vs. Delaware, 395 U.S. 213 (1969), "With to substantive penal laws, while the constitutional provision in question is
Johnson we began increasing emphasis upon the point at which basically aprocedural rule of evidence involving the incompetency and
law enforcement officials relied upon practices not yet inadmissibility of confessions and therefore cannot be included in the term
prescribed." "More recently," he continued, "we have selected "penal laws;" 6 and third, because constitutional provisions as a rule should be
the point of initial reliance." That development began given a prospective effect. 7
with Stovall vs. Denno, 388 U.S. 293 (1967) (on the line-up
requirements of United States vs. Wade, 388 U.S. 218 (1967) Even as We rule that the new constitutional right of a detained person to counsel
and Gilbert vs. California, 388 U.S. 263 (1967). These new and to be informed of such right under pain of any confession given by him in
rulings were held applicable only in the immediate cases "and violation thereof declared inadmissible in evidence, to be prospective, and that
all future cases which involve confrontation for identification confessions obtained before the effectivity of the New Constitution are
purposes conducted in the absence of counsel after the dates admissible in evidence against the accused, his fundamental right to prove that
of Wade and Gilbert." The fact that Wade and Gilbert were thus his confession was involuntary still stands. Our present ruling does not in any
the only beneficiaries of the new rules was described as an way diminish any of his rights before the effectivity of the New Constitution.
"unavoidable consequence of the necessity that constitutional
adjudications not stand as mere dictum." In Jenkins vs.
IN VIEW OF ALL THE FOREGOING, the petitions for writs of certiorari in
Delaware itself, the Court held that the Miranda requirement
G.R. Nos. L-37201-02 and G.R. No. L-37424 are denied and that in G.R. No. L-
did not apply to a re-trial after June 13, 1966 — the cut-off
38929 is granted. As a consequence, all the confessions involved in said cases
point set for the Miranda requirement by Johnson vs. New
are hereby declared admissible in evidence. No costs.
Jersey — because Jenkins original trial had begun before the
cut-off point.
Makalintal, C.J., Barredo, Makasiar, Esguerra, Muñoz Palma and Aquino, JJ.,
concur.
Thus, the remarkable thing about this development in judge-
made law is not that it is given limited retroactive effort. That is
to be expected in the case of judicial decision as distinguished
from legislation. The notable thing is that the limited
retroactivity given to judge-made law in the beginning by
Linkletter vs. Walker has been abandoned as the Supreme
Court in Johnson vs. New Jersey and in Jenkins vs. Delaware
moved toward "pure prospectivity" (pp. 26-28) (Respondents'
memorandum, Feb. 16, 1974).

The provision of Article 22 of the Revised Penal Code that:têñ.£îhqwâ£

Retroactive effect of penal laws.—Penal laws shall have a

retroactive effect insofar as they favor the person guilty of a
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF
THE GOVERNMENT CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos, 1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel Corporation
(MHC) which owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an implementing legislation
for its enforcement. Corollarily, they ask whether the 51% shares form part of
the national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government
under Proclamation No. 50 dated 8 December 1986, decided to sell through
public bidding 30% to 51% of the issued and outstanding shares of respondent
MHC. The winning bidder, or the eventual "strategic partner," is to provide
management expertise and/or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the
Manila Hotel. 2 In a close bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares at
P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as
its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY
CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set
forth below by October 23, 1995 (reset to November 3, 1995)
or the Highest Bidder will lose the right to purchase the Block
of Shares and GSIS will instead offer the Block of Shares to the
other Qualified Bidders:
a. The Highest Bidder must negotiate and
execute with the GSIS/MHC the Management
Contract, International Marketing/Reservation
System Contract or other type of contract
specified by the Highest Bidder in its strategic
plan for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following conditions are met:
a. Execution of the necessary contracts with
GSIS/MHC not later than October 23, 1995
(reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC
and COP (Committee on Privatization)/OGCC
(Office of the Government Corporate Counsel)
are obtained. 3
Pending the declaration of Renong Berhad as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per
share tendered by Renong Berhad. 4 In a subsequent letter dated 10 October 1995
petitioner sent a manager's check issued by Philtrust Bank for Thirty-three
Million Pesos (P33.000.000.00) as Bid Security to match the bid of the
Malaysian Group, Messrs. Renong Berhad . . . 5 which respondent GSIS refused
to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995
the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after
it was referred to it by the First Division. The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony. 6 Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. 7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of
the 1987 Constitution is merely a statement of principle and policy since it is not
a self-executing provision and requires implementing legislation(s) . . . Thus, for
the said provision to Operate, there must be existing laws "to lay down
conditions under which business may be done." 9
Second, granting that this provision is self-executing, Manila Hotel does not fall
under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the first
and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel and
the events that have transpired therein which make the hotel historic, these alone
do not make the hotel fall under the patrimonyof the nation. What is more, the
mandate of the Constitution is addressed to the State, not to respondent GSIS
which possesses a personality of its own separate and distinct from the
Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building nor
the land upon which the building stands. Certainly, 51% of the equity of the
MHC cannot be considered part of the national patrimony. Moreover, if the
disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it had
lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
which provides that if for any reason, the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to the other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share, is misplaced. Respondents postulate
that the privilege of submitting a matching bid has not yet arisen since it only
takes place if for any reason, the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a matching bid is premature since
Renong Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching bid had
not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should
fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to perform
a duty enjoined by law. Similarly, the petition for mandamus should fail as
petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute and
unalterable except by the authority from which it emanates. It has been defined
as the fundamental and paramount law of the nation. 10 It prescribes the
permanent framework of a system of government, assigns to the different they shall be effective. These provisions would be subordinated
departments their respective powers and duties, and establishes certain fixed to the will of the lawmaking body, which could make them
principles on which government is founded. The fundamental conception in entirely meaningless by simply refusing to pass the needed
other words is that it is a supreme law to which all other laws must conform and implementing statute. 15
in accordance with which all private rights must be determined and all public
authority administered. 11 Under the doctrine of constitutional supremacy, if a Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
law or contract violates any norm of the constitution that law or contract whether clearly not self-executing, as they quote from discussions on the floor of the
promulgated by the legislative or by the executive branch or entered into by 1986 Constitutional Commission —
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme MR. RODRIGO. Madam President, I am
law of the nation, it is deemed written in every statute and contract. asking this question as the Chairman of the
Committee on Style. If the wording of
Admittedly, some constitutions are merely declarations of policies and "PREFERENCE" is given to QUALIFIED
principles. Their provisions command the legislature to enact laws and carry out FILIPINOS," can it be understood as a
the purposes of the framers who merely establish an outline of government preference to qualified Filipinos vis-a-
providing for the different departments of the governmental machinery and vis Filipinos who are not qualified. So, why do
securing certain fundamental and inalienable rights of citizens. 12 A provision we not make it clear? To qualified Filipinos as
which lays down a general principle, such as those found in Art. II of the 1987 against aliens?
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling THE PRESIDENT. What is the question of
legislation, or that which supplies sufficient rule by means of which the right it Commissioner Rodrigo? Is it to remove the
grants may be enjoyed or protected, is self-executing. Thus a constitutional word "QUALIFIED?".
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
MR. RODRIGO. No, no, but say definitely
determined by an examination and construction of its terms, and there is no
"TO QUALIFIED FILIPINOS" as against
language indicating that the subject is referred to the legislature for action. 13
whom? As against aliens or over aliens?
As against constitutions of the past, modern constitutions have been generally
MR. NOLLEDO. Madam President, I think
drafted upon a different principle and have often become in effect extensive
that is understood. We use the word
codes of laws intended to operate directly upon the people in a manner similar to
"QUALIFIED" because the existing laws or
that of statutory enactments, and the function of constitutional conventions has
prospective laws will always lay down
evolved into one more like that of a legislative body. Hence, unless it is
conditions under which business may be
expressly provided that a legislative act is necessary to enforce a constitutional
done. For example, qualifications on the
mandate, the presumption now is that all provisions of the constitution are self-
setting up of other financial structures, et
executing If the constitutional provisions are treated as requiring legislation
cetera (emphasis supplied by respondents)
instead of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. 14 This can be
cataclysmic. That is why the prevailing view is, as it has always been, that — MR. RODRIGO. It is just a matter of style.

. . . in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing . . . . Unless the
contrary is clearly intended, the provisions of the Constitution
should be considered self-executing, as a contrary rule would
give the legislature discretion to determine when, or whether,
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting other further
laws to enforce the constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the legislature without
impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to be
used for its enforcement, provide a convenient remedy for the protection of the
rights secured or the determination thereof, or place reasonable safeguards
around the exercise of the right. The mere fact that legislation may supplement
and add to or prescribe a penalty for the violation of a self-executing
constitutional provision does not render such a provision ineffective in the
absence of such legislation. The omission from a constitution of any express
provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-
executing provision of the constitution does not necessarily exhaust legislative
power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it more
available. 17 Subsequent legislation however does not necessarily mean that the
subject constitutional provision is not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing. 18 The argument is
flawed. If the first and third paragraphs are not self-executing because Congress
is still to enact measures to encourage the formation and operation of enterprises
fully owned by Filipinos, as in the first paragraph, and the State still needs
legislation to regulate and exercise authority over foreign investments within its
national jurisdiction, as in the third paragraph, then a fortiori, by the same logic,
the second paragraph can only be self-executing as it does not by its language
require any legislation in order to give preference to qualified Filipinos in the
grant of rights, privileges and concessions covering the national economy and
patrimony. A constitutional provision may be self-executing in one part and non-
self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions
are merely statements of principles and policies, which are basically not self-
executing and only placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights — are simply not in point. Basco
v. Philippine Amusements and Gaming Corporation 20 speaks of constitutional
provisions on personal dignity, 21 the sanctity of family life, 22 the vital role of
the youth in nation-building 23 the promotion of social justice, 24 and the values
of education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional
provisions on social justice and human rights 27 and on
education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the
youth in nation-building 32 and the promotion of total human liberation and
development. 33 A reading of these provisions indeed clearly shows that they are
not judicially enforceable constitutional rights but merely guidelines for
legislation. The very terms of the provisions manifest that they are only
principles upon which the legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution
is a mandatory, positive command which is complete in itself and which needs
no further guidelines or implementing laws or rules for its enforcement. From its
very words the provision does not require any legislation to put it in operation. It
is per se judicially enforceable When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it means just
that — qualified Filipinos shall be preferred. And when our Constitution declares
that a right exists in certain specified circumstances an action may be maintained
to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their bearings. Where there
is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission 34 explains —
The patrimony of the Nation that should be conserved and
developed refers not only to out rich natural resources but also
to the cultural heritage of out race. It also refers to our
intelligence in arts, sciences and letters. Therefore, we should
develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. 35 When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of the
Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which have
shaped Philippine history. It was called the Cultural Center of the 1930's. It was the words "QUALIFIED FILIPINOS" with the
the site of the festivities during the inauguration of the Philippine following: "CITIZENS OF THE
Commonwealth. Dubbed as the Official Guest House of the Philippine PHILIPPINES OR CORPORATIONS OR
Government. it plays host to dignitaries and official visitors who are accorded ASSOCIATIONS WHOSE CAPITAL OR
the traditional Philippine hospitality. 36 CONTROLLING STOCK IS WHOLLY
OWNED BY SUCH CITIZENS.
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City. 37During World War II the hotel was converted by xxx xxx xxx
the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the MR. MONSOD. Madam President, apparently
Japanese together with Intramuros as the two (2) places fro their final stand. the proponent is agreeable, but we have to
Thereafter, in the 1950's and 1960's, the hotel became the center of political raise a question. Suppose it is a corporation
activities, playing host to almost every political convention. In 1970 the hotel that is 80-percent Filipino, do we not give it
reopened after a renovation and reaped numerous international recognitions, an preference?
acknowledgment of the Filipino talent and ingenuity. In 1986 the hotel was the
site of a failed coup d' etat where an aspirant for vice-president was MR. DAVIDE. The Nolledo amendment
"proclaimed" President of the Philippine Republic. would refer to an individual Filipino. What
about a corporation wholly owned by Filipino
For more than eight (8) decades Manila Hotel has bore mute witness to the citizens?
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle MR. MONSOD. At least 60 percent, Madam
for sovereignty, independence and nationhood. Verily, Manila Hotel has become President.
part of our national economy and patrimony. For sure, 51% of the equity of the
MHC comes within the purview of the constitutional shelter for it comprises the
MR. DAVIDE. Is that the intention?
majority and controlling stock, so that anyone who acquires or owns the 51%
will have actual control and management of the hotel. In this instance, 51% of
the MHC cannot be disassociated from the hotel and the land on which the hotel MR. MONSOD. Yes, because, in fact, we
edifice stands. Consequently, we cannot sustain respondents' claim that would be limiting it if we say that the
theFilipino First Policy provision is not applicable since what is being sold is preference should only be 100-percent
only 51% of the outstanding shares of the corporation, not the Hotel building Filipino.
nor the land upon which the building stands. 38
MR: DAVIDE. I want to get that meaning
The argument is pure sophistry. The term qualified Filipinos as used in Our clear because "QUALIFIED FILIPINOS" may
Constitution also includes corporations at least 60% of which is owned by refer only to individuals and not to juridical
Filipinos. This is very clear from the proceedings of the 1986 Constitutional personalities or entities.
Commission
MR. MONSOD. We agree, Madam
THE PRESIDENT. Commissioner Davide is President. 39
recognized.
xxx xxx xxx
MR. DAVIDE. I would like to introduce an
amendment to the Nolledo amendment. And MR. RODRIGO. Before we vote, may I
the amendment would consist in substituting request that the amendment be read again.
 MR. NOLLEDO. The amendment will read: Expounding further on the Filipino First Policy provision Commissioner
"IN THE GRANT OF RIGHTS, Nolledo continues —
PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY MR. NOLLEDO. Yes, Madam President. Instead of "MUST,"
AND PATRIMONY, THE STATE SHALL it will be "SHALL — THE STATE SHALL GlVE
GIVE PREFERENCE TO QUALIFIED PREFERENCE TO QUALIFIED FILIPINOS. This embodies
FILIPINOS." And the word "Filipinos" here, the so-called "Filipino First" policy. That means that Filipinos
as intended by the proponents, will include not should be given preference in the grant of concessions,
only individual Filipinos but also Filipino- privileges and rights covering the national patrimony. 42
controlled entities or entities fully-controlled
by Filipinos. 40 The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
The phrase preference to qualified Filipinos was explained thus — Nolledo 43 —

MR. FOZ. Madam President, I would like to Paragraph 2 of Section 10 explicitly mandates the "Pro-
request Commissioner Nolledo to please Filipino" bias in all economic concerns. It is better known as
restate his amendment so that I can ask a the FILIPINO FIRST Policy . . . This provision was never
question. found in previous Constitutions . . . .

MR. NOLLEDO. "IN THE GRANT OF The term "qualified Filipinos" simply means that preference
RIGHTS, PRIVILEGES AND shall be given to those citizens who can make a viable
CONCESSIONS COVERING THE contribution to the common good, because of credible
NATIONAL ECONOMY AND competence and efficiency. It certainly does NOT mandate the
PATRIMONY, THE STATE SHALL GIVE pampering and preferential treatment to Filipino citizens or
PREFERENCE TO QUALIFIED organizations that are incompetent or inefficient, since such an
FILIPINOS." indiscriminate preference would be counter productive and
inimical to the common good.
MR FOZ. In connection with that amendment,
if a foreign enterprise is qualified and a In the granting of economic rights, privileges, and concessions,
Filipino enterprise is also qualified, will the when a choice has to be made between a "qualified foreigner"
Filipino enterprise still be given a preference? end a "qualified Filipino," the latter shall be chosen over the
former."
MR. NOLLEDO. Obviously.
Lastly, the word qualified is also determinable. Petitioner was so considered by
MR. FOZ. If the foreigner is more qualified in respondent GSIS and selected as one of the qualified bidders. It was pre-
some aspects than the Filipino enterprise, will qualified by respondent GSIS in accordance with its own guidelines so that the
the Filipino still be preferred? sole inference here is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant equity
MR. NOLLEDO. The answer is "yes." ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel. 44
MR. FOZ. Thank you, 41
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing
legislation is quite disturbing. The attempt to violate a clear constitutional
provision — by the government itself — is only too distressing. To adopt such a
line of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which
evidently need implementing legislation have juridical life of their own and can
be the source of a judicial remedy. We cannot simply afford the government a
defense that arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on
constitutional government is apt —
The executive department has a constitutional duty to
implement laws, including the Constitution, even before
Congress acts — provided that there are discoverable legal
standards for executive action. When the executive acts, it must
be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading
and understanding the Constitution and the laws is not the sole
prerogative of Congress. If it were, the executive would have to
ask Congress, or perhaps the Court, for an interpretation every
time the executive is confronted by a constitutional command.
That is not how constitutional government operates. 45
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
personality. This argument again is at best specious. It is undisputed that the sale
of 51% of the MHC could only be carried out with the prior approval of the State
acting through respondent Committee on Privatization. As correctly pointed out
by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a "state action." In constitutional jurisprudence, the
acts of persons distinct from the government are considered "state action"
covered by the Constitution (1) when the activity it engages in is a "public
function;" (2) when the government is so significantly involved with the private
actor as to make the government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident that the act of
respondent GSIS in selling 51% of its share in respondent MHC comes under the
second and third categories of "state action." Without doubt therefore the
transaction. although entered into by respondent GSIS, is in fact a transaction of
the State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also
to the government as elements of the State. After all, government is composed of
three (3) divisions of power — legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from
the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not
yet the winning bidder. The bidding rules expressly provide that the highest
bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since the
"Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos the mere tending of the highest bid is not an assurance that the
highest bidder will be declared the winning bidder. Resultantly, respondents are
not bound to make the award yet, nor are they under obligation to enter into one
with the highest bidder. For in choosing the awardee respondents are mandated
to abide by the dictates of the 1987 Constitution the provisions of which are
presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and
contracts must conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to
award the block of shares immediately to the foreign bidder notwithstanding its
submission of a higher, or even the highest, bid. In fact, we cannot conceive of a
stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there
is no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is, omnipresent to be simply disregarded. To ignore it would
be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are
understood to be always open to public scrutiny. These are given factors which
investors must consider when venturing into business in a foreign jurisdiction.
Any person therefore desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations
under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning
the sale to Renong Berhad since petitioner was well aware from the beginning
that a foreigner could participate in the bidding is meritless. Undoubtedly,
Filipinos and foreigners alike were invited to the bidding. But foreigners may be
awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us, while
petitioner was already preferred at the inception of the bidding because of the
constitutional mandate, petitioner had not yet matched the bid offered by Renong
Berhad. Thus it did not have the right or personality then to compel respondent
GSIS to accept its earlier bid. Rightly, only after it had matched the bid of the
foreign firm and the apparent disregard by respondent GSIS of petitioner's
matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market player,
and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution
is regrettable. Thus we would rather remedy the indiscretion while there is still
an opportunity to do so than let the government develop the habit of forgetting
that the Constitution lays down the basic conditions and parameters for its
actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal
of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in
the 1987 Constitution not merely to be used as a guideline for future legislation
but primarily to be enforced; so must it be enforced. This Court as the ultimate
guardian of the Constitution will never shun, under any reasonable circumstance,
the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to impede
and diminish, much less undermine, the influx of foreign investments. Far from
it, the Court encourages and welcomes more business opportunities but
avowedly sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter could have
not been more appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its
function to substitute its judgment for that of the legislature or
the executive about the wisdom and feasibility of legislation
economic in nature, the Supreme Court has not been spared
criticism for decisions perceived as obstacles to economic
progress and development . . . in connection with a temporary
injunction issued by the Court's First Division against the sale
of the Manila Hotel to a Malaysian Firm and its partner, certain
statements were published in a major daily to the effect that
injunction "again demonstrates that the Philippine legal system
can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no
business of the Court to intervene in contracts of the kind
referred to or set itself up as the judge of whether they are
viable or attainable, it is its bounden duty to make sure that they
do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack
or excess of jurisdiction. It will never shirk that duty, no matter
how buffeted by winds of unfair and ill-informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability
and preventing further losses, regardless of the character of the asset, should not
take precedence over non-material values. A commercial, nay even a budgetary,
objective should not be pursued at the expense of national pride and dignity. For
the Constitution enshrines higher and nobler non-material values. Indeed, the
Court will always defer to the Constitution in the proper governance of a free
society; after all, there is nothing so sacrosanct in any economic policy as to
draw itself beyond judicial review when the Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino people
and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have
no higher purpose. Any interpretation of any constitutional provision must
adhere to such basic concept. Protection of foreign investments, while laudible, Regalado, Davide, Jr., Romero, Kapunan, Francisco and Hermosisima, Jr., JJ.,
is merely a policy. It cannot override the demands of nationalism. 50 concur.

The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of privatization.
We are not talking about an ordinary piece of property in a commercial district.
We are talking about a historic relic that has hosted many of the most important
events in the short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a strong manifestation
of their desire to cloak the dignity of the highest state function to their official
visits to the Philippines. Thus the Manila Hotel has played and continues to play
a significant role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection of the Filipino
soul — a place with a history of grandeur; a most historical setting that has
played a part in the shaping of a country. 51

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels in
Asia — to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is,
in whatever manner viewed, a veritable alienation of a nation's soul for some
pieces of foreign silver. And so we ask: What advantage, which cannot be
equally drawn from a qualified Filipino, can be gained by the Filipinos Manila
Hotel — and all that it stands for — is sold to a non-Filipino? How much of
national pride will vanish if the nation's cultural heritage is entrusted to a foreign
entity? On the other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous and well-
meaning Filipino? This is the plain and simple meaning of the Filipino First
Policy provision of the Philippine Constitution. And this Court, heeding the
clarion call of the Constitution and accepting the duty of being the elderly
watchman of the nation, will continue to respect and protect the sanctity of the
Constitution.

WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE

SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the shares
of the Manila Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL CORPORATION to
purchase the subject 51% of the shares of the Manila Hotel Corporation at
P44.00 per share and thereafter to execute the necessary clearances and to do
such other acts and deeds as may be necessary for purpose.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the "AFP"),
the Chief of the PNP and the Secretary of the Interior and Local Government
were tasked to execute and implement the said order. In compliance with the
presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar
B. Aglipay, formulated Letter of Instruction 02/20001 (the "LOI") which detailed
the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted.2 Task Force Tulungan was placed under
the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment
of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief
of Staff of the AFP and the PNP Chief.3 In the Memorandum, the President
expressed his desire to improve the peace and order situation in Metro Manila
through a more effective crime prevention program including increased police
patrols.4 The President further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary.5 Invoking his powers as
Commander-in-Chief under Section 18, Article VII of the Constitution, the
President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP
in preventing or suppressing criminal or lawless violence.6 Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the
situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and
the Philippine Marines partnership in the conduct of visibility patrols in Metro
Manila for the suppression of crime prevention and other serious threats to
national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially
those perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through a
sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed active
or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO
[National Capital Regional Police Office] and the Philippine Marines to
 curb criminality in Metro Manila and to preserve the internal security of
the state against insurgents and other serious threat to national security,
although the primary responsibility over Internal Security Operations
still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all
forms of high-profile crimes perpetrated by organized crime syndicates
operating in Metro Manila. This concept requires the military and
police to work cohesively and unify efforts to ensure a focused, effective
and holistic approach in addressing crime prevention. Along this line,
the role of the military and police aside from neutralizing crime
syndicates is to bring a wholesome atmosphere wherein delivery of
basic services to the people and development is achieved. Hand-in-hand
with this joint NCRPO-Philippine Marines visibility patrols, local
Police Units are responsible for the maintenance of peace and order in
their locality.
c. To ensure the effective implementation of this project, a provisional
Task Force "TULUNGAN" shall be organized to provide the
mechanism, structure, and procedures for the integrated planning,
coordinating, monitoring and assessing the security situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA
IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA
AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE
DEPLOYMENT OF SOLDIERS FOR LAW ENFORCEMENT
WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF
GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY
TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN
FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement.
Without granting due course to the petition, the Court in a Resolution,11 dated 25
January 2000, required the Solicitor General to file his Comment on the petition.
On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner has
no legal standing; that the question of deployment of the Marines is not proper
for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up
of one police officer and one Philippine Marine soldier, does not violate the
civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the President’s factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility
patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites
of standing to raise the issues in the petition. Second, the President did not
commit grave abuse of discretion amounting to lack or excess of jurisdiction nor
did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged.13 The term "interest"
means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest.14 The gist of the question of standing is whether a party alleges "such
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus standi.
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. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National President of
the IBP who signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover,
the IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of the
operation of the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed
"militarization" of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed "injury" not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing. Since petitioner
has not successfully established a direct and personal injury as a consequence of
the questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that
the IBP has absolutely no standing to raise constitutional issues now or in the
future. The IBP must, by way of allegations and proof, satisfy this Court that it
has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of
legal standing when paramount interest is involved.16 In not a few cases, the
Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the
people.17 Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure.18 In this case, a
reading of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness, novelty
and weight as precedents. Moreover, because peace and order are under constant
threat and lawless violence occurs in increasing tempo, undoubtedly aggravated
by the Mindanao insurgency problem, the legal controversy raised in the petition
almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now,
rather than later.
The President did not commit grave abuse of discretion in calling out the
Marines.
In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress lawless
violence, invasion or rebellion. What the IBP questions, however, is the basis for
the calling of the Marines under the aforestated provision. According to the IBP,
no emergency exists that would justify the need for the calling of the military to
assist the police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that this Court
"review the sufficiency of the factual basis for said troop [Marine]
deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it
involves a political question and the resolution of factual issues which are
beyond the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties’ formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare.20 For one,
the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In
the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as
protector of the peace. [Rossiter,The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to
the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the President’s
exercising as Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the President’s
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question,
and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which
is appropriate for court review.22It pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are "political questions." The reason is that
political questions are concerned with issues dependent upon the wisdom, not the
legality, of a particular act or measure being assailed. Moreover, the political
question being a function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch unless the case
shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Tañada v. Cuenco23 puts it, political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of government." Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be
a political question. In the classic formulation of Justice Brennan in Baker v.
Carr,24 "[p]rominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the
potentiality of embarassment from multifarious pronouncements by various
departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing that
"(T)he Judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government."25 Under this definition, the
Court cannot agree with the Solicitor General that the issue involved is a
political question beyond the jurisdiction of this Court to review. When the grant
of power is qualified, conditional or subject to limitations, the issue of whether
the prescribed qualifications or conditions have been met or the limitations
respected, is justiciable - the problem being one of legality or validity, not its
wisdom.26 Moreover, the jurisdiction to delimit constitutional boundaries has
been given to this Court.27 When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned.28
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and despotic manner by
reason of passion or hostility.29 Under this definition, a court is without power to
directly decide matters over which full discretionary authority has been
delegated. But while this Court has no power to substitute its judgment for that
of Congress or of the President, it may look into the question of whether such
exercise has been made in grave abuse of discretion.30 A showing that plenary
power is granted either department of government, may not be an obstacle to
judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy.31
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom. This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the President’s wisdom or substitute its own. However, 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. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the President’s decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Court’s duty of
"purposeful hesitation"32 before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown
shall the Court interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-
Chief, provides in part:
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.
xxx
The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in the
rest of Section 18, Article VII which reads, thus:
xxx
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 basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis thereof.
However, there is no such equivalent provision dealing with the revocation or
review of the President’s action to call out the armed forces. The distinction
places the calling out power in a different category from the power to declare
martial law and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped together
the three powers and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the terms are
expressly limited to certain matters, it may not, by interpretation or construction,
be extended to other matters.33 That the intent of the Constitution is exactly what
its letter says, i.e., that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call out
such Armed Forces as may be necessary to suppress lawless violence; then he
can suspend the privilege of the writ of habeas corpus, then he can impose
martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We are
making it subject to review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser power of calling on the
Armed Forces, when he says it is necessary, it is my opinion that his judgment
cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: "The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion." So
we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: "The President....may
call out such Armed Forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ
of habeas corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor
is it subject to judicial review.34
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser and
more benign power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of which involve the
curtailment and suppression of certain basic civil rights and individual freedoms,
and thus necessitating safeguards by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required
in the case of the power to call out the armed forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed forces "to
prevent or suppress lawless violence, invasion or rebellion." The implication is
that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be of
a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless
violence must be done swiftly and decisively if it were to have any effect at all.
Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the
country. The determination of the necessity for the calling out power if subjected
to unfettered judicial scrutiny could be a veritable prescription for disaster, as
such power may be unduly straitjacketed by an injunction or a temporary
restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can show
that the exercise of such discretion was gravely abused, the President’s exercise
of judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, "[V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings continue
to occur in Metro Manila..."35 We do not doubt the veracity of the President’s
assessment of the situation, especially in the light of present developments. The
Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These
are among the areas of deployment described in the LOI 2000. Considering all
these facts, we hold that the President has sufficient factual basis to call for
military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy clause
nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is "militarized" in violation of Section 3, Article
II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation
of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of
the Marines’ authority. It is noteworthy that the local police forces are the ones
in charge of the visibility patrols at all times, the real authority belonging to the
PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-
Philippine Marines joint visibility patrols.37 Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures.38 It is their
responsibility to direct and manage the deployment of the Marines.39 It is,
likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers.40 In view of the foregoing, it cannot be
properly argued that military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an "insidious
incursion" of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff
of the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision.
The real authority in these operations, as stated in the LOI, is lodged with the
head of a civilian institution, the PNP, and not with the military. Such being the
case, it does not matter whether the AFP Chief actually participates in the Task
Force Tulungan since he does not exercise any authority or control over the
same. Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no "insidious
incursion" of the military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it
is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally "civil" functions. As correctly pointed out
by the Solicitor General, some of the multifarious activities wherein military aid
has been rendered, exemplifying the activities that bring both the civilian and the
military together in a relationship of cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school
students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned.59 What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted,60 and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as posse comitatus or otherwise to execute the laws shall be fined not more
than $10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers
at Wounded Knee in such a manner that the military personnel subjected the
citizens to the exercise of military power which was regulatory, proscriptive, or
compulsory64 George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. Seelikewise HONORED IN THE
BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH
MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature,
either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those claiming
relief.1âwphi1 A mere threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case to
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:

3. The designation of tasks in Annex A65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,668(k)67 and 9(a)68 of
Annex A. These soldiers, second, also have no power to prohibit or condemn. In
No. 9(d)69 of Annex A, all arrested persons are brought to the nearest police
stations for proper disposition. And last, these soldiers apply no coercive force.
The materials or equipment issued to them, as shown in No. 8(c)70 of Annex A,
are all low impact and defensive in character. The conclusion is that there being
no exercise of regulatory, proscriptive or compulsory military power, the
deployment of a handful of Philippine Marines constitutes no impermissible use
of military power for civilian law enforcement.71

It appears that the present petition is anchored on fear that once the armed forces
are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner
IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the President’s determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.

One last point. Since the institution of the joint visibility patrol in January, 2000,
not a single citizen has complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom
only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.

WHEREFORE, premises considered, the petition is hereby DISMISSED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 157013 July 10, 2003
ATTY. ROMULO B. MACALINTAL, petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his
official capacity as Executive Secretary, and HON. EMILIA T.
BONCODIN, Secretary of the Department of Budget and
Management, respondents.
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain
provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of
2003)1 suffer from constitutional infirmity. Claiming that he has actual and
material legal interest in the subject matter of this case in seeing to it that public
funds are properly and lawfully used and appropriated, petitioner filed the instant
petition as a taxpayer and as a lawyer.
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee
Voting by Qualified Citizens of the Philippines Abroad, Appropriating Funds
Therefor, and for Other Purposes," appropriates funds under Section 29 thereof
which provides that a supplemental budget on the General Appropriations Act of
the year of its enactment into law shall provide for the necessary amount to carry
out its provisions. Taxpayers, such as herein petitioner, have the right to restrain
officials from wasting public funds through the enforcement of an
unconstitutional statute.2 The Court has held that they may assail the validity of a
law appropriating public funds3 because expenditure of public funds by an
officer of the State for the purpose of executing an unconstitutional act
constitutes a misapplication of such funds.4
The challenged provision of law involves a public right that affects a great
number of citizens. The Court has adopted the policy of taking jurisdiction over
cases whenever the petitioner has seriously and convincingly presented an issue
of transcendental significance to the Filipino people. This has been explicitly
pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc.
vs. Tan,5 where the Court held:
Objections to taxpayers’ suit for lack of sufficient personality standing,
or interest are, however, in the main procedural matters. Considering the
importance to the public of the cases 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 these petitions.6
Indeed, in this case, the Court may set aside procedural rules as the constitutional
right of suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited
by the vice of prematurity as there are no ongoing proceedings in any tribunal,
board or before a government official exercising judicial, quasi-judicial or
ministerial functions as required by Rule 65 of the Rules of Court, dims in light
of the importance of the constitutional issues raised by the petitioner. In Tañada
vs. Angara,7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously
alleged to have infringed the Constitution, it becomes not only the right
but in fact the duty of the judiciary to settle the dispute. "The question
thus posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is upheld."
Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by
constitutional mandate to decide."
In another case of paramount impact to the Filipino people, it has been expressed
that it is illogical to await the adverse consequences of the law in order to
consider the controversy actual and ripe for judicial resolution.8 In yet another
case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted
with constitutional issues, it will not hesitate to declare a law or act
invalid when it is convinced that this must be done. In arriving at this
conclusion, its only criterion will be the Constitution and God as its
 conscience gives it in the light to probe its meaning and discover its
purpose. Personal motives and political considerations are irrelevancies
that cannot influence its decisions. Blandishment is as ineffectual as
intimidation, for all the awesome power of the Congress and Executive,
the Court will not hesitate "to make the hammer fall heavily," where the
acts of these departments, or of any official, betray the people’s will as
expressed in the Constitution . . .9
The need to consider the constitutional issues raised before the Court is further
buttressed by the fact that it is now more than fifteen years since the ratification
of the 1987 Constitution requiring Congress to provide a system for absentee
voting by qualified Filipinos abroad. Thus, strong reasons of public policy
demand that the Court resolves the instant petition10 and determine whether
Congress has acted within the limits of the Constitution or if it had gravely
abused the discretion entrusted to it.11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of
voters who are immigrants or permanent residents in other countries by
their mere act of executing an affidavit expressing their intention to
return to the Philippines, violate the residency requirement in Section 1
of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to
proclaim the winning candidates for national offices and party list
representatives including the President and the Vice-President violate
the constitutional mandate under Section 4, Article VII of the
Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee
created in Section 25 of Rep. Act No. 9189, exercise the power to
review, revise, amend, and approve the Implementing Rules and
Regulations that the Commission on Elections shall promulgate without
violating the independence of the COMELEC under Section 1, Article
IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the
1987 Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. – The following shall be disqualified from
voting under this Act:
.........
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section
1, Article V of the 1987 Constitution which requires that the voter must be a
resident in the Philippines for at least one year and in the place where he
proposes to vote for at least six months immediately preceding an election.
Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals12 to support
his claim. In that case, the Court held that a "green card" holder immigrant to the
United States is deemed to have abandoned his domicile and residence in the
Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not
allow provisional registration or a promise by a voter to perform a condition to
be qualified to vote in a political exercise;13 that the legislature should not be
allowed to circumvent the requirement of the Constitution on the right of
suffrage by providing a condition thereon which in effect amends or alters the
aforesaid residence requirement to qualify a Filipino abroad to vote.14 He claims
that the right of suffrage should not be granted to anyone who, on the date of the
election, does not possess the qualifications provided for by Section 1, Article V
of the Constitution.
Respondent COMELEC refrained from commenting on this issue.15
In compliance with the Resolution of the Court, the Solicitor General filed his
comment for all public respondents. He contraposes that the constitutional
challenge to Section 5(d) must fail because of the absence of clear and
unmistakable showing that said provision of law is repugnant to the Constitution.
He stresses: All laws are presumed to be constitutional; by the doctrine of
separation of powers, a department of government owes a becoming respect for
the acts of the other two departments; all laws are presumed to have adhered to
constitutional limitations; the legislature intended to enact a valid, sensible, and
just law.
In addition, the Solicitor General points out that Section 1, Article V of the
Constitution is a verbatim reproduction of those provided for in the 1935 and the
1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of
Representatives16 wherein the Court held that the term "residence" has been
understood to be synonymous with "domicile" under both Constitutions. He
further argues that a person can have only one "domicile" but he can have two
residences, one permanent (the domicile) and the other temporary;17 and that the
definition and meaning given to the term residence likewise applies to absentee
voters. Invoking Romualdez-Marcos vs. COMELEC18 which reiterates the
Court’s ruling in Faypon vs. Quirino,19 the Solicitor General maintains that
Filipinos who are immigrants or permanent residents abroad may have in fact
never abandoned their Philippine domicile.20
Taking issue with the petitioner’s contention that "green card" holders are
considered to have abandoned their Philippine domicile, the Solicitor General
suggests that the Court may have to discard its ruling in Caasi vs. Court of
Appeals21 in so far as it relates to immigrants and permanent residents in foreign
countries who have executed and submitted their affidavits conformably with
Section 5(d) of R.A. No. 9189. He maintains that through the execution of the
requisite affidavits, the Congress of the Philippines with the concurrence of the
President of the Republic had in fact given these immigrants and permanent
residents the opportunity, pursuant to Section 2, Article V of the Constitution, to
manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., "animus manendi" and "animus revertendi;" that Filipino
immigrants and permanent residents abroad possess the unquestionable right to
exercise the right of suffrage under Section 1, Article V of the Constitution upon
approval of their registration, conformably with R.A. No. 9189.22
The seed of the present controversy is the interpretation that is given to the
phrase, "qualified citizens of the Philippines abroad" as it appears in R.A. No.
9189, to wit:
SEC. 2. Declaration of Policy. – It is the prime duty of the State to provide a
system of honest and orderly overseas absentee voting that upholds the secrecy
and sanctity of the ballot. Towards this end, the State ensures equal opportunity
to all qualified citizens of the Philippines abroad in the exercise of this
fundamental right.
SEC. 3. Definition of Terms. – For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified
citizens of the Philippines abroad, exercise their right to vote;
. . . (Emphasis supplied)
f) "Overseas Absentee Voter" refers to a citizen of the
Philippines who is qualified to register and vote under this
Act, not otherwise disqualified by law, who is abroad on the
day of elections. (Emphasis supplied)
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are
not otherwise disqualified by law, at least eighteen (18) years of age
on the day of elections, may vote for president, vice-president, senators
and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age,
and who shall have resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six months
immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy
and sanctity of the ballot as well as a system for absentee voting by
qualified Filipinos abroad.
. . . . . . . . . (Emphasis supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may
be exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified
by law, (3) at least eighteen years of age, (4) who are residents in the Philippines
for at least one year and in the place where they propose to vote for at least six
months immediately preceding the election. Under Section 5(d) of R.A. No.
9189, one of those disqualified from voting is an immigrant or permanent
resident who is recognized as such in the host country unless he/she executes an
affidavit declaring that he/she shall resume actual physical permanent residence
in the Philippines not later than three years from approval of his/her registration
under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to
qualify the Filipinos abroad who are immigrants or permanent residents, to vote.
He focuses solely on Section 1, Article V of the Constitution in ascribing
constitutional infirmity to Section 5(d) of R.A. No. 9189, totally ignoring the
provisions of Section 2 empowering Congress to provide a system for absentee
voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the
impression that it contravenes Section 1, Article V of the Constitution. Filipino
immigrants and permanent residents overseas are perceived as having left and
abandoned the Philippines to live permanently in their host countries and
therefore, a provision in the law enfranchising those who do not possess the
residency requirement of the Constitution by the mere act of executing an
affidavit expressing their intent to return to the Philippines within a given period,
risks a declaration of unconstitutionality. However, the risk is more apparent
than real.
The Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights must
be determined and all public authority administered.23 Laws that do not conform
to the Constitution shall be stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs.
COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to
be within constitutional limitations. The responsibility of upholding the
Constitution rests not on the courts alone but on the legislature as well.
The question of the validity of every statute is first determined by the
legislative department of the government itself.24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the
Constitution must be clear and unequivocal, for even if a law is aimed at
the attainment of some public good, no infringement of constitutional
rights is allowed. To strike down a law there must be a clear showing
that what the fundamental law condemns or prohibits, the statute allows
it to be done.25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it
behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction
that the Constitution should be construed as a whole. In Chiongbian vs. De
Leon,26 the Court held that a constitutional provision should function to the full
extent of its substance and its terms, not by itself alone, but in conjunction with
all other provisions of that great document. Constitutional provisions are
mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest.27 The intent of the Constitution
may be drawn primarily from the language of the document itself. Should it be
ambiguous, the Court may consider the intent of its framers through their debates
in the constitutional convention.28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of
Section 2, Article V of the Constitution that Congress shall provide a system for
voting by qualified Filipinos abroad. It must be stressed that Section 2 does not
provide for the parameters of the exercise of legislative authority in enacting said
law. Hence, in the absence of restrictions, Congress is presumed to have duly
exercised its function as defined in Article VI (The Legislative Department) of
the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the
significance of absentee voting. The concept of absentee voting is relatively new.
It is viewed thus:
The method of absentee voting has been said to be completely separable
and distinct from the regular system of voting, and to be a new and
different manner of voting from that previously known, and an
exception to the customary and usual manner of voting. The right of
absentee and disabled voters to cast their ballots at an election is purely
statutory; absentee voting was unknown to, and not recognized at, the
common law.
Absentee voting is an outgrowth of modern social and economic
conditions devised to accommodate those engaged in military or civil
life whose duties make it impracticable for them to attend their polling
places on the day of election, and the privilege of absentee voting may
flow from constitutional provisions or be conferred by statutes, existing
in some jurisdictions, which provide in varying terms for the casting and
reception of ballots by soldiers and sailors or other qualified voters
absent on election day from the district or precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an
absolute right. When the legislature chooses to grant the right by
statute, it must operate with equality among all the class to which it
is granted; but statutes of this nature may be limited in their
 application to particular types of elections. The statutes should be
construed in the light of any constitutional provisions affecting
registration and elections, and with due regard to their texts prior to
amendment and to predecessor statutes and the decisions
thereunder; they should also be construed in the light of the
circumstances under which they were enacted; and so as to carry out
the objects thereof, if this can be done without doing violence to their
provisions and mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole and every part of
the election laws, the intent of the entire plan, and reasons and spirit
of their adoption, and try to give effect to every portion
thereof.29 (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the
same time, both a resident and an absentee.30 However, under our election laws
and the countless pronouncements of the Court pertaining to elections, an
absentee remains attached to his residence in the Philippines as residence is
considered synonymous with domicile.
In Romualdez-Marcos,31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong vs. Republic, this
court took the concept of domicile to mean an individual’s "permanent
home," "a place to which, whenever absent for business or for pleasure,
one intends to return, and depends on facts and circumstances in the
sense that they disclose intent." Based on the foregoing, domicile
includes the twin elements of "the fact of residing or physical presence
in a fixed place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of
an individual to a certain place. It is the physical presence of a person in
a given area, community or country. The essential distinction between
residence and domicile in law is that residence involves the intent to
leave when the purpose for which the resident has taken up his abode
ends. One may seek a place for purposes such as pleasure, business, or
health. If a person’s intent be to remain, it becomes his domicile; if his
intent is to leave as soon as his purpose is established it is residence. It is
thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a single
domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice. In Uytengsu vs.
Republic, we laid this distinction quite clearly:
"There is a difference between domicile and residence.
‘Residence’ is used to indicate a place of abode, whether
permanent or temporary; ‘domicile’ denotes a fixed permanent
residence to which, when absent, one has the intention of
returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited
time. A man can have but one domicile for the same purpose at
any time, but he may have numerous places of residence. His
place of residence is generally his place of domicile, but it is
not by any means necessarily so since no length of residence
without intention of remaining will constitute domicile."
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts have
evolved in our election law, what has clearly and unequivocally
emerged is the fact that residence for election purposes is used
synonymously with domicile.32 (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence
in this country, the framers of the Constitution considered the circumstances that
impelled them to require Congress to establish a system for overseas absentee
voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of
suffrage, which here has a residential restriction, is not denied to citizens
temporarily residing or working abroad. Based on the statistics of
several government agencies, there ought to be about two million such
Filipinos at this time. Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous Constitutions of
1935 and 1973, with the exception of the last paragraph. They could not
therefore have foreseen at that time the phenomenon now described as
the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract
workers and employees, and although the major portions of these
expatriate communities of workers are to be found in the Middle East,
they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions
and Agencies, the Chairman of the Commission on Elections, Ramon
Felipe, said that there was no insuperable obstacle to making effective
the right of suffrage for Filipinos overseas. Those who have adhered to
their Filipino citizenship notwithstanding strong temptations are
exposed to embrace a more convenient foreign citizenship. And those
who on their own or under pressure of economic necessity here, find
that they have to detach themselves from their families to work in other
countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no
intention of changing their residence on a permanent basis, but are
technically disqualified from exercising the right of suffrage in their
countries of destination by the residential requirement in Section 1
which says:
Suffrage shall be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are eighteen years of age or
over, and who shall have resided in the Philippines for at least
one year and in the place wherein they propose to vote for at
least six months preceding the election.
I, therefore, ask the Committee whether at the proper time they might
entertain an amendment that will make this exercise of the right to vote
abroad for Filipino citizens an effective, rather than merely a nominal
right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more
than just saying that, I would like to make a comment on the meaning of
"residence" in the Constitution because I think it is a concept that has
been discussed in various decisions of the Supreme Court, particularly
in the case of Faypon vs. Quirino, a 1954 case which dealt precisely
with the meaning of "residence" in the Election Law. Allow me to
quote:
A citizen may leave the place of his birth to look for greener
pastures, as the saying goes, to improve his lot and that, of
course, includes study in other places, practice of his avocation,
reengaging in business. When an election is to be held, the
citizen who left his birthplace to improve his lot may decide to
return to his native town, to cast his ballot, but for professional
or business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications
to be one, and is not willing to give up or lose the opportunity
to choose the officials who are to run the government especially
in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin
has not forsaken him.
This may be the explanation why the registration of a voter in a place other than
his residence of origin has not been deemed sufficient to consider abandonment
or loss of such residence of origin.
In other words, "residence" in this provision refers to two residence
qualifications: "residence" in the Philippines and "residence" in the
place where he will vote. As far as residence in the Philippines is
concerned, the word "residence" means domicile, but as far as residence
in the place where he will actually cast his ballot is concerned, the
meaning seems to be different. He could have a domicile somewhere
else and yet he is a resident of a place for six months and he is allowed
to vote there. So that there may be serious constitutional obstacles to
absentee voting, unless the vote of the person who is absent is a vote
which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who
should enjoy the right of suffrage, at least a substantial segment of these
overseas Filipino communities. The Committee, of course, is aware that
when this Article of the Constitution explicitly and unequivocally
extends the right of effective suffrage to Filipinos abroad, this will call
for a logistical exercise of global proportions. In effect, this will require
budgetary and administrative commitments on the part of the Philippine
government, mainly through the COMELEC and the Ministry of
Foreign Affairs, and perhaps, a more extensive elaboration of this
mechanism that will be put in place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence of the past may
not be sufficient to meet the demands of the right of suffrage for
Filipinos abroad that I have mentioned. But I want to thank the
Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . . . . . . . 33 (Emphasis supplied)
Thus, the Constitutional Commission recognized the fact that while millions of
Filipinos reside abroad principally for economic reasons and hence they
contribute in no small measure to the economic uplift of this country, their
voices are marginal insofar as the choice of this country’s leaders is concerned.
The Constitutional Commission realized that under the laws then existing and
considering the novelty of the system of absentee voting in this jurisdiction,
vesting overseas Filipinos with the right to vote would spawn constitutional
problems especially because the Constitution itself provides for the residency
requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from
Commissioner Monsod if the term "absentee voting" also includes
transient voting; meaning, those who are, let us say, studying in Manila
need not go back to their places of registration, for instance, in
Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos
abroad.
MR. REGALADO. How about those people who cannot go back to the
places where they are registered?
MR. MONSOD. Under the present Election Code, there are provisions
for allowing students and military people who are temporarily in another
place to register and vote. I believe that those situations can be covered
by the Omnibus Election Code. The reason we want absentee voting to
be in the Constitution as a mandate to the legislature is that there
could be inconsistency on the residence rule if it is just a question of
legislation by Congress. So, by allowing it and saying that this is
possible, then legislation can take care of the rest.34 (Emphasis
supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is
precisely to avoid any problems that could impede the implementation of its
pursuit to enfranchise the largest number of qualified Filipinos who are not in the
Philippines that the Constitutional Commission explicitly mandated Congress to
provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the
proposed system of absentee voting for qualified Filipinos abroad is
enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are
certain qualifications for the exercise of the right of suffrage like having
resided in the Philippines for at least one year and in the place where
they propose to vote for at least six months preceding the elections.
What is the effect of these mandatory requirements on the matter of the
exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by
Commissioner Bernas, that the domicile requirements as well as the
qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the
system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to
the residence requirement or the place where they vote in practice; the
understanding is that it is flexible. For instance, one might be a resident
of Naga or domiciled therein, but he satisfies the requirement of
residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the
Committee to change the word "Filipinos" to QUALIFIED FILIPINO
VOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should
be QUALIFIED FILIPINO VOTERS. If the Committee wants
QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase
"QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" would
assume that he has the qualifications and none of the disqualifications to
vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my
proposed amendment, I specifically stated that the National Assembly
shall prescribe a system which will enable qualified citizens,
temporarily absent from the Philippines, to vote. According to
Commissioner Monsod, the use of the phrase "absentee voting" already
took that into account as its meaning. That is referring to qualified
Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with
respect to registration we will leave it up to the legislative assembly,
for example, to require where the registration is. If it is, say,
members of the diplomatic corps who may be continuously abroad
for a long time, perhaps, there can be a system of registration in the
embassies. However, we do not like to preempt the legislative
assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment
is only to provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants
new qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and
none of the disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.35 (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to
Congress the responsibility of devising a system of absentee voting. The
qualifications of voters as stated in Section 1 shall remain except for the
residency requirement. This is in fact the reason why the Constitutional
Commission opted for the termqualified Filipinos abroad with respect to the
system of absentee voting that Congress should draw up. As stressed by
Commissioner Monsod, by the use of the adjective qualified with respect to
Filipinos abroad, the assumption is that they have the "qualifications and none of
the disqualifications to vote." In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the
record that in the case of qualified Filipino citizens residing abroad and
exercising their right of suffrage, they can cast their votes for the
candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are
registered in Angeles City, they could not vote for a mayor in Naga
City.
In other words, if that qualified voter is registered in Angeles City, then
he can vote only for the local and national candidates in Angeles City. I
just want to make that clear for the record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of
Commissioner Suarez that this envisions Filipinos residing abroad. The
understanding in the amendment is that the Filipino is temporarily
abroad. He may not be actually residing abroad; he may just be there on
a business trip. It just so happens that the day before the elections he has
to fly to the United States, so he could not cast his vote. He is
temporarily abroad, but not residing there. He stays in a hotel for two
days and comes back. This is not limited only to Filipinos
temporarily residing abroad. But as long as he is temporarily abroad
on the date of the elections, then he can fall within the prescription of
Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification.
Precisely, we need this clarification on record.
 MR. MONSOD. Madam President, to clarify what we mean by
"temporarily abroad," it need not be on very short trips. One can be
abroad on a treaty traders visa. Therefore, when we talk about
registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, butCongress or the
Assembly may provide the procedure for registration, like listing one’s
name, in a registry list in the embassy abroad. That is still possible
under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner
Monsod agrees with this.
Suppose we have a situation of a child of a diplomatic officer who
reaches the voting age while living abroad and he has never registered
here. Where will he register? Will he be a registered voter of a certain
locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child
to comply with the registration requirements in an embassy in the
United States and his name is then entered in the official registration
book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los
Angeles, but a registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the
Philippines to comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire
if there are more clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more
registered Commissioners to propose amendments. So I move that we
close the period of amendments.36 (Emphasis supplied)
It is clear from these discussions of the members of the Constitutional
Commission that they intended to enfranchise as much as possible all Filipino
citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age
abroad whose parents’ domicile of origin is in the Philippines, and consider them
qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2
immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in
construing constitutional provisions,37 the strategic location of Section 2
indicates that the Constitutional Commission provided for an exception to the
actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos who
are not in the Philippines may be allowed to vote even though they do not satisfy
the residency requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of
debate when Senate Bill No. 2104, which became R.A. No. 9189, was
deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in
relation to the constitutional provisions. I think the sponsor and I would
agree that the Constitution is supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled,
"Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are at least
eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding
the election.
Now, Mr. President, the Constitution says, "who shall have resided in
the Philippines." They are permanent immigrants. They have changed
residence so they are barred under the Constitution. This is why I asked
whether this committee amendment which in fact does not alter the
original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been
asked in various fora. This is in compliance with the Constitution. One,
the interpretation here of "residence" is synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to
return to one’s home. And the fact that a Filipino may have been
physically absent from the Philippines and may be physically a
resident of the United States, for example, but has a clear intent to
return to the Philippines, will make him qualified as a resident of the
Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we
– that Congress – must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as
demanding physical presence, then there is no way we can provide for
offshore voting to our offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section
2 of Article V, it reads: "The Congress shall provide a system for
securing the secrecy and sanctity of the ballot as well as a system for
absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other
words, anything that we may do or say in granting our compatriots
abroad must be anchored on the proposition that they are qualified.
Absent the qualification, they cannot vote. And "residents" (sic) is a
qualification.
I will lose votes here from permanent residents so-called "green-card
holders", but the Constitution is the Constitution. We cannot
compromise on this. The Senate cannot be a party to something that
would affect or impair the Constitution.
Look at what the Constitution says – "In the place wherein they propose
to vote for at least six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives.
We are separated only by a creek. But one who votes in Makati cannot
vote in Pateros unless he resides in Pateros for six months. That is how
restrictive our Constitution is. I am not talking even about the Election
Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes,
he may do so. But he must do so, make the transfer six months before
the election, otherwise, he is not qualified to vote.
That is why I am raising this point because I think we have a
fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a
point already well-debated even in the constitutional commission of
1986. And the reason Section 2 of Article V was placed immediately
after the six-month/one-year residency requirement is to demonstrate
unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the
first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence – and I
think this is so well-entrenched that one need not argue about it –
"residency" has been interpreted as synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow
the interpretation of the gentleman, then it is legally and
constitutionally impossible to give a franchise to vote to overseas
Filipinos who do not physically live in the country, which is quite
ridiculous because that is exactly the whole point of this exercise –
to enfranchise them and empower them to vote.38 (Emphasis
supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the
absentee voting process, to wit:
SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not
otherwise disqualified by law, at least eighteen (18) years of age on the
day of elections, may vote for president, vice-president, senators and
party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of
the assailed law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. – The following shall be disqualified from
voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with
Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and
who have pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by
a court or tribunal of an offense punishable by imprisonment of not less
than one (1) year, including those who have committed and been found
 guilty of Disloyalty as defined under Article 137 of the Revised Penal
Code, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under
this subsection shall automatically acquire the right to vote upon
expiration of five (5) years after service of sentence; Provided, further,
That the Commission may take cognizance of final judgments issued by
foreign courts or tribunals only on the basis of reciprocity and subject to
the formalities and processes prescribed by the Rules of Court on
execution of judgments;
d) An immigrant or a permanent resident who is recognized as such in
the host country, unless he/she executes, upon registration, an affidavit
prepared for the purpose by the Commission declaring that he/she shall
resume actual physical permanent residence in the Philippines not later
than three (3) years from approval of his/her registration under this Act.
Such affidavit shall also state that he/she has not applied for citizenship
in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry
of Absentee Voters and his/her permanent disqualification to vote in
absentia.
e) Any citizen of the Philippines abroad previously declared insane or
incompetent by competent authority in the Philippines or abroad, as
verified by the Philippine embassies, consulates or foreign service
establishments concerned, unless such competent authority subsequently
certifies that such person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically
disqualifies an immigrant or permanent resident who is "recognized as such in
the host country" because immigration or permanent residence in another
country implies renunciation of one’s residence in his country of origin.
However, same Section allows an immigrant and permanent resident abroad to
register as voter for as long as he/she executes an affidavit to show that he/she
has not abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not
otherwise disqualified by law" must be entitled to exercise the right of suffrage
and, that Congress must establish a system for absentee voting; for otherwise, if
actual, physical residence in the Philippines is required, there is no sense for the
framers of the Constitution to mandate Congress to establish a system for
absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only
proof of the intention of the immigrant or permanent resident to go back and
resume residency in the Philippines, but more significantly, it serves as an
explicit expression that he had not in fact abandoned his domicile of origin.
Thus, it is not correct to say that the execution of the affidavit under Section 5(d)
violates the Constitution that proscribes "provisional registration or a promise by
a voter to perform a condition to be qualified to vote in a political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad
because by their status in their host countries, they are presumed to have
relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another
reason why the Senate required the execution of said affidavit. It wanted the
affiant to exercise the option to return or to express his intention to return to his
domicile of origin and not to preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired
permanent resident status abroad," a requirement for the registration is
the submission of "a Sworn Declaration of Intent to Return duly sworn
before any Philippine embassy or consulate official authorized to
administer oath…"
Mr. President, may we know the rationale of this provision? Is the
purpose of this Sworn Declaration to include only those who have the
intention of returning to be qualified to exercise the right of suffrage?
What if the Filipino immigrant has no purpose of returning? Is he
automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we
want to be expansive and all-inclusive in this law. That as long as he
is a Filipino, no matter whether he is a green-card holder in the U.S.
or not, he will be authorized to vote. But if he is already a green-card
holder, that means he has acquired permanent residency in the
United States, then he must indicate an intention to return. This is
what makes for the definition of "domicile." And to acquire the vote,
we thought that we would require the immigrants and the green-card
holders . . . Mr. President, the three administration senators are leaving,
maybe we may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
 Senator Angara. Mr. President, going back to the business at hand. The
rationale for the requirement that an immigrant or a green-card holder
should file an affidavit that he will go back to the Philippines is that, if
he is already an immigrant or a green-card holder, that means he may
not return to the country any more and that contradicts the definition of
"domicile" under the law.
But what we are trying to do here, Mr. President, is really provide the
choice to the voter. The voter, after consulting his lawyer or after
deliberation within the family, may decide "No, I think we are risking
our permanent status in the United States if we file an affidavit that we
want to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39(Emphasis
supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card
holders are disqualified to run for any elective office finds no application to the
present case because the Caasi case did not, for obvious reasons, consider the
absentee voting rights of Filipinos who are immigrants and permanent residents
in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they
may still be considered as a "qualified citizen of the Philippines abroad" upon
fulfillment of the requirements of registration under the new law for the purpose
of exercising their right of suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a
promise to "resume actual physical permanent residence in the Philippines not
later than three years from approval of his/her registration," the Filipinos abroad
must also declare that they have not applied for citizenship in another country.
Thus, they must return to the Philippines; otherwise, their failure to return "shall
be cause for the removal" of their names "from the National Registry of
Absentee Voters and his/her permanent disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter
permanently residing abroad who is at least eighteen years old, not otherwise
disqualified by law, who has not relinquished Philippine citizenship and who has
not actually abandoned his/her intentions to return to his/her domicile of origin,
the Philippines, is allowed to register and vote in the Philippine embassy,
consulate or other foreign service establishments of the place which has
jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. –
11.1. Every qualified citizen of the Philippines abroad whose application
for registration has been approved, including those previously registered
under Republic Act No. 8189, shall, in every national election, file with
the officer of the embassy, consulate or other foreign service
establishment authorized by the Commission, a sworn written
application to vote in a form prescribed by the Commission. The
authorized officer of such embassy, consulate or other foreign service
establishment shall transmit to the Commission the said application to
vote within five (5) days from receipt thereof. The application form
shall be accomplished in triplicate and submitted together with the
photocopy of his/her overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or
by mail to, the embassy, consulate or foreign service establishment,
which has jurisdiction over the country where he/she has indicated
his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the
overseas absentee voting processes shall be made available at no cost to
the overseas absentee voter.
Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution,
Congress enacted the law prescribing a system of overseas absentee voting in
compliance with the constitutional mandate. Such mandate expressly requires
that Congress provide a system of absentee voting that necessarily presupposes
that the "qualified citizen of the Philippines abroad" is not physically present in
the country. The provisions of Sections 5(d) and 11 are components of the
system of overseas absentee voting established by R.A. No. 9189. The qualified
Filipino abroad who executed the affidavit is deemed to have retained his
domicile in the Philippines. He is presumed not to have lost his domicile by his
physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an
abandonment of his intention to return to his domicile of origin, the Philippines.
Therefore, under the law, he must be given the opportunity to express that he has
not actually abandoned his domicile in the Philippines by executing the affidavit
required by Sections 5(d) and 8(c) of the law.
Petitioner’s speculative apprehension that the implementation of Section 5(d)
would affect the credibility of the elections is insignificant as what is important
is to ensure that all those who possess the qualifications to vote on the date of the
election are given the opportunity and permitted to freely do so. The COMELEC
and the Department of Foreign Affairs have enough resources and talents to
ensure the integrity and credibility of any election conducted pursuant to R.A.
No. 9189.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote
for president, vice-president, senators and party-list representatives.

As to the eventuality that the Filipino abroad would renege on his undertaking to Section 18.5 of the same Act provides:
return to the Philippines, the penalty of perpetual disenfranchisement provided
for by Section 5(d) would suffice to serve as deterrence to non-compliance with SEC. 18. On-Site Counting and Canvassing. –
his/her undertaking under the affidavit.
.........
Petitioner argues that should a sizable number of "immigrants" renege on their
promise to return, the result of the elections would be affected and could even be
18. 5 The canvass of votes shall not cause the delay of the proclamation
a ground to contest the proclamation of the winning candidates and cause further
of a winning candidate if the outcome of the election will not be affected
confusion and doubt on the integrity of the results of the election. Indeed, the
by the results thereof. Notwithstanding the foregoing, the Commission
probability that after an immigrant has exercised the right to vote, he shall opt to
is empowered to order the proclamation of winning candidates despite
remain in his host country beyond the third year from the execution of the
the fact that the scheduled election has not taken place in a particular
affidavit, is not farfetched. However, it is not for this Court to determine the
country or countries, if the holding of elections therein has been
wisdom of a legislative exercise. As expressed in Tañada vs. Tuvera,40 the Court
rendered impossible by events, factors and circumstances peculiar to
is not called upon to rule on the wisdom of the law or to repeal it or modify it if
such country or countries, in which events, factors and circumstances
we find it impractical.
are beyond the control or influence of the Commission. (Emphasis
supplied)
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189
Filipino who fails to return as promised stands to lose his right of suffrage.
empowering the COMELEC to order the proclamation of winning candidates
Under Section 9, should a registered overseas absentee voter fail to vote for two
insofar as it affects the canvass of votes and proclamation of winning candidates
consecutive national elections, his name may be ordered removed from the
for president and vice-president, is unconstitutional because it violates the
National Registry of Overseas Absentee Voters.
following provisions of paragraph 4, Section 4 of Article VII of the Constitution:
Other serious legal questions that may be raised would be: what happens to the
SEC. 4 . . .
votes cast by the qualified voters abroad who were not able to return within three
years as promised? What is the effect on the votes cast by the non-returnees in
favor of the winning candidates? The votes cast by qualified Filipinos abroad The returns of every election for President and Vice-President, duly
who failed to return within three years shall not be invalidated because they were certified by the board of canvassers of each province or city, shall be
qualified to vote on the date of the elections, but their failure to return shall be transmitted to the Congress, directed to the President of the Senate.
cause for the removal of the names of the immigrants or permanent residents Upon receipt of the certificates of canvass, the President of the Senate
from the National Registry of Absentee Voters and their permanent shall, not later than thirty days after the day of the election, open all the
disqualification to vote in absentia. certificates in the presence of the Senate and the House of
Representatives in joint public session, and the Congress, upon
determination of the authenticity and due execution thereof in the
In fine, considering the underlying intent of the Constitution, the Court does not
manner provided by law, canvass the votes.
find Section 5(d) of R.A. No. 9189 as constitutionally defective.
The person having the highest number of votes shall be proclaimed
elected, but in case two or more shall have an equal and highest number
 of votes, one of them shall forthwith be chosen by the vote of a majority
of all the Members of both Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the canvassing of the
certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning
candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with
paragraph 4, Section 4, Article VII of the Constitution and should be taken to
mean that COMELEC can only proclaim the winning Senators and party-list
representatives but not the President and Vice-President.41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A.
No. 9189 is far too sweeping that it necessarily includes the proclamation of the
winning candidates for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII
of the Constitution only insofar as said Section totally disregarded the authority
given to Congress by the Constitution to proclaim the winning candidates for the
positions of president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman
of the Special Board of Canvassers shall transmit via facsimile,
electronic mail, or any other means of transmission equally safe and
reliable the Certificates of Canvass and the Statements of Votes to the
Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which
provides that the returns of every election for President and Vice-President shall
be certified by the board of canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that
constitutionally belongs to it or, as aptly stated by petitioner, to encroach "on the
power of Congress to canvass the votes for president and vice-president and the
power to proclaim the winners for the said positions." The provisions of the
Constitution as the fundamental law of the land should be read as part of The
Overseas Absentee Voting Act of 2003 and hence, the canvassing of the votes
and the proclamation of the winning candidates for president and vice-president
for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article
IX-A of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A
(Common Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall
be independent, are the Civil Service Commission, the Commission on
Elections, and the Commission on Audit. (Emphasis supplied)
He submits that the creation of the Joint Congressional Oversight Committee
with the power to review, revise, amend and approve the Implementing Rules
and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into
the independence of the COMELEC which, as a constitutional body, is not under
the control of either the executive or legislative departments of government; that
only the COMELEC itself can promulgate rules and regulations which may be
changed or revised only by the majority of its members; and that should the rules
promulgated by the COMELEC violate any law, it is the Court that has the
power to review the same via the petition of any interested party, including the
legislators.
It is only on this question that respondent COMELEC submitted its Comment. It
agrees with the petitioner that Sections 19 and 25 of R.A. No. 9189 are
unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of
unconstitutionality of said Sections upon Section 1, Article IX-A of the
Constitution providing for the independence of the constitutional commissions
such as the COMELEC. It asserts that its power to formulate rules and
regulations has been upheld in Gallardo vs. Tabamo, Jr.42 where this Court held
that the power of the COMELEC to formulate rules and regulations is implicit in
its power to implement regulations under Section 2(1) of Article IX-C43 of the
Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government
instrumentality and that only this Court may review COMELEC rules and only
in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis its rule-making
power, to wit:
 SEC. 17. Voting by Mail. –
17.1. For the May, 2004 elections, the Commission shall authorize
voting by mail in not more than three (3) countries, subject to the
approval of the Congressional Oversight Committee. Voting by mail
may be allowed in countries that satisfy the following conditions:
a) Where the mailing system is fairly well-developed and secure to
prevent occasion for fraud;
b) Where there exists a technically established identification system that
would preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the
embassies, consulates and other foreign service establishments
concerned are adequate and well-secured.
Thereafter, voting by mail in any country shall be allowed only
upon review and approval of the Joint Congressional Oversight
Committee . . . . . . . . . (Emphasis supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the
constitutional challenge must fail and agrees with the petitioner that Sections 19
and 25 are invalid and unconstitutional on the ground that there is nothing in
Article VI of the Constitution on Legislative Department that would as much as
imply that Congress has concurrent power to enforce and administer election
laws with the COMELEC; and by the principles of exclusio unius est exclusio
alterius and expressum facit cessare tacitum, the constitutionally enumerated
powers of Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of
Section 17.1 are unconstitutional. Thus, there is no actual issue forged on this
question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress
through the Joint Congressional Oversight Committee (JCOC) vis-à-vis the
independence of the COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. – A Joint
Congressional Oversight Committee is hereby created, composed of the
Chairman of the Senate Committee on Constitutional Amendments,
Revision of Codes and Laws, and seven (7) other Senators designated
by the Senate President, and the Chairman of the House Committee on
Suffrage and Electoral Reforms, and seven (7) other Members of the
House of Representatives designated by the Speaker of the House of
Representatives: Provided, That, of the seven (7) members to be
designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power
to monitor and evaluate the implementation of this Act. It shall
review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission. (Emphasis supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. – The
Commission shall issue the necessary rules and regulations to
effectively implement the provisions of this Act within sixty (60) days
from the effectivity of this Act. The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval.
. . . . . . . . . (Emphasis supplied)
Composed of Senators and Members of the House of Representatives, the Joint
Congressional Oversight Committee (JCOC) is a purely legislative body. There
is no question that the authority of Congress to "monitor and evaluate the
implementation" of R.A. No. 9189 is geared towards possible amendments or
revision of the law itself and thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189
gives to the JCOC the following functions: (a) to "review, revise, amend and
approve the Implementing Rules and Regulations" (IRR) promulgated by the
COMELEC [Sections 25 and 19]; and (b) subject to the approval of the JCOC
[Section 17.1], the voting by mail in not more than three countries for the May
2004 elections and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is
circumscribed by other constitutional provisions. One such provision is Section 1
of Article IX-A of the 1987 Constitution ordaining that constitutional
commissions such as the COMELEC shall be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there
shall be an independent COMELEC, the Court has held that "[w]hatever may be
the nature of the functions of the Commission on Elections, the fact is that the
framers of the Constitution wanted it to be independent from the other
departments of the Government."44In an earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this court also. It should
be allowed considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for which it was
created – free, orderly and honest elections. We may not agree fully
with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with realistically –
not from the standpoint of pure theory. The Commission on Elections,
because of its fact-finding facilities, its contacts with political strategists,
and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions.45 (Emphasis supplied)
The Court has no general powers of supervision over COMELEC which is an
independent body "except those specifically granted by the Constitution," that is,
to review its decisions, orders and rulings.46 In the same vein, it is not correct to
hold that because of its recognized extensive legislative power to enact election
laws, Congress may intrude into the independence of the COMELEC by
exercising supervisory powers over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the
COMELEC to "issue the necessary rules and regulations to effectively
implement the provisions of this Act within sixty days from the effectivity of this
Act." This provision of law follows the usual procedure in drafting rules and
regulations to implement a law – the legislature grants an administrative agency
the authority to craft the rules and regulations implementing the law it has
enacted, in recognition of the administrative expertise of that agency in its
particular field of operation.47 Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative
function may spring back to Congress relative to the same law only if that body
deems it proper to review, amend and revise the law, but certainly not to
approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR
for The Overseas Absentee Voting Act of 2003, Congress went beyond the scope
of its constitutional authority. Congress trampled upon the constitutional
mandate of independence of the COMELEC. Under such a situation, the Court is
left with no option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for prior
approval," and the second sentence of the second paragraph of Section 25 stating
that "[i]t shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission," whereby Congress, in both
provisions, arrogates unto itself a function not specifically vested by the
Constitution, should be stricken out of the subject statute for constitutional
infirmity. Both provisions brazenly violate the mandate on the independence of
the COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight
Committee" in the first sentence of Section 17.1 which empowers the
Commission to authorize voting by mail in not more than three countries for the
May, 2004 elections; and the phrase, "only upon review and approval of the Joint
Congressional Oversight Committee" found in the second paragraph of the same
section are unconstitutional as they require review and approval of voting by
mail in any country after the 2004 elections. Congress may not confer upon itself
the authority to approve or disapprove the countries wherein voting by mail shall
be allowed, as determined by the COMELEC pursuant to the conditions
provided for in Section 17.1 of R.A. No. 9189.48 Otherwise, Congress would
overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the
separate opinion of Justice Reynato S. Puno as part of the ponencia on the
unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they
relate to the creation of and the powers given to the Joint Congressional
Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following
portions of R.A. No. 9189 are declared VOIDfor
being UNCONSTITUTIONAL:
 a) The phrase in the first sentence of the first paragraph of Section 17.1,
to wit: "subject to the approval of the Joint Congressional Oversight
Committee;"

b) The portion of the last paragraph of Section 17.1, to wit: "only upon
review and approval of the Joint Congressional Oversight Committee;"

c) The second sentence of the first paragraph of Section 19, to wit: "The
Implementing Rules and Regulations shall be submitted to the Joint
Congressional Oversight Committee created by virtue of this Act for
prior approval;" and

d) The second sentence in the second paragraph of Section 25, to wit: "It
shall review, revise, amend and approve the Implementing Rules and
Regulations promulgated by the Commission" of the same law;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.

The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect
only to the authority given to the COMELEC to proclaim the winning candidates
for the Senators and party-list representatives but not as to the power to canvass
the votes and proclaim the winning candidates for President and Vice-President
which is lodged with Congress under Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.

Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law
continues to be in full force and effect.

SO ORDERED.